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Council Actions 07-16-12
ROSEN 39439 - 071612 Joe no.l1'. ROANOKE CITY COUNCIL REGULAR SESSION JULY 16, 2012 2:00 P.M. CITY COUNCIL CHAMBER AGENDA 1. Call to Order - -Roll Call. (Council Members Bestpitch and Price were absent.) The Invocation was delivered by Mayor David A. Bowers. The Pledge of Allegiance to the Flag of the United States of America was led by Mayor Bowers. Welcome. Mayor Bowers. NOTICE: Today's Council meeting will be televised live and replayed on RVTV Channel 3 on Thursday, July 19 at 7:00 p.m., and Saturday, July 21 at 4:00 p.m. Council meetings are offered with closed captioning for the hearing impaired. ANNOUNCEMENTS: THE PUBLIC IS ADVISED THAT MEMBERS OF COUNCIL RECEIVE THE CITY COUNCIL AGENDA AND RELATED COMMUNICATIONS, REPORTS, ORDINANCES AND RESOLUTIONS, ETC., ON THE THURSDAY PRIORTO THE COUNCIL MEETING TO PROVIDE SUFFICIENT TIME FOR REVIEW OF INFORMATION. THE CITY CLERK'S OFFICE PROVIDES THE MAJORITY OF THE CITY COUNCIL AGENDA ON THE INTERNET FOR VIEWING AND RESEARCH PURPOSES. TO ACCESS AGENDA MATERIAL, GO TO THE CITY'S HOMEPAGE AT WWW.ROANOKEVA.GOV, CLICK ON THE GOVERNMENT ICON. NOTICE OF INTENT TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT. SPECIAL ASSISTANCE IS AVAILABLE FOR DISABLED PERSONS ADDRESSING CITY COUNCIL. EFFORTS WILL BE MADE TO PROVIDE ADAPTATIONS OR ACCOMMODATIONS BASED ON INDIVIDUAL NEEDS OF QUALIFIED INDIVIDUALS WITH DISABILITIES, PROVIDED THAT REASONABLE ADVANCE NOTIFICATION HAS BEEN RECEIVED BY THE CITY CLERK'S OFFICE. PERSONS WISHING TO ADDRESS COUNCIL WILL BE REQUIRED TO CONTACT THE CITY CLERK'S OFFICE PRIOR TO THE MONDAY COUNCIL MEETING, OR REGISTER WITH THE STAFF ASSISTANT AT THE ENTRANCE TO THE COUNCIL CHAMBER PRIOR TO COMMENCEMENT OF THE COUNCIL MEETING. ONCE THE COUNCIL MEETING HAS CONVENED, THERE WILL BE NO FURTHER REGISTRATION OF SPEAKERS, EXCEPT FOR PUBLIC HEARING MATTERS. ON THE SAME AGENDA ITEM, ONE TO FOUR SPEAKERS WILL BE ALLOTTED FIVE MINUTES EACH; HOWEVER, IF THERE ARE MORE THAN FOUR SPEAKERS, EACH SPEAKER WILL BE ALLOTTED THREE MINUTES. ANY PERSON WHO IS INTERESTED IN SERVING ON A CITY COUNCIL APPOINTED AUTHORITY, BOARD, COMMISSION OR COMMITTEE MAY CONTACT THE CITY CLERK'S OFFICE AT 853-2541. OR ACCESS THE CITY'S HOMEPAGE TO OBTAIN AN APPLICATION. THE COUNCIL OF THE CITY OF ROANOKE IS SEEKING APPLICATIONS FOR THE FOLLOWING CURRENT OR UPCOMING VACANCIES: MILL MOUNTAIN ADVISORY BOARD - THREE VACANCIES PERSONNEL AND EMPLOYMENT PRACTICES COMMISSION - ONE VACANCY ROANOKE NEIGHBORHOOD ADVOCATES - TWO VACANCY ROANOKE VALLEY - ALLEGHANY REGIONAL COMMISSION - ONE VACANCY (CITIZEN AT LARGE REPRESENTATIVE) 2. PRESENTATIONS AND ACKNOWLEDGEMENTS: NONE. 3. HEARING OF CITIZENS UPON PUBLIC MATTERS: CITY COUNCIL SETS THIS TIME AS A PRIORITY FOR CITIZENS TO BE HEARD. ALL MATTERS WILL BE REFERRED TO THE CITY MANAGER FOR RESPONSE, RECOMMENDATION OR REPORT TO COUNCIL, AS HE MAY DEEM APPROPRIATE. The following individuals appeared before the Members of Council to speak upon public matters: Dr. M. Rupert Cutlerthanked the Members of Council for passing a resolution on November 21, 2011, in opposition to uranium mining and milling. He also announced a forum concerning uranium mining to be held on Friday, July 27 from 8:30 a.m. to 3:30 p.m., in the Whitman Theater at Virginia Western Community College. He said that more information was available at www.cabelibrandcenter.org. (See a copy of Dr. Cutler's comments on file in the City Clerk's Office.) David Curry praised the Members of Council for the development of the greenways in Roanoke and he suggested that a program be developed to allow private individuals to help finance the greenways by dedicating benches, pavers, etc., for a fee. (See a copy of Mr. Curry's comments on file in the City Clerk's Office.) 4. CONSENT AGENDA (APPROVED 5 -0) ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE MEMBERS OF CITY COUNCIL AND WILL BE ENACTED BY ONE MOTION. THERE WILL BE NO SEPARATE DISCUSSION OF THE ITEMS. IF DISCUSSION IS DESIRED, THE ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND CONSIDERED SEPARATELY. C -1 A communication from the City Manager requesting that Council schedule a public hearing for Monday, August 20, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, to consider conveyance of City -owned property at 802 Wiley Drive, S. W., former site of the Virginia Transportation Museum, to 5311 Holdings, LLC. RECOMMENDED ACTION: Concurred in the request. C -2 Reports of qualification of the following individuals: Ann H. Shawver as the City representative of the Roanoke Valley Juvenile Detention Center Commission for a four -year term of office ending June 30, 2016; Asia Smith as a member of the Roanoke Neighborhood Advocatesfor a three -year term of office ending June 30, 2015; and Amy Moorefield and Jeanne Fishwick as members of the Roanoke Arts Commission for a three -year terms of office, each, ending June 30, 2015. RECOMMENDED ACTION: Received and filed. REGULAR AGENDA 5. PUBLIC HEARINGS: NONE. 6. PETITIONS AND COMMUNICATIONS: a. A communication from the Commonwealth's Attorney recommending acceptance of funding for a Drug Prosecutor from the State Compensation Board; and a communication from the City Manager concurring in the recommendation. Adopted Resolution No. 39439 - 071612 and Budget Ordinance No. 39440- 071612.(5 -0) b. Request of the Roanoke Electoral Board to temporarily relocate the polling site of Raleigh Court Elementary School No. 4, Precinct No. 28, to the Lakeland Masonic Lodge 190, 2742 Grandin Road, S. W. Laverne G. Shepherd, City Registrar. Adopted Ordinance No. 39441 - 071612. (5 -0) 7. REPORTS OF CITY OFFICERS AND COMMENTS OF CITY MANAGER: a. CITY MANAGER: BRIEFINGS: NONE. ITEMS RECOMMENDED FOR ACTION: 1. Acceptance and appropriation of funds for the 2013 Internet Crimes Against Children Grant from the U. S. Department of Justice to the Roanoke Police Department in support of law enforcement efforts to protect children from internet crimes. Adopted Resolution No. 39442- 071612 and Budget Ordinance No. 39443 - 071612.(5 -0) 2. Acceptance and execution of a Memorandum of Understanding Agreement for an Urban and Community Forestry Grant to the Parks and Recreation Department to staff a part-time Urban Forestry Planner; and appropriation of funds. Adopted Resolution No. 39444- 071612 and Budget Ordinance No. 39445- 071612.(5 -0) 3. Transfer of funds in connection with the replacement of crosswalks at Wells Avenue between Williamson Road and North Jefferson Street. Adopted Budget Ordinance No. 39446 - 071612. (5 -0) 4. Execution of a Performance Agreement between the Cityof Roanoke, Economic Development Authority of the City of Roanoke, and Roanoke River Associates, LLC, for development of certain properties in the South Jefferson Redevelopment Area (the Roanoke Riverfront District). Adopted Ordinance No. 39447-071612. (5-0) 5. Execution of a temporary Intergovernmental Agreement for law Enforcement Services with Charlotte - Mecklenburg in preparation for, during and after the 2012 Democratic National Convention. Adopted Ordinance No. 39448-071612. (5-0) 6. Authorization to waive the City's sovereign immunity; and ratification and execution of a rental agreement with Power Line Rent -E -Quip, Inc. (PLREI) for use of a knuckleboom truck in connection with the ongoing cleanup of vegetative debris by the Solid Waste Management Division. Adopted Resolution No. 39449-071612.(5-0) 7. Joint communication from the City Manager and Director of Finance recommending an amendment of the City Code with regard to retirement benefits for Roanoke City employees, effective July 1, 2014. Adopted Ordinance No. 39450-071612. (5-0) COMMENTS BY CITY MANAGER. The City Manager offered the following comments: Storm Cleanup • The City of Roanoke's Solid Waste Management Division will continue to collect storm debris Monday through Saturday, July 16 to July 21. • So far, a total of 947 individual loads — 1,357 tons — of debris have been collected. • Crews are currently working in the northwest part of the city. This is "bulk collection" week, so crews will be collecting bagged and boxed bulk items as well. No large bulk items are being collected. • We ask citizens to keep the roads clear of parked vehicles where brush piles are stacked. This allows crews to access and remove the debris. • The city thanks its customers for their patience as crews continue to manage the record - breaking quantities of storm debris. Fallon Park Pool • Fallon Park Pool officially opened for the season on Friday at noon. • It will be open on Fridays and Saturdays from noon to 7 p.m. and on Sundays from noon to 6 p.m. • Washington Park Pool is open on Mondays, Tuesdays, and Thursdays from noon to 6 p.m. Pool season will end on Sunday, Aug. 12. Synthetic Drug Seminars • On July 19, the Synthetic Drug Awareness Coalition will host two Roanoke Valley Synthetic Drug Seminars. Citizens are encouraged to attend either of these events: 9 • Roanoke Police Academy, 5401 -B Barnes Ave NW, from 6:30 to 8:30 pm • South County Library, 6303 Merriman Rd, from 7to 9 pm. For the past several months, local public safety agencies have been concerned with public safety and health issues involving synthetic drugs. Likewise, Carilion health and medical professionals have been concerned about the rise in health issues related to the use of synthetic drugs. 8. REPORTS OF COMMITTEES: NONE. 9. UNFINISHED BUSINESS: NONE. 10. INTRODUCTION AND CONSIDERATION OF ORDINANCES AND RESOLUTIONS: NONE. 11. MOTIONS AND MISCELLANEOUS BUSINESS: a. Inquiries and /or comments by the Mayor and Members of City Council. b. Vacancies on certain authorities, boards, commissions and committees appointed by Council. AT 4:16 P.M. THE COUNCIL MEETING WAS RECESSED TO BE RECONVENED AT 7:00 P.M., IN THE COUNCIL CHAMBER, ROOM 450, NOEL C. TAYLOR MUNICIPAL BUILDING. 7 �i� R01k U , n ROANOKE CITY COUNCIL REGULAR SESSION JULY 16, 2012 7:00 P.M. CITY COUNCIL CHAMBER AGENDA Call to Order - -Roll Call. Council Members Bestpitch and Price were absent. The Invocation was delivered by Mayor David A. Bowers. The Pledge of Allegiance to the Flag of the United States of America was led by Mayor Bowers. Welcome. Mayor Bowers. NOTICE: Tonight's Council meeting will be televised live and replayed on RVTV Channel 3 on Thursday, July 19 at 7:00 p.m., and Saturday, July 21 at 4:00 p.m. Council meetings are offered with closed captioning for the hearing impaired. A. PRESENTATIONS AND ACKNOWLEDGEMENTS: A Resolution memorializing the late Robert Slaughter. Adopted Resolution No. 39451-071612. (5-0) B. PUBLIC HEARINGS: Request of Duoc Nguyen and Pho Thi Lam, to amend certain conditions proffered as part of a rezoning at 4129 and 4135 Salem Turnpike, N. W. Cristina O. Servellon, Spokesperson. Adopted Ordinance No. 39452-071612. (5-0) 2. Request of The Rescue Mission of Roanoke, Incorporated, to permanently vacate, discontinue and close an alley off of 4" Street, S. E., consisting of approximately 7,716 square feet. Maryellen F. Goodlatte, Esquire, Spokesperson. Adopted Ordinance No. 39453-071612. (5-0) 3. Proposal of the City of Roanoke to convey approximately 47.892 acres of City -owned property designated as Botetourt County Official Tax Map No. 108(9)2 and a portion of Official Tax Map No. 108 (9)1 to Ned B. Jeter, II, and Darrell B. Jeter for agricultural purposes. Christopher P. Morrill, City Manager. Adopted Ordinance No. 39454-071612. (5-0) C. HEARING OF CITIZENS UPON PUBLIC MATTERS: CITY COUNCIL SETS THIS TIME AS A PRIORITY FOR CITIZENS TO BE HEARD. ALL MATTERS WILL BE REFERRED TO THE CITY MANAGER FOR RESPONSE, RECOMMENDATION OR REPORT TO COUNCIL, AS HE MAY DEEM APPROPRIATE. • Robert Gravely appeared before the Members of Council and spoke about his termination from the City of Roanoke and the amount of time that had lapsed. • Colin C. Murchison asked that the Members of Council instruct the City Manager to prepare a detailed, audited expense report for the campaign event held in downtown Roanoke on July 13, 2012. (See copy of Mr. Murchison's comments on file in the City Clerk's Office.) D. Adjournment- 7:27 p.m. iu CITY OF ROANOKE CITY COUNCIL 215 Church Avenue, S. W. Noel C, Taylor Municipal Building, Suite 456 p, Roanoke, Virginia 24011 -1536 Telephone (540) 953 -2541 Pax: (540) 853 -1145 DAVID A. ROWERS Stay.. July 16, 2012 The Honorable Mayor and Members of the Roanoke City Council Roanoke, Virginia Council Members William D, Bestpitch Raphael E,'Ray" Perris Sherman R Lea Anita J. Pnee Coun G. Rosea David B- Trinkle Dear Mayor Bowers and Members of Council: This is to advise you that I will not be present at the 2:00 p.m. and 7:00 p.m. sessions of Council on Monday, July 16, 2012. Best wishes for a successful meeting. Sincerely, , Anita J. Price Council Member AJP /ctw u1 CITY OF ROANOKE CITY COUNCIL .�T z; 215 Church Avenue, S W. Noel C. Taylor Municipal Budding, Suite 456 V,1J} Roanoke, Virginia 24011 -1536 Telephone. (540) 853 -2541 Fax. (540)853 -1145 DAN I D A. BOW ERS Alayar July 16, 2012 The Honorable Mayor and Members of the Roanoke City Council Roanoke, Virginia Council Members William D. Bestpitch Raphael E. "Ray" Ferris Sherman Is lea Anita J. Price Court G. Rosen David B. "[tinkle Dear Mayor Bowers and Members of Council: This is to advise you that I will not be present at the 2:00 p.m. and 7:00 p.m. sessions of Council on Monday, July 16, 2012. Best wishes for a successful meeting. Sincerely, William D. BestpitoK Council Member WDB /ctw ROANOKE CITY COUNCIL REGULAR SESSION July 16, 2012 2:00 P.M. 3. HEARING OF CITIZENS UPON PUBLIC MATTERS Statement of Dr. M. Rupert Cutler Announcing a Public Forum on Uranium Mining At Virginia Western Community College on July 27 Mayor Bowers, Members of Council, Mr. Morrill: I am Rupert Cutler of 204 S. Jefferson Street in Roanoke. I have asked for three minutes of your time: • to thank you again for passing the resolution on November 21, 2011 that placed this Council on record in opposition to lifting the moratorium on uranium mining in Virginia in the 2012 Session of the General Assembly, • to announce an opportunity for everyone interested in the subject of uranium mining in Virginia to learn from scientists and other subject matter experts how uranium mining and milling within 50 miles of Roanoke could affect our economy, environment and public health, and • to urge Council members and the City's executive staff to attend that educational event so as to be able to take an informed position on the issue of the proposed mining and processing of a radioactive metal 50 miles from Roanoke. It is certain to be among the most important matters to be taken up by the Virginia General Assembly next year and is an issue I believe should be on your 2013 legislative agenda. The General Assembly did not lift the uranium mining moratorium in its 2012 session. Governor McDonnell asked the legislature to keep the ban in place in 2012 while a study group he appointed drafts language to amend existing state laws and regulations to allow and regulate uranium mining here. This is being done in the context of a National Academy of Sciences report that states that Virginia faces "steep hurdles' in protecting people and the environment if the state pursues such mining. The Cabell Brand Center for Global Poverty and Resource Sustainability Studies of Salem is presenting a public forum on uranium mining in Virginia from 8:30 a.m. until 3:30 p.m. in the Whitman Theater of Virginia Western Community College on Friday, July 27. The registration fee of $25 includes lunch. To register, go to the Cabell Brand Center website, www.cabellbrandcenter.orq. The outstanding lineup of speakers includes Councilman Sherman Lea, State Senator John Edwards, Dean Cynda Johnson of the Virginia Tech Carilion School of Medicine, Biology Professor Renee Godard on Hollins University, Geology Professor Bob Bodner of Virginia Tech, attorney Broaddus Fitzpatrick, and re- insurance specialist Freeda Cathcart. It also includes former Director of the Virginia Department of Environmental Quality Bob Burnley, National Academy of Sciences Virginia Uranium Study Committee member and VCU Ecology Professor Peter DeFur, and Southern Environmental Law Center Senior Attorney Cale Jaffe. I will be the moderator. RVTV will record the entire forum and replay it on Cox Channel 3. Elected officials will have access to DVD copies of the forum. Unlike other public meetings on this issue, the speakers are not government regulatory agency representatives or their consultants, whose message is "Trust us, we'll do a better job of avoiding radioactive pollution of the environment this time," but scientists, doctors and lawyers with subject matter expertise. The meeting is not intended to be a pro or con rally, but an opportunity for all of us to learn "just the facts." I hope several of you will attend. Thank you. J caJ. GREENWAYS Mr mayor, mr vice mayor, members of city council, my name is david courey, I live at 3419 ashmeade dr, s.w. I imagine so many people come to this podium to complain about something, that at times you probably think to yourself "give me a break ". Well, today I am going to give you a break, and a suggestion. I am here to praise the developing greenways around this beautiful valley of ours. It is a great achievement, and a credit to all who have worked diligently to provide such an asset for our future ]n my travels, I have noticed other localities with such greenways. I have observed one major difference. Many of them allow citizens that do appreciate the beauty and the quality of life enhancer such as a greenway, to express their appreciation, by contributing benches, or places to stop and rest. For a fee, they arc allowed to have their name on the benches, which helps financially in the support of the greenway. Also, at places, paver bricks could be placed with the contributors name engraved, again a source of financial support for the greenway. Possibly a plaque could be mounted at a suitable place with names of contributors. So many of the people that use these greenways would love to have the opportunity to show their support. If there is now such a program which targets the average user of the greenway, I don't know about it, and that in itself identify's a problem. If there is a program, then it needs to be publicized more, and if there is not such a program, then my suggestion would be to implement that. I would personally volunteer my time to help in such a project should my services be needed. Thank you for allowing me to express my opinion on this subject and I would he eager to answer any questions CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Request a Public Hearing for Sale of City -Owned Property Located at 802 Wiley Drive Background: The principle owners of East Coasters Bicycle Shop (doing business as 5311 Holdings, LLC) are seeking to purchase an approximately 1.08 -acre portion of the parcel and associated improvements located at 802 Wiley Drive, SW (Tax Map No. 1 121401 ) from the City of Roanoke (City) for $2,000. The 3,975 square foot building on the site formerly housed the Virginia Museum of Transportation, and has been vacant since 1985. Purchasers intend to relocate their existing business from Roanoke County to this location, which will also include construction of a full - service restaurant. The proposed development plan includes 31 parking spaces, a bicycle parking area and the addition of a deck for outdoor dining. Purchasers have agreed to several contract provisions in exchange for the nominal purchase price. These provisions include: successful rezoning of the property and development plan approval prior to conveyance of the property; the construction of a stormwater management feature to accommodate future development; a minimum investment of $300,000; and a reversion clause that would return the property to the City should they fail to meet certain prescribed milestones. Recommended Action: Authorize the scheduling and advertising of the proposed sale of this property to 531 1 Holdings, LLC for a public hearing on August 20, 2012, at 7:00 pm. Christopher . Morrill City Manager Distribution: Council Appointed Officers R. Brian Townsend, Assistant City Manager for Community Development Susan Lower, Director of Real Estate Valuation Robert Ledger, Economic Development Manager Marc Nelson, Special Projects Coordinator July 17, 2012 Jane Conlin, Secretary Roanoke Valley Juvenile Detention Center Commission Roanoke, Virginia Dear Ms. Conlin: This is to advise you that Ann H. Shawver has qualified as a representative of the Roanoke Valley Juvenile Detention Center Commission for a four -year term of office ending June 30, 2016. Sincerely, �y Stephanie M. Moon, MMC City Clerk CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 g Roanoke, Virginia 24011 -1536 Telephone: (540)8533541 Eat: (540)853 -1145 STEPHANIE M. MOON, MMC E -mail clerk&oanokeva.gov JONATHAN E. CRAFT City Clerk Deputy City Clerk CECELIAT. WEBB Assistant Deputy City Clerk July 17, 2012 Jane Conlin, Secretary Roanoke Valley Juvenile Detention Center Commission Roanoke, Virginia Dear Ms. Conlin: This is to advise you that Ann H. Shawver has qualified as a representative of the Roanoke Valley Juvenile Detention Center Commission for a four -year term of office ending June 30, 2016. Sincerely, �y Stephanie M. Moon, MMC City Clerk Oath or Affirmation of Office Commonwealth of Virginia, City of Roanoke, to -wit: I, Ann H. Shawver, do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a City representative of the Roanoke Valley Juvenile Detention Center Commission for a four year term of office ending June 30, 2016, according to the best of my ability. So help me God. The foregoing oath of office was taken, sworn to, and subscribed before me by Ann H. Shawver this90day o 2012. Brenda S. Hamilton, Clerk of the Circuit Court By(J��, Clerk July 17, 2012 Robert A. Clement, Jr. Neighborhood Services Coordinator Roanoke, Virginia Dear Mr. Clement: This is to advise you that Asia Smith has qualified as a member of the Roanoke Neighborhood Advocates for a three -year term of office ending June 30, 2015. Sincerely, A_Lv � _i"_?. r� 0U Stephanie M. Moon, MMC City Clerk CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 'A Roanoke, Virginia 24011 -1536 Telephone: (540)853 -2541 Fax: (540)853 -1145 STEPHANIE M. MOON, MMC E -mail: clerk@roanokeva.gov JONATHAN E. CRAFT City Clark Deputy City Clerk CECELU T. WEBB Assistant Deputy City Clerk July 17, 2012 Robert A. Clement, Jr. Neighborhood Services Coordinator Roanoke, Virginia Dear Mr. Clement: This is to advise you that Asia Smith has qualified as a member of the Roanoke Neighborhood Advocates for a three -year term of office ending June 30, 2015. Sincerely, A_Lv � _i"_?. r� 0U Stephanie M. Moon, MMC City Clerk Oath or Affirmation of Office Commonwealth of Virginia, City of Roanoke, to -wit: I, Asia Smith, do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a member of the Roanoke Neighborhood Advocates for a three -year term of office commencing July 1, 2012 and ending June 30, 2015, according to the best of my ability. So help me God. ASIA S The foregging oath of office was taken, sworn to, and subscribed before me by Asia Smith thiC221dayof �LnX 2012. Brenda S. Hamilton, Clerk of the Circuit Court Clerk a CITY OF ROANOKE n ' OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 853 -2541 Par: (540) 853 -1145 STEPHANIE M. MOON, MMC &nuwl: derk@rovnokeva.gOV JONATHAN E. CBAPr Car Clerk Deputy City Clerk CECELIA T. W DB AesiOW Deputy City Clerk July 17, 2012 Melissa Murray, Secretary Roanoke Arts Commission Roanoke, Virginia Dear Ms. Murray: This is to advise you that Amy Moorefield and Jeanne Fishwick have qualified as members of the Roanoke Arts Commission for three -year terms of office, each, ending June 30, 2015. Sincerely, % g J L"'`'c' � . "�` Stephanie M. Moon, MMC City Clerk SMM:jec Oath or Affirmation of Office Commonwealth of Virginia, City of Roanoke, to -wit: I, Amy Moorefield, do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a member of the Roanoke Arts Commission for a three -year term of office ending June 30, 2015, according to the best of my ability. So help me God. AMrOOREFIEL The foregoing oath ooff�oY /ffice was taken, sworn to, and subscribed before me by Amy Moorefield thid day of JL)Y) e-- 2012. Brenda S. Hamilton, Clerk of the Circuit Court B 9 Cark Oath or Affirmation of Office Commonwealth of Virginia, City of Roanoke, to -wit: I, Jeanne Fishwick, do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a member of the Roanoke Arts Commission for a three -year term of office ending June 30, 2015, according to the best of my ability. So help me God. The foregoing oath of office was taken, sworn to, and subscribed before me by Jeanne Fishwick this I V' "`day of 2012. Brenda S. Hamilton, Clerk of the Circuit Court Clerk W IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39439 - 071612. A RESOLUTION authorizing the acceptance of funding for the regional drug prosecutor's office from the Compensation Board of the Commonwealth of Virginia and authorizing the acceptance, execution, and filing of appropriate documents to obtain such funds. BE IT RESOLVED by the Council of the City of Roanoke as follows: 1. The City of Roanoke hereby accepts funding for regional drug prosecutor's office in the total amount of $96,975.00 from the Compensation Board of the Commonwealth of Virginia through June 30, 2013. 2. The City Manager is hereby authorized to accept, execute, and file on behalf of the City of Roanoke any and all documents required to obtain such funding. All such documents to be approved as to form by the City Attorney. 3. The local share for Fiscal Year 2012 -2013 shall be in the amount of $30,535.00. 4. The City Manager is further directed to famish such additional information as may be required in connection with the acceptance of the foregoing funding or with such project. ATTEST: A. _. i / i 1. d"i City Clerk IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39440 - 071612. AN ORDINANCE to appropriate funding from the Commonwealth of Virginia for the Regional Drug Prosecutor Grant, amending and reordaining certain sections of the 2012 -2013 Grant Fund Appropriations, and dispensing with the second reading by title of this ordinance. BE IT ORDAINED by the Council of the City of Roanoke that the following sections of the 2012 -2013 Grant Fund Appropriations be, and the same are hereby, amended and reordained to read and provide as follows: Appropriations Regular Employee Salaries City Retirement FICA Medical Insurance Dental Insurance Life Insurance Disability Insurance Administrative Supplies Other Rental Revenues Regional Drug Prosecutor FY13 -Comp Board Regional Drug Prosecutor FY13 -1-ocal Match 35- 150 - 4506 -1002 $ 87,368 35- 150 - 4506 -1105 13,629 35- 150 - 4506 -1120 6,684 35- 150- 4506 -1125 10,584 35 -150- 4506 -1126 661 35- 150- 4506 -1130 1,009 35- 150- 4506 -1131 286 35- 150 - 4506 -2030 1,459 35- 150 - 4506 -3075 9,000 35- 150 - 4506 -4506 96,975 35 -150- 4506 -4507 33,705 Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: yy' Kip') 16 I� CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Acceptance of Funding for Drug Prosecutor Background: Federal funding was made available to the Commonwealth of Virginia to be used for the development of several Multi- Jurisdictional Special Drug Prosecutors statewide. The positions were developed to coordinate prosecutorial efforts among independent jurisdictions, reduce fractional and duplicate prosecutions, enhance the recovery of criminal assets, and utilize federal, state and local resources to assure maximum prosecutorial effectiveness and to provide specialized prosecutorial resources to the regional drug enforcement effort. The Commonwealth's Attorneys of Craig County, Franklin County, Roanoke County, and the Cities of Roanoke and Salem applied on October 9, 1987, to the Commonwealth's Attorneys' Services Council, the State agency responsible for the administration of the grant money to fund a Multi- Jurisdictional Special Drug Prosecutor. City Council accepted the Multi - jurisdictional Special Drug Prosecutor Grant in April, 1988, and a full -time Special Drug Prosecutor was hired in July, 1988. Annual re- application for this funding is required. Considerations: On April 15, 1994, funding for the Drug Prosecutor's Office was transferred from the Commonwealth's Attorneys' Services Council to the Compensation Board. The Compensation Board approved funding for the Drug Prosecutor in the amount of $96,975 on May 1, 2012, and funding will continue through June 30, 2013. The local match is $33,705 for a total of $130,680, which reflects the 3% salary increase. Funding for the local share is available in General Fund - Transfer to Grant Fund (account number 01 -250- 9310- 9535). Recommended Action: Accept funding from the Compensation Board in the amount of $96,975 with the City providing local match funding in the amount of $33,705. Authorize the City Manager to execute the requisite documents to obtain the funding from the Compensation Board. All such documents shall be reviewed and approved as to form by the City Attorney. Adopt the accompanying budget ordinance to establish revenue estimates for $96,975 in state grant funds and $33,705 in local match, to transfer local match from the General Fund Transfer to Grant Fund account (01- 250 -9310- 9535), and to appropriate funding totaling $130,680 per attachment 1 in accounts to be established by the Director of Finance. Donald S. Caldwell Commonwealth's Attorney Distribution: Council Appointed Officers N Attachment 1 Program Accounts 1002 Regular Employee Salaries $87,368 1105 City - Retirement $13,629 1120 FICA $ 6,689 1125 Medical Insurance $10,589 1126 Dental Insurance $ 661 1130 Life Insurance $ 11009 1131 Long Term Disability Ins. $ 286 3075 Other Rental $ 9,000 2020 Telephones $ 750 2030 Administrative Supplies $ 709 TOTAL $130,680 �1 CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Acceptance of Funding for Drug Prosecutor I concur with the recommendation from Donald S. Caldwell, Commonwealth's Attorney for the City of Roanoke, with respect to the subject referenced above. I recommend that City Council accept funding from the Compensation Board in the amount of $96,975 with the City of Roanoke providing local match funding in the amount of $33,705 - totaling $130,680. Christopher P. Morrill City Manager Distribution: Council Appointed Officers STEPHANIE M. MOON, MMC City Clerk CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 8538541 Fox: (540) 853 -1145 E -mail elerk&.... va.gav July 17, 2012 JONATHAN E. CRAFT Deputy City Clerk CECELIA T. WEBB Assistant Deputy City Clerk Chris Herren, Chief, Voting Section Lavern Shepherd Civil Rights Division General Registrar Room 7254 -NWB City of Roanoke U.S. Department of Justice Roanoke, Virginia 950 Pennsylvania Avenue, N. W. Washington, DC 20530 -0001 Dear Chief Herren and Ms. Shepherd I am enclosing a certified copy of Ordinance No. 39441 - 071612 amending and reordaining Sec. 10 -64, Same — Voting place. Code of the City of Roanoke (1979), as amended, to provide for the temporary relocation of the polling location for the Raleigh Court Precinct No. 4. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012, and is in full force and effect upon its passage. Sincerely, Stephanie M. Moon, MMC City Clerk Enclosure PC: Municipal Code Corporation, P. O. Box 2235, Tallahassee, Florida 32316 Christopher P. Morrill, City Manager R. Brian Townsend, Assistant City Manager for Community Development Sherman M. Stovall, Assistant City Manager for Operations Timothy R. Spencer, Acting City Attorney Ann H. Shawver, Director of Finance The Honorable Donald S. Caldwell, Commonwealth Attorney The Honorable Brenda S. Hamilton, Clerk, Circuit Court Chief Herren and Ms. Shepherd July 17, 2012 Page 2 PC: Rick S. Kahl, Clerk, General District Court David C. Wells, Clerk, Juvenile and Domestic Relations District Court Carl T. Tinsley, Sr., Chairman, Electoral Board, 2647 Springhill Drive, N. W., Roanoke, Virginia 24017 F. Gordon Hancock, Vice Chairman, Electoral Board, 3729 Forest Road, S. W., Roanoke, Virginia 24015 Melvin E. Williams, Secretary, Electoral Board, 320 Elm Ave SW, Roanoke, VA 24016 Chief Magistrate, Office of the Magistrate Joey Klein, Law Librarian G IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39441 - 071612. AN ORDINANCE amending and reordaining Sec. 10 -64, Same - -Voting place, Code of the City of Roanoke (1979), as amended, to provide for the temporary relocation of the polling location for the Raleigh Court Precinct No. 4; and dispensing with the second reading by title of this ordinance. WHEREAS, the Raleigh Court Elementary School, 2202 Grandin Road, S.W., is the regular polling place for the Raleigh Court Precinct No. 4; WHEREAS, the polling place no longer meets the required standards set by the Americans With Disabilities Act and can no longer be used as a polling site; WHEREAS, by Resolution dated March 29, 2012, the Roanoke City Electoral Board has recommended the temporary relocation of the polling place for the Raleigh Court Precinct No. 4, to the Lakeland Masonic Lodge #190, 2742 Grandin Road, S.W. , Roanoke, Virginia, such polling place being located within such precinct as required by §24.2 -310, Code of Virginia (1950), as amended; and WHEREAS, the Electoral Board will give notice of this change in polling place by mail to all registered voters in the Raleigh Court Precinct No. 4, at least fifteen (15) days prior to all elections, and public notice of such change, pursuant to §24.2 -306, Code of Virginia (1950), as amended. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke as follows: 1. The following section of the Code of the City of Roanoke (1979), as amended, is hereby amended and reordained to read and provide as follows: §10 -64. Same- Voting lace. Pt NA n shall be est h C �r Road, car The voting place in Raleigh Court Precinct No. 4 shall be the Lakeland Masonic Lodge 4 190, 2742 Grandin Road, S.W. , Roanoke. Virginia . The City Clerk is directed to forward attested copies of this ordinance to Lavern Shepherd, General Registrar, so that notice of this change in polling place can be mailed to all registered voters of Raleigh Court Precinct No. 4, and to the Chief, Voting Section, Civil Rights Division, United States Department of Justice for preclearance. Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with ATTEST: City Clerk. ROANOKE GENERAL REGISTRAR Lavern G. Shepherd, Registrar 215 Church Avenue, SW, Room Tog Roanoke, Virginia 24.11 540.853.2281 fax: 540.853.1025 MEMORANDUM To: Ms, Stephanie Moon, City Clerk, City of Roanoke Mr. Timothy Spencer, Acting City Attorney, City of Roanoke Mr. Christopher Morrill, City Manager, City of Roanoke From: Mrs. Lavern Shepherd, General Registrar, City of Roanoke (via) Mr. Melvin E. Williams, Secretary, City of Roanoke Electoral Board Date: July 10. 2012 Subject: Relocation of polling site for the following: Precinct #028 — Raleigh Court #4 on Thursday. March 29, 2012, the Roanoke City Electoral Board met and unanimously agreed to seek approval to move the above fore mentioned precinct for temporary usage as the General Election will be held on Tuesday. November 6, 2012. (See resolution attached) Section 24.2 -306, requires a minimum of 60 days for pre - clearance by the Department of Justice. The Roanoke City Electoral Board is requesting consideration for expedited approval. Section 24.2 -306, also states that notice of any adopted change in any election district, town, precinct, or polling place shall be mailed to all registered voters whose election district, town, precinct or polling site is changed at least 15 days prior. As the result of Governor Robert F. McDonnell's Executive Order No. 45 (2012), the State Board of Elections is directed to send out voter cards by October 1, 2012, however, I have inquired and been informed that voter cards may be mailed as early as September and therefore, expedited approval is requested to allow the City of Roanoke collectively with the Virginia State Board of Elections meet Executive Order No. 45. The required sixty day response from Department of Justice could potentially result in the printing and mailing of multiple voter card information to include the requested polling site relocation for our voters affected by this change. Consequently this can cause great anguish and confusion for our voters. Page 2 continued Therefore, the City of Roanoke Electoral Board and the General Registrar would greatly appreciate expedited approval to meet this change in order to arrive in time for the November 6, 2012 General Election and to meet Section 24.2 -306 polling site change mailings 15 days prior. The Roanoke City Electoral Board Member, Secretary, Melvin E. Williams has requested this matter be brought before City Council at the July 16, 2012 public meeting. The appropriate notifications have been forwarded to Acting City Attorney, Mr. Timothy Spencer for submission to Department of Justice requesting approval. Thank you for your cooperation and consideration to this matter and should you have any questions, please do not hesitate to contact me at (540) 853 -1037. Is /mew cc: Mr. Robert Townsend, Assistant City Manager for Community Development Mr. Sherman Stovall, Assistant City Manager, Operations Mr. Carl T. Tinsley, Sr., Chairman, Electoral Board, City of Roanoke Mr. F. Gordon Hancock, Vice Chairman, Electoral Board, City of Roanoke RESOLUTION CITY OF ROANOKE ELECTORAL BOARD The City of Roanoke Electoral Board met and voted unanimously on Thursday, March 29, 2012, to seek Department of Justice expedited approval to relocate the following precinct listed below as a General Election will be held on Tuesday, November 6, 2012. The City of Roanoke Electoral Board has decided to seek relocation where as Raleigh Court 94, Precinct 028, known as Raleigh Court Elementary School, is no longer adequate in size to accommodate high voter turnout for the purposes of voting and should no longer be considered usable as a polling facility. Therefore, the City of Roanoke Electoral Board is requesting expedited approval to move: Change: From: Raleigh Court Elementary School 2202 Grandin Road, SW Roanoke, Virginia 24015 Temporary To: Lakeland Masonic Lodge g 190 2742 Grandin Road, SW Roanoke, Virginia 24015 The City of Roanoke Electoral Board has decided it is in the best interest of the voters to move the polling site of the fore mentioned precinct to an approved facility listed that is able to meet the needs of the voters and better suited to meet the guidelines of the Americans with Disabilities Act. The noted polling site is within the precinct lines and boundaries. Permission has been granted by Mr. Marc Davis, Community Action Specialist with Blue Ridge Independent Living who has completed the ADA survey to authorize it's compliance with current ADA standards. The Acting City Attorney, Mr. Timothy Spencer will be asked to prepare submission for expedited Justice Department Approval. `� v t Melvin E. Williams, ecretary City of Roanoke Electoral Board March 29. 2012 C5 IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39442 - 071612. A RESOLUTION authorizing acceptance of the Internet Crimes Against Children (ICAC) Grant from the Virginia Department of Criminal Justice Services, and authorizing execution of any required documentation on behalf of the City. BE IT RESOLVED by the Council of the City of Roanoke as follows: The City Manager is hereby authorized on behalf of the City to accept from the Virginia Department of Criminal Justice Services, the Internet Crimes Against Children (ICAO) Grant in the amount of $8,203, with no local match from the City required, to be used to enhance investigation and prosecution of internet crimes against children by the Roanoke City Police Department, as more particularly described in the City Council Agenda Report dated July 16, 2012. 2. The City Manager is hereby authorized to execute and file, on behalf of the City, any documents necessary to accept the grant, in a form approved by the City Attorney. 3. The City Manager is further directed to furnish such additional information as may be required in connection with the City's acceptance of this grant. R- Imanel Cvmes Against Chd&,e Grent7- 16- 2012.do, ATTEST: i ,4n- W'' City Clerk IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39443 - 071612. AN ORDINANCE to appropriate funding from the U.S. Department of Justice through the Commonwealth of Virginia Department of Criminal Justice Services for the Internet Crimes Against Children grant, amending and reordaining certain sections of the 2012 -2013 Grant Fund Appropriations, and dispensing with the second reading by title of this ordinance. BE IT ORDAINED by the Council of the City of Roanoke that the following sections of the 2012 -2013 Grant Fund Appropriations be, and the same are hereby, amended and reordained to read and provide as follows: Appropriations Expendable Equipment (< $5,000) 35- 640 - 3652 -2035 $ 5,496 Training and Development 35- 640 - 3652 -2044 2,707 Revenues Internet Crimes Against Children Grant FY13 35- 640 - 3652 -3652 8,203 Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: 1 7 _ "" h1 . �Y�OOx1 City Clerk. � CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Internet Crimes Against Children Grant Background: The United States Department of Justice supports state and local law enforcement efforts to protect children from Internet crime by assisting Internet Crimes Against Children taskforces and funding state administered grant programs. The Roanoke Police Department is a member of the Southern Virginia Internet Crimes Against Children taskforce (SOVA ICAC) and has been awarded the 2013 Internet Crimes Against Children grant. On June 18, 2012, the Department of Criminal Justice Services awarded the City of Roanoke $8,203 through its FY 2013 Internet Crimes Against Children Grant Program. The computer crimes unit of the Roanoke Police Department has been awarded $5,496 to purchase computer equipment and $2,707 for training. No local matching funds are required. Recommended Action: Accept the Internet Crimes Against Children Grant described above and authorize the City Manager to execute the grant agreement and any related documents, all such documents to be approved as to form by the City Attorney. Adopt the accompanying budget ordinance to establish a revenue estimate in the amount of $8,203 and appropriate funding of the same amount in an account to be established by the Director of Finance in the Grant Fund. Christopoewm"Orrin City Manager Distribution: Council Appointed Officers R. Brian Townsend, Assistant City Manager Christopher C. Perkins, Chief of Police Amelia C. Merchant, Director of Management and Budget IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39444 - 071612. A RESOLUTION authorizing the acceptance of FY 2012 Urban and Community Forestry Grant to fund a part-time Urban Forestry Planner to work with the City's Urban Forester on an Urban Forestry Plan Update and related activities and on Tree Stewards Training and projects, and authorizing the execution of the necessary documents, upon certain terms and conditions. BE IT RESOLVED by the Council of the City of Roanoke that: The City of Roanoke hereby accepts the FY 2012 Urban and Community Forestry Grant in the amount of $12,935, with a $13,074 local match from the City and 500 hours of in -kind volunteer work by the Roanoke Tree Stewards, for total Grant amount of $26,009, to fund a part- time Urban Forestry Planner to work with the City's Urban Forester on an Urban Forestry Plan Update and related activities and on Tree Stewards Training and projects, as more particularly set forth in the City Council Agenda Report dated July 16, 2012. 2. The City Manager is hereby authorized to execute agreements with the Virginia Deparmaent of Forestry, and any other documents necessary to accept suchgrants, such documents to be approved as to form by the City Attorney, and to furnish such additional information as maybe required in connection with the City's acceptance of these grants. R -Urban and CoiID➢Y Forestry Grano -2012. do ATTEST: City Clerk. IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39445- 071612. AN ORDINANCE to appropriate funding from the Commonwealth of Virginia for the Urban and Community Forestry Grant, amending and reordaining certain sections of the 2012 -2013 General and Grant Funds Appropriations, and dispensing with the second reading by title of this ordinance. BE IT ORDAINED by the Council of the City of Roanoke that the following sections of the 2012 -2013 General and Grant Funds Appropriations be, and the same are hereby, amended and reordained to read and provide as follows: General Fund Appropriations Temporary Wages Transfer to Grant Fund Grant Fund Appropriations Regular Employee Salaries City Retirement FICA Medical Insurance Dental Insurance Life Insurance Revenues Urban & Community Forestry Grant FY13 Urban & Community Forestry Grant FY13 Local Match 01- 620 - 4340 -1004 ($ 12,410) 01 -250- 9310 -9535 12,410 35- 620 - 4372 -1002 18,674 35- 620 - 4372 -1105 2,913 35- 620 - 4372 -1120 1,428 35- 620 - 4372 -1125 2,594 35- 620 - 4372 -1126 161 35- 620 - 4372 -1130 239 35- 620 - 4372 -4372 12,935 35- 620 - 4372 -4373 13,074 Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: /�� -�� City Clerk. CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Urban and Community Forestry Grant Acceptance Background: For the eleventh year, the Virginia Department of Forestry (VDOF) has awarded Parks and Recreation the funding to staff a part-time Urban Forestry Planner to work under the Urban Forester. A letter was received on June 6, 2012 notifying the City that $12,935 would be awarded upon completion of the Memorandum of Agreement. Those funds will be matched by $13,074 from the City and 500 hours of in -kind volunteer work (for a value of $10,895) by the Roanoke Tree Stewards, volunteers who help maintain City-owned trees and educate the public about trees. The grant will be used to (1) manage the work of the Tree Stewards and train a new class of Stewards, (2) apply for a grant for tree planting funds, (3) map riparian areas, (4) manage the Commemorative Tree Program and (5) educate the public about trees. The activities are consistent with the Urban Forestry Plan adopted as an element of Vision 2001 -2020. Considerations: City Council action is needed to formally accept this grant and to authorize execution of a Memorandum of Agreement (MOA), approved as to form by the City Attorney, between VDOF and the City. A copy of the MOA is attached to this letter. Recommended Action: Accept the grant as described above and authorize the City Manager and the City Clerk to execute at attest, respectively, any required grant agreements and any other documents required to accept such grant, all of which must be approved as to form by the City Attorney. Adopt the accompanying budget ordinance to establish a revenue estimate in the amount of $12,935, transfer local match funding of $12,410 from the Parks and Recreation budget (account 01- 620 - 4340 - 1004), $664 from the Local Match Funding for Grants (01 -250- 9310 - 9535), and appropriate $26,009 into accounts to be established in the Grant Fund by the Director of Finance. Onstopher P Morrill City Manager Distribution: Council Appointed Officers R. Brian Townsend, Assistant City Manager for Community Development Steven C. Buschor, Director of Parks and Recreation U &CF Assistance Grant Program Memorandum of Agreement Grant # 12UCF24 This agreement made this I Y° day of June, 2012 by and between the Virginia Department of Forestry , herein referred to as "Party of the First Part ", and the City of Roanoke. Virginia herein referred to as "Party of the Second Pan ". The parties of this agreement, in consideration of the mutual covenants and stipulations set out herein in order to promote, support and participate in the federal grant program, sponsored by the U.S.D.A Forest Service (Catalog of Federal Domestic Assistance 410 -664) agree as follows: (1) PURPOSE: Now therefore, in consideration of the above premises the parties of the first and second agree to the following terms listed below. (2) SCOPE OF SERVICES: The Party of the Second Pan shall provide the service to the Party of the First Part as set forth in the (Attachment B) scope of work and budget. (3) TIME OF PERFORMANCE: The services of the Party of the Second Part shall commence on June 11, 2012 and shall terminate on June 15 2013. In the event of breach by the Party of the Second Part of this agreement, the Party of the First Part will give written notice to the Party of the Second Pan specifying the manner in which the agreement has been breached. All time limits stated are of the essence of this agreement. (4) COMPENSATION: The Party of the Second Pan shall be paid $12,934.91 by the Party of the First Part according to the following schedule in accordance with the rules and regulations in Attachment A: The funds awarded under the grant are available on a reimbursement basis after verification of match and in accordance with the payment schedule above. Minor shifts of the funds among categories not to exceed 10 percent may be permitted, but in no case can the total expenditures exceed the amount provided by this contract. Shifts of funds between budget categories exceeding 10 percent must be approved in writing by the Party of The First Part. Source documentation including canceled checks, copies of invoices, time and attendance records, and/or detailed printouts will be submitted with the "Request for Funds ". Invoices will be marked "PAID' and referenced as to how payment was made (i.e. check number). (5) MATCHING /COST SHARE REOUIREMENTS 1 The funding listed above will require a 50/50 match/cost share requirements. Indirect charges are not approved as a reimbursable item. Therefore it is our policy not to allow grant funds to be used as indirect overhead; however it does qualify as a match requirement. Overhead costs that will be allowed for match can be negotiated on a project -by- project basis. All federal and recipient matching /cost -share contributions are subject to all relevant OMB Circulars and Code of Federal Regulations. (6) ASSISTANCE The Party of the First Part agrees upon request of the Party of the Second Part to furnish, or otherwise make available to the Party of the Second Part, copies of existing non- proprietary materials in the possession of the Party of the First Part that are reasonably related to the subject matter of this agreement and are necessary to the Party of the Second Part for completion of his performance under this agreement. (7) GENERAL PROVISIONS: Nothing in this agreement shall be construed as authority for either party to make commitments which will bind the other party beyond the Scope of Service contained herein. Furthermore, the Parry of the Second Part shall not assign, sublet or subcontract any work related to this agreement or any interest it may have herein without the prior written consent of the Party of the First Pan. This contract is subject to appropriations by the Virginia General Assembly. (S) LAW APPLICABLE: This Memorandum of Agreement shall be governed by the laws of the Commonwealth of Virginia. (9) INTEGRATION AND MODIFICATION: This contract constitutes the entire agreement between the Party of the Second Part and the Party of the First Part. No alteration, amendment or modification in the provisions of this agreement shall be effective unless it is reduced to writing, signed by the parties and attached hereto. This award is executed as of the date of the last signature and is effective through June 15. 2013 at which time it will expire, unless extended by an executed modification, signed and dated by all properly authorized, signatory individuals. Any request for extension must be in writing a minimum of 30 days prior to the end of the stated grant period. Extensions will not be guaranteed. (10) TERMINATION: The Party of the First Part may terminate this agreement for its convenience upon 60 days written notice to the other party. The Party of the Second Part shall be paid for no service rendered or expense incurred after receipt of such notice except such fees and expenses incurred prior to the effective date of termination that are necessary for curtailment ofits/his work under this agreement. In the event of breach by the Party of the Second Part of this agreement, the Party of the First Part shall have the right immediately to rescind, revoke or terminate the agreement. In the alternative the Party of the First Part will give written notice to the Party of the Second Part specifying the manner in which the Agreement has been breached. If a notice of breach is given and the Party of the Second Part has not substantially corrected the breach within the sixty 60 days of receipt of the written notice, the Party of the First Part shall have the right to terminate this Agreement. In the event of rescission, revocation or termination, all documents and other materials related to the performance of this Agreement shall become the property of the Department of Forestry. (11) COLLATERAL CONTRACTS: Where there exists any inconsistency between this Agreement, Attachment A and other provisions of collateral contractual agreements which are made a part of this Agreement by reference or otherwise, the provisions of this Agreement shall control. (12) ANTI- DISCRIMI�.'ATION: During the performance of this contract, the Party of the Second Part agrees as follows; The Party of the Second Part will not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin, except where religion, sex, or national origin is a bona fide occupational qualification reasonable necessary to the normal operation of the Party of the Second Part. The Party of the Second Par agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non- discrimination clause. The Party of the Second Pan, in all solicitations or advertisement for employees placed by or on behalf of the Party of the Second Part, will state that such Party of the Second Part is an equal opportunity employer. Notices, advertisements and solicitations in accordance with federal law, rates or regulations shall be deemed sufficient for the purpose of meeting the requirements of the Section. The Party of the Second Part will include the above provisions in every subcontract or purchase order of over 510,000, so that the provisions will be binding upon each subcontractor or vendor. (13) APPLICATIONS: This agreement shall be governed in all respects, whether as to validity, construction, capacity, performance or otherwise, by the laws of the Commonwealth of Virginia. (14) SEVERABILITY: Each paragraph and provision of the Agreement is severable from the entire Agreement; and if any provision is declared invalid, the remaining provisions shall nevertheless remain in effect. (15) CONTINGENT FEE WARRANTV The Party of the Second Part warrants that he/it has not employed or retained any person or persons for the purpose of soliciting or securing this Agreement. The Party of the Second Pan further warrants that he /it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon the award or making of this Agreement. For breach of one or both of the foregoing warranties, the Agency shall have the right to terminate this agreement without liability, or, in its discretion or otherwise recover, the full amount of said prohibition fee, commission, percentage, brokerage fee, gift or contingent fee. (16) CONFLICT OF INTEREST: The Parry of the Second Part warrants that he has fully complied with the Virginia Conflict of Interest Act. (17) FINANCIAL RECORDS AVAILABILITY: The Party of the Second Part agrees to retain all books, records and other documents relative to this Agreement for five (5) years after final payment, or until audited by the Commonwealth of Virginia, whichever is sooner. The Party of the First Part, its authorized agents and /or State auditors shall have full access to and the right to examine any of said materials during said period. The Party of the Second Part agrees to comply with the following Federal cost and administrative regulations as applicable: Non - Profit Orcanizations State and Local Governments Universities Cost Principles, 2 CFR 230 Cost Principles, 2CFR 225 Cost Principles, 2 CFR 220 Admin. Regulations, 2 CFR 215 Admin. Regulations, OMB CIR A -102 Admin. Regulations, 2 CFR 215 Audits, OMB CIR -A 133 Audits, OMB CIR A -133 Audits, OMB CIR A -133 Administrative Regulations can be located at: http: / /whiteliouse.eov /omb /¢rants default/ Cost Principles can be located at: ht tp:/ /ttpoaccess.goy /cfr /index.html. Forms can be found at hmI ://www.ocio.usda.eov /fonns/ocio forms.html or http: / /semch.usda.eov (18) QUARTERLY REPORTS: 'fhe Party of the Second Part agrees to provide the Party of the First Part performance reports on all activities identified in the proposals as they occur. The performance reports will contain a summary of progress and activities for each activity within the proposal; indicate any problems and solutions in meeting requirements, and provide financial funds expenditure information for reimbursement as appropriate. Please see the Quarterly Report Foot The schedule for submittal of the periodic Performance reports shall be as follows: PERIOD COVERED SUBMITTAL DATE lone ll.'UI' Vii, u�i �I _'ol' lgn.nilrrr l�_'lll' ?OI _' II .... ubu I, . 111] 1 Ilc�nnhci 'nl' fchni.in '01; Aloi<h I,. 'Ult Vlaidi I _'nl = Ipn�- I 'nl � Ienp I s. 'nl t (19) PRINCIPAL CONTACTS: In witness whereof the parties have caused this agreement to be executed by the following duly authorized officials: PARTY OF TI IE SECOND PART PARTY OF "FEE FIRST PART This contract has been reviewed by the staff of the Party of the First Part. Its substantive terns are appropriate, and sufficient funds have been obligated for its performance. BY (Signature): Program Contact DATE: Administrative Contact Name Barbara White Name Kelli Butler Craddock Address 900 Natural Resource Drive Address 900 Natural Resource Drive City, State, Zip Charlottesville VA 22903 City, State Zip Charlottesville VA 22903 Phone 434 - 220 -9041 Phone 434 -220 -9050 Email Barbara.white &dof.vir inia. ov Email Kelli.emddock t dof.vir inia. ov In witness whereof the parties have caused this agreement to be executed by the following duly authorized officials: PARTY OF TI IE SECOND PART PARTY OF "FEE FIRST PART This contract has been reviewed by the staff of the Party of the First Part. Its substantive terns are appropriate, and sufficient funds have been obligated for its performance. BY (Signature): BY (Signature): DATE: DATE: TITLE: City Manager TITLE: Attachment A A. Collaborative Arrangements: Where permitted by terms of the award, may enter into collaborative arrangements with other organizations to jointly carry out activities with grant funds. B. Non - Liability: The Virginia Department of Forestry does not assume liability for any third party damages arising out of this award. C. Metric System of Measurement: Wherever measurements are required or authorized, they shall also be made, computed and recorded in metric system units of measurement, unless otherwise authorized in writing. D. Trafficking in Persons: Human Trafficking is prohibited; additional information can be found under the Trafficking Victims Protection Act (TVPA) of 2000, as amended (22 U.S.C. 7104 (g)). E. Eligible Workers: All sub - recipients shall ensure that all employees complete the 1 -9 form and certify that they are eligible for lawful employment under the Immigration and Nationality Act (8 U.C.S. 1324x). F. Program Income: If any program income is generated as a result of an award, costs incidents due to the generation of program income can be deducted from the gross income to determine the program income amount, provided these costs have not been charged to the award and comply with the applicable Cost Principles. G. Award Closeout: Award will be closed out either on the expiration date or with the notice of termination. Any unobligated funding at that time will be reverted to the Department of Forestry. H. Program Performance Reports: Shall be submitted quarterly in order to monitor performance of grant activities to ensure that performance goals are being achieved. Performance Reports will include: A comparison of actual accomplishments to the goals achieved for the period; reason(s) for delay if established goals were not met; additional pertinent information pertaining to the grant. 1. Notification: Program Manager should be notified immediately of developments that have a significant impact on the activities supported under this grant. J. Changes in Key Positions and Personnel: Revisions to key positions and personnel identified in the application for this award require prior, written approval from the Department of Forestry. Failure to obtain prior, written approval when required may result in the disallowance of costs. K. Freedom of Information Act (FOIA): Public access to grant or agreement records shall not be limited, except when such records must be kept confidential and would have exempted from disclosure pursuant to "Freedom of Information" regulations (5 U.S.C. 552). L. Text Messaging while driving: In accordance with Executive Order (EO) 13513, "Federal Leadership on Reducing Text Messaging while driving" any and all text messaging by Federal Employees is banned. All sub recipients are encouraged to adopt and enforce policies that ban text messaging while driving while on government business. M. Public Notices /Acknowledgement: It is the U.S. Forest Service's policy to inform the public as fully as possible of its programs and activities. It is encouraged to give public notice of the receipt of this award from time to time, to announce progress and accomplishments. Acknowledge the U.S. Forest Service as well as the Virginia Department of Forestry support in publications, audiovisuals and electronic media developed as a result of this award. A mandatory provision if development of publications or production of audiovisuals, or if information is shared via electronic format (including websites). N. Nondiscrimination Statement - Printed, Electronic or Audiovisual Materials: the following statement, in full, in any printed audiovisual material or electronic media for public distribution developed or printed with any federal funding. In accordance with Federal law and U.S. Department ofAgrieulture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. " If the material is too small to permit the full statement to be included, the material must, at a minimum, include the following statement, in print size no smaller than the text: "This institution is an equal opportunity provider. " O. Debarment and Suspension: Grantees must certify if any principals are presently excluded, debarred or suspended from entering into covered transactions with the federal government in according to the terms of 2 CFR Part 180. P. Drug Free Workplace: Agrees to provide a drug -free workplace form AD -1049 to the Department of Forestry. This will verify that each employee who will be engaged in the performance of any projecuprogram receiving federal funding will follow drug -free regulations as stated in the Rehabilitation Act of 1973 (29 U.S.C. 794). Q. Copyrighting: USES has the sole and exclusive right to copyright any publications developed as a result of this award. This includes the right to publish and vend throughout the world in any language and in all media and forms, in whole or in part, for the full term of copyright and all renewals thereof in accordance with this award. No original text or graphics produced and submitted by the USES shall be copyrighted. R. Central Contractor Registration and Universal Identifier Requirements: (i) Requirement of Central Contractor Registration (CCR)- unless exempted from 2CFR 25.110, as a recipient you must be registered and maintain information updated at CCR intemet site: hap: / /www.ccr.go%. (ii) Requirement of Data Universal Numbering System (DUNS) Number- no entity may receive a sub -award unless the entity can provide a DUNS number. (DUNS current intemet site: hup: / /fcdgov.dnb.com/webform) S. Members of Congress: Pursuant to 41 U.S.C. 22, no United States member of, or United States delegate to, Congress shall be admitted to any share or part of this award, or benefits that may arise there from, either directly or indirectly. T. Disclosure of Lobbying Activities: Agrees to disclose lobbying activities pursuant to 31 U.S.C. 1352; the completion of Standard Form LLL is mandatory. U. Federal Funding Accountability and Transparency Act (Sub -award Reporting System): Effective October 1, 2010 all sub -awards that receives $25,000 or more from a federal award will need to be reported. The sub -award is responsible for providing DOE with the following information for timely reporting: Name, Address, Federal Tax Identification Number, DUNS Number, Principal place of performance and names of Highly Compensated Officers. Attachment B Check list The following information must be provided with the Memorandum of Agreement: 1. Title of Grant 2. Amount 3. Program Contact, including email 4. Purpose 5. Scope of Work 6. Project Partners (if applicable) 7. Methodology and Timeline 8. Application for Federal Assistance SF424 9. Budget Detail 10. Assurances SF424B 11. Debarment AD] 048 12. Drug Free Form 13. W -9 14. Legislative Information form 2012 Urban and Community Forestry Grant Program BUDGET WORKSHEET Applicant: City of Roanoke Virginia Project Name: Urban Forestry Projects ITEM Itemize expenses below Grant Share Direct Expenses Or Cash Purchases Applicant Direct Expenses Or Cash Purchases Applicant In -Kind Personal Services: Volunteer hrs. Staff hrs. Applicant In -Kind Donated: Services Supplies Equipment use TOTAL Personnel: Urban Forestry Planner, 1019 hrs @ $17.80 /hr $9,255.22 $8,879.35 $18,134.57 Fringe Benefits: Urban Forestry Planner - 39.75% $3.679.69 $3,530.65 $7,210.34 Tree Steward Volunteers: 500 bra L $21.79/hr 510,895.00 $10,895.00 TOTAL $12,934.91 $12,410.00 $10,895.00 $ $36,239.91 NOTE: Total of Applicant Share Column, In -Kind and Cash Donation Columns must equal or exceed Grant Share Column. All grantees are required to maintain and submit written records that fully document all expenses. For the 2012 grants, $21.79 is the federally accepted base rate for volunteers. You may use a higher value for a professional who volunteers his/her professional services. Children should be at the minimum wage rate. OMB Approval No 0348 -0003 APPLICATION FOR FEDERAL ASSISTANCE 2. DATE SUBMITTED PROPOSAL #ifier 1. TYPE OF SUBMISSION Application Construction x Non-Construction 1 Pre - application Construction x NonConstruction 3. DATE RECEIVED BY STATE State Application Identifier 12UCF24 4, DATE RECEIVED BY FEDERAL AGENCY Federal Identifier 5. Legal Name: City of Roanoke, Virginia Orpmealional Unit Address (give city, county, state, and zip code) 215 Church Ave., Room 303, Roanoke, VA 24011 Name and telephone number of the person to be contacted on matters Involving this application (give area code) Dan Henry 540- 853 -1994 EMPLOYER IDENTIFICATION NUMBER (Eli T. TYPE OF APPLICANT: C (deter appropriate letter in tried A. Stale H. Independent School Dist. B. County 1. State Controlled Inst. of Higher Leaning C. Municipal J. Private University D. Township K. Indian Tribe E. Interstate L. Individual F. Intermunicipal M. Profit Organization G. Special District N. Other(Spedly): 5141-161010-T-IT-516191 8, TYPE OF APPLICATION: 0 New ❑ Confirmation ❑ If Revision, enter appropriate letters) in box(es) : ❑ A. Increase Award B. Decrease Award C. Increase Duration D. Decrease Duration Other (specify): Revision ❑ 9. NAME OF FEDERAL AGENCY: USDA Forest Service 10. CATALOG OF FEDERAL 1 0 • 6 DOMESTIC ASSISTANCE NO. TITLE: Cooperative Forestry 6 4 11. DESCRIPTIVE TITLE OF APPLICANT'S PROJECT: Urban Forestry Projects 12. AREAS AFFECTED BY PROJECT (cities, counties, sister, eta) City of Roanoke, Virginia 13. PROPOSED PROJECT: 14. CONGRESSIONAL DISTRICTS OF: Start Dale Ending Date June 11 2012 June 15, 2013 a. Applicant 6 b. Project 6 15. ESTIMATED FUNDING: 16. 17. BAiPLKATIONSLBfLTTO�WUATEEI1EWIfvE0RI1Ht12=PROCESS! aYES. TFISIhTONORLG4ICYJWISMODEAVPI /�EIOTE STAIE D�OJMEUdFR 19ALFI�C&SSFIXtFEVEWO`I'. DATE It NO Fx1 PROGRAV ENJTCOVE EDUYEO.1W ❑ ORPROGRAIAH4 SNOTffFTJSREC'TDBYSTATEFCRFEVEN IS THE APPLICANT DELINQUENT ON ANY FEDERAL DEBT? OYes If "Yes:' attached an explanation II No a. Federal $ 12,934 .91 It Applicant $ 12,410 .00 c. State $ .00 d. Local $ .00 Omer $ 10,895 .00 L Program Income $ .00 g. TOTAL $ 36,239 A 18, TOTEBESTO WKNOMIDCEMDBEIS. MTANT AAiKATCWFEAPPLCAT rfETfdE CO1 ..T DOCIA HAS dlY AUnioN®BYTIEOOvvfS MBODYOFTIEAppL" rOID AppL MRVALCO YV MT ATTA ASDJWJCMFT ASSIST EBNNAFMM a. Typed Name of Authorized Representative'. Christopher P. Momll b. Title: City Manager c. Telephone Number 540- 853 -2333 e. Date Signed: d. Signature of Authorized Representative: Previous Editions Not Usable Authorized for Local Reproduction Standard Foram 424 (REV 7-97) Prescribed by OMB Circular A -102 OMB Approval No. 0348 -eo43 INSTRUCTIONS FOR THE SF 424 This is a standard forth used by applicants as a required face sheet for pre - applications and applications submitted for Federal assistance. It will be used by Federal agencies to obtain applicant certification that States which have established a review and comment procedure in response to Executive Order 12372 and have selected the program to be included in their process, have been given an opportunity to review the applicant's submission. Item: Entry: 1. Self- explanatory. 2. Date application submitted to Federal agency (or State if applicable) & applicant's control number (if applicable). 3. State use only (if applicable). 4. If this application is to continue or revise an existing award, enter present Federal identifier number. If for a new project, leave blank. 5. Legal name of applicant, name of primary organizational unit which will undertake the assistance activity, complete address of the applicant, and name and telephone number of the person to contact on matters related to this application. 6. Enter Employer Identification Number (EIN) as assigned by the Internal Revenue Service, 7. Enter the appropriate letter in the space provided. 8. Check appropriate box and enter appropriate letters) in the space(s) provided: — "New" means a new assistance award. —'Continuation" means an extension for an additional funding /budget period for a project with a projected completion date. — "Revision' means any change in the Federal Government's financial obligation or contingent liability from an existing obligation. 9. Name of Federal agency from which assistance is being requested with this application. M Use the Catalog of Federal Domestic Assistance number and title of the program under which assistance is requested. 11. Enter a brief description title of the project. If more than program is involved, you should append an explanation on a separate sheet. If appropriate (e.g., construction or real property projects), attach a map showing project location. For pre - applications, use a separate sheet to provide a summary descdpton of this project. Item Entry: 12. List only the largest political entities affected (e.g., State, counties, cities). 13. Self- explanatory, usually filled in already 14. List the applicant's Congressional District and District(s) affected by the program or project. 15. Amount requested or to be contributed during the first funding /budget period by each contributor. Value of in -kind contributions should be included on appropriate lines as applicable. If the action will result in a dollar change to an existing award, indicate only the amount of the change. For decreases, enclose the amounts in parentheses. If both basic and supplemental amounts are included, show breakdown on an attached sheet. For multiple program funding, use totals and show breakdown using same categories as item 15. 16. Applicants should contact the State Single Point of Contact (SPOC) for Federal Executive Order 12372 to determine whether the application is subject to the State intergovernmental review process. 17. This question applies to the applicant organization, not the person who signs as the authorized representative. Categories of debt include delinquent audit disallowances, loans and taxes. 18. To be signed by the authorized representative of the applicant. A copy of the governing body's authorization for you to sign this application as official representative must be on file in the applicant's office. (Certain Federal agencies may require that this authorization be submitted as part of the application.) Authorized for Local Reproduction OMB Approval No. 0368-0043 SF 424 (REV 7 -97) Back Authorized for Local Reproduction OMB Approval No. 0348AO40 ASSURANCES -- NON- CONSTRUCTION PROGRAMS Note: Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the awarding agency. Further, certain Federal awarding agencies may require applicants to certify to additional assurances. If such is the case, you will be notified. As the duly th d representative of the I' t l certify that the a I. Has the legal authority to apply for Federal assistance, and the institutional, managerial and financial capability (including funds sufficient to pay the non - Federal share of project costs) to ensure proper planning, management and completion of the project described in this application. 2. Will give the awarding agency, the Comptroller Oencral of the United States, and if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives. 3. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain. 4. Will initiate and complete the work within the applicable time frame after receipt of approval of the awarding agency. 5. Will comply with the Intergovernmental Personnel Act of 1970 (42 U.S.C. §§ 4728 -4763) relating to prescribed standards for merit systems for programs funded under one of the nineteen statutes or regulations specified in Appendix A of OPM's Standards for a Merit System of Personnel Administration (5 C.F.R. 900, Subpart U. 6. Will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (aHitle VI of the Civil Rights Act of 1964 (PL. 88 -352) which prohibits discrimination on the basis of race, color or national origin; (b) Title Us of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681- 1683, and 1685- 1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps: (d) the Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 - 6107), which prohibits discrimination on the basis c f age; )heart (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL. 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (g) §4 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 -dd -3 and 290 ce-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIB of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (I) any other nondiscrimination provisions in the specific statme(s) under which application for Federal assistance is being made; and Q) the requirements of any other nondiscrimination statme(s) which may apply to the application. Will comply, or has already complied, with the requirements of Titles H and W of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 961 -646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases. Will comply with the provisions of the Health Act (5 U.S.C. §§ 1501 -1508 and 73247328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with State funds. Will comply, as applicable, with the provisions of the Davis -Bacon Act (40 U.S.C. §§ 276a to 276a -7), the Copeland Act (40 U.S.C. § 276c and 18 U.S.C. §§ 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327 -333), regarding labor standards for federally assisted construction subagreements. 10. Will comply, if applicable, with flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L 93 -234) which Smndara roan 4246 p -971 P,Nmsd by OM9 Circular A 102 Authorized for Local Reproduction requires recipients in a special flood hazard area to participate in the program and to purchase Flood insurance if the total cost of insurable construction and acquisition of $10.000 or more. 1. Will comply with environmental standards which maybe prescribed pursuant to the following: (a) institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91- 190) and Executive Order (EO) 11514; (b) notification of violating facilities pursuant to EO 11738; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in Ooodplains in accordance with EO 11988; (e) assurance of project consistency with the approved State management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. A6 1451 el seq.); (f) conformity of Federal actions to State (Clear Air) Implementation Plans under Section 176(c) of the Clear Air Act of 1955, as amended (42 U.S.C. $ 7401 et seq.); (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, (P.1 . 93 -523); and (h) protection of endangered species under the Endangered Species Act of 1973, as amended, (P.L. 93 -205). 12. Will comply with the Wild and Scenic Rivers Act of 1968 (16 U.S.C. R4 1271 et seq.) related to protecting components or potential components of the national wild and scenic rivers system. 13. Will assist the awarding agency in assuring compliance with Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470), EO 11593 (identification and protection of historic properties), and the Archeological and Historic Preservation Act of 1974 (16 U.S.C. 469. -1 or sec.). 14. Will comply with P L, 93 -348 regarding the protection of human suingets involved in research, development, and related activities supported by this award of assistance. 15. Will comply with the Laboratory Animal Welfare Act of 1966 (P.L. 89 -544, as amended, 7 U.S.C. 2131 et seq.) pertaining to the care, handling, and treatment of warm blooded animals held for research, teaching, or other activities supported by this award of assistance. 16. Will comply with the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. ss0 4801 et seq.) which prohibits the use of lead based paint in construction or rehabilitation of residence structures. 17. Will cause to be performed the required financial and compliance audits in accordance with the Single Audit Act of 1984. 18. Will comply with all applicable requirements of all other Federal laws, executive orders, regulations and policies governing this program. SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL TITLE (it Mann _7 APPLICANT ORGANIZATION City of Roanoke, Virginia 777__:::::: Sr 4248 (7-97) Back U.S. DEPARTMENT OF AGRICULTURE Certification Regarding Debarment, Suspension, and Other Responsibility Matters - Primary Covered Transactions This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, 7 CFR Pan 3017, Section 3017.510, Participants' responsibilities. The regulations were published as Part IV of the January 30, 1989, Federal Register (pages 4722 -4733). Copies of the regulations may be obtained by contacting the Department of Agriculture agency offering the proposed covered transaction. (BEFORE COMPLETING CERTIFICATION, READ INSTRUCTIONS ON NEXT PAGE) (1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) have not within a three -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or Local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) are not presently indicted for or otherwise criminally or civilly charged by a govemmental entity (Federal, State or Local) with commission of any of the offenses enumerated in paragraph (1) (b) of this certification; and (d) have not within a three -year period preceding this application /proposal had one or more public transactions (Federal, State or Local) terminated for cause or default. (2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. City ofRoanoke, Virginia 12UCF24 Urban Forestry Projects Organieation Name PR/Award Number of Project Name Christopher P Morrill, City Manager Name and Title of Authorized Representative Signature Date Form AD -1047 (1/92) INSTRUCTIONS FOR CERTIFICATION I. By signing and submitting this form, the prospective primary participant is providing the certification set out on the reverse side in accordance with these instructions. 2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out on this form. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to famish a certification or an explanation shall disqualify such person from participation in the transaction. 3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 4. The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 5. The terms "covered transaction;' .. debarred," "'s'us'pended, "ineligible," `lower tier covered transaction," "participant," "person," "primary covered transaction." '"principal;' "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations. 6. The prospective primary participant agrees by submitting this form that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction" unless authorized by the department or agency entering into this transaction. 7. The prospective primary participant further agrees by submitting this form that it will include the clause title "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction. without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 9. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List. 9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred" ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Form AD -1047 (1/92) OMB APPROVAL NO. 0991 -0002 U.S. DEPARTMENT OF AGRICULTURE CERTIFICATION REGARDING DRUG -FREE WORKPLACE REQUIREMENTS (GRANTS) ALTERNATIVE I -FOR GRANTEES OTHER THAN INDIVIDUALS I li3 GC. R111au 11 14u1v vr...- �_._._.-.__ a Pub. L _ 100-690, Title V, Subtitle D; 41 U.S.C. 701 at seal.), 7 CFR Part 3017, Subpart F, Section 3017.600, Purpose. The January 31, 1989, regulations were amended and published as Part It of the MAY 25, 1990, Federal Register (pages 21681- 21691). Copies of the regulations may be obtained by contacting the Department of Agriculture agency offering the grant. (BEFORE COMPLETING CERTIFICATION, READ INSTRUCTIONS ON REVERSE) Alternative I A. The grantee certifies that it will or will continue to provide a drug -free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug-free awareness program to inform employees about — (i) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug -free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a). (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will -- (1) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notify the agency in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position, title, to every grant officer on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification numbef(s) of each affected grant; (1) Taking appropriate personnel action against such an employee, up to and including termination. consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug -free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f). Form AD -1049 ,REV 5190) W:reson Vro,d PC, The grantee may insert in the space provided below Me uppe) for the pertorm mee of work done in connection with the specific grant Place of Performance (Street address, city, county, Slate, zip code) 215 Church Avenue, Room 303, Roanoke, VA 24011 1802 Courlland Rd. NE_ Suite 120. Roanoke, VA 24012 Check if there are workplaces on file that are not identified here. City of Roanoke. Virginia 12UCF24, Urban Forestry Projects Organization Name Award Numher or Project Name Christopher P. Morrill, City Manager -_ Name and Tifle of Authorized Representative Instructions for Certification 1. By signing and submitling this farm, the grantee is providing the edification set out on pages 1 and 2. 2. The commidetlon set out on pages 1 and 215 a material representation of fact upon which reliance is placed when the agency awards the grant. It it Is later determined that the grantee knowingly rentlered a false certification, or otherwise violates the requirements of the Dee Free Workplace Ad, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug -Free Workplace Act . 3. Workplaces under grants, for grantees other than Individuals, need not be identified on the certification. If know, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award if there is no application, the grantee must keep the identity of the worlbi.co s) on file in its office and make the information available for Federal Inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug -free workplace requirements. 4. Workplace identifications must include the actual address of buildings (or pads of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (a g., all vehicles of a mass transit authority or State highway department while in claiming, State employees in each local unemployment Office, performers in concert halls or radio studios). 5. If the workplace identified to the agency changes during the performance of the grant, the grantee shall Inform the agency of the chargels), if it previously identified the workplaces in question (see paragraph three). 6 Defmitions of terms Ia the Nonpmementent Suspension and Debarment common mile and Drug -Free Workplace common rule apply to this certification. Grantees attention is called, in particular, to the following definitions from these rules. "Controlled substance" means a controlled substance m Schedules I through V of the Controlled Substances Act (21 U S . 812) and as former degnetl by legulsocn (21 CIF 130811 through 1308.15), 'Conviction' means a Trading of guilt ;including a plea of own wntendere) or Imposition of sentence, or bath. by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes) - Criminal tlmg statute" means a Fetleral or non - Fetleral criminal statute involving the manufacture, distribution , dispensing. use, or possession of any cmdr011ed substance, "Employee' means the employee of a grantee directly engaged In the performance of work under a grant, including (i) all "direct charge' employees -, (ii) all "indired charge" employees unless their Impact or Involvement is Insignificant to the performance of the grant and (iii) temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include wo kpll not on the payroll of the grantee (e g.. volunteers, even if sued to meet a matching reennia rill consultants or Independent contractors not on the grantee s payroll or employees o1 subreopiena or subcontractors .n covered workplaces). 1 -2 Farm AD -1049 (REV 5;90) Substitute Form W9 VIRGINIA DEPARTMENT OF FORESTRY 1210112000 (NOr.1S00) fsubw9po.dot REQUEST FOR TAXPAYER IDENTIFICATION NUMBER(S) AND CERTIFICATION RETURN THIS FORM TO THE REQUESTER WITHIN 30 DAYS- FAILURE TO RETURN MAY RESULT IN 31% BACKUP WITHHOLDING Each person or organization doing business with the Commonwealth of Virginia must provide the following information. ORGANIZATION ENTITY: (CHECK ONLY ONE) ❑ INDIVIDUAL ❑ NON - PROFIT ORGANIZATION ❑ SOLE PROPRIETOR ❑ FEDERAL AGENCY ❑ PARTNERSHIP ❑ STATE AGENCY ❑ CORPORATION ® LOCALGOVERNMENT ❑ TRUST ❑ POLITICAL SUBDIVISION ❑ ESTATE ❑ OTHER ENTER THE FOLLOWING: LEGAL NAME City of Roanoke, Virginia (MUST MATCH THE SOCIAL SECURITY NUMBER IF APPLICABLE) TRADE NAME City of Roanoke, Virginia (MUST MATCH THE EMPLOYER IDENTIFICATION NUMBER, IF APPLICABLE) MAILING ADDRESS 215 Church Ave., Room 303 SOCIAL SECURITY NUMBER And I Or EMPLOYER IDENTIFICATION NUMBER 54-6001569 Roanoke, VA 24011 CONTACT PERSON Dan Henry Urban Forester TELEPHONE NUMBER 540853 -1994 PLEASE ANSWER THE FOLLOWING QUESTIONS: IS YOUR ORGANIZATION (ASSOCIATION, CLUB, RELIGIOUS, CHARITABLE, EDUCATIONAL, OR OTHER El YES ED NO GROUP) TAX EXEMPT UNDER IRS CODE SECTION 501(A)4 ARE YOU A REAL ESTATE AGENT? El YES ®NO CERTIFICATION: UNDER PENALTIES OF PERJURY, I CERTIFY THAT (1) The number(s) shown on this form is my correct taxpayer identification number(s) (or I am waiting for a number to be issued to me), and (2) 1 am not subject to backup Withholding either because I have not been notified that I am subject to backup withholding as a result of failure to report all interest or dividends, or the Internal Revenue Service has notified me that I am no longer subject to backup withholding. [You must cross out item (2) above if you have been notified by IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return. (see Signing the Certification under Specific Instructions on the Form W-9 Instructions which follow.) ] SIGNATURE DATE Return this form to Virginia Department of Forestry 900 Natural Resources Drive, Suite 500, Charlottesville, VA 22903 Ea Grant Number 12UCF24 Legislative Information As part of our continuing process to inform legislators about the fantastic projects being accomplished in Virginia we need the information below. Please list the Virginia State Senators, Representatives, and US Congressmen and their corresponding District numbers within all Districts affected by your grant. hup //www.visi.coin/juanlconn,ress'index.htinI Senator IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39446- 071612. AN ORDINANCE to appropriate funding from Capital Improvement Reserve Contingency for the Wells Avenue Crosswalks Project, amending and reordaining certain sections of the 2012 -2013 Capital Projects Fund Appropriations and dispensing with the second reading by title of this ordinance. BE IT ORDAINED by the Council of the City of Roanoke that the following sections of the 2012 -2013 Capital Projects Fund Appropriations be, and the same are hereby, amended and reordained to read and provide as follows: Appropriations Capital Improvement Reserve Contingency 08 -530- 9575 -9220 ($ 200,000) Wells Avenue Crosswalks 08- 530 - 9558 -9003 200,000 Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: City Clerk.) go CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Wells Avenue Crosswalk Replacement Background: In the mid- 1990's, streetscape improvements were made along Wells Avenue between Gainsboro and Williamson Roads. The work included concrete and brick paver crosswalks at various locations between Jefferson Street and Williamson Road. Over time, these crosswalks have deteriorated and their current condition creates a very rough ride for motorists when traveling along Wells Avenue. Prior efforts to improve this condition have not achieved the desired results and a significant long -term maintenance and repair effort is needed. Considerations: Due to the dissimilar materials in these crosswalks (asphalt, concrete, and brick,) elimination of the "bump' that inevitably occurs at the joints is almost impossible. Repairs would typically be expected to last a few years but over time the "bump" will return. A better alternative is to completely demolish the crosswalks, repave the areas with asphalt and then install new crosswalks with the Streetprint XD material that has been used successfully in several locations around the city. The results will look very much like the crosswalks that were installed last year in the vicinity of the City Market Building. This approach will be used on ten crosswalks - four at Jefferson Street, one midblock at Hotel Roanoke, four at Commonwealth Avenue, and one at Williamson Road. Existing concrete and brick crosswalks at Wells Avenue and Gainsboro Road and along Gainsboro Road will remain as those crosswalks were built using a different technique and similar concerns have not occurred. The work, which is expected to begin later this year, may involve periodic closures of Wells Avenue. Closures will be communicated by staff specifically to the surrounding neighborhood groups and businesses and through the media to the general public. A new capital account has been established for this effort and funding has been identified from the Capital Improvement Reserve Account. The construction cost estimate for this work is $200,000. Recommended Action: Authorize the transfer of $200,000 from the Capital Improvement Reserve Contingency (08 -530- 9575 -9220) to a new capital account, entitled "Wells Avenue Crosswalks' (08- 530 -9558- 9003). --- - - - - -- ?ri'tophi P. Morrill City Manager Distribution: Council Appointed Officers �� IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39447 - 071612. AN ORDINANCE authorizing the proper City officials to execute a Performance Agreement among the City of Roanoke (City), the Economic Development Authority of the City of Roanoke, Virginia, (EDA), and Roanoke River Associates, LLC, (RRA) that provides for certain undertakings by the parties in connection with the development of certain property located east of South Jefferson Street and adjacent to the Roanoke River, in the City of Roanoke; and dispensing with the second reading by title of this Ordinance. WHEREAS, RRA has proposed the development of approximately twenty -two (22) acres of property located east of South Jefferson Street and adjacent to the Roanoke River, as set forth in the City Council Agenda Report dated July 16, 2012; WHEREAS, such development of the site will require significant infrastructure costs and other costs for the development of the Project; WHEREAS, RRA has requested economic development grants through the EDA to assist in the unusual expenses for the development of the Project; WHEREAS, City staff has advised Council that such Project will benefit economic development within the City and the Roanoke Valley; and WHEREAS, the City and the EDA wish to encourage RRA to complete the Project in order to enhance and promote economic development within the City and the Roanoke Valley. THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke as follows: City Council hereby approves the terms of the Performance Agreement among the City, the EDA, and RRA, as set forth in the attachment to the City Council Agenda Report dated July 16, 2012, which provides for certain undertakings and obligations by RRA, as well as Ord -auth performance ageement- Roanoke River Associates doc certain undertakings by the City and the EDA. City Council further finds that the economic development grants provided for by the Performance Agreement will promote economic development within the City and the Roanoke Valley and will be of economic benefit to the City and its citizens. 2. The City Manager is hereby authorized on behalf of the City to execute a Performance Agreement among the City, the EDA, and RRA, upon certain terms and conditions as set forth in the City Council Agenda Report dated July 16, 2012. The Performance Agreement shall be substantially similar to the one attached to such Agenda Report and in a form approved by the City Attorney. 3. The City Manager is further authorized to take such actions and execute such documents as may be necessary to provide for the implementation, administration, and enforcement of such Performance Agreement. 4. Pursuant to the provisions of §12 the City Charter, the second reading of this Ordinance by title is hereby dispensed with. ATTEST: Lk,..,rwJ m. aLb '6'j City Clerk. Ord -amA performance ageement - Roanoke River Associamsdoc 2 1 CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Performance Agreement between the City of Roanoke, Economic Development Authority of the City of Roanoke, and Roanoke River Associates, LLC, for the Development of Certain Properties in the South Jefferson Redevelopment Area (The Roanoke Riverfront District) Background: Roanoke River Associates, LLC, (RRA) has proposed the development of approximately twenty -two (22) acres of property located east of South Jefferson Street and adjacent to the Roanoke River into a mixed use configuration containing commercial, office, retail, and residential buildings along with appropriate and supportive public infrastructure and amenities (Property). The RRA proposal, The Roanoke Riverfront District, envisions the construction of new buildings on currently vacant parts of the site along with the rehabilitation and revitalization of a number of existing buildings located in this former industrial area. RRA has estimated that total investment in the development will exceed $100 Million over the term of the project, which term is anticipated to be fifteen years. On April 16, 2012, City Council approved a rezoning of the property to the D, Downtown District, in order to provide for the appropriate regulatory context that would support and facilitate the type of urban, mixed use development proposed by RRA. The concept proposed by RRA will include numerous public open spaces which will provide an urban framework for the development proposed with appropriate pedestrian and street connections within the Project and to the surrounding street system. Implementation of the proposal by RRA will solidify the physical, functional, and economic relationship between this Project and the Riverside Center to the west of Jefferson Street, and will strengthen connections to the core of downtown to the north and provide access to the Roanoke River to the east, ultimately creating a larger, stronger, and more cohesively vital core of the City. This portion of the South Jefferson Redevelopment Area is challenged by its location within the floodplain of the Roanoke River and its historic pattern of heavy industrial land use. Despite these impediments to redevelopment, there also exists significant potential for the reuse and rehabilitation of numerous architecturally distinct buildings located within the Project area. In order to support this proposed development and provide a means by which necessary public infrastructure can be financed and provided by RRA, RRA has requested economic development grants through the Economic Development Authority of the City of Roanoke (EDA) and the City to assist in the cost of certain site improvements, public infrastructure, demolition, site preparation, and public amenities. A Performance Agreement (Agreement) has been developed that will assist RRA with these public infrastructure and site preparation costs through the provision of an initial economic development grant of $2 Million and subsequent annual economic development grants for Eligible Expenditures by RRA based on amounts equal to seventy -five percent (75 %) of actual designated revenues received by the City from the Property. Considerations: The Agreement sets forth the obligations of RRA in order to qualify for and receive an initial grant, and then subsequent annual grants, including, but not limited to, the following terms: 1. Within 24 months after the date of the Agreement, RRA shall have spent, or caused to have been spent eligible expenditures totaling at least $2 Million from the initial economic development grant. In the event that RRA fails to make at least $2 Million in eligible expenditures, RRA will pay back to the EDA the difference between the initial $2 Million grant and the eligible expenditures made during the 24 month period. If this occurs, the EDA shall pay to the City any such amount the EDA receives from RRA. 2. Within 36 months after the date of the Agreement, RRA must spend or cause to have been spent up to $3 Million on eligible infrastructure related expenses. This amount will include the initial economic development grant of $2 Million from the City, through the EDA, plus an additional $1 Million in eligible expenditures by RRA from its funds. 3. Within 36 months after the date of the Agreement, RRA must have built, renovated, or rehabilitated, and obtained permanent certificates of occupancy for at least two buildings within the Property, with such buildings being available for sale or lease. 4. During the term of the Agreement, RRA must expend a total of at least $8 Million of its own funds on eligible expenditures for site infrastructure improvements and related activities in order to be eligible for the maximum allowable aggregate annual grant amount. Subject to RRA fulfilling its obligations as enumerated above, the EDA will provide certain funds annually to RRA, as provided from the City, to assist with the development of the Property. RRA may request an annual grant for twelve (12) consecutive years, with the first grant year beginning no later than July 1" immediately following the end of the first 36 months of the Agreement. The amount of the grant will be equal to seventy-five percent (75 %) of designated revenue actually received by the City during the preceding grant year from real estate taxes, general retail sales taxes (1% local option), professional and occupational license tax, tangible personal property taxes related to business activities (excluding vehicles), prepared food and beverage tax, and transient occupancy tax. However, any future increases in any of those taxes dedicated for specific purposes or projects will be excluded from the annual grant calculation. The maximum amount of annual grant funds that RRA may receive under this Agreement, subject to the amount of RRA's eligible infrastructure expenditures over the term of the Agreement and the Property's actual revenue performance, will not exceed $8 Million. At no time during the term of the Agreement may annual grant requests made, and annual grant payments received, by RRA exceed the aggregate amount of eligible expenditures made by RRA for infrastructure development activities within the Property. The Agreement also includes language related to the anticipated need for another means of access to the Property through a future bridge crossing of Norfolk Southern Railway tracks at the northern end of the Property. The Agreement anticipates the City to initiate design and construction of a bridge once certain buildings are rehabilitated on the Property and the value of real estate improvements reach a certain level in that portion of the Property adjacent to the proposed bridge. During the term of the Agreement, RRA will report to the City and the EDA on a semi - annual basis RRA's progress and compliance with the terms and conditions of the Agreement. RRA will also be responsible for providing appropriate supporting documentation for each grant request. Funding for each annual grant request will be subject to appropriation by the City Council to the EDA. A copy of the Agreement is attached to this report for the City Council's review and information. Upon City Council's approval of the Agreement, the EDA is scheduled to consider the Agreement for approval at the EDA's July 18, 2012, meeting. Recommended Action: Approve the terms of the Performance Agreement among the City, EDA, and Roanoke River Associates, LLC, as set forth in the attachment to this report, and determine that such Agreement will promote economic development within the City. Authorize the City Manager to execute such Performance Agreement among the City, EDA, and Roanoke River Associates, LLC, substantially similar to the one attached to this report, and to execute such other documents and to take such further actions as may be necessary to implement, administer, and enforce such Performance Agreement, with the form of such Agreement to be approved by the City Attorney. Christop r P. Morrill City Manager Distribution: Council Appointed Officers Brian Townsend, Assistant City Manager for Community Development Rob Ledger, Economic Development Manager Charles E. Hunter, III, Chairman, City of Roanoke Economic Development Authority Harwell M. Darby, Counsel, City of Roanoke Economic Development Authority 7/11/12 DRAFT PROPOSED ;u� III This Performance Agreement (Agreement) is dated July_, 2012, by and among the City of Roanoke, Virginia, a municipal corporation (City), Roanoke River Associates, LLC, a Virginia limited liability company (RRA), and the Economic Development Authority of the City of Roanoke, Virginia, an economic development authority organized and existing under the laws of the Commonwealth of Virginia (EDA). RECITALS R -1. RRA has proposed the development of certain property, with the Cycle Systems Property, (Property) located in the City along Jefferson Street, Walnut Avenue, and Mill Street, consisting of tax map numbers 4030303, 4030302, 4030307, 4022103, 4030306, 4030305, 4030501, 4040401, 4040106, and 4040301 on which RRA proposes to construct a mixed use development including commercial, office, retail and residential buildings and related public infrastructure which will be dedicated to the City, and amenities; R -2. RRA intends to acquire the Cycle Systems Property as part of the development of the Project. The development of the Cycle Systems Property as shown in Exhibit A referred to in paragraph R4 will require the demolition and removal of structures and environmental cleanup and remediation work. R -3. The City recognizes that the development of the Property will require significant costs for public infrastructure, environmental cleanup and remediation, the demolition and removal of structures, and the construction of amenities that will be available to the public, including parking and recreational facilities; R -4. RRA intends to develop the Property by constructing streets, developing and rehabilitating commercial, office, retail and residential sites and facilities, together with associated infrastructure, and amenities available to the public, on the Property (Project). A drawing showing the Property and the Project, as currently planned, is attached hereto and made a part hereof as Exhibit A; 5934451 -1 7/11/12 DRAFT R -S. The development of the Project will require the construction of new streets that will be dedicated to the City to provide better access to the Property, the new and rehabilitated commercial, office, retail and residential facilities, and the recreational and other amenities on the Property. R -6. RRA intends to develop the street improvements needed for the Project. Upon the completion of the street improvements, RRA shall dedicate such street improvements to the City, subject to the City's acceptance of the same; R -7. BRA has indicated that such street improvements, infrastructure improvements, environmental cleanup and remediation work, demolition and removal of structures, and the construction of infrastructure and amenities will allow for a significant additional investment to be made for the Project; R -8. RRA anticipates constructing or causing to be constructed infrastructure improvements and amenities available to the public on the Property and in connection with the Project, as shown in a map of the site attached hereto and made a part hereof as Exhibit B. The anticipated infrastructure improvements include, but are not limited to: a. Jefferson Street streetscape improvements. Dedicate additional right -of -way and complete streetscape improvements along the eastern side of Jefferson Street from the north end of the Property to Reserve Avenue. b. Connector streets to Jefferson Street from the interior of the Property and extending through the Property including the utilities necessary for a full build -out, on- street parking, and associated pedestrian streetscape. C. Demolition and reconstruction of the Walnut Avenue ramp road presently located on the north side of the Walnut Street Bridge and new streets through the Property to the south connecting to the proposed Rail Crossing, including design, utilities necessary for a full build -out, on- street parking, and the streetscape. 5934451 -1 7/11/12 DRAFT d. Urban plaza between the Riverfront and the historic Trolley Barn building including environmental cleanup under the bridge. e. Riverfront Promenade improvements on both sides of the Walnut Street Bridge. f. Environmental cleanup and related work on the Property. g. Demolishing and removing certain structures on the Property. h. Railroad grade crossing with required improvements and screening. L Retaining walls to be erected on both the north and south sides of the Jefferson Street connector street identified in Paragraph b above. j. At -grade parking for nonresidential uses available to the public. R -9. RRA has requested economic development grants through the EDA to assist in the cost of the site improvements, associated site infrastructure improvements, demolition to include removal of structures, environmental cleanup and remediation work, and the construction of infrastructure and amenities available for public use; but not for the construction or rehabilitation of the commercial, office, retail and residential buildings other than environmental cleanup and remediation work in several of the buildings to be rehabilitated; R -10. The City and the EDA desire that the Project proceed and have determined that such Project will promote economic development within the City and within the Roanoke Valley. Such Project will provide additional tax revenue and services to benefit the citizens of the City and the Roanoke Valley; R -11. The EDA, based on the undertakings of RRA, has determined to make an initial economic development grant and subsequent annual economic development grants for a specified period to RRA from funds to be provided for such purposes to the EDA by the City, all in accordance with the terms of this Agreement; and 5934451 -1 7/11/12 DRAFT R -12. The parties wish to reduce to writing the understanding of the parties concerning this matter. NOW, THEREFORE, the parties, in consideration of the promises and obligations contained herein, mutually agree as follows: SECTION 1. INCORPORATION OF RECITALS. The Recitals stated above shall be part of this Agreement. SECTION 2. DEFINITIONS. A. Eligible Expenditures. Eligible Expenditures shall include infra- structure construction project costs (including engineering, design, architectural, security, financing, accounting, and legal costs (the combined total of which shall be capped at 15% of overall total expenditures) as well as infrastructure construction and project management, supervision, inspection, testing; environmental clean -up and remediation costs (including the removal and remediation of asbestos and similar materials from the interior of the buildings to be rehabilitated, and the removal, disposal and replacement of soil); the cost of demolishing, removing or relocating any buildings or structures; the cost of off - street parking facilities which are open to the public for nonresidential uses; the cost of constructing certain specific amenities available to the public; all permits, licenses, water and sewer impact fees and connection fees; and offsite improvements directly required for the Project; and such other costs as may be reasonably necessary and incident to the construction and development of the infrastructure improvements and amenities available to the public for the Project. However, any such Eligible Expenditures shall not include the cost of the Property. B. Project. The Project shall include development and rehabilitation of commercial, office, retail and residential sites and facilities, together with associated infrastructure and amenities on the Property that shall be available to the public. C. Property. The Property shall include property located along Jefferson Street, Walnut Avenue, and Mill Street, consisting of tax 5934451 -1 7/11/12 DRAFT map numbers 4030303, 4030302, 4030307, 4022103, 4030306, 4030305, 4030501, 4040401, 4040106, 4040301, and the Brenner Property. D. Cycle Systems Property. The Cycle Systems Property shall include property located on Walnut Avenue, consisting of tax map numbers 4030301, 4022221, 4022227, and as shown on Exhibit A. SECTION 3. INITIAL EDA ECONOMIC DEVELOPMENT GRANT. Subject to the terms of this Agreement, the EDA shall, with funds provided by the City, make an initial Economic Development Grant (Initial Grant) of $2,000,000.00 for the Project to assist with the development of the infrastructure and for Eligible Expenditures for the Project for the purposes of promoting economic development in the City and the Roanoke Valley. The EDA's obligations hereunder are not general obligations of the FDA, but are special obligations of the EDA limited to those funds which are provided by the City for such purposes and received by the EDA under the terms set forth herein. The EDA shall make the Initial Grant to BRA upon receipt of funds from the City for such Initial Grant. The City shall make the appropriation to the EDA for the Initial Grant within 45 days after the date of this Performance Agreement. SECTION 4. EDA ECONOMIC DEVELOPMENT GRANT /FUTURE YEARS. Subject to the terms of this Agreement, the EDA shall make, in addition to the Initial Grant, up to twelve (12) annual Economic Development Grants (Grant), the total aggregate amount of which shall not exceed $8,000,000.00, to RRA in order to assist with the development of the infrastructure and for Eligible Expenditures for the Project for the purposes of promoting economic development in the City and the Roanoke Valley. The EDA shall make such Grants up to a maximum aggregate amount of $8,000,000.00, based on Eligible Expenditures spent or caused to have been spent by RRA, (such amount being in addition to the Initial Grant of $2,000,000.00), after RRA has spent or caused to have been spent the Initial Grant in Eligible Expenditures in the first 24 month period as provided for below. The EDA's obligations hereunder are not general obligations of the EDA, but are special obligations of the EDA limited to those funds which are provided by the City for such purposes and received by the EDA under the terms set forth herein. 5934451 -1 7/11/12 DRAFT SECTION S. OBLIGATION RRA agrees and promises that in order to qualify to receive and to continue to receive the Grant for each grant year (as defined in this Agreement), RRA shall do or provide each of the following: A. Within 24 months after the date of this Agreement, RRA shall have spent or caused to have been spent, Eligible Expenditures totaling at least $2,000,000.00. In the event RRA fails to make Eligible Expenditures totaling $2,000,000.00 during this 24 month period, RRA shall return within 30 days after such 24 month period ends to the EDA an amount equal to the difference between the Initial Grant and the Eligible Expenditures made during the 24 month period. If this occurs, the EDA shall pay to the City any such amount the EDA receives from RRA. R. Within 36 months after the date of this Agreement, RRA shall have spent or caused to have been spent Eligible Expenditures totaling up to $3,000,000.00. Such amount shall include the amount RRA spends in Eligible Expenditures made during the first 24 month period plus an additional $1,000,000.00 in Eligible Expenditures. C. Within 36 months after the date of this Agreement, RRA shall have built, renovated, or rehabilitated and have obtained permanent certificates of occupancy for two buildings on the Property and such buildings shall be available for sale or lease. D. RRA shall be eligible for, and the EDA shall make, Grants up to a maximum amount of $8,000,000.00 based on Eligible Expenditures spent or caused to have been spent by RRA after RRA has spent or caused to have been spent the amount in Paragraph A above in Eligible Expenditures in the first 24 month period. However, any such Grants are subject to the terms of this Agreement and the following limits: 1. The amount of any Grant Request in a Grant Year cannot exceed the amount of Eligible Expenditures that have been made and have not yet been the basis for a Grant. This amount may include Eligible Expenditures made in prior Grant Years for which no Grant funds were paid. 5934451 -1 7/11/12 DRAFT 2. The amount of any Grant Request in a Grant Year cannot exceed the amount available for a Grant based on an amount equal to 75% of the amount of applicable tax revenue the City actually received during the preceding Grant Year from the Property as provided for in Section 6(C) of this Agreement. However, any available Grant revenue funds not provided for in a Grant request shall not carry over to any other Grant Year. E. RRA anticipates spending or causing to be spent Eligible Expenditures totaling at least $10,000,000.00. This $10,000,000.00 includes the amount up to $3,000,000.00 in Eligible Expenditures made during the first 36 month period and an additional $7,000,000.00 in Eligible Expenditures during the remaining term of this Agreement. F. Either the EDA or the City may request in writing from RRA reasonable documentation of the Eligible Expenditures and, if so, RRA shall provide such reasonable documentation within thirty (30) days of any such written request, at no cost to the EDA or the City. 1. Verification of expenditures submitted by RRA shall be sufficient to allow the EDA and the City to determine if RRA has made or cause to have been made Eligible Expenditures as contemplated by this Agreement If the information submitted by RRA for verification of the Eligible Expenses is not sufficient to evidence such expenditure, either the EDA or the City may request further documentation, which shall be provided by RRA within 30 days of receipt of the request for further documentation. All of the documents or information produced by RRA to verify such costs or expenditures shall be provided to the City and the EDA without cost or charge to either the City or the EDA. RRA shall be responsible for providing all such documentation, whether from RRA or other entities within the Property and Project. 5934451 -1 7 7/11/12 DRAFT 2. In the event that a development entity other than RRA makes the Eligible Expenditures pursuant to an assignment, co- development agreement, or similar arrangement, then RRA shall be responsible for providing to the EDA and the City all documentation of all such Eligible Expenditures, whether such Eligible Expenditures were made by RRA or other entities within the Property and Project. Any Grant payments shall only be to RRA unless the City and the EDA agree otherwise. G. RRA shall file all appropriate real estate tax and other tax forms or notices with the City with respect to the parcels comprising the Property that RRA owns, ensure that it has received assessments for such parcels from the City for such taxes, and RRA shall have paid all such taxes to the City and not claimed any exemptions from real estate taxes or other taxes for any periods of time from which Grant funds are requested. RRA shall also ensure that the owner of the Property or any part thereof and any entity that may operate and /or manage the Property or Project, or any part thereof, if different than RRA, also complies with all the obligations of this Section S(G) and any other applicable provisions of this Agreement. H. RRA shall make all Grant Requests as set forth in this Agreement SECTION 6. ECONOMIC DEVELOPMENT GRANTS. Subject to the conditions as set forth in this Agreement, the EDA shall provide certain Grant funds, limited to those funds which are received by the EDA from the City, for such purposes, as set forth below, to RRA, in order to assist with the development of the Property and associated infrastructure for the Project as follows: A. The First Grant Year under this Agreement shall start no later than July 1 immediately following the end of the 36 month period referred to in Section S(B). Provided, however, RRA shall submit such First Grant Request, and any subsequent Grant Requests, to the EDA as provided for in this Agreement and shall provide the EDA with reasonable documentation as to RRA's compliance with this Agreement. For purposes of this Agreement, a Grant Year 5934451 -1 7/11/12 DRAFT shall mean July 1 through June 30 of the applicable time period. The parties agree that the First Grant Year of the possible twelve consecutive Grant Years referred to in Section 6(B) below shall start no later than the time period set forth above, whether or not RRA makes a Grant Request for that First Grant Year. B. Such Grants may be requested only by RRA, unless the City and the EDA agree otherwise, for a maximum of twelve (12) consecutive years, which shall include the Grant Year for the First Grant Request. The twelve (12) year period shall continue to run whether or not a Grant Request is made or any Grant funds are paid to RRA for any particular year. All Grant Requests shall be made by RRA and submitted to the EDA between the period of September 1 and December 1 for the preceding Grant Year or no Grant shall be considered or given for that particular year. For example, if RRA wants to make a request for the Grant Year of July 1, 2014, to June 30, 2015, RRA must do so between September 1, 2015, and December 1, 2015. Also, in such an example, the 12 consecutive years for which a Grant could be requested would be July 1, 2014, through June 30, 2026. The City will cooperate with RRA by providing public information relevant to tax revenue received from the Property or the Project. C. Subject to the provisions of this Agreement, the amount of each Grant Request can be up to an amount equal to 75% of the amount of revenue the City actually received during the preceding Grant Year from the Property, and any taxes directly related to any businesses conducted on the Property, subject to the limits set forth herein, directly resulting from the Property or the Project and coming from real estate taxes, the City's portion of general sales tax (currently the local option is 1 %), professional and occupational license tax, tangible personal property used in business (but not including tangible personal property taxes for any vehicles), prepared food and beverage tax, and transient occupancy tax. 1. The amount of any Grant Request in a Grant Year cannot exceed the amount of Eligible Expenditures that have been made and have not yet been the basis for a Grant. This 5934451 -1 7/11/12 DRAFT amount may include Eligible Expenditures made in prior Grant Years for which no Grant funds were paid. Provided, however, any new or existing local or special tax, such as a Downtown Service District Tax or increase in the rate of any of the aforementioned taxes for the specific purpose of dedicating the incremental revenue for a specific project or purpose shall be excluded from and not counted in the amount of tax revenue resulting from the Property or Project. 3. Furthermore, there shall be no carryover of any type from one Grant Year to the next for any applicable City revenues received and /or funds from the prior year or years or for purposes of determining the amount of revenue available for any Grant Year. The amount of revenue the City actually received from the taxes listed above during each Grant year from the Property shall be looked at separately to determine the available Grant revenue for the Grant Request for the specific Grant Year in question. D. The maximum amount of all future year Grant Funds RRA may receive under this Agreement shall in no event exceed a total of $8,000,000.00. Once this maximum amount is paid to RRA, or the above 12 year period has expired, whichever occurs first, RRA may not make any further Grant requests and no further Grant requests shall be considered or paid. SECTION 7. DISTRIBUTION OF GRANT FUNDS. Upon RRA's compliance with the obligations set forth in this Agreement, RRA may request in writing that the EDA obtain and provide the Grant Funds mentioned above in accordance with the terms of this Agreement. Such request must be accompanied by reasonable documentation to establish to the reasonable satisfaction of the EDA and the City RRA's compliance with the obligations set forth in this Agreement. Upon receipt of such request, and approval by the EDA (approved request), the EDA shall forward the approved request to the City Manager and the Economic Development Manager. The written Grant Request(s) from RRA to the EDA shall be on a form approved by 5934451 -1 10 7/11/12 DRAFT the EDA's counsel, attached as Exhibit C, such approval not to be unreasonably withheld. The EDA may disapprove any request that does not comply with the terms of this Agreement or require that a revised request be submitted. Should the EDA disapprove a Grant Request or require that RRA submit a revised request, the EDA shall provide written notice to RRA stating the basis for disapproval and any defect in the Grant Request and specifying the required additional information. RRA shall submit the revised and resubmitted request within 30 days of receipt of such written notice. If such additional information is not provided, such Grant request may be denied by the EDA and /or the City. After the EDA approves a request, the EDA shall make a written request to the City for the distribution to the EDA of the City's appropriation of such funds. The City will process such approved request within 45 days of receipt thereof, subject to such funds being appropriated. The EDA will make any approved payments to RRA within 10 working days from the date of receipt of the funds from the City, provided, however, that the EDA has no liability in the event the City delays processing the EDA's requisition. The EDA's obligations shall be limited to those funds which the EDA shall receive from the City and shall not a general obligation, but a special obligation of the EDA. Furthermore, no Grant requests may be made by BRA or considered by the EDA after December 1 after the end of the twelfth Grant Year or after the payment of the maximum Grant amount to RRA, whichever occurs first. SECTION 8. FUTURE BRIDGE. The City and RRA anticipate that the development of the Project will result in the need for a bridge over the Norfolk Southern Railway tracks (former Virginian Railroad mainline). The approximate area for such bridge is shown on Exhibit B. RRA anticipates that the development costs for the five buildings in the area under the Walnut Avenue Bridge will be approximately $15,000,000.00. The City and BRA anticipate that the City shall design the new bridge once RRA has started construction on the last of the five buildings in the area under the Walnut Avenue Bridge. The City and RRA anticipate that the City will begin constructing the new bridge or have construction begin upon RRA's commitment to a new development project on the Cycle Systems Property with a development cost of at least $15,000,000.00. Prior to completion of the bridge, BRA shall be responsible for the design and construction of the necessary streets and approaches to the bridge to make it 5934451 -1 11 7/11/12 DRAFT accessible to the public, which items may be dedicated to the City, subject to the City's approval. SECTION 9. PAYMENT OF EDA's FEES. A. RRA promises and agrees it shall pay all reasonable fees, costs, and expenses of the EDA in connection with this matter, which includes the reasonable fees of the EDA's counsel, in an amount not to exceed a total of $5,000.00 for such counsel's work up to the date of this Agreement. Payment of such items shall not be made from any Grant funds. The EDA will submit statements to RRA for such items and RRA will pay such statements within 30 days after receipt. B. In the event any party brings a court action to enforce any provision of this Agreement or with respect to an alleged breach of this Agreement, other than the Dispute provisions of Section 20, the substantially prevailing party shall be entitled to an award of attorneys' fees and costs in an amount that is reasonable and appropriate given consideration to all of the circumstances. Any costs incurred by the EDA and not recovered from or paid by another entity and associated with any mediation or litigation pursuant to Section 20 of this Agreement shall be reimbursed to the EDA by the City. SECTION 10. REPORTS TO THE FDA AND CITY. During the term of this Agreement, RRA agrees to report to and provide the EDA and the City on a semi- annual basis, on or before June 30 and December 31 of each year, sufficient information related to RRA's compliance with the conditions of this Agreement and to provide appropriate documentation to support such compliance. RRA also agrees to allow the City and /or its representative to inspect, audit, copy, or examine any of RRA's books, documents, or other relevant material in connection therewith upon written request by the EDA or the City. All such documents, information (including electronic data), or access shall be provided or made available within thirty (30) days of a written request from either the EDA or the City at no cost to the EDA or the City. 5934451 -1 12 7/11/12 DRAFT RRA agrees to comply with all applicable federal, state, and local laws, rules, and regulations, including but not limited to, obtaining a City Business License, if applicable. SECTION 12. COOPERATION. Each party agrees to cooperate with the other in a reasonable manner to carry out the intent and purpose of this Agreement. SECTION 13. SEVERABILITY. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. The parties intend the remaining provisions of this Agreement be enforced to the fullest extent permitted by applicable law. SECTION 14. AUTHORITY TO SIGN. The persons who have executed this Agreement on behalf of the parties represent and warrant they are duly authorized to execute this Agreement on behalf of their respective entity. SECTION 1S. COUNTERPART COPIES. This Agreement may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument SECTION 16. SUCCESSORS. The terms, conditions, provisions and undertakings of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assigns. 5934451 -1 13 7/11/12 DRAFT SECTION 17. NONDISCRIMINATION. A. During the performance or term of this Agreement, RRA agrees as follows: i. RRA shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of RRA. RRA agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. ii. RRA in all solicitations or advertisements for employees placed by or on behalf of RRA shall state RRA is an equal opportunity employer. iii. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section. B. RRA shall include the provisions of the foregoing Section A (i, ii and iii) in every subcontract or purchase order of over $10,000.00, so that the provisions will be binding upon each subcontractor or vendor. RRA agrees not to assign or transfer any part of this Agreement without the prior written consent of the City and the EDA, which shall not be unreasonably withheld, and any such assignment shall not relieve RRA from any of its obligations under this Agreement. RRA shall be allowed to assign or transfer rights under this Agreement for the purpose of furthering the development of the Project for financing purposes or for the development of specific portions of the Project, subject to providing the EDA and the City with 30 days written 5934451 -1 14 7/11/12 DRAFT notice of any such assignment and the City's right to object within such 30 day time period and withhold the City's consent which shall not be unreasonably withheld. Despite any assignment, the parties agree there shall be only one Grant Request and one Grant Recipient under this Agreement. Such Grant Request shall only be from RRA, unless otherwise agreed to by the City and the EDA. 1e a UM9 Dim '1L% 1 a 11 The parties to this Agreement will be responsible for the actions, or omissions of its officers, employees, and agents acting within the scope of their employment in connection with the Project, the Property, and the activities provided for in this Agreement to the extent permitted by law, but nothing contained herein shall be construed as a waiver of either the City's or the EDA's immunity defenses. SECTION 20. FORUM SELECTION, CHOICE OF LAW, AND DISPUTES. A. By virtue of entering into this Agreement, RRA agrees and submits itself to the jurisdiction of the Circuit Court of the City of Roanoke, Virginia, and further agrees this Agreement is controlled by the laws of the Commonwealth of Virginia, with the exception of Virginia's choice of law provisions which shall not apply; and all claims, disputes, and other matters shall be decided only by such court according to the laws of the Commonwealth of Virginia as aforesaid. Prior to the initiation of any litigation, the parties agree to seek to resolve any and all claims, disputes, and other matters utilizing mediation in accordance with the dispute provisions provided in this Section. L If a dispute arises out of or relates to this Agreement, or a claimed breach of this Agreement, the parties agree first to try in good faith to resolve the dispute through negotiation among the parties and by nonbinding mediation. In the event of any such dispute, a party may give the other parties a written description of the dispute and the relief requested. The parties shall promptly 5934451 -1 15 7/11/12 DRAFT attempt to resolve the dispute by negotiation involving senior managers. If the dispute is not promptly resolved by negotiation, any party may demand in writing that all of the parties involved in the dispute participate in a formal mediation presided over by a third -party neutral mediator. If the parties cannot agree on a mediator, then McCammon Mediation Group, 6641 West Broad Street, Richmond, Virginia 23230, or its successor, shall have the power to select the mediator. The parties shall share in the cost of the mediation proceedings equally. 2. If mediation is unsuccessful, the parties shall be free to initiate litigation or take other appropriate action as they deem appropriate. However, no party shall initiate any litigation or action against any other party to this Agreement with respect to the performance or enforcement of this Agreement without first complying with the dispute resolution provisions of this section except for the sole and limited purpose of tolling a statute of limitations or similar laws that would otherwise impair a party's legal rights, or for enforcing this Dispute Section. Each party agrees that any party's waiver or failure to enforce or require performance of any term or condition of this Agreement or any party's waiver of any particular breach of this Agreement by any other party extends to that instance only. Such waiver or failure is not and shall not be a waiver of any of the terms or conditions of this Agreement or a waiver of any other breaches of the Agreement by any party and does not bar the nondefaulting party from requiring the defaulting party to comply with all the terms and conditions of this Agreement and does not bar the nondefaulting party from asserting any and all rights and /or remedies it has or might have against the defaulting party under this Agreement by law. The section captions and headings are for convenience and reference purposes and shall not affect in any way the meaning or interpretation of this Agreement. 5934451 -1 16 7/11/12 DRAFT EASEMENTS RRA promises and agrees to grant and dedicate to the City and /or the Western Virginia Water Authority all reasonably necessary easements on RRA's Property for the construction of infrastructure improvements needed for or benefiting the Project or surrounding areas, including, but not limited to, storm drainage, sanitary sewers, and /or water, all at no cost to the City and /or the Western Virginia Water Authority. SECTION 24. APPROPRIATION OF FUNDS. All obligations or funding undertaken by the City or the EDA in connection with the Project or this Agreement are subject to the availability of funds and the appropriation of such funds by City Council as may be necessary for such obligations or funding. SECTION 25. PERFORMANCE. If RRA fails to comply with any of the obligations of this Agreement, RRA shall not be entitled to be eligible for and /or receive and /or continue to be eligible for and /or receive any such Grants or Grant Funds as referred to above or in this Agreement In the event the City or the EDA believe that RRA has failed to comply with any of the obligations of this Agreement, except as noted below, the City or the EDA shall give RRA written notice identifying how RRA is not in compliance, with reasonable specificity. RRA shall then have a 30 day period to reasonably cure the identified noncompliance issue. If the identified noncompliance issue cannot reasonably be cured within the 30 day period, RRA shall have an additional reasonable time to cure, not exceeding an additional 60 days, provided RRA acts diligently to accomplish the cure. Provided, however, notwithstanding anything set forth above or anything else in this Agreement, RRA shall comply with the provisions and requirements set forth in Sections S(A), S(B), and S(C), or RRA shall not be entitled to be eligible for and /or receive and /or continue to be eligible for and /or receive any such Grants or Grant Funds as referred to above or in this Agreement, and no notice to RRA of any such breach shall be required of the City or the EDA. 5934451 -1 17 7/11/12 DRAFT All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, or by a nationally recognized overnight courier, addressed as follows (or any other address the party to be notified may have designated to the sender by like notice): If to City, to: City of Roanoke, Virginia Attn: City Manager Noel C. Taylor Municipal Building Room 364 215 Church Avenue, S.W. Roanoke,VA 24011 Fax No. 540- 853 -1138 With a copy to: City of Roanoke, Virginia Attn: Economic Development Manager 117 Church Avenue, S.W. Roanoke,VA 24011 Fax No. 540 -BS3 -1213 If to EDA, to: Chair, Economic Development Authority of the City of Roanoke, Virginia c/o Roanoke City Department of Economic Development 117 Church Avenue S.W. Roanoke,VA 24011 Fax No. 540- 224 -8050 With a copy to: Harwell M. Darby, Jr., Esquire Glenn, Feldmann, Darby & Goodlatte 37 Campbell Avenue, S.W. Roanoke,VA 24011 Fax No. 540- 224 -8050 5934451 -1 18 7/11/12 DRAFT If to RRA, to: Jason Vickers -Smith Roanoke River Associates, LLC c/o WVS Companies, LLC 211 Rocketts Way Richmond, VA 23231 (804) 222-6778 (Fax) With a copy to: Gregory J. Haley, Esq. Gentry Locke Rakes & Moore, LLP 800 SunTrust Plaza 10 Franklin Road, S.E. Roanoke,VA 24011 Fax No. 540- 983 -9400 Notice shall be deemed delivered upon the date of personal service, two days after deposit in the United States mail, or the day after delivery to a nationally recognized overnight courier. SECTION 27. FAITH BASED ORGANIZATIONS. Pursuant to Virginia Code Section 2.2- 4343.1. be advised that the City does not discriminate aeainst faith-based oreanizations. SECTION 28. FORCE MAIEURE A delay in or failure of performance by any party shall not constitute a default, nor shall RRA, the City or EDA be held liable for loss or damage, or be in breach of this Agreement, if and to the extent that such delay, failure, loss or damage is caused by an occurrence beyond the reasonable control of such party and its agents, employees, contractors, subcontractors and consultants, which results from Acts of God or the public enemy, compliance with any order of or request of any governmental authority or person authorized to act therefore, acts of declared or undeclared war, public disorders, rebellion, sabotage, revolution, earthquake, floods, riots, strikes, labor or employment difficulties, delays in transportation, inability of party to obtain necessary 5934451 -1 19 7/11/12 DRAFT materials or equipment or permits due to existing or future laws, rules, or regulations of governmental authorities or any other causes, whether direct or indirect, and which by the exercise of reasonable diligence said party is unable to prevent. For purposes of this Agreement any one delay caused by any such occurrence shall not be deemed to last longer than 6 months and all delays caused by any and all such occurrences under any circumstances shall not be deemed to last longer than a total of 9 months. Any party claiming a force majeure occurrence shall give the other parties written notice of the same within 30 days after the date such claiming party learns of or reasonably should have known of such occurrence, or any such claim of force majeure shall be deemed waived. Notwithstanding anything else set forth above, after a total of 9 months of delays or failure of performance of any type have been claimed by a party as being subject to force majeure, no further delays or claims of any type shall be claimed by such party as being subject to force majeure and /or being an excusable delay. SECTION 29. ENTIRE AGREEMENT. This Agreement, together with any exhibits, attachments, and referenced items, constitutes the entire agreement of the parties and supersedes all prior agreements between the parties. No amendment to this Agreement shall be valid unless made in writing and signed by the appropriate parties. (SIGNATURE PAGE TO FOLLOW) 5934451 -1 20 7/11/12 DRAFT IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement by their authorized representatives. WITNESS: CITY OF ROANOKE, VIRGINIA Printed Name and Title (SEAL) WITNESS: Linda D. Frith, Secretary WITNESS: Printed Name and Title Approved as to Form: City Attorney Approved as to Form Christopher P. Morrill, City Manager ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ROANOKE, VIRGINIA Charles E. Hunter, III, Chair Roanoke River Associates, LLC Jason Vickers -Smith (Note: What is his title ?) Approved as to Execution: City Attorney Approved as to Execution Counsel for EDA Counsel for EDA Appropriation and funds required for this Agreement are subject to future appropriation. Director of Finance Date Acct# Authorized by Ordinance No. 5934451 -1 21 3 a Oo� D< > z z T1 V 0mzz � �0s0 O 0. pm � Acm W 0� O zvHo yz � N�c 0zo Q 00� w 2 �G .a w � 3 D Oo� s^'Dp ZZD OmZzz xpp0 m � i pFs< y,J A <m: AO y °H �zo 00� nz � ten-. x p Exhibit C to Performance Agreement Among the City of Roanoke, Roanoke River Associates, LLC and the Economic Development Authority of the City of Roanoke, Virginia Grant Request Form This Grant Request is submitted pursuant to a certain Performance Agreement dated 2012, (the "Performance Agreement "), by and among the City of Roanoke, Virginia, ( "City"), Roanoke River Associates, LLC, ("RRA-), and the Economic Development Authority of the City of Roanoke, Virginia, ( "EDA "). Terms defined herein shall have the same meanings ascribed to such terms in the Performance Agreement. The Performance Agreement provides that RRA shall perform and comply with certain obligations as set forth in the Performance Agreement in order to qualify to receive and to continue to receive an Economic Development Grant for each Grant Year as set forth in such Performance Agreement. Upon compliance with the provisions of the Performance Agreement, RRA may make a request to the EDA for an Economic Development Grant in accordance with the procedures set forth in the Performance Agreement and subject to the terms and limitations on the amount of such Grant as further set forth in the Performance Agreement. Furthermore, RRA must supply sufficient documentation as required by the Performance Agreement in order to document RRA' request and RRA' compliance with the Performance Agreement. Each Grant Year is to be considered separately for compliance with the requirements for a Grant Request. RRA warrants and represents that it has complied with all the terms and conditions of the Performance Agreement necessary for RRA to obtain Grant Funds from the EDA, including, but not limited to, the applicable provisions of Sections 5, 6, and 7 of the Performance Agreement. Attached to this Grant Request form is the information RRA represents as being sufficient to demonstrate that the City has been paid and has actually received the stun of $ from the applicable revenue sources referred to in the Performance Agreement from the Project for the prior Grant Year of July L , through June 30, Accordingly, RRA hereby requests from the EDA an Economic Development Grant, as provided for in the Performance Agreement, in the amount of $ , which is an amount that is allowed by the terms of such Performance Agreement and which is supported by the attached documentation as Attachment A to this Grant Request. This Grant Request is for Grant Year No. Amounts previously paid by the EDA to RRA in Economic Development Grants total $ . The total amount of Eligible Expenditures made by RRA through the end of Grant Year No. is $ . The amount of this Grant Request does not exceed the lesser of (a) the amount of Eligible Expenditures RRA has made for Grant Year No. (which may include Eligible Expenditures for prior Grant Years for which no Grant funds were paid) or (b) the amount of the Grant available for Grant Year No. . Since the total amount of all Grants that may be requested and /or provided for under the Performance Agreement, not including the Initial Grant, is 58,000,000.00 (US), the total remaining amount that RRA may request by future Grant Requests is $ The Performance Agreement provides a Grant Request may be requested for a maximum period of twelve consecutive years, which shall begin and include the first Grant Year starting on the July I immediately following the end of the 36 month period specified in Section 5(B) of the Performance Agreement. Therefore, since this is Grant Request No. for the Grant Year July 1, , through June 30, , there remains) consecutive years for which a Grant Request may be made by RRA provided RRA complies with the terms and provisions of the Performance Agreement. In the event of a conflict or difference between the terms of the Performance Agreement and those contained in this Grant Request form, the terms and provisions of the Performance Agreement shall control. RRA respectfully requests that the EDA process this Grant Request through the City and send copies to the City Manager and the City's Economic Development Administrator, in accordance with the provisions of the Performance Agreement. This Grant Request is dated WITNESS: Roanoke River Associates, LLC is Printed Name and Title Printed Name and Title Exhibit D to Performance Agreement dated .2012 Among the City, Roanoke River Associates and the EDA Examples for RRA Agreement Example A SECTION 5. OBLIGATIONS OF RRA. D. RRA shall be eligible for, and the EDA shall make, Grants up to a maximum amount of $8,000,000.00 based on Eligible Expenditures spent or caused to have been spent by RRA after RRA has spent or caused to have been spent the amount in Paragraph A above in Eligible Expenditures in the first 24 month period. However, any such Grants are subject to the terms of this Agreement and the following limits: The amount of any Grant Request in a Grant Year cannot exceed the amount of Eligible Expenditures that have been made and have not yet been the basis for a Grant. This amount may include Eligible Expenditures made in prior Grant Years for which no Grant funds were paid. Example language By way of example only, if RRA has spent or caused to have been spent $750,000.00 in Eligible Expenses that have not yet been the basis for a Grant Request, and the City has received $1,000,000.00 in applicable tax revenue in the preceding Grant Year from the Property, then RRA can request a Grant amount equal to 75% of the $1,000,000.00 in such applicable revenue received by the City, which would allow RRA to make a 5750,000.00 Grant Request for the applicable Grant Year. Provided, however, any Grant Request must still comply with the terms of the Agreement for the applicable Grant Year. Example B SECTION 5. OBLIGATIONS OF RRA. D. RRA shall be eligible for, and the FDA shall make, Grants up to a maximum amount of $8,000,000.00 based on Eligible Expenditures spent or caused to have been spent by RRA after RRA has spent or caused to have been spent the amount in Paragraph A above in Eligible Expenditures in the first 24 month period. However, any such Grants are subject to the terms of this Agreement and the following limits: 2. The amount of any Grant Request in a Grant Year cannot exceed the amount available for a Grant based on an amount equal to 75% of the amount of applicable tax revenue the City actually received during the preceding Grant Year from the Property as provided for in Section 6(C) of this Agreement. However, any available Grant revenue funds not provided for in a Grant request shall not carry over to any other Grant Year. Example Language By way of example only, if IRA has spent or caused to have been spent $1,000,000.00 in Eligible Expenditures that have not yet been the basis for a Grant Request or a Grant Payment, and the City has received $1,000,000 in applicable tax revenue in the preceding Grant Year from the Property, then RRA can request a Grant amount equal to 75% of the $1,000,000.00 in such applicable revenue received by the City, which would allow RRA to make only a $750,000.00 Grant Request for the applicable Grant Year. In this example, the$250,000.00 in Eligible Expenditures that have not yet been the basis for a Grant Request shall carry over and shall continue to be available as Eligible Expenditures in later Grant Years. Provided, however, any Grant Request must still comply with the terms of the Agreement for the applicable Grant Year. Example C SECTION 5. OBLIGATIONS OF RRA. D. RRA shall be eligible for, and the EDA shall make, Grants up to a maximum amount of $8,000,000.00 based on Eligible Expenditures spent or caused to have been spent by RRA after RRA has spent or caused to have been spent the amount in Paragraph A above in Eligible Expenditures in the first 24 month period. However, any such Grants are subject to the terms of this Agreement and the following limits: 2. The amount of any Grant Request in a Grant Year cannot exceed the amount available for a Grant based on an amount equal to 75% of the amount of applicable tax revenue the City actually received during the preceding Grant Year from the Property as provided for in Section 6(C) of this Agreement. However, any available Grant revenue funds not provided for in a Grant request shall not carry over to any other Grant Year. Example Language: By way of example only, if RRA has spent or caused to have been spent $500,000.00 in Eligible Expenditures that have not yet been the basis for a Grant Request or a Grant Payment, and the City has received $1,000,000.00 in applicable tax revenue in the preceding Grant Year from the Property (based on the funding formula as stated above in Section 5(D)(1) and Section 6 of this Agreement), then because the funds eligible for a Grant Request exceed Eligible Expenditures, RRA would only be able to submit a Grant Request for $500,000.00. [Note RRA would otherwise have been eligible to have made a Grant Request if RRA had spent or had caused to have been spent $750,000.00 in Eligible Expenditures, as provided for by the 75% funding formula in Section 5(D)(2).] In this example, the $250,000.00 in remaining eligible Grant revenue would not carry over to the next Grant Year as stated above in Section 5(D)(2) of this Agreement. Provided, however, any Grant Request must still comply with the terms of the Agreement for the applicable Grant Year. END OF EXAMPLES C5 IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39448- 071612. AN ORDINANCE authorizing the City Manager to negotiate and execute a Temporary Intergovernmental Agreement ( "Agreement "), with the City of Charlotte, North Carolina Charlotte Police Department ( "City of Charlotte ") concerning use of Police Department personnel for the 2012 Democratic National Convention ( "Convention"), upon certain terms and conditions, and dispensing with the second reading of this ordinance by title. BE IT ORDAINED by the Council of the city of Roanoke as follows: 1. The City Manager is authorized to negotiate and execute on behalf of the City of Roanoke, in a form approved by the City Attorney, an Agreement with the City of Charlotte that governs the obligations of the parties with respect to security and police related services from the Roanoke City Police Department for the Convention during the period of September 1, 2012, through September 7, 2012, in a form substantially similar to the Agreement attached to the agenda report to Council dated July 16, 2012. 2. Pursuant to the provisions of Section 12 of the City Charter, the second reading by title of this ordinance is hereby dispensed with. ATTEST: City Clerk. K: \Measures \Ie,[eigov Ag[eement far Remo Convention in Chaalo[te NC.doC I` CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Temporary Intergovernmental Agreement for Law Enforcement Services with Charlotte - Mecklenburg in Preparation for, During and After the 2012 Democratic National Convention Background: The 2012 Democratic National Convention will be held in Charlotte, North Carolina from Tuesday September 4, 2012 through Thursday September 6, 2012. The Charlotte - Mecklenburg Police Department has requested mutual aid from the Roanoke Police Department for the period of September 1, 2012 through September 7, 2012. The Roanoke Police Department along with more than twenty other Virginia jurisdictions is responding to the mutual aid request. The Roanoke Police Department intends to send a detail of eleven officers, a sergeant and a lieutenant to assist the Charlotte - Mecklenburg Police Department. The officers will be providing security and police related services. Charlotte - Mecklenburg will provide training, lodging, food, travel and insurance to all Police Department employees. Charlotte - Mecklenburg will also reimburse the City of Roanoke for salary and fringe expenses at rates established in the intergovernmental agreement packet. Recommended Action: Accept the temporary intergovernmental agreement substantially in a form attached hereto and authorize the City Manager to execute the final agreement and any related documents; all such documents to be approved as to form by the City Attorney. Christophe P. Morrill City Manager Distribution: Council Appointed Officers R. Brian Townsend, Assistant City Manager for Community Development Christopher C. Perkins, Chief of Police Amelia C. Merchant, Director of Management and Budget 2nd ADDENDUM TO TEMPORARY INTERGOVERNMENTAL AGREEMENT FOR LAW ENFORCEMENT SERVICES IN PREPARATION FOR, DURING, AND AFTER THE 2012 DEMOCRATIC NATIONAL CONVENTION The above referenced Agreement is hereby amended this 10 day of July 2012 as follows: Exhibit C is amended to include paragraph G which reads: AGENCY certifies and acknowledges that BJA grant funds received under this agreement will not be used to supplant local and /or state funds. Information about supplanting can be found at httl,-//www .oil).pov/fundinF,/fundiny.htm CITY OF CHARLOTTE By: Chief of Police AGENCY Roanoke Police Department By: Captain Greeory Staples Printed Name Title: Roanoke Police Department Patrol Captain POLICE TEMPORARY INTERGOVERNMENTAL AGREEMENT FOR LAW ENFORCEMENT SERVICES IN PREPARATION FOR, DURING, AND AFTER THE 2012 DEMOCRATIC NATIONAL CONVENTION THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement ") is made and entered into this day of , 2012, by and between the CITY OF CHARLOTTE, CHARLOTTE- MECKLENBURG POLICE DEPARTMENT (hereinafter referred to as "CITY ") and (hereinafter referred to as "AGENCY ".) AGENCY means law enforcement personnel or other employees employed by that AGENCY and /or the legal entity that employs those personnel. The City and the Agency are collectively referred to as the "PARTIES." PURPOSE The CITY has been designated as the host city for the 2012 Democratic National Convention to be held on September 4, 2012, to September 6, 2012, (hereinafter referred to as the "EVENT "). The purpose of this Agreement is to provide additional law enforcement personnel and services to CITY for the period of August 28, 2012, through September 7, 2012. (hereinafter referred to as the "EVENT PERIOD ") This agreement defines the rights and obligations of the parties for the EVENT PERIOD including: the law enforcement powers of the visiting AGENCY; the CITY's protocol for compensating the AGENCY; the Insurance coverage provided to AGENCY; the AGENCY's training obligations; and the protocol establishing a chain of command between the CITY and AGENCY during the EVENT PERIOD. ARTICLE ONE: STATUTORY AUTHORITY 1.01. Statutory Authority to enter into Temporary Enforcement Assistance Agreements. The statutory authorities for CITY to enter into temporary enforcement assistance agreements with both in and out of state AGENCIES are set forth in G.S. §160A-288 and §160A -288.3 respectively. (A copy of these statutes are attached to this agreement and incorporated herein as "Exhibit A ") ARTICLE TWO: ORGANIZATIONAL STRUCTURE 2.01 Resoonsibility for Coordinating Local Law Enforcement Efforts: AGENCY agrees and acknowledges that CITY has been designated as the host city for the Democratic National Convention to be held in Charlotte, North Carolina from September 4, 2012 thou September 6, 2012 2.02. National Special Security Event: AGENCY agrees and acknowledges that the 2012 DNC convention has been classified by the federal government as a National Special Security Event (NSSE). 2.03. Coordinatin¢ Local Law Enforcement: AGENCY agrees and acknowledges that CITY is a co -chair on the NSSE Executive Steering Committee and is responsible for coordinating law enforcement efforts in support of the EVENT. 2.04. Unified Law Enforcement Chain of Command. AGENCY acknowledges and agrees that at all times during any joint training session prior to and at all times during the EVENT PERIOD, the AGENCY's employees shall be subject to a structure of supervision, command and control coordinated by the CITY through a unified law enforcement command structure. Furthermore, that the supervision command and control shall be implemented regardless of such employee's rank or job title normally held within the AGENCY. 2.05. CITY's Commanding Officers. The commanding officer for this EVENT is Rodney Monroe, Chief of Police and Harold Medlock, Deputy Chief of Police. 2.06. CITY'S Policies and Directives to Apply. AGENCY employees performing services under this Agreement will abide by applicable Charlotte- Mecklenburg Police Department (CMPD) Policies and Directives which will be provided to AGENCY in one or more EVENT information and training sessions ( °2012 DNC Event Preparatory Materials ") prior to the EVENT in hard copy or on -line. AGENCY shall disseminate Event Preparatory Materials to all Law Enforcement Officers (LEO's) providing services for the EVENT PERIOD. In the event of a conflict between AGENCY's and CMPD Policies and Directives, AGENCY agrees to follow CMPD Policies and Directives with respect to any EVENT PERIOD related services provided hereunder and shall instruct its employees to do likewise. 2.07. Jurisdiction police powers rights privileges and immunities: AGENCY acknowledges and agrees that while deployed under the Unified Law Enforcement Chain of Command, AGENCY's LEOs shall have the same jurisdiction, powers, rights, privileges and immunities (including those related to the defense of civil actions and payment of judgments) as CITY's LEO'S. Nothing in this section shall be interpreted as a waiver of any rights, defenses or immunities that may be available to that AGENCY or its employees. ARTICLE THREE: AGENCY RESPONSIBILITIES 3.01. Deployed Employees to Participate in Training. Upon reasonable advance written notification from CMPD, AGENCY's employees being deployed during the EVENT PERIOD shall participate and assist in EVENT training activities that are coordinated by CMPD or its designee. For purposes of this Agreement, training activities will include DNC Event Preparatory Materials and mandatory on -line training that must be completed prior to August 15, 2012, for all AGENCY employees providing services during the EVENT PERIOD. CMPD presently expects to provide an event operating and a briefing manual to AGENCY upon its arrival at or prior to the EVENT PERIOD. 3.02. AGENCY's employees to Provide Services. Upon reasonable advance written notification from the CMPD to the AGENCY, the AGENCY's employees being deployed during the EVENT PERIOD shall provide services as assigned by CMPD. 3.03. AGENCY's employees "On Dutd'. AGENCY agrees its employees will be placed "on duty" by CMPD at a time and location as decided by CMPD. AGENCY agrees its employees shall be prepared to undertake the specific job tasks and responsibilities assigned to the AGENCY's employees by CMPD. AGENCY agrees that CITY may change the actual service to be provided by the AGENCY at anytime it deems necessary. 3.04. AGENCY's employees to Participate in "After Action Activities'. At the request of the CMPD, AGENCY agrees its employee shall participate in and /or provide information to and otherwise cooperate with the CMPD in any "after action activities" following the conclusion of the EVENT PERIOD. Such participation may include debriefings of information and experiences, completion of surveys and questionnaires and assisting and /or participating in any civil and /or criminal legal proceedings. 3.05. AGENCY to Provide Information. AGENCY agrees to cooperate with and provide the CITY with any other information reasonably requested by the CITY that the CITY deems necessary to facilitate and enable compliance with the terms and conditions contained in this Agreement. Such information includes, but is not limited to verification of costs acrd expenditures incurred by AGENCY during the EVENT PERIOD. 3.06. AGENCY Contacts. AGENCY has designated the following contacts for operational and administrative purposes under this Agreement: Operational Contact Administrative Contact 3.07. Resources to be provided by AGENCY. The personnel and resources to be provided by the AGENCY are set forth in Exhibit B attached to this agreement and incorporated herein. Exhibit B also sets forth the hourly rate of pay which the CITY will compensate the AGENCY for the time worked by its personnel. 3.08. CRITERIA FOR AGENCY's LEO. Each LEO provided by AGENCY shall meet the following criteria: a. Non — North Carolina AGENCIES shall ensure and certify that the LEO's providing assistance under this Agreement are duly licensed or certified by the authority of the state or jurisdiction in which the officer is employed. b. North Carolina AGENCIES shall ensure and certify that the LEO's providing assistance under this Agreement are duly certified by the state of North Carolina. c. In addition, AGENCY shall ensure and certify that each of the LEOs provided is in good standing by meeting the following criteria: 1. That each LEO by reason of experience, training and physical fitness shall be capable of performing functions associated with a large scale security event; and 2. That each LEO shall have at least 12 months experience as a full time police officer; and 3. That each LEO is not currently under administrative leave pending the results of an internal investigation or under investigation for violations of rights protected by the First, Fourth and Fourteenth Amendments of the United States Constitution or laws or rules of conduct related to search and seizure and use of force; and 4. That each LEO has not received a sustained finding for conduct that involved dishonesty or fraud in the last 10 years or have any sustained complaints for excessive, unreasonable or unnecessary force within the last three (3) years; and 5. That each LEO has not been convicted of a felony or a crime involving dishonesty or fraud; and 6. That no LEO has been sued in an individual or official capacity in the last three (3) years and adjudicated as liable for violations of rights protected by the First, Fourth and Fourteenth Amendments of the U. S. Constitution. d. AGENCY agrees to promptly notify the CMPD in the event that any LEO is no longer an officer in good standing with the AGENCY. 3.09. LEO Equipment. As detailed in the approved equipment list, attached to and made a part of this Agreement within Exhibit B, each LEO shall be equipped with the following: a seasonally appropriate patrol uniform and other authorized regular duty equipment, including but not limited to: service belts, service weapon, radio, and personal soft ballistic body armor as required to be worn by the LEO while on duty for the AGENCY. AGENCY shall not bring to the EVENT PERIOD or possess during the EVENT PERIOD any chemical or other non - lethal munitions expect as provided by CMPD. 3.10. CMPD Can Decline LEO. AGENCY acknowledges and agrees that at anytime during the term of this Agreement that the CMPD has the sole discretion to decline deployment of any LEO during the EVENT PERIOD without cause or explanation. 3.11. AGENCY Judgment and Priorities. AGENCY will exercise its best efforts to provide services during the EVENT PERIOD. However, the Parties recognize that AGENCY retains the right to recall some or all of its LEO's to its home jurisdiction based upon the public safety needs of its home jurisdiction. 3.12. AGENCY Responsible for Costs. Except as set forth in Articles Four and Five, AGENCY shall be responsible for all costs associated with providing LEO assistance that are not explicitly assumed by CITY as stated in this Agreement and authorized in writing. Nothing in this Section shall prohibit authorized representatives of the CITY and AGENCY from agreeing in writing to the assignment of specific costs borne of unforeseen circumstances during the EVENT PERIOD. For purposes of this Section, official electronic messaging will suffice for "in writing" only by the Commanding Officer or their designee. ARTICLE FOUR: CITY RESPONSIBILITIES In addition providing law enforcement planning for the EVENT PERIOD, CITY agrees to the following: 4.01. EVENT Training. CITY agrees that it will provide EVENT training for participating AGENCY LEDs, including Event Preparatory Materials on or about August 15, 2012. 4.02. Lodging and Food. CITY will provide lodging and food for Agency LEOs performing services under this Agreement. The CMPD shall provide lodging and food location assignments to Agency LEOs in writing prior to the Event Period. This shall include a standard per diem for each LEO for one day's travel to, and one day's travel from, the CITY or portion thereof. 4.03. Not to Exceed Amount. CITY shall further cover personnel and transportation expenses of LEOs providing services during the EVENT PERIOD. AGENCY's estimate of allowable expenses will be itemized on a Travel Reimbursement Request. A copy of the Travel Reimbursement Request is attached to Exhibit C. The compensation to AGENCY for LEO services pursuant to this Agreement has been based on this estimate, as approved by CITY. This estimate is a "not to exceed" amount as set forth in Exhibit B. The AGENCY agrees that all actual payments in an amount equal or less than this amount shall be based on itemized invoices provided to CITY pursuant to its Fiscal Administration Requirements as set forth in Exhibit C. 4.04. Insurance. The CITY has procured Law Enforcement Liability Insurance and Workers' Compensation Insurance for the PARTIES for the EVENT PERIOD as set forth in Section 14 of this agreement. ARTICLE FIVE: FINAL PAYMENT TERMS 5.01. Necessary Costs. AGENCY shall only be paid for the necessary costs of participating during the EVENT PERIOD and any "after action activities" as described in Section 3.04. 5.02. LEOs Actually Utilized. Subject to the terms of this Agreement, the CITY agrees to provide payment to the AGENCY for each LEO for on duty services during the EVENT PERIOD. 5.03. Withhold Payment. In the event the AGENCY fails to comply with any terms or conditions of this Agreement or fails to provide in any manner the work or services as agreed to herein, the CITY reserves the right to withhold any available payment until the CITY is satisfied that: terms and conditions of this agreement have been met or that corrective action has been taken to the satisfaction of the CITY; or that the work or services in question was in fact provided pursuant to this agreement This right is in addition to and not in lieu of the CITY's right of termination as provided in this Agreement. ARTICLE SIX: LAW ENFORCEMENT PROCEDURES 6.01. Authority to Act as LEOs. LEOs from AGENCIES located outside the State of North Carolina shall have the same jurisdiction, powers, rights, privileges and immunities (including those related to the defense of civil actions and payment of judgments) as LEO's for the CITY as set forth in N. C. G. S § 160A- 288.3. LEO's from inside the State of North Carolina shall have the same jurisdiction, powers, rights, privileges and immunities (including those related to the defense of civil actions and payment of judgments) as LEO's for the CITY as set forth in N. C. G. S. § 160A -288. 6.02. Law Enforcement Activities. Law enforcement methods employed by the AGENCY's LEOs shall conform to the lawful commands of the CITY's Chief of Police or his designee, CMPD's Directives and procedures, North Carolina law, the United States Constitution and any applicable federal law. ARTICLE SEVEN: TERM OF AGREEMENT 7.0 L Unless otherwise terminated by either Party as set forth in Article Twelve, the term of the Agreement shall commence as of the Effective Date first written above and terminate upon the completion of all obligations under this Agreement inclusive of participation in criminal and/or civil trials or claims unless terminated earlier as set forth herein. ARTICLE EIGHT: MUTUAL BENEFITS TO PARTIES - CONSIDERATION 8.01. Further Consideration. Other than the items stated in Sections 4.02 4.03 and 4.04, further consideration for this Agreement shall be non - monetary and shall consist of enhanced public safety and improved law enforcement activity in the Greater Mecklenburg and Cabarrus County regions during the EVENT PERIOD and other mutual benefits through the cooperative efforts of the Parties under this Agreement. ARTICLE NINE: STATUS OF AGENCY AS INDEPENDENT CONTRACTOR; RULES OF CONDUCT 9.01. Independent Contractor: Agency to be Fully Responsible. This Agreement is not intended to and will not constitute, create, give rise to, or otherwise recognize a joint venture, partnership, corporation or other formal business association or organization of any kind between the Parties. Moreover the rights and the obligations of the Parties under this Agreement will be only those expressly set forth in this Agreement. AGENCY will perform under this Agreement as an independent contractor to the CITY and not as a representative, employee, agent, or partner of the CITY. Except to the extent covered by the insurance policies covering the CITY under Article Fourteen of this agreement and the "not to exceed" compensation amount stated in Agreement Section 4.03, AGENCY acknowledges and affirms that unless specifically provided for by this agreement, AGENCY remains fully responsible for any and all obligations as the employer of its LEDs assigned to the EVENT PERIOD except as specifically provided by this agreement. 9.02. Rules of Conduct. During the EVENT PERIOD, each LEO shall be required to comply with the CMPD's Directives and Policies and Procedures as provided by CMPD. If a conflict exists between the AGENCY's rules of conduct and the CMPD's rules of conduct, then CMPD's rules of conduct shall apply. 9.03. Discipline / Internal Investigation/ Criminal. The CITY shall refer disciplinary matters involving LEOs employed by outside AGENCIES to that AGENCY. The CITY and AGENCY agree to fully cooperate in any internal or criminal investigation involving each PARTY's LEO's to the extent permissible by law or by that AGENCY's collective bargaining agreements if applicable. Nothing in this section prevents the CITY from conducting its own independent investigation and making its own findings. ARTICLE TEN: MUTUAL RESPONSIBILITY; NO WAIVER OF IMMUNITIES 10.01. Each Party to be Responsible. Each PARTY agrees that it will be responsible for its own acts and /or omissions and those of its officials, employees, representative and agents in carrying out the terms of this Agreement and the results thereof to the extent authorized by law and shall not be responsible for the acts and /or omissions of the other Party and the results thereof. Notwithstanding the foregoing, nothing contained in this Section shall waive, nor shall it be construed to waive any rights and benefits either party has with regard to its status under the insurance coverage described in Article Fourteen of this Agreement. 10.02. No Waiver of Defense or Immunity. It is understood and agreed that each PARTY's liability may be limited by the provisions or other immunity law applicable to the AGENCY. Parties understand and agree that each Party has not waived the rights, immunities and protections provided by law. Nothing contained in this Agreement shall waive or amend, nor shall be construed to waive or amend any defense or immunity that either Party, their respective officials and employees, may have under Article Fourteen or any other common -law immunity or limitation of liability, all of which are hereby reserved by the PARTIES hereto. ARTICLE ELEVEN: RECORDS AND DISSEMINATION OF INFORMATION 11.01. AGENCY to Comnlv. The AGENCY shall comply with all applicable local, state or federal laws and requirements pertaining to maintenance and disclosure of personal, criminal justice, medical or health records or data including those methods and procedures as set forth as privileged by the Secret Service or other governmental entity. Such records or data may be in hard copy, printed, digital or electronic format. If the AGENCY has custody of a record provided by the CITY which contains specialized details of security arrangements or investigations, the AGENCY shall refer any request to inspect that rewrd to the CITY which shall review the material to determine whether it is privileged under law. AGENCY agrees to provide prior notice to CITY of any request for and/or release, transmission, or disclosure of information associated with or generated as a result of the work performed under this Agreement or related to the EVENT or the EVENT PERIOD in anyway and provide CITY the opportunity to review and object to the release. 11.02. CITY Access to Records. The AGENCY agrees that any duly authorized representative of the CITY, including the City Auditor or other financial representative, or a federal grant auditor, will have access to, and the right to, examine any directly pertinent books, documents, paper, records and data of the AGENCY, involving transactions related to this Agreement until the expiration of seven (7) years after the termination of this Agreement. 11.03. AGENCY to Provide Records. In the event of the need for personnel or other records in criminal and /or civil proceedings, the AGENCY agrees to provide such records as requested. In the event any records are privileged under law, CITY will be responsible for obtaining any applicable protective order. ARTICLE TWELVE: TERMINATION RIGHTS OF PARTIES 12.01. By the CITY. The CITY may terminate this Agreement at anytime without penalty. In addition to the foregoing termination rights, the CITY may terminate this Agreement without penalty based on the failure of the AGENCY to comply with or perform any material term, condition or obligation contained in this Agreement and AGENCY's failure to cure such default within seven (7) calendar days after the CITY or CMPD provides AGENCY with notice of such failure. 10 12.02. By the AGENCY. The AGENCY may terminate this Agreement without penalty prior to July 15, 2012, based on the AGENCY's determination per Section 3.11 that it does not have the resources available to participate in the EVENT. 12.03. Act In Good Faith. Both the CITY and the AGENCY shall act in good faith to provide as much advance written notice of termination under this Section to the other Party that is reasonable under the circumstances. 12.04. CITY Payment for Services. In the event of termination by either Party, the CITY will only pay AGENCY for those services authorized hereunder and actually, timely and faithfully rendered up to the receipt of the notice of termination and thereafter until the date of termination. Neither the CITY nor the AGENCY shall be entitled to the recovery of any penalties, consequential damages or attorneys' fees related in event of termination hereunder. ARTICLE THIRTEEN: GOVERNING LAW; COMPLIANCE WITH LAWS 13.01. Aoolicable Law and Venue. Each and every term, condition, or covenant herein is subject to and shall be construed in accordance with North Carolina law and any applicable federal law. Any action arising from this Agreement shall be brought and maintained in a state or federal court located in Mecklenburg County, North Carolina, which shall have exclusive jurisdiction of such action. No legal or equitable rights of the PARTIES shall be limited by this Section. ARTICLE FOURTEEN: INSURANCE 14.0 L Workers' Compensation Insurance. The parties understand that the CITY has procured Workers Compensation Insurance coverage for injury, illness or death of AGENCY's personnel during the EVENT. It is understood that the POLICY excludes employees from California, New Hampshire, Maine, Ohio, Washington, North Dakota, and Wyoming. The parties understand that each claim with be evaluated by the insurer to determine whether the injury, illness or death is compensable pursuant to the terms of the POLICY. 14.02. Police Professional Liability Insurance. 11 1. CITY Binding Liability Policy. The CITY has purchased a primary Police Professional Liability Insurance Policy (the "POLICY "), including law enforcement professional liability coverage policy which will be the primary policy during the EVENT PERIOD. In addition, the CITY is self insured up to two million dollars for each occurrence and has excess insurance coverage above the self insured retention. a. Primary Policy. The POLICY will be the primary policy to the extent one or more policies of Police Professional Liability Insurance provide coverage for any claim or incident. The POLICY will be the primary policy to the extent an AGENCY is self - insured. b. Coveraue Limits. The parties understand that the CITY'S liability under the primary Law Enforcement Liability Agreement is limited to $10,000,000.00 for each occurrence with an aggregate of $10,000.000.00. The parties further understand and agree that each occurrence is subject to a $25,000.00 deductible and that it is the responsibility of the CITY to pay the deductible. Cooperate With Underwriter. AGENCY and its LEOs agree to cooperate with the underwriters for the EVENT POLICIES by timely providing information as is reasonably requested by the insurer or its designee(s): (1) This cooperation will include both the underwriting process and the claims process and this obligation shall survive and extend (if necessary) beyond the termination date of this Agreement; and (2) The AGENCY agrees to fully cooperate in the defense of any civil claims, as reasonably requested by the insurer or its designee and shall instruct its LEOs do the same. 2. Claims and Defenses Defense Can Be Provided. The AGENCY understands that a defense can be provided for the AGENCY, its LEDs or other parties to the extent they are named as parties to a lawsuit for an action or omission that is alleged to have occurred during the course and scope of the services provided for the EVENT; however, the CITY shall not have any duty to indemnify for loss 12 or liability against the actions or omissions that are judicially determined to be beyond the course and scope of the services provided for or in support of the CITY during the EVENT. CITY Responsible for Deductible. The Parties agree the CITY will be responsible for any deductible amount required under the POLICY. CITY /INSURER to Settle Claims. The Parties agree the CITY and or the Insurer shall have the exclusive and sole right to approve or reject any compromise or settlement of any claim filed against the AGENCY, its LEOs or other insured parties. d. No CITY Indemnity. The AGENCY agrees the CITY shall not have any duty or obligation to indemnify against loss or liability beyond the monetary limit as provided by this agreement. 14.03. Additional Coverage Specific Coverage Automobile and Equipment. Each Party will, at all times, be legally self - insured or maintain auto insurance, equipment, and /or property insurance for its own automobiles, equipment or other property used during its performance of EVENT PERIOD services. The AGENCY agrees that CITY is not responsible for any loss or damage to automobiles, equipment or other property used during the EVENT PERIOD. ARTICLE FIFTEEN: NOTICE 15.01. Termination Notices: Notices concerning the termination of this Agreement, alleged or actual violations of the terms or conditions of this Agreement, and other notices that may or should be given to either party under this Agreement will be made to each party as follows: 13 For Notice to the City: Harold Medlock, Deputy Chief of DNC OPERATIONS Charlotte- Mecklenburg Police Department 601 Trade Street Charlotte, NC 28082 With copies to: Mark H. Newbold Police Attorney's Office Charlotte- Mecklenburg Police Department 601 East Trade Street Charlotte, North Carolina 28202 For Notice to the Agency: With Copies to: 14 ARTICLE SIXTEEN: LEGAL AUTHORITY 16.01. Possession of Legal Authority. Each Party represents that is possesses the legal authority, pursuant to proper, appropriate statute, ordinance, official motion, resolution or action passed or taken or required, to enter into this Agreement. 16.02. Authorization for Person Signing. The person or persons signing and executing this Agreement on behalf of each Party hereby represents and guarantees that he /she or they have been fully authorized by such Party to execute this Agreement on behalf of the Party and to validly and legally bind the Party to all the terms, conditions, performances and provisions herein. 16.03. Dispute as to Authority. The City shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement, if there is a dispute as to the legal authority of either the Agency or the person signing the Agreement on behalf of such Agency. ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS 17.01. Further Assurances. The Parties shall perform such acts, execute and deliver such instruments and documents, and do all such other things as may be reasonably necessary to accomplish the transactions contemplated in this Agreement. 17.02. No Waiver. Acceptance of partial performance or continued performances after breach shall not be construed to be a waiver of any such breach. 17.03. Assignment and Subcontracting. Neither PARTY is obligated or liable under this Agreement to any Party other than the other PARTY to the Agreement. Each PARTY understands and agrees that it shall not assign or subcontract with respect to any of its rights, benefits or duties under this Agreement except upon prior written consent and approval of the other PARTY and in the event any other such assignment or subcontracting shall occur, such action shall not be construed to create any contractual relationship between the PARTIES and such assignee or subcontractor, and each PARTY herein named shall remain fully responsible to the other Party according to the terms of this Agreement. 17.04. No Third Party Beneficiary. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the PARTIES to the Agreement, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person or entity on such Agreement, including but not limited to members of the general public. It is the express intention of the PARTIES is that any person or entity, other than the Parties to this Agreement, receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 17.05. Use of Digital, Video and or Recording Devices. AGENCY agrees that none of its employees shall record and/or post electronically to any social network or otherwise in any fashion distribute any information or data related to the EVENT. CITY agrees to share information and data including video footage with AGENCY of the EVENT for training purposes at the discretion of CITY upon receiving a written request from the AGENCY. 17.06. Paragraph Headings. The captions and headings set forth in this Agreement are for convenience of reference only, and shall not be construed as defining or limiting the terms and provisions in this Agreement. 17.07. Severabilitv. If any provision of this Agreement, or the application thereof, to any person, place or circumstance, is held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places and circumstances will remain in full force and effect only if, after excluding the portion deemed to be unenforceable, the remaining terms will provide for the consummation of the transactions contemplated hereby in substantially the same manner as originally set forth herein. In such event, the PARTIES will negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly affects the PARTIES' intent in entering into this Agreement. 17.08. Agreement as Complete Integration - Amendments. This Agreement is the complete integration of all understandings between the PARTIES as to the subject matter. No addition, deletion, or other amendment hereto shall have any force or effect unless in writing property executed by the PARTIES. Amendments to this Agreement will become effective when approved by the CITY and executed in the same manner as this Agreement. 17.09. Survival of Certain Provisions. The terms of the Agreement and any exhibits and attachments that by reasonable implications contemplate continued performance, rights or compliance beyond expiration or termination of the Agreement survive the Agreement and will continue to be enforceable. 17.10. Countervarts. This Agreement may be executed in two (2) or more counterparts each of which will be deemed to be an original. 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY OF CHARLOTTE By: Chief of Police AGENCY By: Printed Name Title: f1i EXHIBIT A INTER - GOVERNMENTAL AGREEMENT 2012 DEMOCRATIC NATIONAL CONVENTION STATUTORY AUTHORITY TO ENTER INTO INTERGOVENMENTAL AGREEMENT POLICE N.C. STATUTORY AUTHORITY EXHIBIT A § 160A -288. Cooperation Between Law - Enforcement Agencies (a) In accordance with rules, policies, or guidelines officially adopted by the governing body of the city or county by which he is employed, and subject to any conditions or restrictions included therein, the head of any law - enforcement agency may temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency. The assistance may comprise allowing officers of the agency to work temporarily with officers of the requesting agency (including in an undercover capacity) and lending equipment and supplies. While working with the requesting agency under the authority of this section, an officer shall have the same jurisdiction, powers, rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency in addition to those Ire normally possesses. While on duty with the requesting agency, he shall be subject to the lawful operational commands of his superior officers in the requesting agency, but he shall for personnel and administrative purposes, remain under the control of his own agency, including for purposes of pay. He shall furthermore be entitled to workers' compensation and the same benefits when acting pursuant to this section to the same extent as though he were functioning within the normal scope of his duties. (b) As used in this section: ( I ) "Head" means any director or chief officer of a law- enforcement agency including the chief of police of local department, chief of police of county police department, and the sheriff ofa county, or an officer of one of the above named agencies to whom the head of that agency has delegated authority to make or grant requests under this section. but only one officer in the agency shall have this delegated authority at any time. (2) "Law - enforcement agency" means only a municipal police department, a county police department, or a sheriffs department. All other State and local agencies are exempted from the provisions of this section. (c) This section in no way reduces the jurisdiction or authority of State law - enforcement officers. (d) For purposes of this section, the following shall be considered the equivalent of a municipal police department: (1) Campus law- enforcement agencies established pursuant to G.S. 115D- 21.1(a) or G.S. 116 - 40.5(a). (2) Colleges or universities which are licensed, or exempted from licensure, by G.S. 116-15 and which employ company police officers commissioned by the Attorney General pursuant to Chapter 74E or Chapter 74G of the General Statutes. (3) Law enforcement agencies operated or eligible to be operated by a municipality pursuant to G.S. 63- 53(2). (4) Butner Public Safety Authority. (5) A Company Police agency of the Department of Agriculture and Consumer Services commissioned by the Attorney General pursuant to Chapter 74E of the General Statutes. BALANCE OF PAGE INTENTIONALLY LEFT BLANK § 160A -288.3 Assistance By Out -of- -State Law Enforcement Of Fcers (Exp. October 7, 2011) (a) In accordance with rules, policies, or guidelines adopted by the governing body of the city by which the officer is employed, and subject to any conditions or restrictions included therein, the head of any law enforcement agency of a municipality with a population that exceeds 500,000 may request and enter into temporary intergovernmental law enforcement agreements with out -of -state law enforcement agencies or out-of-state law enforcement officers to aid in enforcing the laws of North Carolina within the jurisdiction of the requesting municipality if so requested in writing by the head of the requesting agency. The assistance may comprise allowing out -of -state law enforcement officers to work temporarily with officers of the requesting agency (including in an undercover capacity) and lending equipment and supplies. While working with the requesting agency under the authority of this section, an out -of -state law enforcement officer shall have the same jurisdiction, powers, tights, privileges, and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency. While on duty with the requesting agency, the out -of -state law enforcement officer shall be subject to the lawful operational commands of the chief of police and the chiefs chain of command for the requesting agency. (b) As used in this section, the following definitions apply: (1) "Head" means any director or chief officer of a law enforcement agency, including the chief of police of the requesting agency or an officer of the requesting agency to whom the head of that agency has delegated authority to make or grant requests under this section. (2) "Law enforcement agency" means a municipal police department for a municipality that has a population of more than 500,000. All other State and local agencies are exempted from the provisions of this section. (3) "Out- of-state law enforcement agency" means an employer which is a governmental agency outside of this State and which is assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the home jurisdiction or serving civil processes, and which has employees who possess the power of arrest by virtue of an oath administered under the authority of the home jurisdiction. (4) "Out -of -state law enforcement officer" means a full -time paid employee of a governmental employer who is actively serving in a position with assigned primary duties and responsibilities for prevention and detection of crime or the general enforcement of the criminal laws of the officer's home jurisdiction or serving civil processes, and who possesses the power of arrest by virtue of an oath administered under the authority of the home jurisdiction, and who is in good standing and has no pending civil, criminal, or departmental action that would disqualify the officer if the officer were certified by this State. (5) "Temporary intergovernmental law enforcement agreement" means any agreement entered into by the agency head with the head of another out-of-state law enforcement agency for the use of officers or equipment for a designated period of time. (c) This section in no way reduces the jurisdiction or authority of State law enforcement officers. (d) Notwithstanding the provisions of G.S. 128 -1 and G.S. 128- 1.1(cl), out -of -state law enforcement officers shall be authorized to hold dual offices when one of the appointive offices held is that of outof -state law enforcement officer and the other appointive office is that of a law enforcement officer for a municipality authorized to enter into temporary intergovernmental law enforcement agreements pursuant to this section. (c) Notwithstanding the provisions of Chapter 17C and Chapter 17E of the General Statutes, out - of -state law enforcement officers certified and sworn in the officers' home jurisdiction and subject to the provisions of an intergovernmental law enforcement agreement under this section shall be deemed to have met the certification requirements of this State for the purposes of being sworn as a law enforcement officer with the requesting agency. (f) An intergovernmental law enforcement agreement entered into pursuant to this section shall address standards of conduct for the out-of state law enforcement officers, including the requesting agencies' policies regarding the use of force. Additionally, the intergovernmental law enforcement agreement shall require all out- of-state law enforcement officers to successfully complete training as prescribed by the requesting agency. The intergovernmental law enforcement agreement shall also address the compensation of out-of-state law enforcement officers and the protocol for processing claims made against or by the out- of-state law enforcement officer. (g) This section becomes effective January 1, 2012, applies to all intergovernmental law enforcement agreements entered into on or after that date, and expires October 1, 2012. BALANCE OF PAGE INTENTIONALLY LEFT BLANK EXHIBIT B INTER - GOVERNMENTAL AGREEMENT 2012 DEMOCRATIC CONVENTION APPROVED COSTS, MAXIMUM CONTRACT REIMBURSEMENT AND REIMBURSEMENT TABLE Agency: Address: City: POLICE Approved Costs and Maximum Contract Reimbursement EXHIBIT B State: Zip: Event Services and Resources: Compensation will be paid for law enforcement services during the event period as outlined in this Agreement. This includes, but is not limited to, crowd management, security at venues and events, traffic control, supervisory oversight and related law enforcement functions that support the safety and security of the DNC. li. Labor Rates: The maximum allowable compensation will be calculated according to the compensation table below as detailed by rank/position. A. Uniform Rates: These rates will be hourly and all- inclusive of indirect costs, such as administrative costs for support of such Officer, but not inclusive of DNC clerical administration. Law Enforcement Officers will be paid based on the rank of the DNC assignment they are given, which may not necessarily be the same as their Agency rank. i. Each full -time equivalent (FTE) uniform officer committed to this agreement for the duration of the Event Period shall be present at the assigned duty location fully equipped. Fully equipped is defined as in full uniform, hat, foot wear, headgear, duty belt and accessories, firearm, magazine(s), ammunition, radio and communication accessories, personal O.C. spray, and personal protective equipment (PPE). See attached Approved Equipment List. B. DNC Civilian Personnel: These rates will be hourly and apply to civilian staff necessary for providing full time support to law enforcement officers assigned to the Event. All civilian personnel must be authorized by the CMPD Deputy Chief of DNC Operations, or his designee, prior to final contract being executed. III. Equipment and Vehicle Usage: The Agency will be compensated for vehicles used in direct support of the DNC Operations Plan. This will not include transportation to and from an assigned check - in location or duty assignment at the beginning of a shift. All vehicles and equipment must be pre - approved by the CMPD Deputy Chief of DNC Operations, or his designee, prior to submitting for reimbursement. IV. Compensation Table PERSONNEL COSTS Rank Hourly Rate FTE Commitment Maximum Labor Officer/Deputy/Corporal $40.85 12 $41,176.80 Sergeant $53.82 2 $9,04L76 Lieutenant $61.16 0 50.00 Captain and above 564.07 0 $0.00 Civilian Personnel $31.92 0 $0.00 Personnel Total: $50,218.56 25 %Contingency: $12,554.64 Total: 562,773.20 VEHICLE COSTS (Event Operations Use) Type Mileage Rate Number of Vehicles Number of Miles Total Cost Police Car $.23 /mile Police Motorcycle $.23 / mile Police Van $.23 / mile Vehicle Totals: $', I • Hourly rate for sworn law enforcement established using the average salary of a CMPD officer with 10 years of law enforcement experience working in an overtime (1.5x rate) capacity. • Hourly rate for civilian personnel was established using the average salary of a CMPD Administrative Officer 11 working in an overtime (1.5x rate) capacity. • Maximum Labor is calculated at the Hourly OT rate x FTE Commitment x 12 -hour (shifts) x 7 days. • Contingency column is calculated at 5 percent of the maximum labor, planning, training, contingency, and vehicle costs. AGENCY FISCAL AFFAIRS CONTACT ame Position Telephone # Name Fax # Position Email Address Telephone # Signature Fax # Individual authorized to certify compensation/reimbursements and primary contact for fiscal issues. Police Operational and Planning Contact Name Position Telephone # Fax # Email Address Signature Individual authorized to certify compensationheimbursements and primary contact for logistical service issues. APPROVED EQUIPMENT LIST • Class A or Class B Uniform with hat • Badge • Name Plate • Service Weapon • Ammunition • Handcuffs • Bullet proof vest • Traffic Vest • Gas Mask • Radio • Flashlight • Personal OC Spray *This is your official department- issued uniform, hat and shoesiboots. Long or short sleeve shirts are acceptable, but no BDU -type uniforms unless otherwise authorized by CMPD Planning Unit Commander, Capt. Michael Adams. Prohibited Equipment • Tasers • Any less than lethal munitions • Riot Control Agents (person O.C. spray is allowed) EXHIBIT C INTERGOVERNMENTAL AGREEMENT 2012 DEMOCRATIC NATIONAL CONVENTION FISCAL ADMINISTRATION REQUIREMENTS POLICE FISCAL ADMINISTRATION COMPENSATION /REIMBURSEMENT REQUIREMENTS EXHIBIT C Basic Requirements A. Security Work Requirement: Compensation will be provided only for activities and costs directly incurred for approved security work, approved administrative support work, or core services as defined in Exhibit D in preparation or training for or during the DNC. B. Approval Process: All sections shall be completed on the required forms and contain written certification by the Agency Financial Officer noted in Exhibit B. Compensation requests shall be sent to the CMPD Deputy Chief of DNC Operations, or designee, of the City. C. Travel Reimbursement Process: All travel- related expenses must be pre- approved by the CMPD Deputy Chief of DNC Operations, or his designee, and submitted on the proper Compensation/Reimbursement form. Records and Compensation /Reimbursement form requirements A. Compensation /Reimbursement form: The form for requesting compensation for DNC security work and reimbursement for travel costs is attached. The city may modify and update this required form as it reasonably determines necessary, in order to meet its internal or external auditing needs or the requirements of the City, CMPD and /or DNC Grant. B. Agency Required Documentation for Personnel Costs: The Agency will be required to maintain individual payroll records as supporting documentation for compensation requests submitted to the City. These records may be in hard copy or electronic time and effort systems and must back up any and all payroll costs incurred and billed. Records must include staff name, date, assignment and time worked in support of the DNC. C. Submission of Compensation /Reimbursement Requests: The Agency may submit requests on a monthly basis or in accordance with the following calendar: Activity /Cost Time Period Deadline for submission Costs for the period 10 /1 /11— 6/31/12 07/15/2012 Costs for period 7/1/12 — 8/31/12 09/15/2012 Costs for period 9/1/12 — 9/30/12 10/15/2012 In no event will the Agency be allowed to submit a compensation/reimbursement request past the time allowable under the DNC Grant. D. Compensation /Reimbursement Form(s) Adequacy: The Agency must submit a completed form, including proper signatures verifying and certifying the accuracy of the request for compensation or reimbursement. If forms are incomplete, Zack appropriate documentation, or if requests for are submitted on an unauthorized form, the CMPD Deputy Chief of DNC Operations, or his designee, may reject the request. The CMPD Deputy Chief of DNC Operations, or his designee, will communicate the reason for the rejection in writing. The Agency will have twenty (20) days to correct the error and resubmit the claim. E. Compensation /Reimbursement Form Process: The CMPD Deputy Chief of DNC Operations, or his designee, shall review and approve each request for payment. Once the approval is obtained, the request will be forwarded to the CMPD Fiscal Affairs Division for processing. The Agency shall receive payment for said request within sixty (60) days of receipt in the CMPD Finance Affairs Division. F. Supporting Documentation Record Retention Requirements: All supporting records, including time sheets, activity logs, and equipment invoices, must be retained by the Agency for seven years after the end of the Grant period. Additional Financial Information A. The City, subject to the terms of this Agreement, will compensate Agency for personnel costs at the applicable hourly rate(s) stated in Exhibit D, for hours worked in planning for, training and during the DNC on security for the DNC. Training must be pre - approved by the CMPD Deputy Chief of DNC Operations. Time will be rounded to the nearest '/a hour (rounding up to the next 15 minutes for seven minutes of work or more and down for anything less than seven minutes.) B. Civilian Personnel hours will be compensated at the rate shown in Exhibit D. C. In addition to any requirements contained in this Agreement, all records must be maintained for future DNC Grant audits, and the Agency will be fiscally responsible for the result of any Agency error in connection with such audit. EXHIBIT D INTERGOVERNMENTAL AGREEMENT 2012 DEMOCRATIC NATIONAL CONVENTION TERMS OF INSURANCE POLICIES See Attachment labeled "Terms of Insurance Policies" �� IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of duly, 2012. No. 39449 - 071612. A RESOLUTION authorizing the waiver of the City's sovereign immunity in connection with the City's emergency rental of a 2006 International 4300 Peterson Lightning Loader to aid in the removal of yard debris after the storm event of June 29, 2012, and authorizing and ratifying a rental agreement dated July 9, 2012, with Power Line Rent -E -Quip, Inc. to rent such equipment. BE IT RESOLVED by the Council of the City of Roanoke as follows: 1. This Council hereby waives its sovereign immunity with regard to the City's rental of a 2006 International 4300 Peterson Lightning Loader to aid the City in cleanup of the damages and debris caused by the June 29, 2012, storm event that bit the City of Roanoke, as more particularly described in the City Council Agenda Report dated July 16, 2012. 2. This Council hereby ratifies and authorizes the City's execution of the Rental Agreement with Power Line Rent -E -Quip, Inc. dated July 9, 2012. R -Power Line Rent E Equip Ageem 'vi vo6p..., 7 16 -12 d.o ATTEST: AOL City Clerk. CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Agreement Requiring City to Indemnify and Hold Harmless PLREI Background: The storm incident on Friday, June 29, 2012 has resulted in an emergency situation requiring ongoing cleanup of vegetative debris by the Solid Waste Management Division. This includes extended hours and days to collect the record breaking amounts of debris that our residents have set out for collection. The collection of this debris is expected to continue through the remainder of July and into August. Ongoing use of our fleet of four knuckleboom trucks for the larger piles of vegetative debris periodically results in mechanical failure to one or more of these vehicles, prolonging the cleanup effort until repairs are made and the truck is placed back into service. While collection efforts have been supplemented by the use of our fleet of rear - loading packer trucks for the smaller piles of vegetative debris, staff has identified the need for additional knuckleboom trucks to help accelerate the completion of this entire collection process. On Monday, July 9, 2012, staff identified two such trucks that were available to the City if a commitment would be made to obtain them. One was a used truck for sale and the other was a truck available for rent as noted below. Staff purchased the used truck from Cavalier Equipment Corporation in Cloverdale for $29,000 after determining it was a reasonable price and that the truck would be a useful addition to the City's fleet. Power Line Rent -E -Quip, Inc. (PLREI) is a local provider of rental equipment. The rental terms and conditions included in the lease agreement, dated July 9, 2012, for a knuckleboom truck from PLREI requires that the City of Roanoke indemnify and hold harmless PLREI from liability and expense in the event that damages or expenses arise out of the City's use of the knuckleboom truck. An indemnification and hold harmless provision constitutes a waiver of the City's sovereign immunity, and any contract containing such a provision must be authorized by City Council. The City requested that PLREI delete this provision, however, PLREI declined to do so. Attached is a resolution which authorizes City Council to waive the City's sovereign immunity for this purpose and to authorize the City Manager or his designee's entering into a Rental Agreement with PLREI dated July 9, 2012, which was done on July 10, 2012, so the truck would not be rented to another entity. Such Agreement was approved as to form by the City Attorney. Recommended Action: Approve the attached resolution and ratify and authorize the City's execution of the Agreement; such Agreement having been approved as to form by the City Attorney, and waiving the City's sovereign immunity. - X - -- Christopher P. Morrill City Manager Distribution: Council Appointed Officers Sherman Stovall, Assistant City Manager for Operations y.s STEPHANIE M. MOON, MMC City Clerk CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540)853 -2541 Eax: (540)853 -1145 E -mail: clerk@roanokeva.gov July 17, 2012 Municipal Code Corporation P. O. Box 2235 Tallahassee, Florida 32316 Ladies and Gentlemen: JONATHAN E. CRAFT Deputy City Clerk CECELIA T. WEBB Assistant Deputy City Clerk I am enclosing copy of Ordinance No. 39450 - 071612 amending and reordaining the Code of the City of Roanoke (1979), as amended, by repealing Chapter 22.2, Pensions and Retirement, consisting of § §22.2 -1 through § §22.2 -75, and enacting a new Chapter 22.3, Pensions and Retirement, consisting of § §22.3 -1 through § §22.3 -79. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012, and is in full force and effect upon its passage. Sincerely, Stephanie M. Moon, MMC City Clerk Enclosure PC: Christopher P. Morrill, City Manager R. Brian Townsend, Assistant City Manager for Community Development Sherman M. Stovall, Assistant City Manager for Operations Timothy R. Spencer, Acting City Attorney Ann H. Shawver, Director of Finance The Honorable Donald S. Caldwell, Commonwealth Attorney The Honorable Brenda S. Hamilton, Clerk, Circuit Court Rick S. Kahl, Clerk, General District Court David C. Wells, Clerk, Juvenile and Domestic Relations District Court Chief Magistrate, Office of the Magistrate Joey Klein, Law Librarian IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39450- 071612. AN ORDINANCE amending and reordaining the Code of the City of Roanoke (1979), as amended, by repealing Chapter 22.2, Pensions and Retirement, consisting of § §22.2 -1 through § §22.2- 75, and enacting a new Chapter 22.3, Pensions and Retirement, consisting of § §22.3 -1 through § §22.3- 79, providing for an effective date; and dispensing with the second reading of this ordinance by title. BE IT ORDAINED by the Council of the City of Roanoke as follows: I. Chapter 22.2, Pensions and Retirement, consisting of § §22.2 -1 through § §22.2 -75 of the Code of the City of Roanoke (1979), as amended, is hereby REPEALED. 2. The Code of the City of Roanoke (1979), as amended, is amended and reordained by enacting a new Chapter 22.3. Pensions and Retirement, consisting of § §22.3 -1 through 22.3 -79, to read and provide as follows: Chapter 22.3 PENSIONS AND RETIREMENT ARTICLE L GENERAL Sec. 22.3 -1. Preamble On August 30, 1926, the City of Roanoke established its first retirement system covering employees of the fire and police departments (fire and police system). Effective July 1, 1946, another pension plan, the employees' retirement system (ERS), was established to cover employees of the fire and police departments, as well as other employees of the city. The fire and police system covered only those fire and police employees of the city whose date of hire was on or before December 31, 1945. The fire and police system shall exist until such time as all payments promised to its covered retirees and beneficiaries have been made, and no other liabilities for payment exist. Those retirees and beneficiaries of the fire and police system shall remain under the terms and conditions of the fire and police system. The employees' retirement system (ERS) has been amended from time to time in order to increase retirement benefits, eliminate mandatory employee contributions, and voluntarily comply with certain provisions of the Employee Retirement Income Security Act of 1974. By Ordinance No. 27061, adopted on June 18, 1984, City Council amended and restated the ERS effective July 1, 1984. The ERS was replaced for certain active members by the employees' supplemental retirement system (ESRS) which covers employees of participating employers (1) who voluntarily elected to cease membership in the ERS and begin participation in the ESRS, and (2) new employees of participating employers whose date of KMmsmesVCode A mdment Retwement Chpw 22371612 doc hire or rehire is on or after July 1, 1984. ESRS did not affect the rights of any current beneficiaries as of June 30, 1984. The fire and police system, ERS and ESRS shall share one (1) common trust fund from which all benefits shall be paid without distinction as to the source of the funds and which shall be administered by one (1) board of trustees. By Ordinance No. 35880 - 052002, adopted on May 20, 2002, city council amended and restated the pensions and retirement chapter generally effective June 1, 2002. Certain provisions had retroactive effective dates as indicated in the text in order to comply with federal tax laws. The purpose of that amendment and restatement was to assure compliance with federal tax laws and to streamline the administration of the benefits provided under this chapter. Nothing in the amendment and restatement of the pensions and retirement chapter decreased creditable service or earnable compensation under the terms of the chapter as it existed prior to its amendment and restatement. By Ordinance No. 39450- 071612, adopted on July 16, 2012, city council amends and restates the pensions and retirement chapter generally effective July 16, 2012. Certain provisions have retroactive effective dates as indicated in the text in order to comply with federal tax laws. The purpose of the amendment is to establish an Internal Revenue Code Section 401(h) retirement health savings account within the pension plan, effective July 1, 2013, as well as new tiers of benefits within the Employees Supplemental Retirement System (ESRS) and a defined contribution plan, effective July 1, 2014. Nothing in this amendment and restatement of the pensions and retirement chapter shall decrease creditable service or earnable compensation under the terms of the chapter as it existed prior to its amendment and restatement. The fire and police system, ERS and ESRS shall hereafter collectively be referred to as the City of Roanoke Pension Plan (city plan). Sec. 22.3 -2. Definitions. The following words and phrases, as used herein, shall have the following meanings, unless a different meaning is plainly required by the context. Words importing male gender shall be construed to include female, and singular words shall be deemed to include plural and plural words shall be deemed to include singular, whenever appropriate. As used in this chapter: Accrued benefit shall mean the amount of a member's monthly pension computed at any time according to the terms and conditions which are applicable to the member, the equivalent value of which is payable for the lifetime of a member beginning at his normal retirement age. Accrued benefits shall be based on the formula in section 22.3 -43 for ESRS members and in section 22.3 -47 for ERS members. Creditable service and average final compensation applicable to the member as of the effective date of the calculation shall be used. Accumulated contributions means the sum of all amounts deducted from the compensation of a member and credited to his individual account in the member contribution K styes \Codelnendtnent Retvenent Chapter 22 .3] 1612.doc 2 account and all interest credited to the member contribution account pursuant to section 22.3- 276). Actuarial equivalent shall generally be computed based on five percent (5 %) interest and 125% of the RP 2000 mortality table for males and females except where different factors are specifically set forth in this chapter, or are adopted by the board and set forth in the Administrative Procedures Manual maintained by the board. Beneficiary shall mean any person entitled to benefits under this chapter. A beneficiary for purposes of a payment made in the event of death (other than a contingent beneficiary under an annuity option form pursuant to section 22.3 -62 or the survivor allowance payable pursuant to article X) shall be that person named by the member in a beneficiary designation form filed with the city. If no designation is filed, the beneficiary shall be the members' spouse or, if none, the member's estate. Board or Board of Trustees shall mean the board of trustees provided for in article /1 of this chapter. City shall mean the City of Roanoke, Virginia. City council shall mean the Council of the City of Roanoke. City of Roanoke Pension Plan or City Plan is a collective term referring to three (3) pension systems, as follows: (a) The police and fire department pension plan as in effect on July 1, 1946, including any subsequent amendments; (b) The employees' retirement system (ERS) as in effect on June 30, 1984, including any subsequent amendments; and, (c) The employees' supplemental retirement system (ESRS) as in effect on July 1, 1984, including any subsequent amendments. Creditable service shall mean service as described in article VI of this chapter. Defined contribution board shall mean the board established pursuant to section 22.3 -78 as the trustee and administrator of the defined contribution plan. Defined contribution plan shall mean the plan established pursuant to section 22.3 -79 Disability retirement shall mean a retirement that is based upon a disability and not upon a member's age and service. Earnable compensation shall mean all usual and regular compensation from a participating employer plus salary supplements and the participating employer's contribution to the deferred compensation plan established under Section 457 of the Internal Revenue Code of 1986, as amended, excluding overtime pay, imputed income under Section 79 of the Internal K:\Mesu s \Code Ame nent RetGement Cheptc22 .371612.duo 3 Revenue Code of 1986, as amended, and any lump sum payment made upon separation from service for unused paid time off or for unused extended illness leave pursuant to regulations promulgated by the city manager, in the case of a city employee (or by the governing body of any other participating employer in the case of an employee of such other participating employer), in whatever manner paid. In cases where compensation is not all paid in money, the board shall fix the value of that part of the compensation not paid in money. Earnable compensation shall include compensation subject to a salary reduction or deferred compensation agreement between an employee and the participating employer pursuant to Section 125, 132(9(4) of the Code (for plan years and limitation years beginning on or after January 1, 2001), 402(g)(3) or 457(b) of the Internal Revenue Code (and elective deferrals or contributions under any other sections of the Internal Revenue Code covered by Section 415(c)(3)(D) of the Internal Revenue Code), which compensation is not actually or constructively received by the employee. In the case of a member, other than a member of city council, whose regular work schedule is less than that of an employee considered to be full -time under the participating employer's personnel policies, such member's earnable compensation, as defined above, shall be deemed to be the employee's actual earnable compensation, as defined above, multiplied by a fraction consisting of.: (1) the number of hours in the regular work schedule of an employee considered to be full -time under the participating employer's personnel policies, over (2) the number of hours in the member's regular work schedule. Employee shall mean any person employed in any capacity by a participating employer. Eligible employee shall mean (a) Any officer or employee of the City, the Roanoke Regional Airport Commission, or the Roanoke Valley Detention Commission; except a part -time officer or employee (one who is customarily employed less than twenty (20) hours per week or not more than five (5) months in a calendar year), and (b) Police and fire personnel employed on or after the first day of January, 1946; (c) The city manager, city attorney, director of finance, municipal auditor, and the city clerk (the "council appointed officers'); (d) Every officer and other person employed by the city school board prior to July 1, 2006, who is not eligible for membership in the Virginia Retirement System or successor plan except a part -time officer or employee (one who is customarily employed less than twenty (20) hours per week or not more than five (5) months in a calendar year), or, an employee who is employed solely as a bus driver. No employee of the city school board hired on or after July 1, 2006 shall be eligible to participate in the city plan; (e) Every Employee of the Roanoke Valley Resource Authority who became an employee of such Authority upon its creation pursuant to the terms of the distribution and indemnification agreement dated October 23, 1991. No additional employees of the Roanoke Valley Resource Authority shall be eligible to participate in the city plan, K: Mw s \Code /nend em Refimnent Chapter 22.391612.doc (t) Every Employee of the Roanoke Valley Detention Commission who became an eligible employee pursuant to the terms of the agreement dated October 7, 1998; whether or not such employees meet the criteria set forth in clause (1) of this Section; and, (g) Constitutional officers and employees of constitutional officers who by contract with the city are included in the city plan. (h) Every employee of the city who becomes an employee of the Western Virginia Water Authority as of July 1, 2004, shall continue to be a member of the city plan. No additional employees of the Western Virginia Water Authority hired on or after July 1, 2004, shall be eligible to participate in the city plan. The sheriff of the city and all deputies and employees in said office, and their successors and all subsequent employees in such office are not eligible employees. Members of city council shall be deemed "eligible employees ". Employees of the Virginia Supreme Court and of the Juvenile District Court who, in 1982, made the irrevocable election to remain in the city plan are eligible employees. Such an employee shall remain subject to the irrevocable election for so long as he or she remains employed by the court system, without a separation from employment. Employees of the city as of July 1, 2000, whose positions are funded by grants shall be deemed "eligible employees" if they have elected to become a member by making an irrevocable election to do so in the manner set forth by the board of trustees. Employees hired by the City after July 1, 2000, whose positions are funded by grants shall be deemed "eligible employees ". In all cases of doubt, the board shall determine who is an "eligible employee" within the meaning of this chapter, subject however, to review by city council. Hybrid Member shall mean a member who elects pursuant to section 22.3 -76 to participate in the hybrid retirement program described in section 22.3 -77. Hybrid Program shall mean the retirement program established pursuant to section 22.3 -77. Medical examiner shall mean those persons designated pursuant to section 22.3 -18. Member shall mean any person included in the membership of the city plan as provided in Article V. Member contribution account means the account established under the plan to hold the member's contributions and earnings thereon credited pursuant to section 22.3 -27. Amounts paid to purchase service pursuant to Section 22.3 -39 will not be held in the member contribution account. Participating employer shall mean the city and any employer who with the consent of the city council upon recommendation by the board shall adopt the city plan; provided that the employer is a governmental employer as defined in Section 414(d) of the Internal Revenue K:\Mea es \Code l nendment Retirement Chapter 22.3 7 16 12 .doc 5 Code of 1986 as amended. The current participating employers are: the city, City of Roanoke School Board; Roanoke Regional Airport Commission; Roanoke Valley Resource Authority; Western Virginia Water Authority, and Roanoke Valley Detention Commission. The board shall keep a record of the dates participation began. Person who becomes a member after June 30, 2014 means a person who is hired or rehired after June 30, 2014 as an eligible employee as defined herein. Pension shall mean annual payments for life, payable in monthly installments continuing up to the last payment which shall be made for the month in which the date of death occurs, except as otherwise provided in this chapter. Service shall mean service as an employee of a participating employer. Service retirement shall mean a normal or early retirement that is based upon a member's age and service alone and not upon disability or death. Sec. 22.3 -3. Falsifying statements, reports or records. Whoever, with intent to deceive, shall make any statements or reports required under this chapter which are untrue, or shall falsify or permit to be falsified any record or records of the plan shall be guilty of a Class I misdemeanor. Sec. 22.3 -4. Rights, benefits and plan money not subject to assignment, execution, garnishment, etc. The right of a person to a pension, any optional benefit or death benefit, any other right accrued or accruing to any person under the provisions of this chapter and the money in the various accounts created by this chapter shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency law or any other process of law whatsoever, and shall be unassignable. The provisions of this section prohibiting the assignment or alienation of benefits shall not apply to a domestic relations order which is determined by the secretary - treasurer of the city plan or his designee to be an approved domestic relations order as defined by Section 414(p) of the Internal Revenue Code, as applicable to governmental plans. The board shall establish procedures for review, approval and administration of such orders. Sec. 22.3 -5. City employees who are subsequently reclassified as employees of the Commonwealth of Virginia. Should any member of the city plan be voluntarily or involuntarily reclassified as an employee of the Commonwealth of Virginia such individual may elect to remain as a member of the city plan or elect to participate in another retirement plan if such option is available. Should the member join any other retirement plan he will be treated as having terminated active membership in the city plan and be entitled to receive only his vested benefits earned prior to termination of active membership. Sec. 22.3 -6. Right to accrued benefits upon termination of city plan. K:QNea \Code Amendment Ret6ement ChaMer 2237 1612.doc In the event of termination of the city plan, the rights of each member to benefits accrued to such date shall be non - forfeitable to the extent then funded. If all accrued benefits are not funded they shall be paid in the following order: (a) Present value of benefits to those currently receiving or eligible to receive benefits; (b) All others. Sec. 22.3 -7. Amendments to chapter and effect on participating employers. (a) The city council shall have the continuing right and power to amend or supplement this chapter at any time, which right and power is hereby expressly reserved, but no amendment shall be adopted which will reduce the then accrued benefits of members or beneficiaries below the extent they are then covered by city plan assets. (b) Such amendments shall apply to all employees of participating employers unless city council specifically provides that such amendments may be rejected by participating employers. ARTICLE II. ADMINISTRATION Sec. 22.3 -8. Board of trustees generally. (a) The general administration and the responsibility for the proper operation of the city plan and for making effective the provisions of this chapter are hereby vested in the board of trustees. Each board member shall discharge his duties with the care, skill, prudence, and diligence of a prudent man acting in like capacity and familiar with such matters. (b) The board shall be appointed by city council and consist of nine (9) trustees as follows: (1) The mayor, ex officio. (2) The city manager, or his designee, ex officio (3) The director of finance, ex officio. (4) Two (2) trustees, each of whom shall be a member of the city plan and an employee of a participating employer (but only one (1) of the two (2) shall be an employee of a participating employer other than the city), but not a member of any of the departments specified in paragraph (5) of this subsection. A participating employer representative shall be appointed as of the next board vacancy occurring after the effective date of the plan restatement. Each successor shall be appointed for a four -year term. (5) One (1) trustee, who shall be a member of the city plan and either of the city's police or the city's fire department. Successors shall each be K Nmsw s \Code Amendment Retirement Chapter 22 .3 7 16 12 doc appointed for a two -year term. Successors shall be appointed from the alternate department not represented by the incumbent trustee. (6) One (1) trustee who is a retired member of the city plan, who need not be a resident of the city. Successors shall be appointed for two -year terms. (7) Two (2) trustees who are residents of the city but not members of the city plan. Such trustees shall have demonstrated experience in either investment of institutional funds or pension administration. Such trustees shall serve staggered four -year terms. (c) If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term in the same manner as the office was previously filled. (d) The trustees, as such, shall serve without compensation. (e) Each trustee shall, within ten (10) days after his appointment, take the oath prescribed by section 59 of the City Charter. (f) Each trustee shall be entitled to one (1) vote on the board. Five (5) concurring votes shall be necessary for a decision by the trustees at any meeting of the board, and five (5) trustees shall constitute a quorum of the board. Sec. 22.3 -9. Application of Conflict of Interest Act. The provisions of the State and Local Government Conflict of Interest Act (section 2.2 -3100 at seq., Code of Virginia) shall apply to members of the board. Sec. 22.3 -10. Election and appointment of officers of board, employment of services. The board shall elect from its membership a chair and a vice- chair. The board may employ such actuarial, medical and other services as shall be required. Sec. 22.3 -11. Rules and regulations of board. Subject to the limitations of this chapter, the board shall, from time to time, establish rules and regulations for the administration of the city plan and for the transaction of its business. Sec. 22.3 -12. Board's records and reports. (a) The board shall keep in convenient form such data as shall be necessary for actuarial valuation of the city plan and for checking the experience of each system. (b) The board shall keep a record of all its proceedings, which shall be open to public inspection. It shall submit to the city council, annually, a report showing the fiscal transactions of the city plan for the preceding year, the amount of the accumulated cash and securities of the city plan, and the financial report indicating the financial condition of the city K W eas=s \Code A nend ent R&rG znent Chapter 22.3 7 16 12 .doc 8 plan. Such report shall be made in the form and contain the information required by the current financial accounting standards applicable to public pension funds. Sec. 22.3 -13. Board's legal advisor. The city attorney shall be the legal advisor of the board. Sec. 22.3 -14. Secretary- treasurer; duties. The director of finance shall be the secretary- treasurer of the board. It shall be the duty of the secretary - treasurer to submit to the board records deemed necessary to administer properly the city plan. Sec. 22.3 -15. Correction of errors in benefit payments Should any change or error in the records of the city plan result in any member or beneficiary receiving more or less than he would have been entitled to receive had the records been correct, the board shall have the power to correct such error, and as far as practicable, to adjust the payments in such a manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid. Sec. 22.3 -16. Written application for retirement benefits. In order to receive payment for any benefit which becomes payable from the city plan, a member or his beneficiary shall complete the application and other forms prescribed by the secretary- treasurer of the city plan. The board shall have the authority to establish reasonable procedures governing the application for any benefits payable under the city plan. Such procedures shall be set forth in the administrative procedures manual maintained by the board. Sec. 22.3 -17. Requirement to use employee's social security number. A member shall be required to disclose his social security account number as a condition of membership. The board and secretary - treasurer shall be authorized to use such number for the purpose of member identification. Sec. 22.3 -18. Designation and duties of medical examiners The secretary- treasurer of the city plan shall designate as medical examiners licensed medical doctors or other health care professionals who are not eligible to participate in the city plan. A medical examiner shall arrange for and conduct all medical examinations required to determine whether a member is disabled, shall review medical records of the member's personal physicians, shall review all essential statements and certificates by or on behalf of a member in connection with application for disability retirement and shall report in writing to the board his conclusions and recommendations upon all the matters referred to him. KVNeaswes�Code Amao t Cb,,t 22391612.d.c Sec. 22.3.19. Designation and duties of actuary; certification of contribution rates; adoption of tables; etc. (a) The board shall designate an actuary or actuarial consulting firm who shall be the technical advisor of the board on matters regarding the operation of the city plan and who shall perform such other duties as are required. Such actuary or actuarial firm must have at least one (1) actuary who is a fellow of the Society of Actuaries. (b) The board shall certify, from time to time, the rates of contribution payable under the provisions of this chapter, and shall adopt for the systems, from time to time, such mortality, service and other actuarial tables as shall be deemed necessary; and on the basis of such tables, the actuary shall make annually an actuarial valuation of the assets and liabilities of the systems. At least once in each five -year period, the board shall cause an actuarial investigation to be made into the mortality, service and compensation experience of the members and beneficiaries of the systems. Such investigation shall be used as a basis for revisions to existing actuarial tables or the adoption of additional actuarial tables to be used to value the assets and liabilities of the systems. Sec. 22.3 -19.1. Benefit and Competitiveness Study. To support the goal of providing competitive benefits that are fiscally sustainable, the Director of Finance shall conduct a review of retirement benefits at least once every five years. A formal study of benefits shall be conducted periodically as considered necessary. In the conduct of such study the Director of Finance is authorized to utilize the services of providers previously contracted with by the board. ARTICLE Ill._ TRUST FUND AND INVESTMENTS Sec. 22.3 -20. Accumulated assets. The board may invest the assets of any system or program it administers on a pooled or consolidated basis. Sec. 22.3 -21. Investment of assets; standard of care. (a) The members of the board shall be trustees of all the assets of the city plan and shall have the full power and authority to invest and reinvest such assets, and to change such investments and reinvestments from time to time as authorized by law. (b) Pursuant to the standards set forth in Section 803 of Title 51.1 of the Code of Virginia, the board shall discharge its duties with respect to the city plan solely in the interest of the members and beneficiaries thereof and shall invest the assets of the city plan with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and like aims. The board shall also diversify such investments so as to minimize large losses unless under the circumstances it is clearly prudent not to do so. K_Wieasur sVCode Amendment Retheinent Chapter 22 .3 7 1612 doe in Sec. 22.3 -22. Exemption from Public Procurement Act The selection of services related to the management, purchase, or sale of authorized investments, including but not limited to actuarial services shall be governed by the standard of care in section 22.3 -21 and shall not be subject to the provisions of the Virginia Public Procurement Act. Sec. 22.3 -23. Reserved. Sec. 22.3 -24. Custodian of assets; payments from funds (a) The board shall designate a bank or trust company to be the custodian of the assets of the city plan. (b) When the board shall have designated a bank or trust company to be custodian of certain or all of the assets of the city plan, the board may, by resolution adopted by the board, authorize such bank or trust company to hold all or any of the stock or registered securities of the city plan entrusted to the custody of such bank or trust company in the name of a nominee of such bank or trust company as provided in the first paragraph of section 6.1- 31 of the Code of Virginia, (1950), as amended, and the resolution of the board providing such authorization may further designate the nominee of such bank in whose name such stock and securities may be so held by the bank. Sec. 22.3 -25. Limitation on use of assets. No member or employee of the board shall have any direct or indirect interest in the gains or profits of any investment made by the board, nor as a member of the board receive any pay or compensation for his service. No member or employee of the board shall, directly or indirectly, for himself or as an agent, in any manner use the assets of the city plan, except to make such current and necessary payments as are authorized by the board. Sec. 22.3 -26. Diversion of city plan assets. Upon no circumstances at any time prior to the satisfaction of all liabilities with respect to members and their beneficiaries under the trust shall any part of the trust corpus or income of the city plan be used for or diverted to any purpose other than for the exclusive benefits of the members and their beneficiaries and for the reasonable administrative expenses of the city plan. Sec. 22.3 -26.1. Establishment of 401(h) account, contributions, investment and use. (a) There is hereby established a 401(h) account which shall be a separate account within the trust fund of the plan and which is established pursuant to Section401(h) of the Code. The system shall separately account for the funds contributed to the 401(h) account by members and by each participating employer and the earnings and expenses relating to the investment and administration of those funds. The trustees shall not be obligate to commingle the 401(h) account assets for investment but instead may segregate KWeesu s\Code Amendment Ret6ment Cbapta 2237 1612 daa I� such funds into a subtrust and accounted for such assets on a member account level. The trustees are authorized to permit members to direct the investment of the member level account in accordance with procedures and within the parameters established by the board. The board is authorized to delegate to the defined contribution board the authority to contract on behalf of the board with an investment provider to administer the participant level accounts and investment direction (b) Effective July 1, 2013, each member, including a police officer, a firefighter and a hybrid member, shall contribute one (1) percent of his earnable compensation each pay period to the 401(h) account. Such contribution shall be credited to the 401(h) account and accounted for in a separate member level account. The member contributions, although designated as employee contributions hereunder, will be paid by the participating employers and shall be treated as employer contributions pursuant to Section 414(h) of the Internal Revenue Code of 1986, as amended, and shall not be included as gross income of the employee until such time as they are distributed or made available to the employee. The city shall 'pick -up "the employee contributions by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis. Any other participating employer shall 'pick -up" the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. (c) Effective July 1, 2013, each participating employer shall contribute one (1) percent of earnable compensation on behalf of each person who becomes a member after June 30, 2013 and each other member who elects pursuant to section 22.3 -61 to forego the supplement described therein. Such contribution shall be credited to the 401(h) account and accounted for in a separate member level account. If the member ceases to be an employee prior to accumulating at least 5 years of creditable service, the funds held in the member level 401(h) account attributable to the employer contribution and the earnings thereon shall be forfeited. Forfeitures of the employer contributions and the earnings thereon shall be used to pay expenses of the 401(h) account or to reduce future contributions required by the employer, as determine by the defined contribution board. (d) Contributions to the 401(h) account must be subordinated to the contributions to the plan for retirement benefits. Accordingly at all times the aggregate contribution by the participating employer (made after June 30, 2013) to fund the 401(h) account and to furnish any life insurance protections shall not exceed twenty -five (25) percent of the total aggregate actual contribution made by the participating employer (made after June 30, 2013) to the plan (excluding any contributions to fund the purchase of past service credited). For this purpose: life insurance protection includes benefits paid under the plan on behalf of members as a result of such member's death to the extent the payment exceeds the amount of the reserve to provide retirement benefits for the member existing at his death; and 2) contributions made by participating employers to the plan include contributions that have been properly picked up under section 414(h) of the Internal Revenue Code. The board shall determine annually whether the twenty-five (25) percent test has been met. If at any time the 401(h) account contributions exceed the limitation that participant employer will be notified immediately and the excess amount not accepted. Any affected participating employer shall immediately give the board direction as to the disposition of the excess contributions. KW su ACodelu eod,oent Renrunent Chapter 22971612 doc u (e) After a member who is a person who becomes a member after June 30, 2013 has ceased to be any employee, the plan shall reimburse members for medical care expenses as defined in section 213(d) of the Internal Revenue Code after proper substantiation has been provided, first from the portion of the member account attributable to the member contributions and the investment earnings thereon and only after that has been exhausted, from the portion of the account attributable to the participating employer's contributions and the investment earnings thereon. (f) Such member's spouse and dependent children may continue to request reimbursement for such medical care expenses after the member's death. (g) Following the death of such member's spouse and dependent children of the members or the last dependent ceasing to be a dependent, any remaining funds in the 401(h) account of such member shall be forfeited. The forfeiture shall apply to reduce the future contributions by the participating employer to fund the 401(h) account. (h) The board is authorized to contract with a third party to provide recordkeeping services to the plan for the member level 401(h) accounts and to provide claims processing services in connection with the payment of reimbursements for the 401(h) account. (i) The board shall establish more detailed guidelines for the maintenance and use of the 401(h) account consistent with the requirements of Section 401(h) of the Internal Revenue Code and consistent with the provisions of this section. Q) For purposes of this section a person who becomes a member after June 30, 2013 means a person who is hired or rehired after June 30, 2013 as an eligible employee as defined herein. ARTICLE IV CONTRIBUTIONS Sec. 22.3 -27. Contributions and member's contribution account. (a) Each person who becomes a member after June 30, 2014, including a police officer or firefighter but excluding a hybrid member, shall contribute five percent (5 %) of his earnable compensation each pay period. Except as described in the preceding sentience, no contributions were deducted after May 31, 1973 from the compensation of members. The participating employers shall deduct the contribution payable by the member and every employee accepting or continuing employment shall be deemed to consent and agree to any deductions from his earnable compensation required by this section. Notwithstanding the foregoing, the member contributions, although designated as employee contributions hereunder, will be paid by the participating employers and shall be treated as employer contributions pursuant to Section 414(h) of the Internal Revenue Code of 1986, as amended, and shall not be included as gross income of the employee until such time as they are distributed or made available to the employee. The city shall 'pick -up" the employee contributions by reducing the amount payable to each employee by the amount of his K:WN &e es \Cade / nendment Retirement Chapter 22371612. don ,I required employee contribution on a salary reduction basis. Any other participating employer shall `pick -up" the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. (b) Contributions payable by the participating employer shall be determined as provided in this section. The contributions to the city plan made each year by the participating employers shall consist of a certain percentage of the earnable compensation of each member to be known as the `normal contribution" and the "accrued liability contribution" (c) The normal contribution for each participating employer shall be determined after each actuarial valuation and shall be based on the normal cost determined under the actuarial cost method used to complete the valuation. The actuarial cost method shall be any generally accepted actuarial cost method adopted by the board for the purposes of completing the valuation. (d) The accrued liability contribution of each participating employer shall be determined after each actuarial valuation and shall be based on the accrued liability determined under the actuarial cost method used to complete the valuation. The unfunded or overfunded accrued liability, and any changes in the unfunded or overfunded accrued liability due to plan amendments, assumption changes, or experience gains or losses, shall be amortized as a level percent of pay over a period not to exceed thirty (30) years in accordance with acceptable GASB standards. (e) The total amount payable by each participating employer in each year shall be sufficient, when combined with the assets of the system, to provide the benefits payable to members and beneficiaries then current. (f) For valuation purposes the value of the assets must reflect current market value as of June 30 of each year, however, unrealized gains and losses or appreciation /depreciation may be phased in over a period of time at the board's discretion. (g) The actuary shall show separately the cost for each of the systems and, if requested by the board, shall separate the cost of the deputized police officers and firefighters from all other employees within each system, and, if requested by the board, shall show separately the cost for each participating employer. (h) All reasonable administrative expenses shall be paid from the trust. (i) The board shall file with the city manager and the governing body of each additional participating employer its certification of the amount of appropriations necessary to pay the required contribution as certified by the city plan's actuary and such amount shall be included in the participating employer's budget in accordance with budget procedure. Q) All member contributions and interest allowances shall be credited to the member contribution account. Accumulated contributions required to be returned to the member or required to be paid on account of the member's death shall be paid from the K9Measwes \Cade! nemmnent Rettrement Chapter 22 3 7 16 12 . doe 14 member contribution account. As of each June 30, the member contribution account of each active member shall be credited with interest at a rate to be determined annually by the council. Initially, the rate shall be three percent (3 %) annually. Interest shall accrue on any contribution beginning on the first day of the fiscal year following the year in which the contribution was made. No interest shall be credited to the member contribution account after the effective date of the member's retirement. ARTICLE V. MEMBERSHIP Sec. 22.3 -28. Membership generally. (a) Any eligible employee shall become a member of the city plan. (b) A member of ERS on June 30, 1984 and who has not elected during election periods provided at various times between June 30, 1984 and July 1, 2000 to transfer to ESRS may continue as an ERS member. No other person is eligible to become an ERS member. (c) Members or beneficiaries of the police and fire department pension plan shall continue as part of that system, and shall not be eligible to transfer to the ESRS. (d) On and after July 1, 1986, members of city council shall be members of ESRS. City council members shall be accorded creditable service for all service as a member of city council, whether continuous or not, including service prior to July 1, 1986. (e) A member of the city plan may earn a benefit from only one (1) system. Sec. 22.3 -29. Election of benefit under ERS or ESRS for members of ESRS having forty -two (42) or more years of creditable service. Any member of the ERS on June 30, 1984, who subsequently elected to transfer to ESRS and who thereafter attains forty -two (42) or more years of creditable service shall have his accrued benefit at the time of retirement calculated pursuant to the terms of ERS and ESRS, and such member shall elect to be paid his accrued benefit under either ERS or ESRS prior to the commencement of payment of any benefits under the city plan. Sec. 22.3 -30. Employees of constitutional offices and judges of courts of record not to receive benefits while being compensated by city for services rendered. Notwithstanding any provision contained in this article, no assistant, deputy or employee in any constitutional office and no employee of any judge of a court of record shall receive any benefit under this chapter during any period of time in which such person may also receive from the city any compensation for services rendered as an elected officer, or any judge of a court of record after being retired pursuant to this chapter. K WN se sTode r nen&nc Retvemem Chapter 22 3 7 16 12 dc Sec. 22.3 -31. Restoration of beneficiaries to membership (a) Should a disability beneficiary under normal retirement age be restored to or be in service at a compensation equal to or greater than his average final compensation at retirement (adjusted by any cost of living adjustments granted since his last day of service), or should any other beneficiary be restored to service prior to his normal retirement age, his pension shall cease and he shall become a member of ESRS. Anything in this chapter to the contrary notwithstanding, any prior service certificate on the basis of which his creditable service was computed at the time of his retirement shall be restored to full force and effect and he shall be credited with all creditable service as a member standing to his credit at the time of his retirement; provided, however, that his pension attributable to his creditable service prior to his reemployment upon subsequent retirement shall be no less than the sum of his previous pension plus the amount computed on the basis of his Creditable Service and Earnable Compensation for the period after his restoration. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who becomes a member after June 30, 2014; except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (b) Should any beneficiary be restored to service on or after his normal retirement age, the pension shall be discontinued during the period of restoration, and he shall become a member of the ESRS but in the event of his death during such period any payment under an optional benefit, if one (1) has been elected and has become effective with respect to his retirement allowance attributable to his creditable service prior to his reemployment, shall commence. Such a Member shall be considered a new Member with respect to service rendered subsequent to his restoration; except, that his Normal Retirement Age shall be the same as before restoration. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who becomes a member after June 30, 2014; except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (c) If a former employee who is entitled to a deferred early service retirement allowance or a deferred vested allowance returns to service as an eligible employee of a participating employer before such allowance has become payable, he shall become a member of the ESRS upon his return, and his retirement allowance attributable to his creditable service prior to his reemployment and payable on subsequent retirement shall be computed in accordance with the provisions of this article in effect at such time on the basis of service standing to his credit at the time of his termination and service credited to him after his return. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who becomes a member after June 30, 2014; except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (d) Any member who is reemployed by a participating employer shall not have his pension attributable to his creditable service prior to his reemployment reduced below the level he was receiving or was eligible to receive prior to reemployment. This requirement K,WeasuesACode Nnendmont Ret rnoeot Cbapta22 3 7 16 12 doe app lies both to the creditable service used to determine the amount of pension and eligibility for receiving payment. (e) Should any beneficiary receiving a pension be elected a member of city council, such beneficiary upon his initial election to city council, may make an irrevocable election to: (1) Discontinue receiving such pension pursuant to the provisions of section 22.3 -31(b) above, and accrue additional creditable service for serving on city council; or (2) Continue to receive a pension, but forego the accrual of additional creditable service for serving on city council. ARTICLE VI. CREDITABLE SERVICE DIVISION I - General Sec. 22.3-32. Definitions. Creditable service means membership service plus prior service Membership service shall mean service as a member for which credit is allowable as provided in sections 22.3 -37 and 22.3 -40 and service which is otherwise expressly credited as membership service pursuant to sections 22.3 -41, 22.3 -33, 22.3 -38 and 22.3 -39. Prior service shall mean service rendered prior to becoming a member for which credit is allowable as provided in sections 22.3 -35, 22.3 -74, and 22.3 -41. Prior service certificate shall mean a certificate issued by the board of trustees granting prior service. Sec. 22.3 -33. Service credit during leaves of absence. (a) No service credit shall be allowed for any period of thirty (30) or more days during which an employee was absent without pay; provided, however, any period of leave under the Family and Medical Leave Act of 1993 shall be treated as membership service for purposes of vesting and eligibility to participate (but not for the accrual of additional benefits). (b) Periods for which an eligible employee is receiving workers' compensation shall also be treated as membership service for purposes of vesting and eligibility (but not for the accrual of additional benefits). Such workers' compensation related periods shall be credited upon the eligible employee's return to service. (c) For a member who has unused extended illness leave pursuant to section 2 -55 of the City of Roanoke Code; or pursuant to the administrative process set by the Roanoke Valley Regional Airport Commission, seventy-five (75) percent of such member's unused extended illness leave balance upon the date of retirement shall be converted to creditable service not to exceed one (1) year of creditable service; provided no member shall use conversion of extended illness leave to meet vesting requirements of ESRS or ERS; no retirement allowance for any member converting extended illness to Creditable Service shall exceed sixty-three (63) percent of average final compensation; and, such member must KMeaameaACode Amemmnent Ret6ement Chapter 22 3 7 1612_dac 14 begin receiving a retirement allowance immediately upon termination from employment. The service credit described in this section shall not be granted to members who are employees of the city school board or the Roanoke Valley Resource Authority. Sec. 22.3 -34. Prorated creditable service for less than full -time work. Effective for creditable service earned after July 1, 2006, in the case of a member whose regular work schedule is less than that of an employee considered to be full -time under the participating employer's personnel policies (other than members of city council), creditable service shall be a fraction of a year based on the number of hours in the member's regular work schedule over the number of hours in the regular work schedule of an employee considered to be full -time under the participating employer's personnel policies. Sec. 22.3 -35. Restoration of prior creditable service. If a member is hired by a participating employer, prior creditable service (if any) will be reinstated when the following conditions are met. (a) The member, other than a member of city council, shall work one (1) continuous year after returning as an eligible employee before qualifying for prior creditable service; except when such person dies or becomes disabled after returning to service with a participating employer, in which case he shall become entitled to credit for prior creditable service as of the date of such death or disability without having to meet the requirement of one (1) year of continuous service. Notwithstanding the foregoing, if the member is hired by a participating employer after June 30, 2014, such prior creditable service shall be applied only for purposes of determining eligibility for the post— retirement supplement described in section 22.3 -61.1 and for determining vesting and normal retirement age with respect to benefits attributable to future service. The accrued benefit attributable to pre -July 1, 2014 creditable service shall be determined in accordance with section 22.3 -31. If the member did not have a vested allowance attributable to his pre July 1, 2014 creditable service, his post June 30, 2014 creditable service shall count toward the years of creditable service required for a vested allowance attributable to pre July 1, 2014 creditable service. Notwithstanding, however, the retirement allowance based on such pre -July 1, 2014 service shall be determined based on the provisions applicable to a person who becomes a member after June 30, 2014. (b) If the member received a refund of his accumulated contributions or a lump sum distribution for the full value of his pension previously earned and he repays the entire amount of the refund or distribution with interest, at the rate of five (5) percent per annum compounded, within ninety (90) days after reemployment, his prior credited service shall be reinstated for all purposes. Notwithstanding, however, the retirement allowance based on such pre -July 1, 2014 service shall be determined based on the provisions applicable to a person who becomes a member after June 30, 2014. Such repayment may be made by plan to plan transfer, rollover or after -tax contribution. KWN styes \CodeA en&nent Reece ent Chapter 22971612. doc 19 Sec. 22.3 -36. Service Generally Except as provided in section 22.3 -28 and section 22.3 -35, a member shall be entitled to creditable service, for purposes of calculating retirement benefits, for all time such member was an eligible employee, as defined in section 22.3 -2, whether such service was continuous or not and regardless of breaks or interruptions in such service with any participating employer. No member shall, except as required in section 22.3 -74, be allowed creditable service for time during which such member was not an eligible employee of a participating employer. DIVISION 2. ESRS SERVICE Sec. 22.3 -37. ESRS service credit. Each eligible employee shall receive credit for all membership service rendered while a member of ESRS and any prior service with the ERS. Sec. 22.3-38. Portability. (a) The board may enter into an agreement with the Virginia Retirement System (VRS) or another political subdivision of the Commonwealth having a defined benefit plan which is not supplemental to the Virginia Retirement System, whereby any vested ESRS member may be granted creditable service, as determined by the board, for service rendered with the VRS or with another political subdivision upon the transfer of assets pursuant to the agreement and in accordance with the procedures established by the board. (b) The board may transfer assets on behalf of a vested member to the VRS pursuant to the agreement between the board and the Virginia Retirement System. (c) The board may transfer assets on behalf of a vested member to a defined benefit plan of another political subdivision of the Commonwealth which is not supplemental to the VRS pursuant to the agreement between the board and such other political subdivision. Sec. 22.3 -39. Purchase of service. (a) Creditable service for purposes of this article shall also include service purchased by an ESRS member pursuant to this section and in accordance with the procedures established by the board. Upon completion of a service purchase described herein, the board of trustees, or its delegate, shall issue a prior service certificate relating to the purchased service. (b) Any member in service who has been credited with five (5) or more years of creditable service or who will become vested as a result of the current purchased service, may, pursuant to the procedures described in subsections (d) or (e), purchase creditable service for all or part of the following: K:PAeesm Code Amendment Refiranent Chpt¢22971612 doc 19 (1) Certified creditable service with a retirement system with which the city has entered into a portability agreement pursuant to subsections (a) and (b) of section 22.3 -38 and section 51.1- 801.1, Code of Virginia. (2) Service with the city in a grant position prior to July 1, 2000. The member must pay an amount equal to a percentage of the member's present annualized earnable compensation or his average final compensation during his thirty -six (36) highest consecutive months of creditable service (as determined pursuant to section 22.3 -42). The percentage of present earnable compensation or average earnable compensation, whichever is greater, to be charged shall be determined by the city plan's actuary based on reasonable factors and assumptions approved by the board of trustees intended to reflect the actual cost to the city plan of the benefit to be provided as a result of the purchased service. If the member does not pay the entire amount required, the member's actual creditable service shall be prorated on a linear basis. Notwithstanding the foregoing, if the member does not pay the entire amount required due to the member's death while an employee and such member does not have sufficient creditable service to be entitled to a death benefit under section 22.3 -67, then the amount paid by the member to purchase service shall be refunded to the member's spouse or if none, to the member's estate as soon as possible following the date of the member's death. (c) No service may be purchased under this section if such service is considered in the calculation of any retirement benefit either under this chapter as a result of portability or by another retirement system. (d) Upon an election by a member to purchase creditable service pursuant to this section and the receipt by the participating employer of a binding and irrevocable salary reduction election executed by the member on a form provided by the board for this purpose, the participating employer shall pay to the city plan an equivalent amount in lieu of the member's contribution required to purchase creditable service pursuant to this section. The member shall not be given the option of choosing to receive the contributed amounts directly instead of having them paid by the participating employer to the city plan. Such election shall not be effective prior to the receipt of the signed election. Contributions made by the participating employers pursuant to this section shall be considered earnable compensation for purposes of this chapter. Such contributions shall be paid to the trust fund by the participating employer from the same source of funds as used in paying the wages to affected members. Creditable service available for purchase that is not purchased using the procedure described in this subsection may be purchased using the procedure described in subsection (e). (e) In lieu of the purchase by salary reduction election as described in subsection (d) or in addition thereto, the city plan shall accept a direct trustee -to- trustee transfer of a lump sum in cash from a plan established pursuant to Section 457(b) of the Internal Revenue Code of 1986, as amended by a governmental employer or a plan or program established pursuant to Section 403(b) of the Internal Revenue Code of 1986, as amended as payment K:Wd sxa Code Amendment Retirement Chapte 223 7 16 12 dcc by a member for the purchase of creditable service described in subsection (b). Creditable service purchased with the lump sum shall be determined by dividing the lump sum by the applicable percentage described in subsection (b) multiplied by the greater of the member's present annualized earnable compensation or his average final compensation during his thirty -six (36) highest consecutive months of creditable service (as determined pursuant to section 22.3 -42). Creditable service available for purchase that is not purchased using the procedure described in this subsection, may be purchased using the procedure described in subsection (d). DIVISION 3. ERS SERVICE Sec. 22.3 -40. ERS service credit. Each eligible employee commencing service, for the first time, after July 1, 1946, shall receive membership service for all service rendered while a member of ERS. Sec. 22.3 -41. Prior service credit generally. Service prior to July 1, 1946 for employees whose date of hire was before July 1, 1946 shall be based upon the prior service certificate, the employee's statement of all service as an employee rendered by him prior to said date for which he claims credit, whether continuous or not, and of such other facts as the board may require for the proper operation of the system. The board shall fix and determine, by appropriate rules and regulations, the amount of service in any year which is equivalent to a year of service, but in no case shall more than one (1) year of service be creditable for all service in one (1) calendar year, nor shall the board allow credit as service for any period of more than one (1) month's duration during which the employee was absent without pay. The board shall verify, as soon as practicable after the filing of such statements of service, the service therein claimed, and shall issue prior service certificates certifying to each member the number of years of prior service with which he is credited. As long as membership continues, a prior service certificate shall be final and conclusive for retirement purposes as to such prior service credit; provided, however, that any member may, within one (1) year after the date of issuance or modification of such certificate, request the board to modify or correct his prior service certificate. ARTICLE Vll. DETERMINATION OF BENEFITS DIVISION 1- ESRS Sec. 22.3.42. ESRS definitions. Average final compensation (as used for purposes of determining retirement allowances under this division) shall mean the average annual earnable compensation, as defined by section 22.3 -2, of a member during the thirty -six (36) consecutive months during which the member has creditable service yielding the highest such average prior to retirement. However, for any person who becomes a member after June 30, 2014, average final compensation means the average annual earnable compensation of a member during the sixty (60) consecutive months during which the member has creditable service yielding the highest such average prior to retirement. Months in which the member has no creditable service shall not be included in determining the thirty -six (36) or sixty (60) consecutive K �Meeswes\Cnde Amendment Retbem —t Ch ,tet 22 3 7 16 12.doc 21 months. In either case, if the number of months is less than thirty -six (36) or sixty (60) consecutive months, respectively, the average shall be determined on the basis of the entire period of creditable service, or in the case of a rehire, including prior periods of service. Normal retirement age means: (a) For firefighters and deputized police officers the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age forty-five (45) and any combination of age and years of creditable service that equals not less than the sum of seventy (70) or in the case of a person who becomes a member after June 30, 2014 and who is a firefighter or deputized police officer, the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty (50) and any combination of age and years of creditable service that equals not less than the sum of seventy-five (75). Only service as a firefighter or deputized police officer shall be credited to determine eligibility; provided, however, should any firefighter or deputized police officer become disabled for his regular duties as a firefighter or deputized police officer as a result of an accident occurring in the line of duty or as a result of an occupational disease and such firefighter or deputized police officer is transferred to another position in the city service, then such member shall continue to accrue creditable service as a firefighter or deputized police officer and shall remain subject to the normal retirement age established by this subsection as if he had remained a firefighter or deputized police officer. Any member employed on December 1, it y prior Octobetr30,h1995, hall receive credit utndert his subpart for service) services capacity pr from the later of (i) July 1, 1989, or (ii) the date on which the employee became a member working in an emergency medical services capacity. (b) For all other members not described in (1) above the earlier of (i) the attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty (50) and any combination of age and years of creditable service that equals not less than the sum of eighty (80) or, in the case of a person who becomes a member after June 30, 2014 not described in (1) above, the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty -five (55) and any combination of age and years of creditable service that equals not less than the sum of eighty -five (85). (c) With respect to any person employed after having attained the age of sixty (60) years, normal retirement age shall be such person's age upon employment increased by five (5) years. System shall mean the Employees' Supplemental Retirement System of the City of Roanoke hereinafter referred to as the ESRS. Sec. 22.3 -43. Normal service retirement. (a) Eligibility. A member who remains an active member until his normal retirement age shall be eligible to receive an unreduced normal retirement benefit commencing on the first day of the month next following or coincident with the date of his termination of employment. K a...d .t Rebvnnent Ch to 22 37 16 12&o (b) Amount of normal retirement benefit on or after normal retirement age. (1) In the case of a member other than a person who becomes a member after June 30, 2014, the retirement allowance shall be two and one -tenth percent (2.1 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty-three (63) percent of average final compensation. (2) In the case of a person who becomes a member after June 30, 2014 (other than a hybrid member), the retirement allowance shall be two percent (2.0%) of the member's average final compensation for each year of creditable service subject to a maximum of sixty-three (63) percent of average final compensation. (3) In the case of a hybrid member, the retirement allowance shall be one percent (1.0%) of the member's average final compensation for each year of creditable service subject to a maximum of sixty-three (63) percent of average final compensation. Only creditable service and average final compensation upon date of termination of employment will be used in the computation of the retirement allowance. Sec. 22.3 -44. Early service retirement allowance. (a) Eligibility. A member shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment if he meets the following criteria: (1) In the case of a member other than a person who becomes a member after June 30, 2014, a member who has had five (5) or more years of creditable service and has attained the age of fifty -five (55) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. (2) In the case of a person who becomes a member after June 30, 2014, (other than a firefighter or a deputized police officer), a member who has had fifteen (15) or more years of creditable service and has attained the age of fifty -five (55) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. (3) In the case of a person who becomes a member after June 30, 2014 and who is a firefighter or deputized police officer, a member who has had fifteen (15) or more years of creditable service and has attained the age of fifty (50) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. KMv asmeaACode Amendment Redranent Chapter 22391612 doo 23 (b) Amount of early retirement benefit. (1) In the case of a member other than a person who becomes a member after June 30, 2014, the retirement allowance shall be two and one -tenth percent (2.1%) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (2) In the case of a person who becomes a member after June 30, 2014 (other than a hybrid member), the retirement allowance shall be two percent (2.0%) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (3) In the case of a hybrid member, the retirement allowance shall be one percent (1.0%) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. Only creditable service and average final compensation upon date of termination of employment will be used in the computation of the retirement allowance. (c) This retirement allowance may be deferred and become payable without further adjustment: (1) In the case of a member other than a person who becomes a member after June 30, 2014, until the date when such member first actually attains the earlier of (1) age sixty -five (65), or, (2) age fifty -five (55) and thirty (30) years of creditable service. (2) In the case of a person who becomes a member after June 30, 2014 (including hybrid members), until the date when such member first actually attains normal retirement age. (d) /f the member elects payment to begin prior to the date described in (c) above, the pension commencing immediately shall be equal to the deferred pension reduced by one - half (112) of one (1) percent for each of the first sixty (60) such months by which actual payment precedes the earlier of the date determined in (c) above and, one - quarter (114) of one (1) percent for each additional month in excess of sixty (60) months by which actual payment precedes the date determined in (c) above. Sec. 22.3 -45. Vested allowance. (a) Eligibility. A member with five (5) or more years of creditable service who, for reasons other than death or retirement under any other provision of this article, ceases to be KQNeasm s \Code A endment Retbement Chapter 223 7 16 12.doc employed by a participating employer shall be entitled to a vested allowance, as provided for in sections 22.3 -43, 22.3 -44, or 22.3 -58. (b) Calculation of allowance. The vested allowance commencing upon the actual attainment of the earlier of the date described in section 22.3 -44(c) shall be computed as a vested service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his termination. (c) Payment of the vested allowance. The vested allowance may commence to be paid at any time after the member has reached, in the case of a member other than a person who becomes a member after June 30, 2014, the age required for early retirement subject to any applicable reductions for early payment as set out in section 22.3 -44(d) or in the case of a person who becomes a member after June 30, 2014 (including hybrid members), age sixty (60) subject to any applicable reductions for early payment as set out in section 22.3- 44(d). (d) Applicability of multiplier. Any member entitled to a vested allowance who ceased to be an employee of a participating employer prior to January 1, 1999 and who is not reemployed after June 30, 2014, shall have his vested allowance calculated pursuant to sections 22.3 -43 and 22.3 -44 as such sections existed prior to January 1, 1999 (utilizing a multiplier of two percent (2.0%) for each year of creditable service). Any member entitled to a vested allowance who ceases to be an employee of a participating employer on or after January 1, 1999, who is not reemployed after June 30, 2014, and who meets the condition established by section 22.3 -35(a) shall have his vested allowance calculated pursuant to sections 22.3 -43 and 22.3 -44 as such sections exist on and after January 1, 1999 (utilizing a multiplier of two and one -tenth percent (2.1%) for each year of creditable service). r�7 ►96�[r7�`i��:�7 Sec. 22.3 -46. ERS definitions Average final compensation (as used for purposes of determining retirement allowances under this division) shall mean the annual earnable compensation, as defined by section 22.3 -2, of a member during his twelve (12) consecutive months of creditable service yielding the highest such average prior to retirement. Normal retirement age means the age of sixty (60) or the age prior thereto at which a member completes thirty (30) years of creditable service. Social security benefit shall mean the annual benefit payable in monthly installments as the primary insurance amount under Title 11 of the Federal Social Security Act. System shall mean the Employees' Retirement System of the City of Roanoke hereinafter referred to as the ERS. Sec. 22.3 -47. Retirement and service retirement allowance generally. (a) Eligibility. Any member who remains an active member until his normal retirement age shall be eligible to receive an unreduced normal retirement benefit KWeas VCodeAmendment Rettrmenu Chapter 22371612 doc 25 commencing on the first day of the month next following or coincident with the date of his termination of employment. (b) Amount of normal retirement benefit on or after normal retirement age. The service retirement allowance shall consist of a pension equal to one - seventieth of the member's average final compensation multiplied by the number of years of creditable service. In the case of a member retiring on or after July 1, 1970, and after he has attained the age of sixty -five (65) years, an additional pension shall be payable to him, if he is not entitled to a social security benefit at the time of such retirement on the basis of his covered earnings under the Social Security Act, which shall be equal to the primary insurance amount provided under Title Il of the Social Security Act as the same may be from time to time amended and adjusted; provided, however, that the member shall be required to submit evidence satisfactory to the board that the Social Security Administration has determined that no social security benefit is payable to him, nor would such a benefit be payable upon proper application therefore but for the receipt of income covered under the Social Security Act. Sec. 22.3 -48. Early service retirement allowance. (a) Eligibility. A member who remains an active member until he has completed at least twenty (20) or more years of creditable service shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of his termination of employment. (b) Amount of early retirement benefit. The retirement allowance shall consist of a pension equal to one - seventieth of the member's average final compensation multiplied by the number of years of creditable service. (c) The early service retirement allowance shall consist of either. (1) A deferred pension commencing upon the attainment of the normal retirement age and computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his early retirement; or (2) A pension commencing immediately which shall be equal to the deferred pension reduced by five- ninths (519) of one (1) percent for each month between the date of commencement of the pension and the attainment of the normal retirement age, not in excess of sixty (60) months, and five - eighteenths (5118) of one (1) percent for each such month in excess of sixty (60) months. (d) If a retired member who has elected to receive a deferred retirement allowance under this section dies before his retirement allowance normally becomes due, the only payment made shall be the non - occupational death benefit, as provided under subparagraph (1) of section 22.3 -70, unless there is a surviving spouse entitled to a pension under the provisions of section 22.3 -69. Sec. 22.349. Vested allowance. (a) Eligibility. A member with ten (10) or more years of creditable service who, for reasons other than death or retirement under any other provision of this article, ceases to be K MV su s \Code Amendment Retwemem CNpw 22.371612.doa 26 employed by a participating employer on or after October 1, 1977, shall be entitled to a vested allowance as provided for in section 22.3 -47, or section 22.3 -48, subject to the restrictions of this section, payable to him in accordance with this section commencing either on his normal retirement age or upon application of the former employee filed not less than thirty (30) days prior to the commencement date, prior to the normal retirement age but on or after the date as of which he would have completed twenty (20) years of creditable service if he had continued in service with a participating employer. Any member who terminated service for any reason prior to October 1, 1977, and who returns to service after such date shall work one (1) continuous year after returning before qualifying for credit toward a vested allowance for service rendered prior to October 1, 1977, except when such person dies or becomes disabled after returning to service, in which case he shall become entitled to credit for prior service as of the date of such death or disability without having to meet the requirement of one (1) year of continuous service. (b) The vested allowance commencing upon the attainment of normal retirement age shall be computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his termination. (c) The vested allowance commencing prior to the former member's normal retirement age, but on or after the date as of which he would have completed twenty (20) years of creditable service if he had continued in service, shall be equal to the pension computed in accordance with subsection (b) of this section, reduced by five - ninths ( 519) of one (1) percent for each month between the date of commencement of the pension and the attainment of the normal retirement age, not in excess of sixty (60) months, and five - eighteenths (5118) of one (1) percent for each additional month in excess of sixty (60) months. (d) A vested allowance shall not be payable pursuant to this section with respect to any member whose service was terminated prior to October 1, 1977, and who was not in service after that date. ARTICLE Wit. DISABILITY RETIREMENT Sec. 22.3 -50. Non - occupational disability retirement allowance. (a) Eligibility. Upon application of a member in service or the head of such member's department, any such member who has had five (5) or more years of creditable service may be retired by the board on a non - occupational disability retirement allowance not more than one (1) year after the filing of such application (or such longer period necessitated by the circumstances); provided, that the board's medical examiner or examiners shall certify after medical examination (i) that such member is mentally or physically totally incapacitated for the further performance of any gainful employment for which the member is qualified with his most recent participating employers, and (ii) that such incapacity is likely to be permanent. (b) Amount of benefit. The non - occupational disability retirement allowance shall be computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his retirement (accrued benefit), provided, in the case of an ERS member, if such member has not attained his normal retirement age and the retirement allowance computed as herein provided is less than twenty-five (25) K \Measures \Code PoneWnent Retirement Chapter 22 9 7 16 12 .&c 27 percent of the member's average final compensation, the pension shall be increased to the lesser of such twenty -five (25) percent, or the amount that would have been payable to the member as a service retirement allowance on retirement at his normal retirement age if he continued in service until such age without change in his average final compensation. Upon approval of an application by the board, benefits shall be retroactive to the date after all forms of leave have been exhausted. This benefit shall be reduced by any workers' compensation benefits as provided for in section 22.3 -53. (c) The non - occupational disability retirement allowance of a hybrid member shall be computed as a service retirement allowance on the same basis as described in (b) above except that the multiplier shall be 2.0% instead of the 1.0% applicable to a hybrid member. The disability retirement allowance of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the effective date of his disability. (d) Should the member die while receiving a non - occupational disability retirement allowance, any excess accumulated contribution as of the effective date of the members retirement, over the total retirement allowance previously received by him will be paid to the member's beneficiary. Sec. 22.3 -51. Occupational disability retirement allowance. (a) Eligibility. Upon the application of a member in service or the head of such member's department, any member who has been totally and permanently incapacitated for duty as a natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place without willful negligence on his part may be retired by the board on an occupational disability retirement allowance not more than one (1) year after the filing of such application; provided that the board's medical examiner or examiners shall certify after medical examination (i) that such member is mentally or physically totally incapacitated for the further performance of any gainful employment for which the member is qualified with his most recent participating employers, (ii) that such incapacity is the natural and proximate result of an accident occurring while in the actual performance of duty, and (iii) that such incapacity is likely to be permanent. (b) Amount of benefit. The occupational disability retirement allowance shall be equal to sixty -six and two- thirds (66213) percent of a member's average final compensation. This benefit shall be reduced by workers' compensation benefits as provided for in section 22.3 -53. This benefit shall not be reduced due to payment commencing prior to normal retirement age. (c) The occupational disability retirement allowance of a hybrid member shall be determined on the same basis as described in (b) above, except that the disability retirement allowance of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the effective date of his disability. (d) Should the member die while receiving an occupational disability retirement allowance, any excess accumulated contribution as of the effective date of the members K:Md smesTode Amendment RetGemeat Chapter 22391612.doc 28 retirement, over the total retirement allowance previously received by him will be paid to the member's beneficiary. Sec. 22.3 -52. Application for workers' compensation benefits required. As a condition precedent to application for an occupational disability benefit from the city plan, a member must first apply for workers' compensation benefits and be awarded such benefits. Receipt of an award under the workers' compensation act shall not relieve an applicant of the duty to prove his qualification for a benefit under the standards established by this chapter for the city plan. Sec. 22.3 -53. Workers' compensation benefits offset against retirement benefits. (a) Any amounts which may be paid or payable under the provisions of the Virginia Workers' Compensation Act or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of any injury, occupational disease or disability or incapacity, total or partial, or death shall in such manner as the board shall determine, be offset against and payable in lieu of any benefits payable out of funds provided under the provisions of the city plan. (b) In the case of a member, beneficiary or dependent of a member or beneficiary who elects to receive a lump sum settlement in lieu of periodic payments for temporary disability or death compensable under the Virginia Workers' Compensation Act, the retirement allowance shall cease or be reduced, as the case may be. The amount of reduction shall be determined by the workers' compensation benefit which such person would have received had the lump sum settlement not been consummated, including all cost of living adjustments permitted by the Virginia Workers' Compensation Commission, and had such person received periodic payments for disability or death for the maximum amount of time otherwise permitted under the Virginia Workers' Compensation Act. The reduction shall continue each month for a period of months, until such time as the total amount of periodic payments for disability or death payable to such person under the Virginia Workers' Compensation Act would have been offset had the lump sum settlement not been consummated. (c) The above notwithstanding, no amount paid or payable under the provisions of the Virginia Workers' Compensation Act, or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of permanent partial disability from any injury shall be offset against any benefits payable out of funds under the provisions of the city plan. Sec. 22.3 -54. Presumptions applicable to death or disability of firefighters and police officers. The policies, presumptions and procedures established by section 27 -40.1, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any firefighter caused by respiratory disease, hypertension or heart disease, and by section 51- 122, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any deputized police officer of the police department caused by K Meesmee\Coae fvnemmrent RetGement Chapter 22 3 7 16 12 doe 29 hypertension or heart disease, are hereby incorporated by reference and shall be applicable in the case of any application filed by any firefighter or any deputized police officer of the police department or any survivor thereof for occupational disability retirement allowance or occupational death benefit under the employees' supplemental retirement system or the employees'retirement system. Sec. 22.3 -55. Periodic medical examination of beneficiaries retired on account of disability. Once each year during the first five (5) years following the retirement of a member on a non- occupational or an occupational disability retirement allowance, and once in every three -year period thereafter, the board may require any disability beneficiary to undergo a medical examination if he has not yet attained his normal retirement age. Such examination shall be made by a medical examiner at the examiner's office during normal business hours. For this purpose, the secretary - treasurer shall select a medical examiner or examiners who are located within a reasonable proximity of the member's place of residence. Should any disability beneficiary refuse to submit to such medical examination, his retirement allowance may be discontinued by the board until his withdrawal of such refusal, and should his refusal continue for one (1) year, all his rights in and to his pension may be revoked by the board. Sec. 22.3 -56. Modification of disability retirement allowances. (a) Should the board find that any disability beneficiary is engaged in or is able to engage in a gainful occupation paying more than the difference between his pension and his average final compensation adjusted pursuant to any applicable amendments to the ranges of the participating employer's pay plan subsequent to the member's retirement, the board shall reduce the amount which, together with the amount earnable by him, shall equal the amount of his average final compensation adjusted as provided above. Should the earning capacity of such beneficiary from any gainful occupation be later changed, the amount of his pension may be further modified in a like manner. (b) The board or the secretary- treasurer of the city plan, upon the authority of the board, shall be authorized to make such inquiries of persons who are disability beneficiaries under the city plan as are necessary to determine whether any such person is engaged or is able to engage in a gainful occupation paying more than the difference between his pension and his average final compensation increased by the average cost of living allowances to city employees. Such inquiries shall be answered under oath. Any disability beneficiary may also be required to produce copies of tax returns and tax withholding forms (W -2s) to establish income. If any disability beneficiary should refuse or fail to provide the information required by this section, the board shall be authorized to terminate such person's benefits until compliance is achieved. ARTICLE /X. PAYMENT OF BENEFITS DIVISION 1. GENERAL Sec. 22.3 -57. Form of payment of benefits. K.\Measmes \Cade Mnendinent Retuement Chapter 22 .3 7 16 12 doc All annuity payments shall be made on a monthly basis. The board of trustees shall establish all required administrative procedures needed to accomplish such monthly payments. Sec. 22.3 -58. Lump sums. (a) The board may set a dollar amount for a monthly benefit that shall be paid in the form of a lump sum. Except as provided in subsection (c), monthly benefits of more than the amount determined by the board shall not be paid in the form of a lump sum. Notwithstanding the above, monthly benefits whose lump sum value is above the amount as shall be from time to time established by Section 411(a)(11), Internal Revenue Code of 1986, as amended, shall require member consent before a lump sum is paid. Any beneficiary shall be required to receive a lump sum distribution of the amount as shall be from time to time established by Section 411(a)(11), Internal Revenue Code of 1986, as amended, or less. (b) All lump sums shall be based on the applicable interest rate and mortality table as defined in Section 417(e) of the Internal Revenue Code of 1986, as amended, effective on the first day of the calendar year in which payment is made. (c) Upon the written agreement of the employee and the secretary - treasurer of the city plan, monthly benefits payable to a member who is retired on a disability retirement allowance maybe paid in the form of a lump sum by purchase of one (1) or more annuities or a combination of lump sum and annuity payments. Sec. 22.3 -59. Rollover of lump sum distributions. Effective January 1, 1993, notwithstanding anything to the contrary in this article, but subject to any de minimis or other exceptions or limitations provided for under Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, any prospective recipient (whether a member, a surviving spouse, a current or former spouse who is an alternate payee under an approved domestic relations order or any other person eligible to make a rollover) of a distribution from the city plan which constitutes an "eligible rollover distribution" (to the extent otherwise includible in the recipient's gross income) may direct the board to pay the distribution directly to an `eligible retirement plan ". For purposes hereof, the following terms have the meanings assigned to them in Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, and, to the extent not inconsistent therewith, shall have the following meanings: (a) The term `eligible retirement plan" means a defined contribution plan which is either an individual retirement account described in Section 408(a) of the Internal Revenue Code of 1986, as amended, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code of 1986, as amended (other than an endowment contract), an annuity plan described in Section 403(a) of the Internal Revenue Code of 1986, as amended, or a qualified trust described in Section 401(a) of the Internal Revenue Code of 1986, as amended, that accepts the prospective recipient's eligible rollover distribution. For distributions made before January 1, 2002, in the case of an eligible rollover distribution payable to a member's surviving spouse, an `eligible retirement plan' means only an individual retirement account or individual retirement annuity. Effective for distributions made after December 31, 2001, an eligible retirement plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) of the Code which is maintained by a state, KNAeasureslCOde / vn ft mNeCvemem Chaptu 22371612.d.c 31 political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to account separately for amounts transferred into such plan from this Plan. Effective for distributions made after December 31, 2001, the definition of eligible retirement plan applicable to a member shall also apply in the case of a distribution to a member's surviving spouse and to a member's spouse or former spouse who is the alternate payee under an approved domestic relations order. Effective for distributions made after December 31, 2007, an "eligible retirement plan "includes an individual retirement plan described in section 408A of the Internal Revenue Code of 1986, as amended (sometimes referred to as a Roth IRA) provided that for tax years beginning before January 1, 2010, the recipient does not have modified adjusted gross income in excess of $100,000 and is not married filing a separate return, both as determined under Section 408A(c)(3)(8) of the Internal Revenue Code of 1986, as amended. For distributions made in Plan Years beginning on or after January 1, 2010, in the case of an eligible rollover distribution payable to a non - spouse beneficiary within the meaning of Section 401(a)(9)(E) of the Internal Revenue Code of 1986, as amended, an "eligible retirement plan" means only an "inherited IRA". (b) The term "eligible rollover distribu tion " me ans any distribution other than: (1) A distribution which is one of a series of substantially equal periodic payments (not less frequently than annually) made either for the life (or life expectancy) of the recipient or the joint lives (or joint life expectancies) of the recipient and his beneficiary who is an individual or for a specified period of ten (10) or more years, (2) A distribution to the extent it is required under the minimum distribution requirement of Section 401(a)(9) of the Internal Revenue Code of 1986, as amended, (3) Any other amount which is not considered an eligible rollover distribution for purposes of Section 402(c)(4) of the Internal Revenue Code of 1986, as amended with respect to the Plan. (c) The term 'inherited IRA "means an individual retirement account described in Section 408(a) of the Internal Revenue Code of 1986, as amended, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code of 1986, as amended (other than an endowment contract) or, for plan years beginning in or after 2010, an individual retirement plan described in section 408A of the Internal Revenue Code of 1986, as amended (sometimes referred to as a Roth IRA) established for the purpose of receiving the distribution where the individual retirement account or annuity or Roth IRA is treated as an inherited individual retirement account or annuity within the meaning of Section 408(d)(3)(C) or, as applicable, Section 409A(d)(3)(8) of the Internal Revenue Code of 1986, as amended. Any such direction shall be filed with the board in such form and at such time as the board may require and shall adequately specify the eligible retirement plan to which the payment shall be made. The board shall make payment as directed only If the proposed transferee plan will accept the payment. Any such plan to plan transfer shall be considered a distribution option under this plan and shall be subject to all the usual distribution rules of the city plan (including K W essuresVCode Annendment Retirement Chapter 223 7 16 12 _don but not limited to the requirement of an advance explanation of the option). The board is authorized in its discretion, on a uniform and non - discriminatory basis, to apply any discretionary de minimis or other discretionary exceptions or limitations provided for under Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, in effecting or declining to affect plan to plan transfers hereunder. Within a reasonable time (generally not more than ninety (90) nor less than thirty (30) days) before the benefit payment date of a prospective recipient of an eligible rollover distribution from the plan, the board shall provide the prospective recipient with a written explanation of the rollover and tax rules required by Section 402(1) of the Internal Revenue Code of 1986, as amended. If a refund is paid pursuant to section 22.3 -62.1 that exceeds $1,000 and the member has not attained the later of his normal retirement age or the age of sixty -two (62), the refund shall be made by the board's paying the distribution directly to an "eligible retirement plan" which is an individual retirement plan in a direct rollover to the individual retirement plan on behalf of the member (an 'automatic rollover'), unless the member requests in writing that the distribution be made directly to him (as opposed to a rollover to an 'eligible retirement plan') or directs in writing that the distribution be made to a specified "eligible retirement plan" or plans. The automatic roll over shall be made to an individual retirement plans that satisfies the safe harbor therefore Section 51.1- 124.30.F of the Code of Virginia, and such provisions shall be interpreted and administered in accordance therewith. Sec. 22.3 -60. Permissible changes to optional forms of payment. A retired member who has elected an option described in section 22.3 -62 or section 22.3 -63 may, in a manner prescribed by the board, revoke such election and elect to receive from the time of notification the retirement allowance to which he would have been entitled had no option been elected initially and no cost of living increases been granted in the interim, if (a) the original survivor has died or (b) a final decree of divorce of the retired member from the original survivor has been entered which releases both the member and the city plan from any liability to or obligation of the city plan to make any payments to the original survivor. Sec. 22.3 -61. Retirement supplement. Any member of the city plan who is an employee of a participating employer (not including employees of the City of Roanoke School Board), and who retires or who has retired after earning twenty (20) or more years of creditable service, but prior to attaining the age of sixty - five (65), shall be paid a monthly supplement of the greater of one hundred fifty -nine ($159.00) or an amount equal to seventy -five percent (75%) of the amount the City of Roanoke contributes monthly toward the cost of a single active employee's health insurance, as such contribution may be changed from time to time, commencing with the first month of retirement and terminating with the month in which the member attains age sixty -five (65). This supplement shall not be subject to any cost of living adjustment which may be provided under the city plan. This supplement shall be a personal benefit applicable to an eligible member only without any right of survivorship. Upon the death of a member who is receiving such benefit, the monthly payment shall be made for the month of such member's death and shall terminate with the next succeeding month. This benefit shall not be applicable to retirees receiving the early retirement incentive plan supplement granted in 1991. Notwithstanding, the retirement supplement shall not be paid to a person who became a member after June 30, 2013, as defined in Section 22.3 -26.1. In addition, the board shall K_Meas s \Code Nnendmeet Ret ement Chapter 22.371612. doe 33 permit other members to make an irrevocable election to forego entitlement to the supplement under procedures established by the board. Sec. 22.3 -61.1. Post retirement cost of living supplement. In addition to the allowance paid under this chapter, a post retirement cost of living supplement shall be paid to the recipient of a retirement allowance which began before June 30, 2014 or to the recipient of a retirement allowance which begins after June 30, 2014, but only if the member completed at least fifteen (15) years of creditable service prior to such retirement and has been receiving a retirement allowance for at least one year. The amount of the cost of living supplement shall be determined annually as a percent of the allowance in the amount of 213rds of the increase in the United States Average Consumer Price Index for all items, all urban Consumers (CPI -U). Notwithstanding, the percentage increase for any one year shall not exceed the lesser of four percent (4 916) or the pay raise awarded generally to active employees. City council may revise the formula and or eliminate the cost of living supplement at any time applicable to future supplements. DIVISION 2. ESRS Sec. 22.3 -62. Optional spousal allowance. Until the effective date of retirement, any member may elect to convert the retirement allowance otherwise payable to him into an optional spousal allowance of equivalent actuarial value in accordance with one (1) of the optional forms set out below. If an optional spousal allowance is selected and the spouse dies before the member, the member's pension shall, as of the first day of the next month after the death of the member's spouse, be increased by an amount equal to the amount by which the pension was reduced at the date of retirement by virtue of the member's election of a spousal allowance. The member's spouse, if any, shall be required to sign the election form designated by the board, when the member applies for retirement. A spouse must be married to the member at retirement and one (1) year prior to death of the member or retired member to be eligible for a spousal allowance. The spousal allowance shall continue until the death of the spouse. Except as provided in section 22.3 -60, a member's election of an optional spousal allowance shall be irrevocable. A spousal benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -53. The optional forms are as follows: Option 1: A reduced retirement allowance payable during the life of the retired member, with the provisions that upon his death his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledgeable and filed with the board at the time of his retirement (the joint and one hundred (100) percent spouse survivor option); or Option 2: A reduced retirement allowance payable during the life of the retired member, with the provision that upon his death three - quarters (314) of his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and seventy -five (75) percent spouse survivor option); or K, My smesVCode l nendment Retirement Chept r 22 3 7 16 12.doc 34 Option 3: A reduced retirement allowance payable during the life of the retired member, with the provision that upon his death one -half (112) of his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and fifty (50) percent spouse survivor option) The actuarial factors used to convert normal form of payment (single life annuity payable monthly) to an optional form of payment are set forth in the administrative procedures manual maintained by the board. Such tables shall comply with the requirements of section 401(a)(9) of the Internal Revenue Code. Should such member die within thirty (30) days after retirement, his optional election shall not be effective, he shall be considered a member in service at the time of his death, and the only benefit payable on his account shall be the non - occupational death benefit provided in section 22.3 -67 reduced by any retirement allowance payments received by him prior to his death. Should the member die while receiving a retirement allowance under a form of payment with no spouse survivor option, any excess accumulated contributions as of the effective date of the member's retirement, over the total retirement allowance previously received by him shall be paid to the member's beneficiary as soon as soon as administratively practical following the member's death. Should the spouse survivor of a member die while receiving a retirement allowance under a form of payment with a spouse survivor, any excess accumulated contributions as of the effective date of the member's retirement, over the total retirement allowance previously received by the member and the spouse survivor shall be paid to the spouse survivor's estate as soon as soon as administratively practical following the spouse's death. Sec. 22.3 -62.1. Refund of accumulated contributions before retirement. (a) Any member who has five or more years of creditable service, who ceases to be a member other than by death or retirement may request and receive a refund of the balance in the member's contribution account reduced by the amount of any retirement allowance previously received by him under the provisions of this article. (b) Any member who has less than five years of creditable service who ceases to be an employee other than by death shall be paid the balance in the member's contribution account in a mandatory cash -out as soon as administratively practical following his ceasing to be employed by a participating employer. (c) Any member who receives a refund shall no longer be entitled to any benefits attributable to his service after June 30, 2014. Such member shall be treated as if he had terminated employment on June 30, 2014 for purposes of determining any other benefits under the plan. K eudmem Rerremera Chapter 22371612 dor 35 DIVISION 3. ERS Sec. 22.3 -63. Optional or modified retirement allowance Until the effective date of retirement, any member may elect to convert the retirement allowance otherwise payable to him into a modified retirement allowance of equivalent actuarial value in accordance with one (1) of the optional forms set out below. If a modified retirement allowance is selected and the beneficiary dies before the member, the member's pension allowance shall, as of the first day of the next month after the death of the member's beneficiary, be increased by an amount equal to the amount by which the pension was reduced at the date of retirement by virtue of the member's election of a modified retirement allowance. A modified retirement allowance shall continue until the death of the beneficiary. Except as provided in section 22.3 -60, a member's election of a modified retirement allowance shall be irrevocable. The optional forms are as follows: Option 1: A reduced retirement allowable payable during the life of the retired member, with the provision that upon his death his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall have nominated by written designation duly acknowledgeable and filed with the board at the time of his retirement (the joint and one hundred (100) percent survivor option); or Option 2: A reduced retirement allowance payable during the life of the retired member, with the provisions that upon his death one -half (1 12) of his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and fifty (50) percent survivor option); or Option 3: A reduced retirement allowance payable during the life of the retired member, with the provisions that, upon his death, some other benefit shall be payable; provided, that the total value of the allowance during his life and the succeeding benefit shall be computed to be of equivalent actuarial value to the retirement allowance which he would receive without optional modification; provided further that the benefit shall be approved by the board (the joint and x percent survivor option). The actuarial factors used to convert to an option form of payment are set forth in the administrative procedures manual maintained by the board. Should such member die within thirty (30) days after retirement, his optional election shall not be effective, he shall be considered a member in service at the time of his death, and the only benefit payable on his account shall be the non - occupational death benefit provided in section 22.3 -70 reduced by any retirement allowance payments received by him prior to his death. Notwithstanding anything herein to the contrary, the distribution options available to members shall be limited by the following restrictions: (a) The present value of payments made to the member must be more than fifty (50) percent of the present value of the total payments to be made to the member and his beneficiary (based on the life expectancies as of the date benefits commence). (b) Benefits will be distributed commencing not later than such taxable year: K:U9ea., \Code /vnendment Re. ,n. Chapter 22 .3 7 16 12 .d.c 36 1. Over the life of such member or over the lives of such member and his spouse; or 2. Over a period not extending beyond the life expectancy of such member or the life expectancy of such member and his spouse. (c) If a member dies before his entire interest has been distributed to him, or distribution has been commenced in accordance with subsection (b)2. above to his surviving spouse and such surviving spouse dies before his entire interest has been distributed to such surviving spouse, then his entire interest will be distributed within five (5) years after his death (or the death of his spouse). The preceding sentence shall not apply to term certain distributions. With respect to distributions beginning in calendar years beginning on or after January 1, 2002, the plan will apply the minimum distribution requirements of Section 401(a)(9) of the Internal Revenue Code and described in this section, in accordance with the regulations under Section 401(a)(9) of the Internal Revenue Code that were proposed on January 17, 2001. ARTICLE X. DEATH BENEFITS DIVISION 1. GENERAL Sec. 22.3 -64. Application for workers' compensation benefits required. As a condition precedent to application for an occupational death benefit from the city plan, a member's beneficiary must first apply for workers' compensation death benefits and be awarded such benefits. Receipt of an award under the workers' compensation act shall not relieve an applicant of the duty to prove his qualification for a benefit under the standards established by this chapter for the city plan. Sec. 22.3 -65. Workers' compensation benefits offset against death benefits. (a) Any amounts which may be paid or payable under the provisions of the Virginia Workers' Compensation Act or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of death shall in such manner as the board shall determine, be offset against and payable in lieu of any benefits payable out of funds provided under the provisions of the city plan. (b) In the case of a member, beneficiary or dependent of a member or beneficiary who elects to receive a lump sum settlement in lieu of periodic payments for temporary disability or death compensable under the Virginia Workers' Compensation Act, the retirement allowance shall cease or be reduced, as the case may be. The amount of reduction shall be determined by the workers' compensation benefit which such person would have received had the lump sum settlement not been consummated, including all cost of living adjustments permitted by the Virginia Workers' Compensation Commission, and had such person received periodic payments for disability or death for the maximum amount of time otherwise permitted under the Virginia Workers' Compensation Act. The reduction shall continue each month for a period of months, until such time as the total amount of periodic iCVtlee sVCode A en�eM Relbment Captu 22371612&& 37 payments for disability or death payable to such person under the Virginia Workers' Compensation Act would have been offset had the lump sum settlement not been consummated. However, in the event a member dies after electing to receive a lump sum settlement in lieu of periodic payments for temporary disability compensable under the Virginia Workers' Compensation Act, the death benefit payable to a beneficiary or dependent of a beneficiary shall be offset only to the extent the amount of the lump sum settlement in lieu of periodic payments for temporary disability compensable under the Virginia Workers' Compensation Act has not already been offset by any benefits payable out of funds provided under the provisions of the city plan. (c) The above notwithstanding, no amount paid or payable under the provisions of the Virginia Workers' Compensation Act, or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of permanent partial disability from any injury shall not be offset against any benefits payable out of funds under the provisions of the city plan. Sec. 22.3 -66. Presumptions applicable to death or disability of firefighters and police officers. The policies, presumptions and procedures established by section 27 -40.1, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any firefighter caused by respiratory disease, hypertension or heart disease, and by section 51- 122, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any deputized police officer of the police department caused by hypertension or heart disease, are hereby incorporated by reference and shall be applicable in the case of any application filed by any firefighter or any deputized police officer of the police department or any survivor thereof for occupational disability retirement allowance or occupational death benefit under the employees' supplemental retirement system or the employees'retirement system. DIVISION 2. ESRS Sec. 22.3 -67. Non - occupational death benefit. (a) Should a member die in service before completing at least ten (10) years of creditable service, the member's beneficiary shall receive a refund of the balance in the member's contribution account as soon as administratively practical following the member's death. (b) Eligibility. Upon the receipt of proof, satisfactory to the board, of the death of an active member with ten (10) or more years of creditable service which was not the result of an accident in the actual performance of duty, as defined in section 22.3 -68, a non- occupational death benefit shall be paid to such person's lawful spouse as of the date of death and with whom he has been married for least one (1) year at date of death, if any. (c) Benefit. The non - occupational death benefit shall be an annuity benefit equal to fifty (50) percent of his accrued benefit on his date of death (but not reduced by any early payment reduction factor). The benefit shall commence on the day next following death. If the K swesACode A, em em Retiremenv Chapter 22.3 716 12 .doc 38 surviving spouse is more than sixty (60) months younger than the member the benefit shall be reduced by one -sixth of one (1) percent for each full month in excess of sixty (60) months. (d) The non - occupational death benefit of a hybrid member shall be computed as a service retirement allowance on the same basis as described in (c) above except that the accrued benefit on the date of death shall be determined using a multiplier 2.0% instead of the 1.0% applicable to a hybrid member. The non - occupational death benefit of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the date of his death. (e) Should the surviving spouse die while receiving the annuity benefit described in (c) or (d), any excess accumulated contributions as of the date of the member's death, over the total annuity benefit previously received by the surviving spouse shall be paid to the surviving spouse's estate as soon as administratively practical following the spouse's death. Sec. 22.3 -68. Occupational death benefit. (a) Eligibility. If, upon the receipt of proof, satisfactory to the board, of the death of a member in service indicating that such death was the natural and proximate result of an accident, occurring while the member was in the actual performance of duty, the board shall decide that death was the result of an accident in the actual performance of duty occurring at some definite time and place, and not caused by willful negligence on the part of the member, there shall be paid the following benefit, in lieu of any benefit payable under the provisions of section 22.3 -67. (b) Benefits. The occupational death benefit shall be a pension one -half (112) of his average final compensation payable to his spouse, if any, to continue until death; or if there is no spouse at date of the member's death, then to his child or children under age eighteen (18), if he leaves children, divided in such manner as the board, in its discretion, shall determine, to continue as a joint and survivorship pension for the benefit of the child or children under said age until every child dies or attains said age. This benefit shall be reduced by workers' compensation benefits as provided in section 22.3 -65. (c) The occupational death benefit of a hybrid member shall be computed on the same basis as described in (b) above. The occupational death benefit of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the date of his death. (d) Should the member's surviving spouse and or children receiving an allowance payable under the provisions set forth above die, any excess balance in the member's contribution account as of the date of the member's death, over the total survivor allowance paid to the surviving spouse and or children shall be paid to the estate of the last surviving spouse or child as soon as administratively practical following the last survivor's death. DIVISION 3. ERS Sec. 22.3 -69. Pensions to spouses of retired members or members eligible to retire. K -NM sm \Code Nmm ent Retirement Chapter223] 1 b 12 . doe 39 Upon the receipt of proof, satisfactory to the board, (i) of the death, on or after July 1, 1973, of a member in active service after the completion of twenty (20) or more years of creditable service or after the attainment of age sixty (60), or (ii) of the death of a member who retired on or after July 1, 1973, or of the death of a former member in receipt of a vested allowance pursuant to section 22.3 -49, a pension shall be payable to the surviving spouse, commencing on the day next following the date of death of the member, retired member or former member in receipt of a vested allowance and ceasing upon the death of the spouse; provided, that the spouse was married to the retired member or former member at the time that payment of his benefit commenced; that the spouse was married to the member, retired member or former member for at least one (1) year prior to his death; and that the member, retired member or former member had not made an optional election under section 22.3 -63 which was in full force and effect. The amount of the pension shall be one -half ( 112) of the retirement allowance or vested allowance to which the member was entitled or would have been entitled had he retired at the time of death under the provisions of section 22.3 -48, or under the provisions of section 22.3 -47; provided, however, that if the surviving spouse is more than sixty (60) months younger than the member, the benefit will be reduced by one -sixth ( 116) of one (1) percent for each full month in excess of sixty (60) months. A spousal benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. Sec. 22.3 -70. Non - occupational death benefit. Upon the receipt of proof, satisfactory to the board, of the death of a member, not an occupational death as defined in section 22.3 -71, there shall be paid to such person, if any, as the member shall have nominated by written designation duly acknowledged and filed with the board otherwise to his estate: If he was in service at the time of his death and had one (1) or more years of creditable service, a lump sum benefit equal to fifty (50) percent of his earnable compensation during the year immediately preceding his death. The benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. Sec. 22.3 -71. Occupational death benefit. If, upon the receipt of proof, satisfactory to the board, of the death of a member in service indicating that such death was the natural and proximate result of an accident, occurring while the member was in the actual performance of his duty, the board shall determine that the death was the result of an accident during the actual performance of duty occurring at some definite time and place, and not caused by willful negligence on the part of the member, there shall be paid, in lieu of any benefit payable under the provisions of sections 22.3 -70 and 22.3 -71: A pension of one -half ( 112) of his average final compensation payable to his spouse, if any, to continue until death; or if there is no spouse or the spouse dies before the youngest child of the deceased member has attained age eighteen (18), then to his child or children under said age, if he leaves children, divided in such manner as the board, in its discretion, shall determine, to continue as a joint and survivorship pension for the benefit of the child or children under said age until every child dies or attains said age; or if he leaves no spouse or children under the age of eighteen (18) years living at his death, then to his dependent parent or parents, divided in such manner as the board in its discretion shall determine to continue K Measwes \Code Amendment Rettrement Chapter 22.5 7 16 12 .doe 40 for life; provided, that if he leaves no such beneficiary living at his death, the amount which otherwise would have been paid as a non - occupational death benefit shall be paid. The benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. ARTICLE XL MAXIMUM BENEFITS AND OTHER LIMITATIONS AND SPECIAL RULES Sec. 22.3 -72. Limitation on earnable compensation taken into account. Notwithstanding the foregoing, earnable compensation taken into account for purposes of determining benefits under the city plan shall be limited by the compensation limit pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended. For purposes hereof, the compensation limit, for years beginning on or after July 1, 2001 is two hundred thousand dollars ($200,000.00) (as adjusted in five thousand dollar ($5,000.00) increments from time to time by the adjustment factor described in Section 415 (d) of the Internal Revenue Code of 1986, as amended, on the basis of a base period of the calendar quarter beginning July 1, 2001). In determining average final compensation for periods beginning on or after July 1, 2001, the limit on creditable compensation applied to compensation attributable to periods prior to July 1, 2001 shall be two hundred thousand dollars ($200,000.00). For purposes of applying the limitation applicable to each year, the limit for a plan year shall be the limitation in effect for the calendar year in which the plan year begins determined without increases in the limitation for subsequent years. Sec. 22.3 -73. Limitation on annual benefit and special vesting rules. (a) Notwithstanding any other provisions of this chapter, the annual benefit under the city plan of any member and any related death or other benefit, shall, if necessary, be reduced to the extent required by Section 415(b) of the Internal Revenue Code of 1986, as amended, as adjusted by the Secretary of the Treasury pursuant to Section 415(d) of the Internal Revenue Code of 1986, as amended all as applicable to governmental plans. Notwithstanding the foregoing, adjustments in the dollar limitation under Section 415(b) of the Internal Revenue Code of 1986 shall only be applicable to benefits provided by this plan with respect to a member who is an eligible employee at the time the adjustment is effective. In comparing the plan benefit to the dollar limitation, plan benefits must be converted to an annual benefit (as defined in Section 415 of the Internal Revenue Code of 1986) by, except as provided below, converting a benefit payable in a form other than a straight life annuity to an actuarially equivalent straight life annuity before applying the limitations of this section. The annual benefit does not include any benefits attributable to after -tax employee contributions or the assets transferred from a qualified plan that was not maintained by a participating employer. No actuarial adjustment to the benefit is required for (a) the value of a joint and survivor annuity, (b) the value of benefits that are not directly related to retirement benefits (such as the qualified disability benefit, pre- retirement death benefits, and post - retirement medical benefits), and (c) the value of post- retirement cost -of- living increases made in accordance with Section 415(d) of the Internal Revenue Code of 1986 and Inc. Tax Regs. Section 1.415- 3(c)(2)(iii). Section 415(d) of the Internal Revenue Code of 1986 and the regulations thereunder are hereby incorporated by reference. (b) Notwithstanding any other plan provision to the contrary, for purposes of adjusting any benefit or limitation under Section 415(b)(2)(B), (C), or (D) of the Internal K_Vdmaz s \Code Amendment Retiremem Chapter 223 7 16 12 .doo Revenue Code of 1986, the applicable actuarial adjustment factors shall be based on the following assumptions: (1) Mortality according to the table prescribed in Rev. Rul. 2001 -62, the 1994 Group Annuity Reserving Table (94 GAR). Notwithstanding the foregoing, the mortality table used for this purpose shall automatically be the table specified in any future Revenue Rulings or Federal regulations that amend or supersede Revenue Ruling 2001 -62 by specifying a new mortality table for this purpose. (2) Interest at the rate prescribed in Section 415 Internal Revenue Code of 1986 and the regulations and other guidance published thereunder. (c) Notwithstanding any other provisions of this chapter, a member shall be fully vested in his accrued benefit upon the attainment of normal retirement age. Sec. 22.3 -74. Military Service. Notwithstanding any provision of this Chapter to the contrary, benefits and service credit with respect to qualified military service will be provided in accordance with section 414(u) of the Internal Revenue Code of 1986, as amended and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). (a) To the extent not inconsistent with the foregoing, the following special rules shall apply in case of reemployed veterans notwithstanding any other provision of the Plan: (1) A reemployed veteran shall not be considered to have incurred a break in service by reason of his qualified military service. (2) Qualified military service of a reemployed veteran shall be counted as service for vesting under the plan. For periods prior to July 1, 2014, qualified military service shall be counted for benefit accrual purposes and for a hybrid member, qualified military service after June 30, 2014 shall also be counted for benefit accrual purposes. (b) Notwithstanding any other provision of the Plan, in order for the qualified military service after June 30, 2014 to be counted as service for members other than hybrid members, a reemployed veteran shall be entitled to make the member contributions for the period of his qualified military service following his return to the employer's service as follows: (1) Such contributions must be made during the period which begins on the date of reemployment with the participating employer following such qualified military service and ends on the earlier of (A) the reemployed veteran's severance from employment with the participating employer or (8) at the end of the period equal to the lesser of (1) three times the reemployed veteran's period of qualified military service or (ll) five (5) years. K Mean \Code Atnendment ke a meet Chapter 22 3 7 16 12 _doe 42 (2) Earnable compensation to be used for purposes of determining the member contribution and benefit accrual with respect to a period of qualified military service shall mean the earnable compensation (as otherwise defined in the plan but based on rate of pay) which the reemployed veteran would have received but for his qualified military service. If a reemployed veteran's pay is not readily determinable, the reemployed veteran's earnable compensation shall then be his average earnable compensation for the 12 -month period (or actual shorter period of employment) immediately preceding his qualified military service. (3) The board shall adopt procedures relating to the reemployed veteran's right to make member contributions for the period of his qualified military service following his return to the participating employer's service. (c) To the extent required by USERRA or Section 401(a)(37) of the Code for purposes of determining vesting in accrued benefits and entitlement to death benefits under the plan, in the event a member ceases to be an employee in order to perform qualified military service and dies on or after January 1, 2007 while performing qualified military service, the member's death shall be considered to have occurred while he was an employee and, if he ceased to be an eligible employee in order to perform qualified military service, while he was an eligible employee so that his beneficiaries are entitled to any additional benefits provided under the plan (other than benefit accruals relating to the period of qualified military service unless otherwise expressly provided), including without limitation any additional or enhanced vesting or death benefits, had the member resumed employment with the participating employer and then terminated employment on account of death. (d) For purposes of this paragraph, the following terms have the following meanings: (1) "Qualified military service" means any service in the uniformed services (as defined in chapter 43 of title 38, United States Code) by any individual if such individual is entitled to reemployment rights under such chapter with respect to such service and to the Employer. (2) "Reemployed veteran" means a person who is or, but for his qualified military service, would have been a member at some time during his qualified military service and who is entitled to the restoration benefits and protections of the USERRA with respect to his qualified military service and the Plan. ARTICLE XIL POLICE AND FIRE DEPARTMENT PENSION PLAN AS OF DECEMBER 31, 1945 Sec. 22.3 -75. Pensions for members of police and fire departments as of December 31, 1945. Nothing in this Code or the ordinance adopting this Code shall affect the provisions of Chapter 2, Sections 1 through 9, of Title 111 of the Code of the City of Roanoke (1956), as K:U1eeswes \Code A.nendment Rav,.e , Chapseu 22 3 7 16 12 .d.o 43 derived from Ordinance Nos. 10457 and 10532, and amended by Ordinance Nos. 13889, 14053, 14550, 14632, 16595, 17858, 19043, 19578, 20387, 23025 and 23221, relating to retirement and pension benefits for members of the police and fire departments who were so employed on December 31, 1945, and such chapter and the ordinances mentioned herein are hereby recognized as continuing in full force and effect to the same extent as if fully set out at length in this Code. Effective January 1, 1984, the annual pension of each person subject to the provisions of this section shall be increased by that amount, if any, by which such person's pension calculated without reference to the three hundred dollars ($300.00) per month maximum established in Ordinance No. 20387 and Ordinance No. 23025 and without reference to the one hundred dollars ($100.00) per month maximum established in Ordinance No. 23025 exceeds such person's pension calculated as provided in the above - referenced ordinances. ARTICLE Xlll. MEMBER ELECTIONS AND HYBRID PROGRAM. Sec. 22.3 -76. Member Elections. A person who becomes a member after June 30, 2014 may make an irrevocable election to participate in the hybrid program maintained pursuant to section 22.3 -77. Such election shall be exercised no later than 50 days from the time of the employee's entry upon the performance of his duties. If an election is not made within such 60 days, such employee shall be deemed to have elected to participate only in the otherwise applicable defined benefit retirement plan established by this chapter and administered by the board and will not be considered a hybrid member. Sec. 22.3 -77. Hybrid Program. (a) For purposes of this section the hybrid program means a combination of the otherwise applicable defined benefit plan as applied to a hybrid member and the defined contribution plan established pursuant to section 22.3 -78. (b) For each hybrid member, the employer shall make contributions to the defined benefit component of the program in accordance with section 22.3 -27. (c) An employee participating in the hybrid program shall make mandatory contributions to the defined contribution plan in accordance with section 22.3 -79. ARTICLEXIV— DEFINED CONTRIBUTION PLAN Sec. 22.3 -78. Administration and Investment. (a) The general administration and the responsibility for the proper operation of the defined contribution plan and for making effective the provisions of this Article are hereby vested in the defined contribution board. Each member of the defined contribution board shall discharge his duties solely in the interest of the participants in the defined contribution plan with the care, skill, prudence, and diligence of a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. K Neasw s�Co& A emmnm Retremem Chapter 229 7 16 12,&c (b) The defined contribution board shall be appointed by City Council and shall consist of five (5) members as follows: the City Manager, ex- officio; a member designated by the city manager; the Director of Finance ex- officio, a member designated by the director of finance; and the Director of Human Resources ex- officio. (c) The Director of Finance shall be the chief administrative officer of the defined contribution plan. The defined contribution board shall develop policies and procedures for the administration of the defined contribution plan and shall maintain the plan as a tax qualified plan under Section 401(a) of the Internal Revenue Code of 1986, as amended. The board may contract with third parties to provide investment advisory and administrative recordkeeping services for such plan. (d) The defined contribution board shall create a trust or other special fund for the segregation of the funds or assets resulting from contribution made to the defined contribution plan. (e) The defined contribution board shall develop an investment policy and provide a broad array of investment options into which participants in the defined contribution plan may direct the invest of their accounts. (f) If a participant in the defined contribution plan exercises or fails to exercise discretion and over the assets in his account, neither the city, its employees, nor the members of the defined contribution board whose actions are within the standard of care in subsection (a) shall be held personally liable for losses suffered by the participant. (g) The provisions of sections 22.3 -9 — 15; 22.3 -16 -17 and 22.3 -22 -26 shall apply to the defined contribution board. Sec. 22.3 -79. Establishment of Defined Contribution Plan. (a) The defined contribution board shall establish and maintain a defined contribution plan, and any participating employer is authorized to make contributions to such plan for the benefit of its employees electing to be hybrid members. (b) An employee participating in the hybrid program maintained under the section shall pursuant to procedures established by the retirement system, make mandatory contributions to the defined contribution plan established under this section in the amount of 5% of earnable compensation. Such contributions shall be pick -up by the city on a salary reduction basis in accordance with section 414(h) of the Internal Revenue Code of 1986 as amended. Any other participating employer shall 'pick -up "the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. Each employee making the election to be a hybrid member shall be deemed to consent to and agree to any salary reduction for purposes of the member contribution. (c) Employee contributions to the defined contribution plan shall be vested and non - forfeitable at all times. K.Wmsw \Code Amendment Retlemem Chapter 22.991612.doc 45 (d) Employees may direct the investment of contributions made to the defined contribution plan. (e) No loans or hardship distributions shall be available under the defined contribution plan. (f) Other terms of the defined contribution plan shall be set forth in the plan document adopted by the defined contribution board. Such document shall meet the requirements for tax qualification under Section 401(a) of the Internal Revenue Code of 1986, as amended and may be amended from time to time by the Defined Contribution Board in order to comply with applicable law. 3. Pursuant to Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. 4. This ordinance shall be in full force and effect on and after July 16, 2012. ATTEST: _l � _-City Clerk. K Cb,w 223 7 1612 &o 46 CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Retirement Benefits for Roanoke Employees Effective July], 2014 Background The City of Roanoke established its first retirement system in 1926 to provide retirement security to Roanoke employees. Benefits have been modified from time to time throughout the years. Currently, the following retirement benefits are provided: • Membership in the defined benefit Roanoke Pension Plan • Participation in Social Security • Optional participation in the defined contribution 457 Plan • Access to group medical insurance Roanoke's Pension Plan is in sound financial condition with a funded ratio of 86% as of the most recent annual report dated June 30, 2011. The City continues to fund the Pension Plan at, or above, the annually required contribution rate, and the Pension Plan employs several best practices such as a closed amortization period, reasonable investment return assumption and sound policies regarding the benefit calculation. Contribution rates as a percentage of payroll have risen in recent years, however, and the long term forecast predicts a continued increase in these costs. In FYI 3, with a contribution rate of 15.6% of payroll, contributions will cost the City $12.5 million. In this same year, if contributions were 26 %, which is the long range projected rate, this cost would increase to $20.8 million. To ensure the City is providing retirement benefits to attract and retain an outstanding workforce and as a part of Roanoke's long term financial planning process, a study of retirement benefits offered to employees was undertaken. City Council was briefed about this project on December 5, 2011 and was presented final recommendations on July 2, 2012 regarding retirement benefits to provide future Roanoke employees hired on or after July 1 , 2014. Financial Planning Process The project was led by a core team of ten individuals from various departments with extensive expertise from both the public and private sector in the areas of human resources, employee benefits and finance. The team was assisted by a financial advisor specializing in retirement benefits. Two additional individuals with expertise in employee training and communications assisted with the extensive employee feedback process. The project timeline spanned from July 2010 through June 2012. Major stages of the project were: • establishment of goals • selection of a financial advisor • review of current retirement benefits • study of trends in retirement benefits • examination of options under consideration • refinement of options to be evaluated • actuarial analysis and review • employee focus groups • initial recommendations to City Council • employee question and answer sessions • identification of additional options to be studied • additional actuarial analysis and review • revision of recommendations to City Council • employee update sessions to share recommendations • final briefing to City Council Project Goals These goals for the project were adopted in Fall 2010: • Providing benefits that will be competitive to attract, motivate and retain employees • Ensuring that such benefits are sustainable and acceptable to the community, employees and elected officials • Maximizing return on assets to provide the best benefit possible for a given investment Employee Input Process Extensive employee input was an important part of this project. Though the proposed changes do not affect current City employees, input from employees was found to be a very valuable way of getting reaction regarding options under consideration and to learn about employees' priorities in the area of retirement benefits. The following table presents a summary of employee meetings. Type of Meeting Date Range # Sessions # Invitees # Attendees Focus Group Meetings 9/21/11 to 12 165 129 10/13/11 Q & A Sessions on Dec 201 1 1/3/12 to 4 All Employees 170 Recommendations to City Council 1/13/12 Employee Update Sessions 6/19/12 to 8 All Employees 147 6/29/12 As well as meeting with current City employees, the project entailed significant dialogue at various stages with other key stakeholders. These included Council Appointed and Constitutional Officers, other City leaders, leadership of other participating employers in the Pension Plan, the Pension Plan Board of Trustees, and Roanoke City Public Schools leadership. 2 Recommendations * 75% City contribution toward active employee health care Eligibility and an effective date of employees hired on or after July 1, 2013 is recommended for discontinuation of the Pension Plan Supplement and establishment of the retirement health savings account component. An effective date of July 1, 2014 for employees hired on and after July 1, 2014 is recommended for the other changes in retirement benefits. Recommended Benefit for Benefit Component Current Benefit Employees Hired on and after July 1, 2014 Plan Type Defined Benefit Choice of Defined Benefit (DB)(Plan A) or Hybrid of Defined Benefit /Defined Contribution (DC) (Plan B) Multiplier 2.1% 2.0% Plan A, 1.0 %Plan B Maximum Replacement 63 %(2.1 %x 30 Years 63 %(2.0 %x 31.5 years) Average Final Highest 36 months Highest 60 months Compensation Vesting 5 years 5 years (City contribution to Pension, Retirement health savings account) Employee Contribution None 5% of salary (pretax) - toward DB for Plan A and toward DC for Plan B Retirement Eligibility - Age 50/45 with age + service Age 55/50 with age + service Normal (Gen /Pub Safety) 80/70 or age 65 with 5 yrs 85/75 or age 65 with 5 yrs service service Retirement Eligibility - Age 55 with 5 years of service Age 55/50 with 15 years of service Early (Gen /Pub Safety) (reduced benefit) (reduced benefit) Retirement Eligibility - Age 65 or age 55 with reduced Age 65 or age 60 with reduced Deferred Vested benefit benefit (Gen /Pub Safety) Cost of Living Ad hoc (determined annually Policy established - COLA of 2/3 Adjustments based on funding availability, CPI - not to exceed 4 %, not to trends in other systems) exceed active employee pay raise. Payable to retirees with 1 5 years creditable service. Pension Plan Monthly cash supplement of Provide retirement health savings Supplement $330* for retirees with 20 years account in lieu of supplement (see of service until age 65 (taxable) below) Retirement health None Eligible for City Pension Plan savings account members - 1% of salary employee and I% of salary by City (pretax) effective July 1, 2013 * 75% City contribution toward active employee health care Eligibility and an effective date of employees hired on or after July 1, 2013 is recommended for discontinuation of the Pension Plan Supplement and establishment of the retirement health savings account component. An effective date of July 1, 2014 for employees hired on and after July 1, 2014 is recommended for the other changes in retirement benefits. Impact on Current Employees Retirement Benefits Current employees will benefit from the addition of a policy to define the method of applying cost of living adjustments for retirees with fifteen or more years of service to the City. In the future, current Roanoke employees will have the option of freezing membership in the retirement plan in which they are currently enrolled and selecting one of the new retirement plans effective July 1, 2014. The specific parameters for this will be determined as part of budget study for fiscal year 2014 along with the related decision of whether current employees should contribute toward the cost of their retirement benefits. Retirement Health Savings Account On July 1, 2013, all current Roanoke employees will be enrolled in a retirement health savings account. This will require a 1% (pre-tax) employee contribution and will be offset by a 1% salary increase. Employees as of July 1, 2013 will be required to make the following election: 1) Retain eligibility for the supplement provided to employees retiring with 20 years of service until such employees reach age 65 or 2) Waive such eligibility and receive a 1% City-paid contribution to the retirement health savings account All employees hired on or after July 1, 2013 will be enrolled in a retirement health savings account. This will require a 1% (pre -tax) employee contribution to be matched by a 1% City contribution. Impact of Recommended Revisions The recommendations enable the City to meet these goals as set forth in the project Competitiveness of Benefit as Recruitment and Retention Tool • Local government leader through introduction of choice in retirement plan and provision of retirement health savings account • Portable contributory and defined contribution elements • Hybrid plan appeals to younger, mobile employees and mid - career work force Sufficiency of Benefit • Provides reasonable income replacement ratio • Addition of retirement health savings account aids planning for retiree healthcare • Adoption of COLA policy provides assurance of inflationary adjustment for full - career retirees Sustainability and Affordability • Reducing multiplier, extending retirement eligibility reduces cost from a 25% expectation in 2032 to a 17% expectation • Eliminating supplement removes costly benefit that doesn't match reward with service • Changes keep contribution rate within manageable level • Adoption of COLA policy enables prudent financing of COLA, stabilizing contribution rate Other Changes to City Code Along with the required changes to City Code to incorporate the benefits modifications outlined, the recodification also makes seven minor administrative changes. These more accurately reflect actual administrative practices, provide additional administrative oversight, ensure compliance with current legislation, clarify current language, and insert additional information as requested by the Internal Revenue Service (IRS) in its most recent Letter of Determination dated May 24, 2012. Recommendation Adopt the accompanying ordinance to repeal Roanoke City Code Chapter 22.2 and to adopt City Code Chapter 22.3 to recodify the City's Pensions and Retirement. 044 Christop er P. Morrill City Manager Attachments: 1) Chapter 22.3 of City Code - marked with changes 2) Ordinance amending City Code W Ann FT Shawver Director of Finance c: Council Appointed Officers Sherman M. Stovall, Assistant City Manager for Operations R. Brian Townsend, Assistant City Manager for Community Development Andrea F. Trent, Assistant Director of Finance Carolyn H. Glover, Director of Human Resources Roanoke City Code Chapter 22.3 Pensions and Retirement Note —The document which follows is a clean version of this City Code chapter marked as to the nature of the changes for the convenience of the reader. Legend for Use with Attached City Code Changes Black — section is not changing or change is not substantive (such as chapter or section numbering) Red — section is changing as a result of the retirement benefits modifications Green — section is changing to address other administrative items not associated with the retirement benefits modifications including matters pointed out by the Internal Revenue Service (IRS) in its most recent Letter of Determination dated May 24, 2012. Chapter 22.3 PENSIONS AND RETIREMENT ARTICLE I. GENERAL Sec. 22.3 -1. Preamble On August 30, 1926, the City of Roanoke established its first retirement system covering employees of the fire and police departments (fire and police system). Effective July 1, 1946, another pension plan, the employees' retirement system (ERS), was established to cover employees of the fire and police departments, as well as other employees of the city. The fire and police system covered only those fire and police employees of the city whose date of hire was on or before December 31, 1945. The fire and police system shall exist until such time as all payments promised to its covered retirees and beneficiaries have been made, and no other liabilities for payment exist. Those retirees and beneficiaries of the fire and police system shall remain under the terms and conditions of the fire and police system. The employees' retirement system (ERS) has been amended from time to time in order to increase retirement benefits, eliminate mandatory employee contributions, and voluntarily comply with certain provisions of the Employee Retirement Income Security Act of 1974. By Ordinance No. 27061, adopted on June 18, 1984, City Council amended and restated the ERS effective July 1, 1984. The ERS was replaced for certain active members by the employees' supplemental retirement system (ESRS) which covers employees of participating employers (1) who voluntarily elected to cease membership in the ERS and begin participation in the ESRS, and (2) new employees of participating employers whose date of hire or rehire is on or after July 1, 1984. ESRS did not affect the rights of any current beneficiaries as of June 30, 1984. The fire and police system, ERS and ESRS shall share one (1) common trust fund from which all benefits shall be paid without distinction as to the source of the funds and which shall be administered by one (1) board of trustees. By Ordinance No. 35880 - 052002, adopted on May 20, 2002, city council amended and restated the pensions and retirement chapter generally effective June 1, 2002. Certain provisions had retroactive effective dates as indicated in the text in order to comply with federal tax laws. The purpose of that amendment and restatement was to assure compliance with federal tax laws and to streamline the administration of the benefits provided under this chapter. Nothing in the amendment and restatement of the pensions and retirement chapter decreased creditable service or earnable compensation under the terms of the chapter as it existed prior to its amendment and restatement. By Ordinance No. 39450-071612, adopted on July 16, 2012, city council amends and restates the pensions and retirement chapter generally effective July 16, 2012. Certain provisions have retroactive effective dates as indicated in the text in order to comply with federal tax laws. The purpose of the amendment is to establish an Internal Revenue Code Section 401(h) retirement health savings account within the pension plan, effective July 1, 2013, as well as new tiers of benefits within the Employees Supplemental Retirement System (ESRS) and a defined contribution plan, effective July 1, 2014. Nothing in this amendment and restatement of the pensions and retirement chapter shall decrease creditable service or LI]NAN(F',RFTIRLMLNIIReLre,nent Renefils Study \(',dl M,difiwuons`Color Co&d CL,,r 22 37. 132012_d.c earnable compensation under the terms of the chapter as it existed prior to its amendment and restatement. The fire and police system, ERS and ESRS shall hereafter collectively be referred to as the City of Roanoke Pension Plan (city plan). Sec. 22.3 -2. Definitions. The following words and phrases, as used herein, shall have the following meanings, unless a different meaning is plainly required by the context. Words importing male gender shall be construed to include female, and singular words shall be deemed to include plural and plural words shall be deemed to include singular, whenever appropriate. As used in this chapter: Accrued benefit shall mean the amount of a member's monthly pension computed at any time according to the terms and conditions which are applicable to the member, the equivalent value of which is payable for the lifetime of a member beginning at his normal retirement age. Accrued benefits shall be based on the formula in section 22.3 -43 for ESRS members and in section 22.3 -47 for ERS members. Creditable service and average final compensation applicable to the member as of the effective date of the calculation shall be used. Accumulated contributions means the sum of all amounts deducted from the compensation of a member and credited to his individual account in the member contribution account and all interest credited to the member contribution account pursuant to section 22.3 - 27(1) Actuarial equivalent shall generally be computed based on five percent (5 %) interest and 125% of the RP 2000 mortality table for males and females except where different factors are specifically set forth in this chapter, or are adopted by the board and set forth in the Administrative Procedures Manual maintained by the board. Beneficiary shall mean any person entitled to benefits under this chapter. A beneficiary for purposes of a payment made in the event of death (other than a contingent beneficiary under an annuity option form pursuant to section 22.3 -62 or the survivor allowance payable pursuant to article X) shall be that person named by the member in a beneficiary designation form filed with the city. If no designation is filed, the beneficiary shall be the members' spouse or, if none, the member's estate. Board or Board of Trustees shall mean the board of trustees provided for in article II of this chapter. City shall mean the City of Roanoke, Virginia. City council shall mean the Council of the City of Roanoke. City of Roanoke Pension Plan or City Plan is a collective term referring to three (3) pension systems, as follows: L+ 1'INANCF1RFrIREM ENT TReairement Benefits SwdytCode Modifications Color Coded Chapler22.3 7 13 2012doc (a) The police and fire department pension plan as in effect on July 1, 1946, including any subsequent amendments; (b) The employees' retirement system (ERS) as in effect on June 30, 1984, including any subsequent amendments; and, (c) The employees' supplemental retirement system (ESRS) as in effect on July 1, 1984, including any subsequent amendments. Creditable service shall mean service as described in article A of this chapter. Defined contribution board shall mean the board established pursuant to section 22.3 -78 as the trustee and administrator of the defined contribution plan. Defined contribution plan shall mean the plan established pursuant to section 22.3 -79 Disability retirement shall mean a retirement that is based upon a disability and not upon a member's age and service. Earnable compensation shall mean all usual and regular compensation from a participating employer plus salary supplements and the participating employer's contribution to the deferred compensation plan established under Section 457 of the Internal Revenue Code of 1986, as amended, excluding overtime pay, imputed income under Section 79 of the Internal Revenue Code of 1986, as amended, and any lump sum payment made upon separation from service for unused paid time off or for unused extended illness leave pursuant to regulations promulgated by the city manager, in the case of a city employee (or by the governing body of any other participating employer in the case of an employee of such other participating employer), in whatever manner paid. In cases where compensation is not all paid in money, the board shall fix the value of that part of the compensation not paid in money. Earnable compensation shall include compensation subject to a salary reduction or deferred compensation agreement between an employee and the participating employer pursuant to Section 125, 132(f)(4) of the Code (for plan years and limitation years beginning on or after January 1, 2001), 402(g)(3) or 457(b) of the Internal Revenue Code (and elective deferrals or contributions under any other sections of the Internal Revenue Code covered by Section 415(c)(3)(D) of the Internal Revenue Code), which compensation is not actually or constructively received by the employee. In the case of a member, other than a member of city council, whose regular work schedule is less than that of an employee considered to be full -time under the participating employer's personnel policies, such member's earnable compensation, as defined above, shall be deemed to be the employee's actual earnable compensation, as defined above, multiplied by a fraction consisting of., (1) the number of hours in the regular work schedule of an employee considered to be full -time under the participating employer's personnel policies, over (2) the number of hours in the member's regular work schedule. Employee shall mean any person employed in any capacity by a participating employer Eligible employee shall mean IF N ANC FRET [REM LN I ReOTemenl Benefits Swdv (We Modifications olor Coded Cha,tNr223 7.13.2012 doc (a) Any officer or employee of the City, the Roanoke Regional Airport Commission, or the Roanoke Valley Detention Commission; except a part-time officer or employee (one who is customarily employed less than twenty (20) hours per week or not more than five (5) months in a calendar year), and (b) Police and fire personnel employed on or after the first day of January, 1946; (c) The city manager, city attorney, director of finance, municipal auditor, and the city clerk (the "council appointed officers "); (d) Every officer and other person employed by the city school board prior to July 1, 2006, who is not eligible for membership in the Virginia Retirement System or successor plan except a part-time officer or employee (one who is customarily employed less than twenty (20) hours per week or not more than five (5) months in a calendar year), or, an employee who is employed solely as a bus driver. No employee of the city school board hired on or after July 1, 2006 shall be eligible to participate in the city plan; (e) Every Employee of the Roanoke Valley Resource Authority who became an employee of such Authority upon its creation pursuant to the terms of the distribution and indemnification agreement dated October 23, 1991. No additional employees of the Roanoke Valley Resource Authority shall be eligible to participate in the city plan; (f) Every Employee of the Roanoke Valley Detention Commission who became an eligible employee pursuant to the terms of the agreement dated October 7, 1998; whether or not such employees meet the criteria set forth in clause (1) of this Section; and, (g) Constitutional officers and employees of constitutional officers who by contract with the city are included in the city plan. (h) Every employee of the city who becomes an employee of the Western Virginia Water Authority as of July 1, 2004, shall continue to be a member of the city plan. No additional employees of the Western Virginia Water Authority hired on or after July 1, 2004, shall be eligible to participate in the city plan. The sheriff of the city and all deputies and employees in said office, and their successors and all subsequent employees in such office are not eligible employees. Members of city council shall be deemed "eligible employees'. Employees of the Virginia Supreme Court and of the Juvenile District Court who, in 1982, made the irrevocable election to remain in the city plan are eligible employees. Such an employee shall remain subject to the irrevocable election for so long as he or she remains employed by the court system, without a separation from employment. Employees of the city as of July 1, 2000, whose positions are funded by grants shall be deemed "eligible employees' if they have elected to become a member by making an irrevocable election to do so in the manner set forth by the board of trustees. L I ]NANCE RE NLM6'JTVie6irn ¢ m i3u,e6�x SwdyVCode M W ifimtiom'['nlnr Coded (h,,,, 22 3 "1.13 2012doc Employees hired by the City after July 1, 2000, whose positions are funded by grants shall be deemed "eligible employees'. In all cases of doubt, the board shall determine who is an "eligible employee" within the meaning of this chapter, subject however, to review by city council. Hybrid Member shall mean a member who elects pursuant to section 22.3 -76 to participate in the hybrid retirement program described in section 22.3 -77. Hybrid Program shall mean the retirement program established pursuant to section 22.3 -77. Medical examiner shall mean those persons designated pursuant to section 22.3 -18. Member shall mean any person included in the membership of the city plan as provided in Article V. Member contribution account means the account established under the plan to hold the member's contributions and earnings thereon credited pursuant to section 22.3 -27. Amounts paid to purchase service pursuant to Section 22.3 -39 will not be held in the member contribution account. Participating employer shall mean the city and any employer who with the consent of the city council upon recommendation by the board shall adopt the city plan; provided that the employer is a governmental employer as defined in Section 414(d) of the Internal Revenue Code of 1986 as amended. The current participating employers are: the city, City of Roanoke School Board; Roanoke Regional Airport Commission; Roanoke Valley Resource Authority; Western Virginia Water Authority; and Roanoke Valley Detention Commission. The board shall keep a record of the dates participation began. Person who becomes a member after June 30, 2014 means a person who is hired or rehired after June 30, 2014 as an eligible employee as defined herein. Pension shall mean annual payments for life, payable in monthly installments continuing up to the last payment which shall be made for the month in which the date of death occurs, except as otherwise provided in this chapter. Service shall mean service as an employee of a participating employer. Service retirement shall mean a normal or early retirement that is based upon a member's age and service alone and not upon disability or death. Sec. 22.3 -3. Falsifying statements, reports or records. Whoever, with intent to deceive, shall make any statements or reports required under this chapter which are untrue, or shall falsify or permit to be falsified any record or records of the plan shall be guilty of a Class I misdemeanor. L rINANCEP, BET [REM EN I Retl2ment Benefits SwdyC We MMifications COur Coded Chapter223 7 13,2012 due Sec. 22.3 -4. Rights, benefits and plan money not subject to assignment, execution, garnishment, etc. The right of a person to a pension, any optional benefit or death benefit, any other right accrued or accruing to any person under the provisions of this chapter and the money in the various accounts created by this chapter shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency law or any other process of law whatsoever, and shall be unassignable. The provisions of this section prohibiting the assignment or alienation of benefits shall not apply to a domestic relations order which is determined by the secretary- treasurer of the city plan or his designee to be an approved domestic relations order as defined by Section 414(p) of the Internal Revenue Code, as applicable to governmental plans. The board shall establish procedures for review, approval and administration of such orders. Sec. 22.3 -5. City employees who are subsequently reclassified as employees of the Commonwealth of Virginia. Should any member of the city plan be voluntarily or involuntarily reclassified as an employee of the Commonwealth of Virginia such individual may elect to remain as a member of the city plan or elect to participate in another retirement plan if such option is available. Should the member join any other retirement plan he will be treated as having terminated active membership in the city plan and be entitled to receive only his vested benefits earned prior to termination of active membership. Sec. 22.3 -6. Right to accrued benefits upon termination of city plan. In the event of termination of the city plan, the rights of each member to benefits accrued to such date shall be non - forfeitable to the extent then funded. If all accrued benefits are not funded they shall be paid in the following order: (a) Present value of benefits to those currently receiving or eligible to receive benefits; (b) All others. Sec. 22.3 -7. Amendments to chapter and effect on participating employers. (a) The city council shall have the continuing right and power to amend or supplement this chapter at any time, which right and power is hereby expressly reserved, but no amendment shall be adopted which will reduce the then accrued benefits of members or beneficiaries below the extent they are then covered by city plan assets. (b) Such amendments shall apply to all employees of participating employers unless city council specifically provides that such amendments may be rejected by participating employers. ARTICLE II. ADMINISTRATION Sec. 22.3 -8. Board of trustees generally. L I INANCERL7IRLMFNTRctiroment Benefits Study:( 'ale M Wffiw6onsfolov Coded CM1alncr 22 .3 7 U 2012,&c (a) The general administration and the responsibility for the proper operation of the city plan and for making effective the provisions of this chapter are hereby vested in the board of trustees. Each board member shall discharge his duties with the care, skill, prudence, and diligence of a prudent man acting in like capacity and familiar with such matters. (b) The board shall be appointed by city council and consist of nine (9) trustees as follows: (1) The mayor, ex officio. (2) The city manager, or his designee, ex officio. (3) The director of finance, ex officio (4) Two (2) trustees, each of whom shall be a member of the city plan and an employee of a participating employer (but only one (1) of the two (2) shall be an employee of a participating employer other than the city), but not a member of any of the departments specified in paragraph (5) of this subsection. A participating employer representative shall be appointed as of the next board vacancy occurring after the effective date of the plan restatement. Each successor shall be appointed for a four -year term. (5) One (1) trustee, who shall be a member of the city plan and either of the city's police or the city's fire department. Successors shall each be appointed for a two -year term. Successors shall be appointed from the alternate department not represented by the incumbent trustee. (6) One (1) trustee who is a retired member of the city plan, who need not be a resident of the city. Successors shall be appointed for two -year terms. (7) Two (2) trustees who are residents of the city but not members of the city plan. Such trustees shall have demonstrated experience in either investment of institutional funds or pension administration. Such trustees shall serve staggered four -year terms. (c) If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term in the same manner as the office was previously filled. (d) The trustees, as such, shall serve without compensation. (e) Each trustee shall, within ten (10) days after his appointment, take the oath prescribed by section 59 of the City Charter. (f) Each trustee shall be entitled to one (1) vote on the board. Five (5) concurring votes shall be necessary for a decision by the trustees at any meeting of the board, and five (5) trustees shall constitute a quorum of the board. L:IFINAN( L RLI IRFMFNT.Retimment Benefits SNdy`.CMe Mne ifications Color Coded Chopt¢223 7.132012 .doe Sec. 22.3 -9. Application of Conflict of Interest Act The provisions of the State and Local Government Conflict of Interest Act (section 2.2 -3100 at seq., Code of Virginia) shall apply to members of the board. Sec. 22.3 -10. Election and appointment of officers of board; employment of services. The board shall elect from its membership a chair and a vice - chair. The board may employ such actuarial, medical and other services as shall be required. Sec. 22.3 -11. Rules and regulations of board. Subject to the limitations of this chapter, the board shall, from time to time, establish rules and regulations for the administration of the city plan and for the transaction of its business. Sec. 22.3 -12. Board's records and reports. (a) The board shall keep in convenient form such data as shall be necessary for actuarial valuation of the city plan and for checking the experience of each system. (b) The board shall keep a record of all its proceedings, which shall be open to public inspection. It shall submit to the city council, annually, a report showing the fiscal transactions of the city plan for the preceding year, the amount of the accumulated cash and securities of the city plan, and the financial report indicating the financial condition of the city plan. Such report shall be made in the form and contain the information required by the current financial accounting standards applicable to public pension funds. Sec. 22.3 -13. Board's legal advisor. The city attorney shall be the legal advisor of the board. Sec. 22.3 -14. Secretary- treasurer; duties. The director of finance shall be the secretary- treasurer of the board. It shall be the duty of the secretary- treasurer to submit to the board records deemed necessary to administer properly the city plan. Sec. 22.3 -15. Correction of errors in benefit payments. Should any change or error in the records of the city plan result in any member or beneficiary receiving more or less than he would have been entitled to receive had the records been correct, the board shall have the power to correct such error, and as far as practicable, to adjust the payments in such a manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid. Sec. 22.3 -16. Written application for retirement benefits. L tFINANCL RFTIRLMLNTtR Ii,e ,, RandPoz StudyVCade Modifiwtions('nlor Coded Clvper22.3 7.132012 doe In order to receive payment for any benefit which becomes payable from the city plan, a member or his beneficiary shall complete the application and other forms prescribed by the secretary- treasurer of the city plan. The board shall have the authority to establish reasonable procedures governing the application for any benefits payable under the city plan. Such procedures shall be set forth in the administrative procedures manual maintained by the board. Sec. 22.3 -17. Requirement to use employee's social security number. A member shall be required to disclose his social security account number as a condition of membership. The board and secretary- treasurer shall be authorized to use such number for the purpose of member identification. Sec. 22.3 -18. Designation and duties of medical examiners The secretary- treasurer of the city plan shall designate as medical examiners licensed medical doctors or other health care professionals who are not eligible to participate in the city plan. A medical examiner shall arrange for and conduct all medical examinations required to determine whether a member is disabled, shall review medical records of the member's personal physicians, shall review all essential statements and certificates by or on behalf of a member in connection with application for disability retirement and shall report in writing to the board his conclusions and recommendations upon all the matters referred to him. Sec. 22.3 -19. Designation and duties of actuary; certification of contribution rates; adoption of tables; etc. (a) The board shall designate an actuary or actuarial consulting firm who shall be the technical advisor of the board on matters regarding the operation of the city plan and who shall perform such other duties as are required. Such actuary or actuarial firm must have at least one (1) actuary who is a fellow of the Society of Actuaries. (b) The board shall certify, from time to time, the rates of contribution payable under the provisions of this chapter, and shall adopt for the systems, from time to time, such mortality, service and other actuarial tables as shall be deemed necessary; and on the basis of such tables, the actuary shall make annually an actuarial valuation of the assets and liabilities of the systems. At least once in each five -year period, the board shall cause an actuarial investigation to be made into the mortality, service and compensation experience of the members and beneficiaries of the systems. Such investigation shall be used as a basis for revisions to existing actuarial tables or the adoption of additional actuarial tables to be used to value the assets and liabilities of the systems. Sec. 22.3 -19.1. Benefit and Competitiveness Study. To support the goal of providing competitive benefits that are fiscally sustainable, the Director of Finance shall conduct a review of retirement benefits at least once every five years. A formal study of benefits shall be conducted periodically as considered necessary. In the conduct of such study the Director of Finance is authorized to utilize the services of providers previously contracted with by the board. L. SIN AN( F`RLI IRLMLNJ I Retirement Benefits Studv`Cotle M WilkadonstColor( oded Chuptor22 3 7 .13 2012 doc ARTICLE III. TRUST FUND AND INVESTMENTS Sec. 22.3 -20. Accumulated assets The board may invest the assets of any system or program it administers on a pooled or consolidated basis. Sec. 22.3.21. Investment of assets; standard of care. (a) The members of the board shall be trustees of all the assets of the city plan and shall have the full power and authority to invest and reinvest such assets, and to change such investments and reinvestments from time to time as authorized by law. (b) Pursuant to the standards set forth in Section 803 of Title 51.1 of the Code of Virginia, the board shall discharge its duties with respect to the city plan solely in the interest of the members and beneficiaries thereof and shall invest the assets of the city plan with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and like aims. The board shall also diversify such investments so as to minimize large losses unless under the circumstances it is clearly prudent not to do so. Sec. 22.3 -22. Exemption from Public Procurement Act. The selection of services related to the management, purchase, or sale of authorized investments, including but not limited to actuarial services shall be governed by the standard of care in section 22.3 -21 and shall not be subject to the provisions of the Virginia Public Procurement Act. Sec. 22.3-23. Reserved. Sec. 22.3 -24. Custodian of assets; payments from funds (a) The board shall designate a bank or trust company to be the custodian of the assets of the city plan. (b) When the board shall have designated a bank or trust company to be custodian of certain or all of the assets of the city plan, the board may, by resolution adopted by the board, authorize such bank or trust company to hold all or any of the stock or registered securities of the city plan entrusted to the custody of such bank or trust company in the name of a nominee of such bank or trust company as provided in the first paragraph of section 6.1- 31 of the Code of Virginia, (1950), as amended, and the resolution of the board providing such authorization may further designate the nominee of such bank in whose name such stock and securities may be so held by the bank. Sec. 22.3 -25. Limitation on use of assets. Li l IN ANC REnRLMFNT`.Ret, Inln, Benefits Study (n,in MMfficalions ( olne Coded Chapei-22 3 7 .13 2012 due No member or employee of the board shall have any direct or indirect interest in the gains or profits of any investment made by the board, nor as a member of the board receive any pay or compensation for his service. No member or employee of the board shall, directly or indirectly, for himself or as an agent, in any manner use the assets of the city plan, except to make such current and necessary payments as are authorized by the board. Sec. 22.3 -26. Diversion of city plan assets. Upon no circumstances at any time prior to the satisfaction of all liabilities with respect to members and their beneficiaries under the trust shall any part of the trust corpus or income of the city plan be used for or diverted to any purpose other than for the exclusive benefits of the members and their beneficiaries and for the reasonable administrative expenses of the city plan. Sec. 22.3 -26.1. Establishment of 401(h) account, contributions, investment and use. (a) There is hereby established a 401(h) account which shall be a separate account within the trust fund of the plan and which is established pursuant to Section401(h) of the Code. The system shall separately account for the funds contributed to the 401(h) account by members and by each participating employer and the earnings and expenses relating to the investment and administration of those funds. The trustees shall not be obligate to commingle the 401(h) account assets for investment but instead may segregate such funds into a subtrust and accounted for such assets on a member account level. The trustees are authorized to permit members to direct the investment of the member level account in accordance with procedures and within the parameters established by the board. The board is authorized to delegate to the defined contribution board the authority to contract on behalf of the board with an investment provider to administer the participant level accounts and investment direction (b) Effective July 1, 2013, each member, including a police officer, a firefighter and a hybrid member, shall contribute one (1) percent of his earnable compensation each pay period to the 401(h) account. Such contribution shall be credited to the 401(h) account and accounted for in a separate member level account. The member contributions, although designated as employee contributions hereunder, will be paid by the participating employers and shall be treated as employer contributions pursuant to Section 414(h) of the Internal Revenue Code of 1986, as amended, and shall not be included as gross income of the employee until such time as they are distributed or made available to the employee. The city shall "pick -up" the employee contributions by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis. Any other participating employer shall "pick -up" the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. (c) Effective July 1, 2013, each participating employer shall contribute one (1) percent of earnable compensation on behalf of each person who becomes a member after June 30, 2013 and each other member who elects pursuant to section 22.3 -61 to forego the supplement described therein. Such contribution shall be credited to the 401(h) account and FIN ANCGRFf IRFMFNTVinicinan Benefits Study Code Modifieeiionsi'nlnv Cnded Chalner 22.3 7.132012 doe accounted for in a separate member level account. If the member ceases to be an employee prior to accumulating at least 5 years of creditable service, the funds held in the member level 401(h) account attributable to the employer contribution and the earnings thereon shall be forfeited. Forfeitures of the employer contributions and the earnings thereon shall be used to pay expenses of the 401(h) account or to reduce future contributions required by the employer, as determine by the defined contribution board. (d) Contributions to the 401(h) account must be subordinated to the contributions to the plan for retirement benefits. Accordingly at all times the aggregate contribution by the participating employer (made after June 30, 2013) to fund the 401(h) account and to furnish any life insurance protections shall not exceed twenty -five (25) percent of the total aggregate actual contribution made by the participating employer (made after June 30, 2013) to the plan (excluding any contributions to fund the purchase of past service credited). For this purpose: life insurance protection includes benefits paid under the plan on behalf of members as a result of such member's death to the extent the payment exceeds the amount of the reserve to provide retirement benefits for the member existing at his death; and 2) contributions made by participating employers to the plan include contributions that have been properly picked up under section 414(h) of the Internal Revenue Code. The board shall determine annually whether the twenty -five (25) percent test has been met. If at any time the 401(h) account contributions exceed the limitation that participant employer will be notified immediately and the excess amount not accepted. Any affected participating employer shall immediately give the board direction as to the disposition of the excess contributions. (e) After a member who is a person who becomes a member after June 30, 2013 has ceased to be any employee, the plan shall reimburse members for medical care expenses as defined in section 213(d) of the Internal Revenue Code after proper substantiation has been provided, first from the portion of the member account attributable to the member contributions and the investment earnings thereon and only after that has been exhausted, from the portion of the account attributable to the participating employer's contributions and the investment earnings thereon. (f) Such member's spouse and dependent children may continue to request reimbursement for such medical care expenses after the member's death. (g) Following the death of such member's spouse and dependent children of the members or the last dependent ceasing to be a dependent, any remaining funds in the 401(h) account of such member shall be forfeited. The forfeiture shall apply to reduce the future contributions by the participating employer to fund the 401(h) account. (h) The board is authorized to contract with a third party to provide recordkeeping services to the plan for the member level 401(h) accounts and to provide claims processing services in connection with the payment of reimbursements for the 401(h) account. (i) The board shall establish more detailed guidelines for the maintenance and use of the 401(h) account consistent with the requirements of Section 401(h) of the Internal Revenue Code and consistent with the provisions of this section. L'. FIN AN( L RE I IRFMFT R,n,,ment Benefits Sind, Cwie sln bfieationsd'nlnv Coded Cha ner 22 3 9_I3 2012dee (j) For purposes of this section a person who becomes a member after June 30, 2013 means a person who is hired or rehired after June 30, 2013 as an eligible employee as defined herein. ARTICLE IV CONTRIBUTIONS Sec. 22.3.27. Contributions and member's contribution account (a) Each person who becomes a member after June 30, 2014, including a police officer or firefighter but excluding a hybrid member, shall contribute five percent (5 %) of his earnable compensation each pay period. Except as described in the preceding sentience, no contributions were deducted after May 31, 1973 from the compensation of members. The participating employers shall deduct the contribution payable by the member and every employee accepting or continuing employment shall be deemed to consent and agree to any deductions from his earnable compensation required by this section. Notwithstanding the foregoing, the member contributions, although designated as employee contributions hereunder, will be paid by the participating employers and shall be treated as employer contributions pursuant to Section 414(h) of the Internal Revenue Code of 1986, as amended, and shall not be included as gross income of the employee until such time as they are distributed or made available to the employee. The city shall "pick -up" the employee contributions by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis. Any other participating employer shall "pick -up" the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. (b) Contributions payable by the participating employer shall be determined as provided in this section. The contributions to the city plan made each year by the participating employers shall consist of a certain percentage of the earnable compensation of each member to be known as the "normal contribution" and the "accrued liability contribution ". (c) The normal contribution for each participating employer shall be determined after each actuarial valuation and shall be based on the normal cost determined under the actuarial cost method used to complete the valuation. The actuarial cost method shall be any generally accepted actuarial cost method adopted by the board for the purposes of completing the valuation. (d) The accrued liability contribution of each participating employer shall be determined after each actuarial valuation and shall be based on the accrued liability determined under the actuarial cost method used to complete the valuation. The unfunded or overfunded accrued liability, and any changes in the unfunded or overfunded accrued liability due to plan amendments, assumption changes, or experience gains or losses, shall be amortized as a level percent of pay over a period not to exceed thirty (30) years in accordance with acceptable GASB standards. Li I ]NAN( E RL I IREMLNT R It, remcnt Benefits Study( odc Modifiwtfonst Color( oded ('hapler22 3 7.132012 doe (e) The total amount payable by each participating employer in each year shall be sufficient, when combined with the assets of the system, to provide the benefits payable to members and beneficiaries then current. (f) For valuation purposes the value of the assets must reflect current market value as of June 30 of each year, however, unrealized gains and losses or appreciation /depreciation may be phased in over a period of time at the board's discretion. (g) The actuary shall show separately the cost for each of the systems and, if requested by the board, shall separate the cost of the deputized police officers and firefighters from all other employees within each system, and, if requested by the board, shall show separately the cost for each participating employer. (h) All reasonable administrative expenses shall be paid from the trust. (i) The board shall file with the city manager and the governing body of each additional participating employer its certification of the amount of appropriations necessary to pay the required contribution as certified by the city plan's actuary and such amount shall be included in the participating employer's budget in accordance with budget procedure. (j) All member contributions and interest allowances shall be credited to the member contribution account. Accumulated contributions required to be returned to the member or required to be paid on account of the member's death shall be paid from the member contribution account. As of each June 30, the member contribution account of each active member shall be credited with interest at a rate to be determined annually by the council. Initially, the rate shall be three percent (3 %) annually. Interest shall accrue on any contribution beginning on the first day of the fiscal year following the year in which the contribution was made. No interest shall be credited to the member contribution account after the effective date of the member's retirement. ARTICLE V. MEMBERSHIP Sec. 22.3 -28. Membership generally (a) Any eligible employee shall become a member of the city plan. (b) A member of ERS on June 30, 1984 and who has not elected during election periods provided at various times between June 30, 1984 and July 1, 2000 to transfer to ESRS may continue as an ERS member. No other person is eligible to become an ERS member. (c) Members or beneficiaries of the police and fire department pension plan shall continue as part of that system, and shall not be eligible to transfer to the ESRS. (d) On and after July 1, 1986, members of city council shall be members of ESRS. City council members shall be accorded creditable service for all service as a member of city council, whether continuous or not, including service prior to July 1, 1986. L FIN AN( L', RFTIRLMLNT$etiremen[ Benefits Study VCale M W Lficationsl('olor Coded chap cI 22 3 7 .13,2012 doe (e) A member of the city plan may earn a benefit from only one (1) system Sec. 22.3 -29. Election of benefit under ERS or ESRS for members of ESRS having forty -two (42) or more years of creditable service. Any member of the ERS on June 30, 1984, who subsequently elected to transfer to ESRS and who thereafter attains forty -two (42) or more years of creditable service shall have his accrued benefit at the time of retirement calculated pursuant to the terms of ERS and ESRS, and such member shall elect to be paid his accrued benefit under either ERS or ESRS prior to the commencement of payment of any benefits under the city plan. Sec. 22.3 -30. Employees of constitutional offices and judges of courts of record not to receive benefits while being compensated by city for services rendered. Notwithstanding any provision contained in this article, no assistant, deputy or employee in any constitutional office and no employee of any judge of a court of record shall receive any benefit under this chapter during any period of time in which such person may also receive from the city any compensation for services rendered as an elected officer, or any judge of a court of record after being retired pursuant to this chapter. Sec. 22.3 -31. Restoration of beneficiaries to membership. (a) Should a disability beneficiary under normal retirement age be restored to or be in service at a compensation equal to or greater than his average final compensation at retirement (adjusted by any cost of living adjustments granted since his last day of service), or should any other beneficiary be restored to service prior to his normal retirement age, his pension shall cease and he shall become a member of ESRS. Anything in this chapter to the contrary notwithstanding, any prior service certificate on the basis of which his creditable service was computed at the time of his retirement shall be restored to full force and effect and he shall be credited with all creditable service as a member standing to his credit at the time of his retirement; provided, however, that his pension attributable to his creditable service prior to his reemployment upon subsequent retirement shall be no less than the sum of his previous pension plus the amount computed on the basis of his Creditable Service and Earnable Compensation for the period after his restoration. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who becomes a member after June 30, 2014; except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (b) Should any beneficiary be restored to service on or after his normal retirement age, the pension shall be discontinued during the period of restoration, and he shall become a member of the ESRS but in the event of his death during such period any payment under an optional benefit, if one (1) has been elected and has become effective with respect to his retirement allowance attributable to his creditable service prior to his reemployment, shall commence. Such a Member shall be considered a new Member with respect to service rendered subsequent to his restoration; except, that his Normal Retirement Age shall be the same as before restoration. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who FINAM F \RFTIRLM FNTRaim,nem 9encfils StudyVCode Modifications ('()]or( Ocied (' epler2? 3 7 .13 2012.doe becomes a member after June 30, 2014; except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (c) If a former employee who is entitled to a deferred early service retirement allowance or a deferred vested allowance returns to service as an eligible employee of a participating employer before such allowance has become payable, he shall become a member of the ESRS upon his return, and his retirement allowance attributable to his creditable service prior to his reemployment and payable on subsequent retirement shall be computed in accordance with the provisions of this article in effect at such time on the basis of service standing to his credit at the time of his termination and service credited to him after his return. Notwithstanding the foregoing, if such restoration of service occurs after June 30, 2014, he shall be treated as a new member and a person who becomes a member after June 30, 2014, except that prior creditable service shall be restored in accordance with section 22.3 -35 and for the limited purpose described therein. (d) Any member who is reemployed by a participating employer shall not have his pension attributable to his creditable service prior to his reemployment reduced below the level he was receiving or was eligible to receive prior to reemployment. This requirement applies both to the creditable service used to determine the amount of pension and eligibility for receiving payment. (e) Should any beneficiary receiving a pension be elected a member of city council, such beneficiary upon his initial election to city council, may make an irrevocable election to: (1) Discontinue receiving such pension pursuant to the provisions of section 22.3 -31(b) above, and accrue additional creditable service for serving on city council; or (2) Continue to receive a pension, but forego the accrual of additional creditable service for serving on city council. ARTICLE VI. CREDITABLE SERVICE DIVISION I - General Sec. 22.3-32. Definitions. Creditable service means membership service plus prior service Membership service shall mean service as a member for which credit is allowable as provided in sections 22.3 -37 and 22.3 -40 and service which is otherwise expressly credited as membership service pursuant to sections 22.3 -41, 22.3 -33, 22.3 -38 and 22.3 -39. Prior service shall mean service rendered prior to becoming a member for which credit is allowable as provided in sections 22.3 -35, 22.3 -74, and 22.3 -41. Prior service certificate shall mean a certificate issued by the board of trustees granting prior service. Sec. 22.3 -33. Service credit during leaves of absence. L FIN ANCFRFr[REM ENT RetimmenlbenefitsSwdyVC h,,ir2237. 13,2012.doc (a) No service credit shall be allowed for any period of thirty (30) or more days during which an employee was absent without pay; provided, however, any period of leave under the Family and Medical Leave Act of 1993 shall be treated as membership service for purposes of vesting and eligibility to participate (but not for the accrual of additional benefits). (b) Periods for which an eligible employee is receiving workers' compensation shall also be treated as membership service for purposes of vesting and eligibility (but not for the accrual of additional benefits). Such workers' compensation related periods shall be credited upon the eligible employee's return to service. (c) For a member who has unused extended illness leave pursuant to section 2 -55 of the City of Roanoke Code; or pursuant to the administrative process set by the Roanoke Valley Regional Airport Commission, seventy -five (75) percent of such member's unused extended illness leave balance upon the date of retirement shall be converted to creditable service not to exceed one (1) year of creditable service; provided no member shall use conversion of extended illness leave to meet vesting requirements of ESRS or ERS; no retirement allowance for any member converting extended illness to Creditable Service shall exceed sixty -three (63) percent of average final compensation; and, such member must begin receiving a retirement allowance immediately upon termination from employment. The service credit described in this section shall not be granted to members who are employees of the city school board or the Roanoke Valley Resource Authority. Sec. 22.3 -34. Prorated creditable service for less than full -time work. Effective for creditable service earned after July 1, 2006, in the case of a member whose regular work schedule is less than that of an employee considered to be full -time under the participating employer's personnel policies (other than members of city council), creditable service shall be a fraction of a year based on the number of hours in the member's regular work schedule over the number of hours in the regular work schedule of an employee considered to be full -time under the participating employer's personnel policies. Sec. 22.3 -35. Restoration of prior creditable service. If a member is hired by a participating employer, prior creditable service (if any) will be reinstated when the following conditions are met: (a) The member, other than a member of city council, shall work one (1) continuous year after returning as an eligible employee before qualifying for prior creditable service; except when such person dies or becomes disabled after returning to service with a participating employer, in which case he shall become entitled to credit for prior creditable service as of the date of such death or disability without having to meet the requirement of one (1) year of continuous service. Notwithstanding the foregoing, if the member is hired by a participating employer after June 30, 2014, such prior creditable service shall be applied only for purposes of determining eligibility for the post— retirement supplement described in section 22.3 -61.1 and for determining vesting and normal retirement age with respect to benefits attributable to future service. The accrued benefit attributable to pre -July 1, 2014 creditable service shall be determined in accordance with section 22.3 -31. If the member did not have a vested allowance attributable to his pre July 1, 2014 creditable service, his post I.'. FIN ANCF.RETIRLM[NT Retlren,enl Benefits S W d1 Code M I'd, Col-Co&d Chnryer22 3 7 .13 2012.doc June 30, 2014 creditable service shall count toward the years of creditable service required for a vested allowance attributable to pre July 1, 2014 creditable service. Notwithstanding, however, the retirement allowance based on such pre -July 1, 2014 service shall be determined based on the provisions applicable to a person who becomes a member after June 30, 2014. (b) If the member received a refund of his accumulated contributions or a lump sum distribution for the full value of his pension previously earned and he repays the entire amount of the refund or distribution with interest, at the rate of five (5) percent per annum compounded, within ninety (90) days after reemployment, his prior credited service shall be reinstated for all purposes. Notwithstanding, however, the retirement allowance based on such pre -July 1, 2014 service shall be determined based on the provisions applicable to a person who becomes a member after June 30, 2014. Such repayment may be made by plan to plan transfer, rollover or after -tax contribution. Sec. 22.3 -36. Service Generally. Except as provided in section 22.3 -28 and section 22.3 -35, a member shall be entitled to creditable service, for purposes of calculating retirement benefits, for all time such member was an eligible employee, as defined in section 22.3 -2, whether such service was continuous or not and regardless of breaks or interruptions in such service with any participating employer. No member shall, except as required in section 22.3 -74, be allowed creditable service for time during which such member was not an eligible employee of a participating employer. DIVISION 2. ESRS SERVICE Sec. 22.3.37. ESRS service credit. Each eligible employee shall receive credit for all membership service rendered while a member of ESRS and any prior service with the ERS. Sec. 22.3-38. Portability. (a) The board may enter into an agreement with the Virginia Retirement System (VRS) or another political subdivision of the Commonwealth having a defined benefit plan which is not supplemental to the Virginia Retirement System, whereby any vested ESRS member may be granted creditable service, as determined by the board, for service rendered with the VRS or with another political subdivision upon the transfer of assets pursuant to the agreement and in accordance with the procedures established by the board. (b) The board may transfer assets on behalf of a vested member to the VRS pursuant to the agreement between the board and the Virginia Retirement System. (c) The board may transfer assets on behalf of a vested member to a defined benefit plan of another political subdivision of the Commonwealth which is not supplemental to the VRS pursuant to the agreement between the board and such other political subdivision. FIN ANCF]RUiRLM ENT RC i,,n,nI BInIfil5 StudyVC,de ModifirolioniSolov Codrd C F,t, 22 37 122012.d.c Sec. 22.3 -39. Purchase of service. (a) Creditable service for purposes of this article shall also include service purchased by an ESRS member pursuant to this section and in accordance with the procedures established by the board. Upon completion of a service purchase described herein, the board of trustees, or its delegate, shall issue a prior service certificate relating to the purchased service. (b) Any member in service who has been credited with five (5) or more years of creditable service or who will become vested as a result of the current purchased service, may, pursuant to the procedures described in subsections (d) or (e), purchase creditable service for all or part of the following: (1) Certified creditable service with a retirement system with which the city has entered into a portability agreement pursuant to subsections (a) and (b) of section 22.3 -38 and section 51.1 - 801.1, Code of Virginia. (2) Service with the city in a grant position prior to July 1, 2000. The member must pay an amount equal to a percentage of the member's present annualized earnable compensation or his average final compensation during his thirty -six (36) highest consecutive months of creditable service (as determined pursuant to section 22.3 -42). The percentage of present earnable compensation or average earnable compensation, whichever is greater, to be charged shall be determined by the city plan's actuary based on reasonable factors and assumptions approved by the board of trustees intended to reflect the actual cost to the city plan of the benefit to be provided as a result of the purchased service. If the member does not pay the entire amount required, the member's actual creditable service shall be prorated on a linear basis. Notwithstanding the foregoing, if the member does not pay the entire amount required due to the member's death while an employee and such member does not have sufficient creditable service to be entitled to a death benefit under section 22.3 -67, then the amount paid by the member to purchase service shall be refunded to the member's spouse or if none, to the member's estate as soon as possible following the date of the member's death. (c) No service may be purchased under this section if such service is considered in the calculation of any retirement benefit either under this chapter as a result of portability or by another retirement system. (d) Upon an election by a member to purchase creditable service pursuant to this section and the receipt by the participating employer of a binding and irrevocable salary reduction election executed by the member on a form provided by the board for this purpose, the participating employer shall pay to the city plan an equivalent amount in lieu of the member's contribution required to purchase creditable service pursuant to this section. The member shall not be given the option of choosing to receive the contributed amounts directly instead of having them paid by the participating employer to the city plan. Such election shall 1 _gyp IN ANC FRL I IREMFNT RCiremcm Nemfils Sludy Code M(Oficellons I olorCOded Chap,, 22 3 7 . 13.2012.doc not be effective prior to the receipt of the signed election. Contributions made by the participating employers pursuant to this section shall be considered earnable compensation for purposes of this chapter. Such contributions shall be paid to the trust fund by the participating employer from the same source of funds as used in paying the wages to affected members. Creditable service available for purchase that is not purchased using the procedure described in this subsection may be purchased using the procedure described in subsection (e). (e) In lieu of the purchase by salary reduction election as described in subsection (d) or in addition thereto, the city plan shall accept a direct trustee -to- trustee transfer of a lump sum in cash from a plan established pursuant to Section 457(b) of the Internal Revenue Code of 1986, as amended by a governmental employer or a plan or program established pursuant to Section 403(b) of the Internal Revenue Code of 1986, as amended as payment by a member for the purchase of creditable service described in subsection (b). Creditable service purchased with the lump sum shall be determined by dividing the lump sum by the applicable percentage described in subsection (b) multiplied by the greater of the member's present annualized earnable compensation or his average final compensation during his thirty -six (36) highest consecutive months of creditable service (as determined pursuant to section 22.3 -42). Creditable service available for purchase that is not purchased using the procedure described in this subsection, may be purchased using the procedure described in subsection (d). DIVISION 3. ERS SERVICE Sec. 22.3 -40. ERS service credit. Each eligible employee commencing service, for the first time, after July 1, 1946, shall receive membership service for all service rendered while a member of ERS. Sec. 22.3 -41. Prior service credit generally. Service prior to July 1, 1946 for employees whose date of hire was before July 1, 1946 shall be based upon the prior service certificate, the employee's statement of all service as an employee rendered by him prior to said date for which he claims credit, whether continuous or not, and of such other facts as the board may require for the proper operation of the system. The board shall fix and determine, by appropriate rules and regulations, the amount of service in any year which is equivalent to a year of service, but in no case shall more than one (1) year of service be creditable for all service in one (1) calendar year, nor shall the board allow credit as service for any period of more than one (1) month's duration during which the employee was absent without pay. The board shall verify, as soon as practicable after the filing of such statements of service, the service therein claimed, and shall issue prior service certificates certifying to each member the number of years of prior service with which he is credited. As long as membership continues, a prior service certificate shall be final and conclusive for retirement purposes as to such prior service credit; provided, however, that any member may, within one (1) year after the date of issuance or modification of such certificate, request the board to modify or correct his prior service certificate. ARTICLE VII. DETERMINATION OF BENEFITS I : FIN ANCERFTIREMLN f Retirement Benefits Study Code Modifiwtiorr ((,]or( ruled Chapla223 7 . 13,2012.doc DIVISION 1 - ESRS Sec. 22.3 -42. ESRS definitions Average final compensation (as used for purposes of determining retirement allowances under this division) shall mean the average annual earnable compensation, as defined by section 22.3 -2, of a member during the thirty -six (36) consecutive months during which the member has creditable service yielding the highest such average prior to retirement. However, for any person who becomes a member after June 30, 2014, average final compensation means the average annual earnable compensation of a member during the sixty (60) consecutive months during which the member has creditable service yielding the highest such average prior to retirement. Months in which the member has no creditable service shall not be included in determining the thirty -six (36) or sixty (60) consecutive months. In either case, if the number of months is less than thirty -six (36) or sixty (60) consecutive months, respectively, the average shall be determined on the basis of the entire period of creditable service, or in the case of a rehire, including prior periods of service. Normal retirement age means: (a) For firefighters and deputized police officers the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age forty -five (45) and any combination of age and years of creditable service that equals not less than the sum of seventy (70) or in the case of a person who becomes a member after June 30, 2014 and who is a firefighter or deputized police officer, the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty (50) and any combination of age and years of creditable service that equals not less than the sum of seventy -five (75). Only service as a firefighter or deputized police officer shall be credited to determine eligibility; provided, however, should any firefighter or deputized police officer become disabled for his regular duties as a firefighter or deputized police officer as a result of an accident occurring in the line of duty or as a result of an occupational disease and such firefighter or deputized police officer is transferred to another position in the city service, then such member shall continue to accrue creditable service as a firefighter or deputized police officer and shall remain subject to the normal retirement age established by this subsection as if he had remained a firefighter or deputized police officer. Any member employed on December 1, 1997, as a firefighter who was employed by the city in an emergency medical services capacity prior to October 30, 1995, shall receive credit under this subpart for service from the later of (i) July 1, 1989, or (ii) the date on which the employee became a member working in an emergency medical services capacity. (b) For all other members not described in (1) above the earlier of (i) the attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty (50) and any combination of age and years of creditable service that equals not less than the sum of eighty (80) or, in the case of a person who becomes a member after June 30, 2014 not described in (1) above, the earlier of (i) attainment of age sixty -five (65) and five (5) years of creditable service, or (ii) the attainment of age fifty -five (55) and any combination of age and years of creditable service that equals not less than the sum of eighty -five (85). le' FIN ANCFREFIRLMFNT'Rnn , n,w BeuefiN Stud,( dlMuhikati.u,ColorCodcd Chapter2239. 132012. doe (c) With respect to any person employed after having attained the age of sixty (60) years, normal retirement age shall be such person's age upon employment increased by five (5) years. System shall mean the Employees' Supplemental Retirement System of the City of Roanoke hereinafter referred to as the ESRS. Sec. 22.3 -43. Normal service retirement. (a) Eligibility. A member who remains an active member until his normal retirement age shall be eligible to receive an unreduced normal retirement benefit commencing on the first day of the month next following or coincident with the date of his termination of employment. (b) Amount of normal retirement benefit on or after normal retirement age. (1) In the case of a member other than a person who becomes a member after June 30, 2014, the retirement allowance shall be two and one -tenth percent (2.1 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (2) In the case of a person who becomes a member after June 30, 2014 (other than a hybrid member), the retirement allowance shall be two percent (2.0 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (3) In the case of a hybrid member, the retirement allowance shall be one percent (1.0 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. Only creditable service and average final compensation upon date of termination of employment will be used in the computation of the retirement allowance. Sec. 22.3 -44. Early service retirement allowance. (a) Eligibility. A member shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment if he meets the following criteria: (1) In the case of a member other than a person who becomes a member after June 30, 2014, a member who has had five (5) or more years of creditable service and has attained the age of fifty -five (55) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. I:.'FINANCF RE I IRFMFNT Reummcnl Rene61s Smdy`C .].I Coded Ch.,,, 22 3 7 . 13 2012&,c (2) In the case of a person who becomes a member after June 30, 2014, (other than a firefighter or a deputized police officer), a member who has had fifteen (15) or more years of creditable service and has attained the age of fifty -five (55) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. (3) In the case of a person who becomes a member after June 30, 2014 and who is a firefighter or deputized police officer, a member who has had fifteen (15) or more years of creditable service and has attained the age of fifty (50) shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of termination of employment. (b) Amount of early retirement benefit. (1) In the case of a member other than a person who becomes a member after June 30, 2014, the retirement allowance shall be two and one -tenth percent (2.1 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (2) In the case of a person who becomes a member after June 30, 2014 (other than a hybrid member), the retirement allowance shall be two percent (2.0 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. (3) In the case of a hybrid member, the retirement allowance shall be one percent (1.0 %) of the member's average final compensation for each year of creditable service subject to a maximum of sixty -three (63) percent of average final compensation. Only creditable service and average final compensation upon date of termination of employment will be used in the computation of the retirement allowance. (c) This retirement allowance may be deferred and become payable without further adjustment: (1) In the case of a member other than a person who becomes a member after June 30, 2014, until the date when such member first actually attains the earlier of (1) age sixty -five (65), or, (2) age fifty -five (55) and thirty (30) years of creditable service. (2) In the case of a person who becomes a member after June 30, 2014 (including hybrid members), until the date when such member first actually attains normal retirement age. L I INANCE RL I IRFMENI R,tiremem Uenefirs Study .3 7.13 2012doc (d) If the member elects payment to begin prior to the date described in (c) above, the pension commencing immediately shall be equal to the deferred pension reduced by one - half (1/2) of one (1) percent for each of the first sixty (60) such months by which actual payment precedes the earlier of the date determined in (c) above and, one - quarter (1/4) of one (1) percent for each additional month in excess of sixty (60) months by which actual payment precedes the date determined in (c) above. Sec. 22.3.45. Vested allowance (a) Eligibility. A member with five (5) or more years of creditable service who, for reasons other than death or retirement under any other provision of this article, ceases to be employed by a participating employer shall be entitled to a vested allowance, as provided for in sections 22.3 -43, 22.3 -44, or 22.3 -58. (b) Calculation of allowance. The vested allowance commencing upon the actual attainment of the earlier of the date described in section 22.3 -44(c) shall be computed as a vested service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his termination. (c) Payment of the vested allowance. The vested allowance may commence to be paid at any time after the member has reached, in the case of a member other than a person who becomes a member after June 30, 2014, the age required for early retirement subject to any applicable reductions for early payment as set out in section 22.3 -44(d) or in the case of a person who becomes a member after June 30, 2014 (including hybrid members), age sixty (60) subject to any applicable reductions for early payment as set out in section 22.3- 44(d). (d) Applicability of multiplier. Any member entitled to a vested allowance who ceased to be an employee of a participating employer prior to January 1, 1999 and who is not reemployed after June 30, 2014, shall have his vested allowance calculated pursuant to sections 22.3 -43 and 22.3 -44 as such sections existed prior to January 1, 1999 (utilizing a multiplier of two percent (2.0 %) for each year of creditable service). Any member entitled to a vested allowance who ceases to be an employee of a participating employer on or after January 1, 1999, who is not reemployed after June 30, 2014, and who meets the condition established by section 22.3 -35(a) shall have his vested allowance calculated pursuant to sections 22.3 -43 and 22.3 -44 as such sections exist on and after January 1, 1999 (utilizing a multiplier of two and one -tenth percent (2.1 %) for each year of creditable service). DIVISION 2. ERS Sec. 22.3 -46. ERS definitions. Average final compensation (as used for purposes of determining retirement allowances under this division) shall mean the annual earnable compensation, as defined by section 22.3 -2, of a member during his twelve (12) consecutive months of creditable service yielding the highest such average prior to retirement. 1. FIN AN( L RFTIREMLNI Reliremcm 13enefi(s Smdy,Code ModificatioodColoi Coded ChapxeR2.3 7 13 2012 &c Normal retirement age means the age of sixty (60) or the age prior thereto at which a member completes thirty (30) years of creditable service. Social security benefit shall mean the annual benefit payable in monthly installments as the primary insurance amount under Title It of the Federal Social Security Act. System shall mean the Employees' Retirement System of the City of Roanoke hereinafter referred to as the ERS. Sec. 22.3.47. Retirement and service retirement allowance generally. (a) Eligibility. Any member who remains an active member until his normal retirement age shall be eligible to receive an unreduced normal retirement benefit commencing on the first day of the month next following or coincident with the date of his termination of employment. (b) Amount of normal retirement benefit on or after normal retirement age. The service retirement allowance shall consist of a pension equal to one - seventieth of the member's average final compensation multiplied by the number of years of creditable service. In the case of a member retiring on or after July 1, 1970, and after he has attained the age of sixty -five (65) years, an additional pension shall be payable to him, if he is not entitled to a social security benefit at the time of such retirement on the basis of his covered earnings under the Social Security Act, which shall be equal to the primary insurance amount provided under Title II of the Social Security Act as the same may be from time to time amended and adjusted; provided, however, that the member shall be required to submit evidence satisfactory to the board that the Social Security Administration has determined that no social security benefit is payable to him, nor would such a benefit be payable upon proper application therefore but for the receipt of income covered under the Social Security Act. Sec. 22.3 -48. Early service retirement allowance. (a) Eligibility. A member who remains an active member until he has completed at least twenty (20) or more years of creditable service shall be eligible to receive an early retirement benefit commencing on the first day of the month next following or coincident with the date of his termination of employment. (b) Amount of early retirement benefit. The retirement allowance shall consist of a pension equal to one - seventieth of the member's average final compensation multiplied by the number of years of creditable service. (c) The early service retirement allowance shall consist of either: (1) A deferred pension commencing upon the attainment of the normal retirement age and computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his early retirement; or (2) A pension commencing immediately which shall be equal to the deferred pension reduced by five- ninths (5/9) of one (1) percent for each month between the date of commencement of the pension and the attainment of the normal retirement age, not in excess of sixty (60) months, and fve- L I IN AC LIREr1RFMLNI Re6mmenl Benefits Study( odc Modific pions Color Coded Clut'nu 22 3 713.2012 doe eighteenths (5/18) of one (1) percent for each such month in excess of sixty (60) months. (d) If a retired member who has elected to receive a deferred retirement allowance under this section dies before his retirement allowance normally becomes due, the only payment made shall be the non - occupational death benefit, as provided under subparagraph (1) of section 22.3 -70, unless there is a surviving spouse entitled to a pension under the provisions of section 22.3 -69. Sec. 22.3.49. Vested allowance. (a) Eligibility. A member with ten (10) or more years of creditable service who, for reasons other than death or retirement under any other provision of this article, ceases to be employed by a participating employer on or after October 1, 1977, shall be entitled to a vested allowance as provided for in section 22.3 -47, or section 22.3 -48, subject to the restrictions of this section, payable to him in accordance with this section commencing either on his normal retirement age or upon application of the former employee filed not less than thirty (30) days prior to the commencement date, prior to the normal retirement age but on or after the date as of which he would have completed twenty (20) years of creditable service if he had continued in service with a participating employer. Any member who terminated service for any reason prior to October 1, 1977, and who returns to service after such date shall work one (1) continuous year after returning before qualifying for credit toward a vested allowance for service rendered prior to October 1, 1977, except when such person dies or becomes disabled after returning to service, in which case he shall become entitled to credit for prior service as of the date of such death or disability without having to meet the requirement of one (1) year of continuous service. (b) The vested allowance commencing upon the attainment of normal retirement age shall be computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his termination. (c) The vested allowance commencing prior to the former member's normal retirement age, but on or after the date as of which he would have completed twenty (20) years of creditable service if he had continued in service, shall be equal to the pension computed in accordance with subsection (b) of this section, reduced by five- ninths ( 5/9) of one (1) percent for each month between the date of commencement of the pension and the attainment of the normal retirement age, not in excess of sixty (60) months, and five - eighteenths (5/18) of one (1) percent for each additional month in excess of sixty (60) months. (d) A vested allowance shall not be payable pursuant to this section with respect to any member whose service was terminated prior to October 1, 1977, and who was not in service after that date. ARTICLE VIII. DISABILITY RETIREMENT Sec. 22.3 -50. Non - occupational disability retirement allowance. L I IN ANCLRFT[REM FNNtwimnc t Benefits S Wdy[Code MOdifiratiorslC.1,,1(.&d( R,1,,22 3 Z 13.2012d.c (a) Eligibility. Upon application of a member in service or the head of such member's department, any such member who has had five (5) or more years of creditable service may be retired by the board on a non - occupational disability retirement allowance not more than one (1) year after the filing of such application (or such longer period necessitated by the circumstances); provided, that the board's medical examiner or examiners shall certify after medical examination (i) that such member is mentally or physically totally incapacitated for the further performance of any gainful employment for which the member is qualified with his most recent participating employers, and (ii) that such incapacity is likely to be permanent. (b) Amount of benefit. The non - occupational disability retirement allowance shall be computed as a service retirement allowance on the basis of the member's average final compensation and creditable service at the time of his retirement (accrued benefit), provided, in the case of an ERS member, if such member has not attained his normal retirement age and the retirement allowance computed as herein provided is less than twenty -five (25) percent of the member's average final compensation, the pension shall be increased to the lesser of such twenty -five (25) percent, or the amount that would have been payable to the member as a service retirement allowance on retirement at his normal retirement age if he continued in service until such age without change in his average final compensation. Upon approval of an application by the board,.benefts shall be retroactive to the date after all forms of leave have been exhausted. This benefit shall be reduced by any workers' compensation benefits as provided for in section 22.3 -53. (c) The non - occupational disability retirement allowance of a hybrid member shall be computed as a service retirement allowance on the same basis as described in (b) above except that the multiplier shall be 2.0% instead of the 1.0% applicable to a hybrid member. The disability retirement allowance of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the effective date of his disability. (d) Should the member die while receiving a non - occupational disability retirement allowance, any excess accumulated contribution as of the effective date of the members retirement, over the total retirement allowance previously received by him will be paid to the member's beneficiary. Sec. 22.3 -51. Occupational disability retirement allowance. (a) Eligibility. Upon the application of a member in service or the head of such member's department, any member who has been totally and permanently incapacitated for duty as a natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place without willful negligence on his part may be retired by the board on an occupational disability retirement allowance not more than one (1) year after the fling of such application; provided that the board's medical examiner or examiners shall certify after medical examination (i) that such member is mentally or physically totally incapacitated for the further performance of any gainful employment for which the member is qualified with his most recent participating employers, (ii) that such L FIN ANCFRETIRLMFNT R,W,mcm Benefits Study (b e Modifications Color Codcd Chepler22 3 9.13,2012 doc incapacity is the natural and proximate result of an accident occurring while in the actual performance of duty, and (iii) that such incapacity is likely to be permanent. (b) Amount of benefit. The occupational disability retirement allowance shall be equal to sixty -six and two- thirds (66213) percent of a member's average final compensation. This benefit shall be reduced by workers' compensation benefits as provided for in section 22.3 -53. This benefit shall not be reduced due to payment commencing prior to normal retirement age. (c) The occupational disability retirement allowance of a hybrid member shall be determined on the same basis as described in (b) above, except that the disability retirement allowance of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the effective date of his disability. (d) Should the member die while receiving an occupational disability retirement allowance, any excess accumulated contribution as of the effective date of the members retirement , over the total retirement allowance previously received by him will be paid to the member's beneficiary. Sec. 22.3 -52. Application for workers' compensation benefits required. As a condition precedent to application for an occupational disability benefit from the city plan, a member must first apply for workers' compensation benefits and be awarded such benefits. Receipt of an award under the workers' compensation act shall not relieve an applicant of the duty to prove his qualification for a benefit under the standards established by this chapter for the city plan. Sec. 22.3.53. Workers' compensation benefits offset against retirement benefits. (a) Any amounts which may be paid or payable under the provisions of the Virginia Workers' Compensation Act or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of any injury, occupational disease or disability or incapacity, total or partial, or death shall in such manner as the board shall determine, be offset against and payable in lieu of any benefits payable out of funds provided under the provisions of the city plan. (b) In the case of a member, beneficiary or dependent of a member or beneficiary who elects to receive a lump sum settlement in lieu of periodic payments for temporary disability or death compensable under the Virginia Workers' Compensation Act, the retirement allowance shall cease or be reduced, as the case may be. The amount of reduction shall be determined by the workers' compensation benefit which such person would have received had the lump sum settlement not been consummated, including all cost of living adjustments permitted by the Virginia Workers' Compensation Commission, and had such person received periodic payments for disability or death for the maximum amount of time otherwise permitted under the Virginia Workers' Compensation Act. The reduction shall continue each month for a period of months, until such time as the total amount of periodic payments for disability or death payable to such person under the Virginia Workers' LIIN AN( I4,RMRFMEN Illieumment Rcnefib Smdy1(Wf MWifiw6on <'olor Coded C 223 7 13 , 20121, Compensation Act would have been offset had the lump sum settlement not been consummated. (c) The above notwithstanding, no amount paid or payable under the provisions of the Virginia Workers' Compensation Act, or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of permanent partial disability from any injury shall be offset against any benefits payable out of funds under the provisions of the city plan. Sec. 22.3 -54. Presumptions applicable to death or disability of firefighters and police officers. The policies, presumptions and procedures established by section 27 -40.1, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any firefighter caused by respiratory disease, hypertension or heart disease, and by section 51- 122, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any deputized police officer of the police department caused by hypertension or heart disease, are hereby incorporated by reference and shall be applicable in the case of any application filed by any firefighter or any deputized police officer of the police department or any survivor thereof for occupational disability retirement allowance or occupational death benefit under the employees' supplemental retirement system or the employees' retirement system. Sec. 22.3 -55. Periodic medical examination of beneficiaries retired on account of disability. Once each year during the first five (5) years following the retirement of a member on a non - occupational or an occupational disability retirement allowance, and once in every three -year period thereafter, the board may require any disability beneficiary to undergo a medical examination if he has not yet attained his normal retirement age. Such examination shall be made by a medical examiner at the examiner's office during normal business hours. For this purpose, the secretary- treasurer shall select a medical examiner or examiners who are located within a reasonable proximity of the member's place of residence. Should any disability beneficiary refuse to submit to such medical examination, his retirement allowance may be discontinued by the board until his withdrawal of such refusal, and should his refusal continue for one (1) year, all his rights in and to his pension may be revoked by the board. Sec. 22.3 -56. Modification of disability retirement allowances. (a) Should the board find that any disability beneficiary is engaged in or is able to engage in a gainful occupation paying more than the difference between his pension and his average final compensation adjusted pursuant to any applicable amendments to the ranges of the participating employer's pay plan subsequent to the member's retirement, the board shall reduce the amount which, together with the amount earnable by him, shall equal the amount of his average final compensation adjusted as provided above. Should the earning capacity of such beneficiary from any gainful occupation be later changed, the amount of his pension may be further modified in a like manner. FIN ANC F', RFTIkLMFNTRedremem Rcnefils Smd., ( 1 d1 Modlfienuoas`Color ('oded (hapi¢223 7,13,2012 &c (b) The board or the secretary- treasurer of the city plan, upon the authority of the board, shall be authorized to make such inquiries of persons who are disability beneficiaries under the city plan as are necessary to determine whether any such person is engaged or is able to engage in a gainful occupation paying more than the difference between his pension and his average final compensation increased by the average cost of living allowances to city employees. Such inquiries shall be answered under oath. Any disability beneficiary may also be required to produce copies of tax returns and tax withholding forms (W -2s) to establish income. If any disability beneficiary should refuse or fail to provide the information required by this section, the board shall be authorized to terminate such person's benefits until compliance is achieved. ARTICLE IX. PAYMENT OF BENEFITS DIVISION 1. GENERAL Sec. 22.3 -57. Form of payment of benefits. All annuity payments shall be made on a monthly basis. The board of trustees shall establish all required administrative procedures needed to accomplish such monthly payments. Sec. 22.3 -58. Lump sums (a) The board may set a dollar amount for a monthly benefit that shall be paid in the form of a lump sum. Except as provided in subsection (c), monthly benefits of more than the amount determined by the board shall not be paid in the form of a lump sum. Notwithstanding the above, monthly benefits whose lump sum value is above the amount as shall be from time to time established by Section 411(a)(11), Internal Revenue Code of 1986, as amended, shall require member consent before a lump sum is paid. Any beneficiary shall be required to receive a lump sum distribution of the amount as shall be from time to time established by Section 411(a)(11), Internal Revenue Code of 1986, as amended, or less. (b) All lump sums shall be based on the applicable interest rate and mortality table as defined in Section 417(e) of the Internal Revenue Code of 1986, as amended, effective on the first day of the calendar year in which payment is made. (c) Upon the written agreement of the employee and the secretary- treasurer of the city plan, monthly benefits payable to a member who is retired on a disability retirement allowance may be paid in the form of a lump sum by purchase of one (1) or more annuities or a combination of lump sum and annuity payments. Sec. 22.3 -59. Rollover of lump sum distributions. Effective January 1, 1993, notwithstanding anything to the contrary in this article, but subject to any de minimis or other exceptions or limitations provided for under Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, any prospective recipient (whether a member, a surviving spouse, a current or former spouse who is an alternate payee under an approved domestic relations order or any other person eligible to make a rollover) of a distribution from the city plan which constitutes an "eligible rollover distribution' (to the extent I. I INAW LH1 °rIRLMI NTIRcurement Bent Ills Stud,, CodC M nJfhcationsColorT'Med Chapler22 3 7 .13 2012 not otherwise includible in the recipient's gross income) may direct the board to pay the distribution directly to an "eligible retirement plan ". For purposes hereof, the following terms have the meanings assigned to them in Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, and, to the extent not inconsistent therewith, shall have the following meanings: (a) The term "eligible retirement plan' means a defined contribution plan which is either an individual retirement account described in Section 408(a) of the Internal Revenue Code of 1986, as amended, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code of 1986, as amended (other than an endowment contract), an annuity plan described in Section 403(a) of the Internal Revenue Code of 1986, as amended, or a qualified trust described in Section 401(a) of the Internal Revenue Code of 1986, as amended, that accepts the prospective recipient's eligible rollover distribution. For distributions made before January 1, 2002, in the case of an eligible rollover distribution payable to a member's surviving spouse, an "eligible retirement plan" means only an individual retirement account or individual retirement annuity. Effective for distributions made after December 31, 2001, an eligible retirement plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to account separately for amounts transferred into such plan from this Plan. Effective for distributions made after December 31. 2001, the definition of eligible retirement plan applicable to a member shall also apply in the case of a distribution to a member's surviving spouse and to a member's spouse or former spouse who is the alternate payee under an approved domestic relations order. Effective for distributions made after December 31, 2007, an "eligible retirement plan' includes an individual retirement plan described in section 408A of the Internal Revenue Code of 1986, as amended (sometimes referred to as a Roth IRA) provided that for tax years beginning before January 1, 2010, the recipient does not have modified adjusted gross income in excess of $100,000 and is not married filing a separate return, both as determined under Section 408A(c)(3)(B) of the Internal Revenue Code of 1986, as amended. For distributions made in Plan Years beginning on or after January 1, 2010, in the case of an eligible rollover distribution payable to a non - spouse beneficiary within the meaning of Section 401(a)(9)(E) of the Internal Revenue Code of 1986, as amended, an "eligible retirement plan' means only an 'inherited I RA ". (b) The term "eligible rollover distribution" means any distribution other than: (1) A distribution which is one of a series of substantially equal periodic payments (not less frequently than annually) made either for the life (or life expectancy) of the recipient or the joint lives (or joint life expectancies) of the recipient and his beneficiary who is an individual or for a specified period of ten (10) or more years, (2) A distribution to the extent it is required under the minimum distribution requirement of Section 401(a)(9) of the Internal Revenue Code of 1986, as amended, Lt l IN AN( 'LNB❑RLMLN I i Benefits Study `Code Mudifimtio, Color( tided Chii 2237.132012_doc (3) Any other amount which is not considered an eligible rollover distribution for purposes of Section 402(c)(4) of the Internal Revenue Code of 1986, as amended with respect to the Plan. (c) The term "inherited IRA" means an individual retirement account described in Section 408(a) of the Internal Revenue Code of 1986, as amended, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code of 1986, as amended (other than an endowment contract) or, for plan years beginning in or after 2010, an individual retirement plan described in section 408A of the Internal Revenue Code of 1986, as amended (sometimes referred to as a Roth IRA) established for the purpose of receiving the distribution where the individual retirement account or annuity or Roth IRA is treated as an inherited individual retirement account or annuity within the meaning of Section 408(d)(3)(C) or, as applicable, Section 409A(d)(3)(B) of the Internal Revenue Code of 1986, as amended. Any such direction shall be filed with the board in such form and at such time as the board may require and shall adequately specify the eligible retirement plan to which the payment shall be made. The board shall make payment as directed only if the proposed transferee plan will accept the payment. Any such plan to plan transfer shall be considered a distribution option under this plan and shall be subject to all the usual distribution rules of the city plan (including but not limited to the requirement of an advance explanation of the option). The board is authorized in its discretion, on a uniform and non- discriminatory basis, to apply any discretionary de minimis or other discretionary exceptions or limitations provided for under Section 401(a)(31) of the Internal Revenue Code of 1986, as amended, in effecting or declining to affect plan to plan transfers hereunder. Within a reasonable time (generally not more than ninety (90) nor less than thirty (30) days) before the benefit payment date of a prospective recipient of an eligible rollover distribution from the plan, the board shall provide the prospective recipient with a written explanation of the rollover and tax rules required by Section 402(f) of the Internal Revenue Code of 1986, as amended. If a refund is paid pursuant to section 22.3 -62.1 that exceeds $1,000 and the member has not attained the later of his normal retirement age or the age of sixty -two (62), the refund shall be made by the board's paying the distribution directly to an "eligible retirement plan' which is an individual retirement plan in a direct rollover to the individual retirement plan on behalf of the member (an 'automatic rollover'), unless the member requests in writing that the distribution be made directly to him (as opposed to a rollover to an 'eligible retirement plan') or directs in writing that the distribution be made to a specified 'eligible retirement plan" or plans. The automatic roll over shall be made to an individual retirement plans that satisfies the safe harbor therefore Section 51.1- 124.30.F of the Code of Virginia, and such provisions shall be interpreted and administered in accordance therewith. Sec. 22.3 -60. Permissible changes to optional forms of payment. A retired member who has elected an option described in section 22.3 -62 or section 22.3 -63 may, in a manner prescribed by the board, revoke such election and elect to receive from the time of notification the retirement allowance to which he would have been entitled had no option been elected initially and no cost of living increases been granted in the interim, if (a) the original survivor has died or (b) a final decree of divorce of the retired member from the 1 FIN AN( FRE I IREMFNT Re i,menl B,,efi, Smdl ( 14e Wa Ifi ©IlnlrsiCO., ('uded Ch,tl r 22 3 7 .13 2012 doc original survivor has been entered which releases both the member and the city plan from any liability to or obligation of the city plan to make any payments to the original survivor. Sec. 22.3 -61. Retirement supplement. Any member of the city plan who is an employee of a participating employer (not including employees of the City of Roanoke School Board), and who retires or who has retired after earning twenty (20) or more years of creditable service, but prior to attaining the age of sixty - five (65), shall be paid a monthly supplement of the greater of one hundred fifty -nine ($159.00) or an amount equal to seventy -five percent (75 %) of the amount the City of Roanoke contributes monthly toward the cost of a single active employee's health insurance, as such contribution may be changed from time to time, commencing with the first month of retirement and terminating with the month in which the member attains age sixty -five (65). This supplement shall not be subject to any cost of living adjustment which may be provided under the city plan. This supplement shall be a personal benefit applicable to an eligible member only without any right of survivorship. Upon the death of a member who is receiving such benefit, the monthly payment shall be made for the month of such member's death and shall terminate with the next succeeding month. This benefit shall not be applicable to retirees receiving the early retirement incentive plan supplement granted in 1991. Notwithstanding, the retirement supplement shall not be paid to a person who became a member after June 30, 2013, as defined in Section 22.3 -26.1. In addition, the board shall permit other members to make an irrevocable election to forego entitlement to the supplement under procedures established by the board. Sec. 22.3 -61.1. Post retirement cost of living supplement. In addition to the allowance paid under this chapter, a post retirement cost of living supplement shall be paid to the recipient of a retirement allowance which began before June 30, 2014 or to the recipient of a retirement allowance which begins after June 30, 2014, but only if the member completed at least fifteen (15) years of creditable service prior to such retirement and has been receiving a retirement allowance for at least one year. The amount of the cost of living supplement shall be determined annually as a percent of the allowance in the amount of 2 /3rds of the increase in the United States Average Consumer Price Index for all items, all urban Consumers (CPI -U). Notwithstanding, the percentage increase for any one year shall not exceed the lesser of four percent (4 %) or the pay raise awarded generally to active employees. City council may revise the formula and or eliminate the cost of living supplement at any time applicable to future supplements. DIVISION 2. ESRS Sec. 22.3 -62. Optional spousal allowance. Until the effective date of retirement, any member may elect to convert the retirement allowance otherwise payable to him into an optional spousal allowance of equivalent actuarial value in accordance with one (1) of the optional forms set out below. If an optional spousal allowance is selected and the spouse dies before the member, the member's pension shall, as of the first day of the next month after the death of the member's spouse, be increased by an amount equal to the amount by which the pension was reduced at the date of retirement by virtue of the member's election of a spousal allowance. The member's spouse, if any, shall L I IN AN( FRL I IRLMFNTRaire.,n I Benefits SWdy (od e 1 11" COded C'hnptcr223 7 13.2012&h be required to sign the election form designated by the board, when the member applies for retirement. A spouse must be married to the member at retirement and one (1) year prior to death of the member or retired member to be eligible for a spousal allowance. The spousal allowance shall continue until the death of the spouse. Except as provided in section 22.3 -60, a member's election of an optional spousal allowance shall be irrevocable. A spousal benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -53. The optional forms are as follows: Option 1: A reduced retirement allowance payable during the life of the retired member, with the provisions that upon his death his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledgeable and filed with the board at the time of his retirement (the joint and one hundred (100) percent % spouse survivor option); or Option 2: A reduced retirement allowance payable during the life of the retired member, with the provision that upon his death three - quarters (3/4) of his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and seventy -five (75) percent spouse survivor option); or Option 3: A reduced retirement allowance payable during the life of the retired member, with the provision that upon his death one -half (1/2) of his reduced retirement allowance shall be continued and paid to his spouse as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and fifty (50) percent spouse survivor option) The actuarial factors used to convert normal form of payment (single life annuity payable monthly) to an optional form of payment are set forth in the administrative procedures manual maintained by the board. Such tables shall comply with the requirements of section 401(a)(9) of the Internal Revenue Code. Should such member die within thirty (30) days after retirement, his optional election shall not be effective, he shall be considered a member in service at the time of his death, and the only benefit payable on his account shall be the non - occupational death benefit provided in section 22.3 -67 reduced by any retirement allowance payments received by him prior to his death. Should the member die while receiving a retirement allowance under a form of payment with no spouse survivor option, any excess accumulated contributions as of the effective date of the member's retirement, over the total retirement allowance previously received by him shall be paid to the member's beneficiary as soon as soon as administratively practical following the member's death. Should the spouse survivor of a member die while receiving a retirement allowance under a form of payment with a spouse survivor, any excess accumulated contributions as of the effective date of the member's retirement, over the total retirement allowance previously received by the member and the spouse survivor shall be paid to the spouse survivor's estate as soon as soon as administratively practical following the spouse's death. L IINANCF,RFTIREMLNI'Reairemenl Benefits Stud, C,,d Mnd.fitutue n 'f+n(,dedChapter2237.13 2012d- Sec. 22.3.62.1. Refund of accumulated contributions before retirement (a) Any member who has five or more years of creditable service, who ceases to be a member other than by death or retirement may request and receive a refund of the balance in the member's contribution account reduced by the amount of any retirement allowance previously received by him under the provisions of this article. (b) Any member who has less than five years of creditable service who ceases to be an employee other than by death shall be paid the balance in the member's contribution account in a mandatory cash -out as soon as administratively practical following his ceasing to be employed by a participating employer. (c) Any member who receives a refund shall no longer be entitled to any benefits attributable to his service after June 30, 2014. Such member shall be treated as if he had terminated employment on June 30, 2014 for purposes of determining any other benefits under the plan. DIVISION 3. ERS Sec. 22.3 -63. Optional or modified retirement allowance. Until the effective date of retirement, any member may elect to convert the retirement allowance otherwise payable to him into a modified retirement allowance of equivalent actuarial value in accordance with one (1) of the optional forms set out below. If a modified retirement allowance is selected and the beneficiary dies before the member, the member's pension allowance shall, as of the first day of the next month after the death of the member's beneficiary, be increased by an amount equal to the amount by which the pension was reduced at the date of retirement by virtue of the member's election of a modified retirement allowance. A modified retirement allowance shall continue until the death of the beneficiary. Except as provided in section 22.3 -60, a member's election of a modified retirement allowance shall be irrevocable. The optional forms are as follows: Option 1: A reduced retirement allowable payable during the life of the retired member, with the provision that upon his death his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall have nominated by written designation duly acknowledgeable and fled with the board at the time of his retirement (the joint and one hundred (100) percent survivor option); or Option 2: A reduced retirement allowance payable during the life of the retired member, with the provisions that upon his death one -half (1/2) of his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall have nominated by written designation duly acknowledged and filed with the board at the time of his retirement (the joint and fifty (50) percent survivor option); or Option 3: A reduced retirement allowance payable during the life of the retired member, with the provisions that, upon his death, some other benefit shall be payable; provided, that the total value of the allowance during his life and the succeeding benefit shall be computed to be IS I IN ANCF RMUMFNTRaim ,nenl Benefits Stud, 0eIeM difiestuus( I.,(oded( hsnea 22 3). 13 2012 of equivalent actuarial value to the retirement allowance which he would receive without optional modification; provided further that the benefit shall be approved by the board (the joint and x percent survivor option). The actuarial factors used to convert to an option form of payment are set forth in the administrative procedures manual maintained by the board. Should such member die within thirty (30) days after retirement, his optional election shall not be effective, he shall be considered a member in service at the time of his death, and the only benefit payable on his account shall be the non - occupational death benefit provided in section 22.3 -70 reduced by any retirement allowance payments received by him prior to his death. Notwithstanding anything herein to the contrary, the distribution options available to members shall be limited by the following restrictions: (a) The present value of payments made to the member must be more than fifty (50) percent of the present value of the total payments to be made to the member and his beneficiary (based on the life expectancies as of the date benefits commence). (b) Benefits will be distributed commencing not later than such taxable year: 1. Over the life of such member or over the lives of such member and his spouse; or 2. Over a period not extending beyond the life expectancy of such member or the life expectancy of such member and his spouse. (c) If a member dies before his entire interest has been distributed to him, or distribution has been commenced in accordance with subsection (b)2. above to his surviving spouse and such surviving spouse dies before his entire interest has been distributed to such surviving spouse, then his entire interest will be distributed within five (5) years after his death (or the death of his spouse). The preceding sentence shall not apply to term certain distributions. With respect to distributions beginning in calendar years beginning on or after January 1, 2002, the plan will apply the minimum distribution requirements of Section 401(a)(9) of the Internal Revenue Code and described in this section, in accordance with the regulations under Section 401(a)(9) of the Internal Revenue Code that were proposed on January 17, 2001. ARTICLE X. DEATH BENEFITS DIVISION 1. GENERAL Sec. 22.3 -64. Application for workers' compensation benefits required. As a condition precedent to application for an occupational death benefit from the city plan, a member's beneficiary must first apply for workers' compensation death benefits and be awarded such benefits. Receipt of an award under the workers' compensation act shall not relieve an applicant of the duty to prove his qualification for a benefit under the standards established by this chapter for the city plan. LIISAN( F RL I IRLMFN I Revremcnt Benefits SmdVfd (.1.,(',&d CM1npleR237. 13 2012&o Sec. 22.3 -65. Workers' compensation benefits offset against death benefits (a) Any amounts which may be paid or payable under the provisions of the Virginia Workers' Compensation Act or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of death shall in such manner as the board shall determine, be offset against and payable in lieu of any benefits payable out of funds provided under the provisions of the city plan. (b) In the case of a member, beneficiary or dependent of a member or beneficiary who elects to receive a lump sum settlement in lieu of periodic payments for temporary disability or death compensable under the Virginia Workers' Compensation Act, the retirement allowance shall cease or be reduced, as the case may be. The amount of reduction shall be determined by the workers' compensation benefit which such person would have received had the lump sum settlement not been consummated, including all cost of living adjustments permitted by the Virginia Workers' Compensation Commission, and had such person received periodic payments for disability or death for the maximum amount of time otherwise permitted under the Virginia Workers' Compensation Act. The reduction shall continue each month for a period of months, until such time as the total amount of periodic payments for disability or death payable to such person under the Virginia Workers' Compensation Act would have been offset had the lump sum settlement not been consummated. However, in the event a member dies after electing to receive a lump sum settlement in lieu of periodic payments for temporary disability compensable under the Virginia Workers' Compensation Act, the death benefit payable to a beneficiary or dependent of a beneficiary shall be offset only to the extent the amount of the lump sum settlement in lieu of periodic payments for temporary disability compensable under the Virginia Workers' Compensation Act has not already been offset by any benefits payable out of funds provided under the provisions of the city plan. (c) The above notwithstanding, no amount paid or payable under the provisions of the Virginia Workers' Compensation Act, or any similar law to any member or beneficiary, or to the dependents of any member or beneficiary, on account of permanent partial disability from any injury shall not be offset against any benefits payable out of funds under the provisions of the city plan. Sec. 22.3 -66. Presumptions applicable to death or disability of firefighters and police officers. The policies, presumptions and procedures established by section 27 -40.1, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any firefighter caused by respiratory disease, hypertension or heart disease, and by section 51- 122, Code of Virginia (1950), as amended, with respect to death of, or any condition or impairment of health, of any deputized police officer of the police department caused by hypertension or heart disease, are hereby incorporated by reference and shall be applicable in the case of any application filed by any firefighter or any deputized police officer of the police department or any survivor thereof for occupational disability retirement allowance or occupational death benefit under the employees' supplemental retirement system or the employees' retirement system. L IFINANCF RFT I REM W I IReurcmenl Rcncfils Study Code ModlfiwfiOnsl('OIOI' C(,&d Chat r22 3 7 .13 2012 dnc DIVISION 2. ESRS Sec. 22.3 -67. Non - occupational death benefit (a) Should a member die in service before completing at least ten (10) years of creditable service, the member's beneficiary shall receive a refund of the balance in the member's contribution account as soon as administratively practical following the member's death. (b) Eligibility. Upon the receipt of proof, satisfactory to the board, of the death of an active member with ten (10) or more years of creditable service which was not the result of an accident in the actual performance of duty, as defined in section 22.3 -68, a non - occupational death benefit shall be paid to such person's lawful spouse as of the date of death and with whom he has been married for least one (1) year at date of death, if any. (c) Benefit. The non - occupational death benefit shall be an annuity benefit equal to fifty (50) percent of his accrued benefit on his date of death (but not reduced by any early payment reduction factor). The benefit shall commence on the day next following death. If the surviving spouse is more than sixty (60) months younger than the member the benefit shall be reduced by one -sixth of one (1) percent for each full month in excess of sixty (60) months. (d) The non - occupational death benefit of a hybrid member shall be computed as a service retirement allowance on the same basis as described in (c) above except that the accrued benefit on the date of death shall be determined using a multiplier 2.0% instead of the 1.0% applicable to a hybrid member. The non - occupational death benefit of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the date of his death. (e) Should the surviving spouse die while receiving the annuity benefit described in (c) or (d), any excess accumulated contributions as of the date of the member's death, over the total annuity benefit previously received by the surviving spouse shall be paid to the surviving spouse's estate as soon as administratively practical following the spouse's death. Sec. 22.3.68. Occupational death benefit (a) Eligibility. If, upon the receipt of proof, satisfactory to the board, of the death of a member in service indicating that such death was the natural and proximate result of an accident, occurring while the member was in the actual performance of duty, the board shall decide that death was the result of an accident in the actual performance of duty occurring at some definite time and place, and not caused by willful negligence on the part of the member, there shall be paid the following benefit, in lieu of any benefit payable under the provisions of section 22.3 -67. (b) Benefits. The occupational death benefit shall be a pension one -half (112) of his average final compensation payable to his spouse, if any, to continue until death; or if there is no spouse at date of the member's death, then to his child or children under age eighteen (18), if he leaves children, divided in such manner as the board, in its discretion, shall determine, to continue as a joint and survivorship pension for the benefit of the child or L I ]NAM F RFrIREMLT I'Re0reme t FCnefiN St.& ( do MO ,ficmim rt' ,lo, (o&d I ha,,,223 7 13 2012.doc children under said age until every child dies or attains said age. This benefit shall be reduced by workers' compensation benefits as provided in section 22.3 -65. (c) The occupational death benefit of a hybrid member shall be computed on the same basis as described in (b) above. The occupational death benefit of a hybrid member shall be offset by the actuarial equivalent of his account in the defined contribution plan as of the date of his death. (d) Should the member's surviving spouse and or children receiving an allowance payable under the provisions set forth above die, any excess balance in the member's contribution account as of the date of the member's death, over the total survivor allowance paid to the surviving spouse and or children shall be paid to the estate of the last surviving spouse or child as soon as administratively practical following the last survivor's death. DIVISION 3. ERS Sec. 22.3 -69. Pensions to spouses of retired members or members eligible to retire. Upon the receipt of proof, satisfactory to the board, (i) of the death, on or after July 1, 1973, of a member in active service after the completion of twenty (20) or more years of creditable service or after the attainment of age sixty (60), or (ii) of the death of a member who retired on or after July 1, 1973, or of the death of a former member in receipt of a vested allowance pursuant to section 22.3 -49, a pension shall be payable to the surviving spouse, commencing on the day next following the date of death of the member, retired member or former member in receipt of a vested allowance and ceasing upon the death of the spouse; provided, that the spouse was married to the retired member or former member at the time that payment of his benefit commenced; that the spouse was married to the member, retired member or former member for at least one (1) year prior to his death; and that the member, retired member or former member had not made an optional election under section 22.3 -63 which was in full force and effect. The amount of the pension shall be one -half ( 1/2) of the retirement allowance or vested allowance to which the member was entitled or would have been entitled had he retired at the time of death under the provisions of section 22.3 -48, or under the provisions of section 22.3 -47; provided, however, that if the surviving spouse is more than sixty (60) months younger than the member, the benefit will be reduced by one -sixth ( 1/6) of one (1) percent for each full month in excess of sixty (60) months. A spousal benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. Sec. 22.3 -70. Non - occupational death benefit. Upon the receipt of proof, satisfactory to the board, of the death of a member, not an occupational death as defined in section 22.3 -71, there shall be paid to such person, if any, as the member shall have nominated by written designation duly acknowledged and filed with the board otherwise to his estate: If he was in service at the time of his death and had one (1) or more years of creditable service, a lump sum benefit equal to fifty (50) percent of his earnable compensation during the year immediately preceding his death. The benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. L F]NANCFRFI IRF_MFNT R W rcmem Renefi,, Stud, CM, M W lficadnnslColoi COded C1elner22.3 T13 2012 Sec. 22.3 -71. Occupational death benefit If, upon the receipt of proof, satisfactory to the board, of the death of a member in service indicating that such death was the natural and proximate result of an accident, occurring while the member was in the actual performance of his duty, the board shall determine that the death was the result of an accident during the actual performance of duty occurring at some definite time and place, and not caused by willful negligence on the part of the member, there shall be paid, in lieu of any benefit payable under the provisions of sections 22.3 -70 and 22.3 -71: A pension of one -half ( 1/2) of his average final compensation payable to his spouse, if any, to continue until death; or if there is no spouse or the spouse dies before the youngest child of the deceased member has attained age eighteen (18), then to his child or children under said age, if he leaves children, divided in such manner as the board, in its discretion, shall determine, to continue as a joint and survivorship pension for the benefit of the child or children under said age until every child dies or attains said age; or if he leaves no spouse or children under the age of eighteen (18) years living at his death, then to his dependent parent or parents, divided in such manner as the board in its discretion shall determine to continue for life; provided, that if he leaves no such beneficiary living at his death, the amount which otherwise would have been paid as a non - occupational death benefit shall be paid. The benefit shall be reduced by any workers' compensation benefit as provided for in section 22.3 -65. ARTICLE XI. MAXIMUM BENEFITS AND OTHER LIMITATIONS AND SPECIAL RULES Sec. 22.3 -72. Limitation on earnable compensation taken into account. Notwithstanding the foregoing, earnable compensation taken into account for purposes of determining benefits under the city plan shall be limited by the compensation limit pursuant to Section 401(a)(17) of the Internal Revenue Code of 1986, as amended. For purposes hereof, the compensation limit, for years beginning on or after July 1, 2001 is two hundred thousand dollars ($200,000.00) (as adjusted in five thousand dollar ($5,000.00) increments from time to time by the adjustment factor described in Section 415 (d) of the Internal Revenue Code of 1986, as amended, on the basis of a base period of the calendar quarter beginning July 1, 2001). In determining average final compensation for periods beginning on or after July 1, 2001, the limit on creditable compensation applied to compensation attributable to periods prior to July 1, 2001 shall be two hundred thousand dollars ($200,000.00). For purposes of applying the limitation applicable to each year, the limit for a plan year shall be the limitation in effect for the calendar year in which the plan year begins determined without increases in the limitation for subsequent years. Sec. 22.3 -73. Limitation on annual benefit and special vesting rules. (a) Notwithstanding any other provisions of this chapter, the annual benefit under the city plan of any member and any related death or other benefit, shall, if necessary, be reduced to the extent required by Section 415(b) of the Internal Revenue Code of 1986, as amended, as adjusted by the Secretary of the Treasury pursuant to Section 415(d) of the Internal Revenue Code of 1986, as amended all as applicable to governmental plans. Notwithstanding the foregoing, adjustments in the dollar limitation under Section 415(b) of the I FIN AN( E RE I ]REM ENT Rinireentnit Benefi¢timdv Cnde Mnd'firmionmColor C tided ('hepter2237132012.doe Internal Revenue Code of 1986 shall only be applicable to benefits provided by this plan with respect to a member who is an eligible employee at the time the adjustment is effective. In comparing the plan benefit to the dollar limitation, plan benefits must be converted to an annual benefit (as defined in Section 415 of the Internal Revenue Code of 1986) by, except as provided below, converting a benefit payable in a form other than a straight life annuity to an actuarially equivalent straight life annuity before applying the limitations of this section. The annual benefit does not include any benefits attributable to after -tax employee contributions or the assets transferred from a qualified plan that was not maintained by a participating employer. No actuarial adjustment to the benefit is required for (a) the value of a joint and survivor annuity, (b) the value of benefits that are not directly related to retirement benefits (such as the qualified disability benefit, pre- retirement death benefits, and post - retirement medical benefits), and (c) the value of post- retirement cost -of- living increases made in accordance with Section 415(d) of the Internal Revenue Code of 1986 and Inc. Tax Regs. Section 1.415- 3(c)(2)(iii). Section 415(d) of the Internal Revenue Code of 1986 and the regulations thereunder are hereby incorporated by reference. (b) Notwithstanding any other plan provision to the contrary, for purposes of adjusting any benefit or limitation under Section 415(b)(2)(B), (C), or (D) of the Internal Revenue Code of 1986, the applicable actuarial adjustment factors shall be based on the following assumptions: (1) Mortality according to the table prescribed in Rev. Rul. 2001 -62, the 1994 Group Annuity Reserving Table (94 GAR). Notwithstanding the foregoing, the mortality table used for this purpose shall automatically be the table specified in any future Revenue Rulings or Federal regulations that amend or supersede Revenue Ruling 2001 -62 by specifying a new mortality table for this purpose. (2) Interest at the rate prescribed in Section 415 Internal Revenue Code of 1986 and the regulations and other guidance published thereunder. (c) Notwithstanding any other provisions of this chapter, a member shall be fully vested in his accrued benefit upon the attainment of normal retirement age. Sec. 22.3 -74. Military Service. Notwithstanding any provision of this Chapter to the contrary, benefits and service credit with respect to qualified military service will be provided in accordance with section 414(u) of the Internal Revenue Code of 1986, as amended and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). (a) To the extent not inconsistent with the foregoing, the following special rules shall apply in case of reemployed veterans notwithstanding any other provision of the Plan: (1) A reemployed veteran shall not be considered to have incurred a break in service by reason of his qualified military service. LoA FIN ANC ERUIRLMENF R trrnnent 13ore6ts Study lCodc Modifications Color( oda) Chapter22.3 7 .13.2012 doe (2) Qualified military service of a reemployed veteran shall be counted as service for vesting under the plan. For periods prior to July 1, 2014, qualified military service shall be counted for benefit accrual purposes and for a hybrid member, qualified military service after June 30, 2014 shall also be counted for benefit accrual purposes. (b) Notwithstanding any other provision of the Plan, in order for the qualified military service after June 30, 2014 to be counted as service for members other than hybrid members, a reemployed veteran shall be entitled to make the member contributions for the period of his qualified military service following his return to the employer's service as follows: (1) Such contributions must be made during the period which begins on the date of reemployment with the participating employer following such qualified military service and ends on the earlier of (A) the reemployed veteran's severance from employment with the participating employer or (B) at the end of the period equal to the lesser of (1) three times the reemployed veteran's period of qualified military service or (11) five (5) years. (2) Earnable compensation to be used for purposes of determining the member contribution and benefit accrual with respect to a period of qualified military service shall mean the earnable compensation (as otherwise defined in the plan but based on rate of pay) which the reemployed veteran would have received but for his qualified military service. If a reemployed veteran's pay is not readily determinable, the reemployed veteran's earnable compensation shall then be his average earnable compensation for the 12 -month period (or actual shorter period of employment) immediately preceding his qualified military service. (3) The board shall adopt procedures relating to the reemployed veteran's right to make member contributions for the period of his qualified military service following his return to the participating employer's service. (c) To the extent required by USERRA or Section 401(a)(37) of the Code for purposes of determining vesting in accrued benefits and entitlement to death benefits under the plan, in the event a member ceases to be an employee in order to perform qualified military service and dies on or after January 1, 2007 while performing qualified military service, the member's death shall be considered to have occurred while he was an employee and, if he ceased to be an eligible employee in order to perform qualified military service, while he was an eligible employee so that his beneficiaries are entitled to any additional benefits provided under the plan (other than benefit accruals relating to the period of qualified military service unless otherwise expressly provided), including without limitation any additional or enhanced vesting or death benefits, had the member resumed employment with the participating employer and then terminated employment on account of death. (d) For purposes of this paragraph, the following terms have the following meanings: I FIN ANCL RIT IRFM ENT`Rmircment Renefils Stud, ('Wd MoTfiroli tblor Coded('h.,,, 2237.132012 doc (1) "Qualified military service" means any service in the uniformed services (as defined in chapter 43 of title 38, United States Code) by any individual if such individual is entitled to reemployment rights under such chapter with respect to such service and to the Employer. (2) 'Reemployed veteran" means a person who Is or, but for his qualified military service.. would have been a member at some time during his qualified military service and who is entitled to the restoration benefits and protections of the USERRA with respect to his qualified military service and the Plan. ARTICLE XII. POLICE AND FIRE DEPARTMENT PENSION PLAN AS OF DECEMBER 31, 1945 Sec. 22.3 -75. Pensions for members of police and fire departments as of December 31, 1945. Nothing in this Code or the ordinance adopting this Code shall affect the provisions of Chapter 2, Sections 1 through 9, of Title III of the Code of the City of Roanoke (1956), as derived from Ordinance Nos. 10457 and 10532, and amended by Ordinance Nos. 13889, 14053, 14550, 14632, 16595, 17858, 19043, 19578, 20387, 23025 and 23221, relating to retirement and pension benefits for members of the police and fire departments who were so employed on December 31, 1945, and such chapter and the ordinances mentioned herein are hereby recognized as continuing in full force and effect to the same extent as if fully set out at length in this Code. Effective January 1, 1984, the annual pension of each person subject to the provisions of this section shall be increased by that amount, if any, by which such person's pension calculated without reference to the three hundred dollars ($300.00) per month maximum established in Ordinance No. 20387 and Ordinance No. 23025 and without reference to the one hundred dollars ($100.00) per month maximum established in Ordinance No. 23025 exceeds such person's pension calculated as provided in the above - referenced ordinances. ARTICLE XIII. MEMBER ELECTIONS AND HYBRID PROGRAM. Sec. 22.3.76. Member Elections A person who becomes a member after June 30, 2014 may make an irrevocable election to participate in the hybrid program maintained pursuant to section 22.3 -77. Such election shall be exercised no later than 60 days from the time of the employee's entry upon the performance of his duties. If an election is not made within such 60 days, such employee shall be deemed to have elected to participate only in the otherwise applicable defined benefit retirement plan established by this chapter and administered by the board and will not be considered a hybrid member. Sec. 22.3 -77. Hybrid Program. L FINANCL',RL I IRFMFNTRetirement Beneii, Stud, (We Modifiemirr, (,Aor Coded ('h r,m, 22.3 Z 13.2012.doe (a) For purposes of this section the hybrid program means a combination of the otherwise applicable defined benefit plan as applied to a hybrid member and the defined contribution plan established pursuant to section 22.3 -78. (b) For each hybrid member, the employer shall make contributions to the defined benefit component of the program in accordance with section 22.3 -27. (c) An employee participating in the hybrid program shall make mandatory contributions to the defined contribution plan in accordance with section 22.3 -79. ARTICLE XIV — DEFINED CONTRIBUTION PLAN Sec. 22.3 -78. Administration and Investment. (a) The general administration and the responsibility for the proper operation of the defined contribution plan and for making effective the provisions of this Article are hereby vested in the defined contribution board. Each member of the defined contribution board shall discharge his duties solely in the interest of the participants in the defined contribution plan with the care, skill, prudence, and diligence of a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. (b) The defined contribution board shall be appointed by City Council and shall consist of five (5) members as follows: the City Manager, ex- officio; a member designated by the city manager; the Director of Finance ex- officio, a member designated by the director of finance; and the Director of Human Resources ex- officio. (c) The Director of Finance shall be the chief administrative officer of the defined contribution plan. The defined contribution board shall develop policies and procedures for the administration of the defined contribution plan and shall maintain the plan as a tax qualified plan under Section 401(a) of the Internal Revenue Code of 1986, as amended. The board may contract with third parties to provide investment advisory and administrative recordkeeping services for such plan. (d) The defined contribution board shall create a trust or other special fund for the segregation of the funds or assets resulting from contribution made to the defined contribution plan. (e) The defined contribution board shall develop an investment policy and provide a broad array of investment options into which participants in the defined contribution plan may direct the invest of their accounts. (f) If a participant in the defined contribution plan exercises or fails to exercise discretion and over the assets in his account, neither the city, its employees, nor the members of the defined contribution board whose actions are within the standard of care in subsection (a) shall be held personally liable for losses suffered by the participant. L FIN ANCRIR1I IRBMLIVTRGiremem Benefits timd,(idc Modifiialio ,d dor C)dcd('h.,,,22.37. 132012_ doe (g) The provisions of sections 22.3 -9 — 5; 22.3 -16 -17 and 22.3 -22 -26 shall apply to the defined contribution board. Sec. 22.3 -79. Establishment of Defined Contribution Plan. (a) The defined contribution board shall establish and maintain a defined contribution plan, and any participating employer is authorized to make contributions to such plan for the benefit of its employees electing to be hybrid members. (b) An employee participating in the hybrid program maintained under the section shall pursuant to procedures established by the retirement system, make mandatory contributions to the defined contribution plan established under this section in the amount of 5% of earnable compensation. Such contributions shall be pick -up by the city on a salary reduction basis in accordance with section 414(h) of the Internal Revenue Code of 1986 as amended. Any other participating employer shall "pick -up" the employee contributions either in lieu of future salary increases or by reducing the amount payable to each employee by the amount of his required employee contribution on a salary reduction basis, as indicated by such participating employer in the authorization passed by its governing body. Each employee making the election to be a hybrid member shall be deemed to consent to and agree to any salary reduction for purposes of the member contribution. (c) Employee contributions to the defined contribution plan shall be vested and non - forfeitable at all times. (d) Employees may direct the investment of contributions made to the defined contribution plan. (e) No loans or hardship distributions shall be available under the defined contribution plan. (f) Other terms of the defined contribution plan shall be set forth in the plan document adopted by the defined contribution board. Such document shall meet the requirements for tax qualification under Section 401(a) of the Internal Revenue Code of 1986, as amended and may be amended from time to time by the Defined Contribution Board in order to comply with applicable law. L'. I IN ANC ERE[ IRFMFNTRuile nlNenefia SWdy oded('h.,(2237. 132012.Mc To Council Plus ' _= - cc Brian yfr TownsendlEmployees lCily_of_Roanoke @City_ of Roanoke, Bit 1?2:1 Sherman bee r Subject Follow Up re: Graphs, Data on Retirement Benefits o.., Dear Mayor Bowers and Members of City Council, A set of graphs concerning retirement benefits was distributed by one of the speakers during Monday's City Council meeting. This week, I have reviewed those graphs. Though I cannot exactly tie to the amounts presented on them, I can generally tell that they: 1) Compare the City's current plan, future plan and the VRS current plan for a general and public safety employee 2) Compare only the first year of Pension benefit 3) Assume a supplement is also paid that year 4) Ignore any value provided by the retirement health savings account 5) Assume the employee has 30 years service, a $40,000 salary and is under age 65 (thus receiving the supplement) There are some errors in some of the variances as presented on these graphs. There appear to be some other small math differences as well. For City Council's convenience, I am attaching a scanned copy of the graphs marked as to what I believe the correct amounts should be as well as a copy of my calculations. More important is the fact that this type of analysis does not present a full comparison between these three plans. Excluding the City's retirement health savings plan fails to provide a full comparison. Also, since the City's superior multiplier provides higher Pension income during all retirement years, whereas VRS' higher hazardous duty supplement provides a higher benefit only until age 65, taking a one year snapshot prevents a full and complete comparison of all three plans. I continue to believe the analysis we performed as part of this project is needed in order to properly ensure an "apples and apples" comparison among the plans. We shared this analysis with you during the spring months as we briefed you about the project. For your convenience, the summary pages are attached and I can send the underlying details if anyone wants them. Our analysis demonstrates that the City 's future retirement benefits will actually provide a larger benefit over the life of the typical Fire /EMS employee than either the current Roanoke or VRS benefit . The tax advantages of our RHSA make this possible while lowering the cost to the public. I have followed up via e-mail with the three Fire /EMS gentlemen who attended Monday's meeting. I shared with them the commentary I am providing you about their graphs. I asked them to please let me know if they felt my calculations were in error. I also sent them the excel file of our analysis. Lastly, I let them know I would be happy to meet with them to review the material or for further dialogue. Please let me know if you have questions or need any additional information. rrWF Comparison of Retirement BeneRsedl Graphs Distributed at City Council ki 7.16.12. pdf Analysis of Graph Handouts pdf Ann H. Shawver, CPA Director of Finance $40,000.00 $35,000.00 $30,000.00 a $25,000.00 a u v � $20,000.00 E 6 $15,000.00 $10,000.00 $5,000.00 $000 Retirment income for a $40,000 Salaried Public Safety Employee Percentage Received 34,c�s� ✓ ✓ - 16 /, — 3I/1 ■ Roanoke Countyl5alenn ■ Roanoke City Current [D Roanoke City Proposed �y $35,000.00 $30,000.00 $25,000.00 $20,000.00 $15,000.00 $10,000.00 $5.000.00 $0.00 Non Pulblic Safety VRS & Regular City Employees 20,400 2G, 160 ✓ 4-31/1 1 8 '/. �, a �� ■ Roanoke County ■ Roanoke City D Roanoke City Proposed City of Roanoke Analysis of Graphs Distributed During 7 /16/12 rity Council Meeting Prepared by Department of Finance a b c d =axbxc a f =d +e 5 Variance %Variance AFC Multiplier Vrs service Pension Supplement Total From VR5 reproves Public Safety: VRS current City current City future General: VRS current City current City future 40,000 1.85% 30 22,200 12,456 34,656 40,000 40,000 2.10% 30 25,200 3,960 29,160 (5,496) -15.9% 40,000 2.00% 30 24,000 - 24,000 (10,656) -30.7% 40,000 1.70% 30 20,400 - 20,400 40,000 2.10% 30 25,200 3,960 29,160 8,760 42.9% 40,000 2.00% 30 24,000 - 24,000 3,600 17.6% Notes a - per handout b- multiplier in each respective retirement system c - handout appears to assume 30 years of service d - annual pension benefit is determined as AFC x multiplier x years e - supplement is determined as 12 months x 1,038 in the case of VR5 and 330 in the case of City f - total is sum of annual pension and supplement This does not include the retirement health savings account of the future City retirement plan. This analysis assumes the recipient is under 65 and is receiving the supplement by virtue of having served 20 years or more. Various data shown on the graphs differs from the data computed above Summary - Sample Fire pe"Ament Employre Supplement] Plan Vrs x Mult Total Pension RHSA Present Value Cash Flows - Current Roanoke Pension Plan -2.1 Multiplier with Supplement 63.0 A 852,818 X8.002 44,816 Present Value Cash Flows- VRS Plan for Hazardous Duty Employee- 185 Multiplier with Supplement 62.9 B 875,370 780,052 95,318 Present Va lue Cash Flows- Recommended Roanoke Pens ion Plan at 2.0 MUltipl ier 66.3 C 919,630 822,406 97.224 Current Roanoke Pension Plan Below VRS A -B (22,552) -26b Proposed Roanoke Pension Plan at 20 Above VRS C -B 44,280 5.1% Proposed Roanoke Pension Plan Above Current Roanoke Pension Plan C- A 60,812 7.Bb Summary - Sample Police Department Employee Supplement Yr5 x Mult Total Pension RMSA Plan Present Value Cash Flows - Current Roanoke Pension Plan- 2.1 Muftipller wdh Supplement 630 A 737,724 694,201 43,523 Present Value Cash Flows -VRS Pon for Hazardous Duty Employee- 1.&S Multiplier with Supplement 574 B 712,214 611'059 101'155 Present Value Cash Flower- Recommended Roanoke Pension Plan at 20 Multiple, 620 D 733,758 660,5113 73,175 A B 25 510 30% Current Roanoke Pension Plan Above VRS C -B 21,544 3.0% Proposed Roanoke Pension Plan at 20 Above VRS C -A (3,%S) -05% Proposed Roanoke Pension Plan Below Current Roanoke Pension Plan $40,000.00 $35,000.00 $30,000.00 v $25,000.00 m a u $20,000.00 c 0 E $15,000.00 $10,000.00 $5,000.00 $0.00 Retirment income for a $40,000 Salaried Public Safety Employee Percentage Received 2- Ihn /'rice • Roanoke County/Salem ■Roanoke City Current ❑ Roanoke City Proposed $35,000.00 $30,000.00 $25,000,00 $20,000.00 $15,000.00 $10,000.00 $5,000.00 $0.00 Non Pulblic Safety VRS & Regular City Employees 7G. mil- z i Roanoke County ■ Roanoke City ❑ Roanoke City Proposed .� CITY OF ROANOKE �A A OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 '-� Roanoke, Virginia 24011 -1536 Telephone: (540) 853 -2541 Fax: (540)853 -1145 STEPHANIE M. MOON, MMC E -mail rlerkCroaookeva.gov JONATHAN E. CRAFT City Clerk Deputy City Clerk CECELIA T. WEBB Assistant Deputy City Clerk July 17, 2012 Mrs. Margaret Slaughter 4372 Kirkwood Drive, S. W. Roanoke, Virginia 24018 Dear Mrs. Slaughter: I am enclosing copy of Resolution No. 39451 - 071612 memorializing the late John Robert "Bob" Slaughter, a longtime resident of the City of Roanoke and a D -Day veteran. On behalf of the Roanoke City Council and the citizens of the City of Roanoke, I wish to express our deepest regret and sorrow at the passing of your husband, John Robert "Bob" Slaughter. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012. Sincerely, Stephanie M. Moon, MMC City Clerk Enclosure ceL ��i 01 John Robert "Bob" Slaughter IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA, The 16th day of July, 2012. No. 39451. 071612. A RESOLUTION memorializing the late John Robert "Bob" Slaughter, a longtime resident of the City of Roanoke and a D -Day veteran. WHEREAS, the members of Council learned with sorrow of the passing of Mr. Slaughter on May 29,2012; WHEREAS, Mr. Slaughter was born February 3, 1925, in Bristol, Tenn., to John Washington and Vera Hunter Slaughter; WHEREAS, in 1937, Mr. Slaughter's family moved to Roanoke where his father worked at a lumber supply company; WHEREAS, when he was 15 years old, Mr. Slaughter left high school to join the Virginia Army National Guard, WHEREAS, Mr. Slaughter served as a sergeant and squad leader in Company D, 116th Infantry Regiment, 29th Division; WHEREAS, in 1944, Mr. Slaughter waded ashore with the U.S. troops at Omaha Beach on June 6, to fight in the D -Day offensive; WHEREAS, Mr. Slaughter was wounded twice while in France and was discharged from the military in July 1945, at which point he returned to his home in Roanoke; WHEREAS, upon returning home, attended Virginia Western Community College and earned an Associate's degree; WHEREAS, in 1947, Mr. Slaughter married Margaret Leftwich; WHEREAS, Mr. Slaughter had a long and successful career with The Roanoke Times and World News, from which he retired in 1987; WHEREAS, Mr. Slaughter was a role model to his sons and many young men in the Roanoke area, serving as a successful baseball coach for the Heights Club; WHEREAS, Mr. Slaughter was an active member of 29th Infantry Division Association - Post 64; WHEREAS, in an effort to honor those who lost their lives on D -Day, Mr. Slaughter began pursuing the idea of creating a D -Day Memorial; WHEREAS, in 1987, Mr. Slaughter, along with several other supporters, formed a committee to raise money and search for an appropriate location for a small D -Day memorial; WHEREAS, Bedford City officials agreed to donate 11 acres of land to the D -Day Foundation for the site of the proposed memorial and an additional 77 acres was purchased by the Foundation to protect the site from further development; WHEREAS, on June 6, 1994, the 50th anniversary of D -Day, Mr. Slaughter was honored to walk Omaha Beach with President Bill Clinton; WHEREAS, on Veterans Day 1994, the location of the D -Day Memorial was officially announced as Bedford, Virginia; WHEREAS, on June 6, 2001, the D -Day Memorial in Bedford was dedicated by President George W. Bush, fulfilling Mr. Slaughter's dream; WHEREAS, Mr. Slaughter brought the same energy, tenacity, and drive to the creation of the D -Day Memorial that he displayed on Omaha Beach, and throughout the war; WHEREAS, Mr. Slaughter wrote Omaha Beach and Beyond, an autobiography, chronicling his wartime experience and the creation of the Memorial, WHEREAS, in 2008, The John Robert Slaughter Youth Learning Center was dedicated at the D -Day Memorial; WHEREAS, with his wife, Margaret, always by his side, Mr. Slaughter was a hero to his family and to those along the way who were blessed to have known him. THEREFORE, BE IT RESOLVED by the Council of the City of Roanoke as follows: 1. City Council adopts this resolution as a means of recording its deepest regret and sorrow at the passing of John Robert `Bob" Slaughter, and extends to his family its sincerest condolences. 2. The City Clerk is directed to forward an attested copy of this resolution to Mr. Slaughter's wife, Margaret Leftwich Slaughter, of Roanoke, Virginia. ATTEST: Stephanie ff. M004 MMC City Clerk APPROVED lid a004� David A. Bowers Mayor Duoc Nguyen 2822 Huntington Road, N. W. Roanoke, Virginia 24012 Dear Mr. Nguyen: I am enclosing copy of Ordinance No. 39452- 071612 repealing conditions pertaining to properties located at 4129 and 4135 Salem Turnpike, N. W., bearing Official Tax Nos. 6050101 and 6050102 as requested in the Zoning Application dated April 16, 2012, and such properties remain CN, Commercial Neighborhood District. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012; and is in full force and effect upon its passage. Sincerely, , ° I ra1') Stephanie M. Moon, MMC City Clerk Enclosure PC: Yvonnie D. Myers, 3894 Old Stevens Road, N. W., Roanoke, Virginia 24017 Karen M. and James Robertson, Jr., 620 Leslie Lane N. W., Roanoke, Virginia 24017 Julia G. and Stone Wister, 614 Leslie Lane, N. W., Roanoke, Virginia 24017 Salem Presbyterian Church, P.O. Box 536, Salem, Virginia 24153 Debra and David Yates, 513 Gladies Street, N. W., Roanoke, Virginia 24017 Church Alive International, Inc., P.O. Box 12346, Roanoke, Virginia 24024 Charleye G. Dean, Joyce C. And Hawthorne Paxton, 7533 Fernway Drive, S. W., Roanoke, Virginia 24018 CITY OF ROANOKE �1 a OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 !` Roanoke, Virginia 24011 -1536 T,,ephane: (540)853-2541 Fax: (540)853 -1145 STEPHANIE M. MOON, MMC E -mail: yke k&....keva.gav JONATHAN E. CRAFT City Clerk Deputy City Clerk CECELIAT. WEBB Assismnt Deputy City Clerk July 17, 2012 Duoc Nguyen 2822 Huntington Road, N. W. Roanoke, Virginia 24012 Dear Mr. Nguyen: I am enclosing copy of Ordinance No. 39452- 071612 repealing conditions pertaining to properties located at 4129 and 4135 Salem Turnpike, N. W., bearing Official Tax Nos. 6050101 and 6050102 as requested in the Zoning Application dated April 16, 2012, and such properties remain CN, Commercial Neighborhood District. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012; and is in full force and effect upon its passage. Sincerely, , ° I ra1') Stephanie M. Moon, MMC City Clerk Enclosure PC: Yvonnie D. Myers, 3894 Old Stevens Road, N. W., Roanoke, Virginia 24017 Karen M. and James Robertson, Jr., 620 Leslie Lane N. W., Roanoke, Virginia 24017 Julia G. and Stone Wister, 614 Leslie Lane, N. W., Roanoke, Virginia 24017 Salem Presbyterian Church, P.O. Box 536, Salem, Virginia 24153 Debra and David Yates, 513 Gladies Street, N. W., Roanoke, Virginia 24017 Church Alive International, Inc., P.O. Box 12346, Roanoke, Virginia 24024 Charleye G. Dean, Joyce C. And Hawthorne Paxton, 7533 Fernway Drive, S. W., Roanoke, Virginia 24018 Duoc Nguyen July 17, 2012 Page 2 PC: Clarence and Judith Thacker, 2657 Mallard Drive, S. W., Roanoke, Virginia 24018 Trustees Kingdom Life Ministries International, 2002 Mercer Avenue, N. W., Roanoke, Virginia 24017 Commonwealth of Virginia, 215 Church Avenue, S. W., Room 250, Roanoke, Virginia 24011 Robin Murphy Kelso, President, Edgewood - Morwanda- Summit Hills- Washington Heights Neighborhood Organization, 4449 Summit Drive, N.W., Roanoke, Virginia 24017 Janet and Ed Weeding, 903 Glen Ridge Road, N. W., Roanoke, Virginia 24017 Jamie McCarthy, 4514 Stonewall Road N. W., Roanoke, Virginia 24017 Jim Crawford, 822 13th Street, S. W., Roanoke, Virginia 24016 The Honorable Brenda S. Hamilton, Clerk, Roanoke City Circuit Court Christopher P. Morrill, City Manager Timothy R. Spencer, Acting City Attorney Ann H. Shawver, Director of Finance Steve Talevi, Assistant City Attorney Philip Schirmer, City Engineer Susan Lower, Director, Real Estate Valuation Rebecca Cockram, Secretary, City Planning Commission �����y� IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39452 - 071612. AN ORDINANCE to amend §36.2 -100, Code of the City of Roanoke (1979), as amended, and the Official Zoning Map, City of Roanoke, Virginia, dated December 5, 2005, as amended, to repeal conditions pertaining to properties located at 4129 and 4135 Salem Turnpike, N.W., bearing Official Tax Nos. 6050101 and 6050,102, and dispensing with the second reading by title of this ordinance. WHEREAS, Dime Nguyen and Pho Thi Lam, have filed an application to the Council of the City of Roanoke, Virginia ( "City Council "), to repeal conditions pertaining to properties located at 4129 and 4135 Salem Turnpike, N.W., Official Tax Nos. 6050101 and 6050102; WHEREAS, the City Planning Commission, after giving proper notice to all concerned as required by §36.2 -540, Code of the City of Roanoke (1979), as amended, and after conducting a public hearing on the matter, has made its recommendation to Council; WHEREAS, a public hearing was held by City Council on such application at its meeting on July 16, 2012, after due and timely notice thereof as required by §36.2 -540, Code of the City of Roanoke (1979), as amended, at which hearing all parties in interest and citizens were given an opportunity to be heard, both for and against the proposed amendment; and WHEREAS, this Council, after considering the aforesaid application, the recommendation made to this Council by the Planning Commission, the City's Comprehensive Plan, and the matters presented at the public hearing, finds that the public necessity, convenience, general welfare and good zoning practice, require the repeal of conditions pertaining to properties located at 4129 and 4135 Salem Turnpike, N.W., bearing Official Tax Nos. 6050101 and 6050102, as set forth in the Zoning Application dated April 16, 2012. K' \Talevi \measures \planning commission mensuas @012 \0ed+epeel wndiHOn1A129 & 4135 s,d,m [mnpike.doe THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke that The properties located at 4129 and 4135 Salem Turnpike, N.W, be repealed as requested in the Zoning Application dated April 16, 2012, and such properties remain CN, Commercial Neighborhood District, and that the Official Zoning Map, City of Roanoke, Virginia, dated December 5, 2005, as amended, be amended to reflect such action. 2. pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: k ry-) City Clerk K wmmisslon msasurep0lMid- repeal conditions 4129& 4135 Salem tumpke top 2 CITY COUNCIL AGENDA REPORT 6 r To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Duoc Nguyen and Pho Thi Lam to amend conditions proffered as part of a rezoning on properties located at 4129 and 4135 Salem Turnpike, N.W., bearing Tax Nos.6050101 and 6050102. The application is to repeal all conditions, such conditions being related to limitation of permitted uses. The zoning of the properties will remain CN, Commercial- Neighborhood District, permitting these land use categories: residential; accommodations and group living; commercial; industrial; assembly and entertainment; public, institutional and community facilities; transportation; utility; agricultural; and certain accessory uses with a maximum density of one dwelling unit per 1,800 square feet of lot area and a maximum floor area ratio of 5.0. The comprehensive plan designates the properties for commercial use. The neighborhood plan's future land use map designates the properties for commercial use. The proposed uses of the properties are a neighborhood convenience store and a hair salon. Planning Commission Public Hearing and Recommendation: The Planning Commission held a public hearing on Thursday, June 21, 2012. By a vote of 7 -0, the Commission recommended approval of the request to repeal the proffered conditions applying to the property. The application is consistent with the City's Comprehensive Plan, Peters Creek South Neighborhood Plan, and Zoning Ordinance as the existing commercial properties in an identified neighborhood center will be able to have the full range of land uses possible within the Commercial- Neighborhood district. Application Information Duoc Nguyen and Pho Thi Lam : Duoc Nguyen and Pho Thi Lam VRezoning d Agent: none Person: Katharine Gray ss /Location: 4129 and 4135 Salem Turnpike, N.W. x Nos.: 6050101 and 6050102 Site Area 0.1 3 acres and 0.26 acres Existing Zoning: _ CN, Commercial - Neighborhood District Proposed Zoning: _ CN, Commercial - Neighborhood District Existing Land Use: Commercial - Retail Sales Establishment, not otherwise listed and Commercial - Retail Sales Establishment, not otherwise listed Proposed Land Use: Commercial - Retail Sales Establishment, not otherwise listed and Commercial - Personal Service Establishment, not otherwise listed _ Neighborhood Plan. Peters Creek South Area Plan Specified Future Land Use: Commercial Filing Date: Original Application: April 16, 2012 Background In May 1995, City Council rezoned the properties to CN, Neighborhood Commercial District, subject to proffers: 1. The use of the land to be rezoned will be limited to use as a Neighborhood Convenience Store and Neighborhood Service Establishment. 2. There will be no outdoor storage or display of materials to be sold. In April 2012, Duoc Nguyen met with staff from the City of Roanoke to discuss removing the proffers from the properties to enable a wider range of uses on the site. He wants to open a hair salon in place of the current clothing store, but this use is not allowed under the current proffers. Considerations Surrounding Zoning and Land Use: Zonin District Land Use North R -5 - Residential Single - Family District Dwelling, single family house detached South R -5 - Residential Single Family District Dwelling, single family house detached East R -5 - Residential Single - Family District Vacant Land West CN - Commercial - Neighborhood District Vacant Commercial Compliance with the Zoning Ordinance: Development in a CN district abutting an R -5 district lot requires a Type C buffer yard; however no site development is proposed that would trigger buffering and screening requirements. Conformity with the Comprehensive Plan and Neighborhood Plan Both Vision 2001 -2020 and the Peters Creek South Area Plan encourage the redevelopment of underused commercial sites. The site currently has a convenience store and clothing store. Relevant Vision 2001 -2020 policies: • ED P6. Commercial Development. Roanoke will encourage commercial development in appropriate areas of Roanoke to serve the needs of citizens and visitors. Relevant Peters Creek South Area Plan policies: Community Design Policies • Encourage mixed use neighborhoods with opportunities for housing, employment, and services for all ages, races, and incomes. • Focus commercial development into identified centers. Economic Development Policies • Focus commercial development into centers, such as the intersection of Peters Creek and Salem Turnpike. Public Comments: None. Planning Commission Work Session No comments. Planning Commission Public Hearing Discussion Mr. Williams asked if they were just removing the conditions. Staff confirmed that repeal of the proffers was being requested and the base zoning would remain CN. i cc: Chris Morrill, City Manager Timothy Spencer, Acting City Attorney Steven J. Talevi, Assistant City Attorney Duoc Nguyen and Pho Thi Lam, owners ME 01 Oki Department of Planning, Building and Development ROA N O K E Room 166, Noel C. Taylor Municipal Building 215 Church Avenue, S.W. Roanoke, Virginia 24011 Phone. (540) 853 -1730 Fax: (540) 853 -1230 Date: Foil _ _C_ .`>Z.O 1 2 Submittal Number: I Cz- N P L gloom F% ❑ Rezoning, Not Otherwise Listed ❑ Rezoning, Conditional ❑ Rezoning to Planned Unit Development ❑ Establishment of Comprehensive Sign Overlay District (Amendment of Proffered Conditions ❑ Amendment of Planned Unit Development Plan ❑ Amendment of Comprehensive Sign Overlay District Address: ({ `l, — Li 13 s S A( --E.tA t V F t� P 1 V.C— W Official Tax No(s) : O S O l b t '— G O So 1 O Existing Base Zoning: [M With Conditions (If multiple zones, please manually enter all districts) F C' N ❑ Without Conditions Ordinance No(s). for Existing Conditions (If applicable): 13) —1 4 — O 61 S7 Requested Zoning: L' 4 7w — — Proposed Land Use: CpfJJCddiC(J(x s IbRE — i}l1{h SAI -UAI ,.., Name: p4c) {`t (( �R M Phone Number.($ 6) � 9 l{Gl{ Address: E -Mail: E - -� Property Owner's Signature: � Name: W Phone Number: Address: E -Mail: Applicant's Signature: Name: Phone Number: E777-:71 Address: _ E -Mail: Authorized Agent's Signature: 9-;o f', N, >I�L-E ok - �b _ "2� �L lvoG N- aU -ACO VANS O\A4Mh �N�PR�PERI' {� S A eo N vE'ti11EN Cc. 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W. a'J`l /loo / a7y140 Oa MYERS YVONNIE D ROBERTSON JAMES M JR & KAREN M 3694 OLD STEVENS NW 620 LESLIE LN NW ROANOKE VA 24017 ROANOKE VA 24017 aryyl &ap 4,6�5blol- oic/xr/yoamee SALEM PRESBYTERIAN CHURCH NGUYEN DVOC TAN & LAM PHO THI SALEM VIRG 2822 HUNTINGTON BLVD NW PO BOX 536 ROANOKE VA 24012 SALEM VA 24153 (10 50 103 YATES DAVID LEWIS 513 GLADES ST NW ROANOKE VA 24017 &050//(" 6,o50 a17 DEAN CHARLENE G 7533 FERNWAY DR THACKER CLARENCE LEON & JUDITH ARLEN 2657 MALLARD OR SW ROANOKE VA 24018 ROANOKE VA 24018 (00505 11 ea() 505/3 TRS KINGDOM LIFE MINISTRIES COMMONWEALTH OF VIRGINIA NTERNAT 215 CHURCH AVE SW 250 RM 2002 MERCER AVE NW ROANOKE VA 24011 ROANOKE VA 24017 Page I of l .2 ') L-/ / (¢ 03 STONE WISTER L & JULIA G 614 LESLIE NW ROANOKE VA 24017 (PC) So 1oa- Proper JLWel2 NGUYEN DVOC TAN & LAM PHO THI 2822 HUNTINGTON BLVD NW ROANOKE VA 24012 &0 5c) I1 3 CHURCH ALIVE INTERNATIONAL INC PO BOX 12346 ROANOKE VA 24024 ��% IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA, The 22nd day of May, 1995. No. 32474- 052295. AN ORDINANCE to amend 536.1 -3, Code of the City of Roanoke (1979), as amended, and Sheet No. 605, Sectional 1976 Zone Map, City of Roanoke, to rezone certain property within the City, subject to certain conditions proffered by the applicant. WHEREAS, Duoc Tan Nguyen and Pho Thi Lam, have made application to the Council of the City of Roanoke to have the hereinafter described property rezoned from RS -3, Residential Single - Family District, to CN, Neighborhood Commercial District, subject to certain conditions proffered by the applicant; and WHEREAS, the City Planning Commission, which after giving proper notice to all concerned as required by 536.1 -693, Code of the City of Roanoke (1979), as amended, and after conducting a public hearing on the matter, has made its recommendation to Council; and WHEREAS, a public hearing was held by City Council on said application at its meeting on May 8, 1995, after due and timely notice thereof as required by 536.1 -693, Code of the City of Roanoke (1979), as amended, at which hearing all parties in interest and citizens were given an opportunity to be heard, both for and against the proposed rezoning; and WHEREAS, this Council, after considering the aforesaid application, the recommendation made to the Council by the Planning Commission, the City's Comprehensive Plan, and the matters presented at the public hearing, is of the opinion that the hereinafter described property should be rezoned as herein provided. THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke that 536.1 -3, Code of the City of Roanoke (1979), as amended, and Sheet No. 605 of the Sectional 1976 Zone Map, City of Roanoke, be amended in the following particular and no other: A tract of land located at 4129 and 4135 Salem Turnpike, N.W., and designated on Sheet No. 605 of the Sectional 1976 Zone Map, City of Roanoke, as Official Tax Nos. 6050101 and 6050102, be, and are hereby rezoned from RS -3, Residential Single- Family District, to CN, Neighborhood Commercial District, subject to the proffers contained in the Petition filed in the Office of the City Clerk on March 15, 1995, and that Sheet No. 605 of the Zone Map be changed in this respect. ATTESTS: ^ / '/ L �ocd:, City Clerk. J AMENDED PETITION IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA IN RE: Rezoning of a tract of land lying in the City of Roanoke at 4129 and 4135 Salem Turnpike, NW, with tax numbers 6050101 and 6050102, from RS -3, Residential Single Family District to CN; Neighborhood Commercial District such rezoning to be subject to certain conditions. TO THE HONORABLE MAYOR AND MEMBERS OF THE COUNCIL OF THE CITY OF ROANOKE: The petitioners, Duoc Tan Nguyen and Pho Thi Lam, own land in the City of Roanoke containing 0.399 acres, more or less, located at 4129 and 4135 Salem Turnpike, NW in the Northeasterly corner of intersection of Gladies Street and Salem Turnpike with Tax numbers 6050101 and 6050102 as more fully described in Exhibit 1. Said tract is currently zoned RS -3, Residential Single Family District. A map of the property to be rezoned is attached as Exhibit 2. Pursuant to Section 36.1 -690, Code of the City of Roanoke (1979), as amended, the Petitioner requests that the said property be rezoned from RS -3, Residential Single Family 1 District to CN; Neighborhood Commercial District, subject to certain conditions set forth below, for the purpose of serving as Neighborhood Convenience Store and a Neighborhood Service Establishment included within the general commercial use zone. The Petitioner believes the rezoning of the said tract of land will further the intent and purposes of the City's Zoning Ordinance and its comprehensive plan, in that it will provide services and supplies necessary for the residents of the City of Roanoke. The previous use of the structure on lot with tax Number 6050101 was for furniture refinishing through December 1994, and the previous use of lot with tax number 6050102 was as a neighborhood convenience store through 1990. The Petitioner hereby proffers and agrees that if the said tract is rezoned as requested, that the rezoning will be subject to, and that the Petitioner will abide by, the following conditions: 1. The use of the land to be rezoned will be limited to use as a Neighborhood Convenience Store and Neighborhood Service Establishment. 2. There will be no outdoor storage or display of materials to be sold. Attached as Exhibit 3 are the names, addresses and tax numbers of the owner or owners of all lots or property N Exhibit 1 SCIIEWLE "A" OEGICMING at a point on the north side of Lynchburg -Salon Turnpike, south 75" 45' east 15 feet fruit the intersection of the north line of said Lynchburg -Sales Turnpike with Lire east line of Gladies Street, if projected in a straight line to said Lynclrtnug -Salem Turnpike; thence with the north line of said Lynchburg -Salon Turnpike, south 75. 45' east 135 feet to a point thereon, at corner J, as sham on the map hereinafter eentioned; thence north 14. 15' east 150 feet to a point; Lhence north 75' 45' west 150 feet to a point on the east side of Gladies Street; thence with the east side of Gladies Street, south 14. 15' west 135 feet to a point thereon; thence with a alive to the left, whose radius is 15 feet, an arc distance of 27.32 feet to the place of BEGIM4ING, being Lots 1, 2, and 3. Section 1, as shown on the nap of Moonlaw, heights, recorded in the Clerk's Office of the Circuit Court of Roanoke County, Virginia, in Plat Book 2, page 216; LESS AND EXCEM the Northern TTtirLy -Five (35) feet of Lots 1, 2, and 3, Section 1, as shown on the Map of Mocmau Heights, conveyed to Ida S. TUrner fron Luther A. Turner, by deeds dated February 26, 1959, in Deed Book 612, page 462 and dated February 24, 1965, in Deed Book 764, Inge 485, recorded in the Clerk's office of the Circuit Court of Roanoke County, Virginia. m m w h N N a v c� Exhibit 2 a$Fd[un'I Olereg IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA IN RE: Rezoning of a tract of land lying in the City of Roanoke at 4129 and 4135 Salem Turnpike, NW, with tax numbers 6050101 and 6050102, from RS -3, Residential Single Family District to C -2, General Commercial District such rezoning to be subject to certain conditions. TO THE HONORABLE MAYOR AND MEMBERS OF THE COUNCIL OF THE CITY OF ROANOKE: The petitioners, Duoc Tan Nguyen and Pho Thi Lam, own land in the City of Roanoke containing 0.399 acres, more or less, located at 4129 and 4135 Salem Turnpike, NW in the Northeasterly corner of intersection of Gladies Street and Salem Turnpike with Tax numbers 6050101 and 6050102 as more fully described in Exhibit 1. Said tract is currently zoned RS -`3, Residential Single Family District. A map of the property to be rezoned is attached as Exhibit 2. Pursuant to Section 36.1 -690, Code of the City of Roanoke (1979), as amended, the Petitioner requests that the said property be rezoned from RS -3, Residential Single Family District to C -2, General Commercial District, subject to certain conditions set forth below, for the purpose of serving as Neighborhood Convenience Store and a Laundromat included within the general commercial use zone. The Petitioner believes the rezoning of the said tract of land will further the intent and purposes of the city's Zoning Ordinance and its comprehensive plan, in that it will provide services and supplies necessary for the residents of the City of Roanoke. The previous use of the structure on lot with tax Number 6050101 was for furniture refinishing through December 1994, and the previous use of lot with tax number 6050102 was as a neighborhood convenience store through 1990. The Petitioner hereby proffers and agrees that if the said tract is rezoned as requested, that the rezoning will be subject to, and that the Petitioner will abide by, the following condition: The use of the land to be rezoned will be limited to use as a Neighborhood Convenience store and Laundromat. Attached as Exhibit 3 are the names, addresses and tax numbers of the owner or owners of all lots or property immediately adjacent to immediately across a street or road from the property to be rezoned. WHEREFORE, the Petitioner requests that the above - described tract be rezoned as requested in accordance with the provisions of the Zoning Ordinance of the City of Roanoke. Respectfully submitted this /S" day of 1915 . Respectfully submitted, By: "� / Of Counsel W. Ben Snead, Jr. 5220 -F Williamson Road Roanoke, VA 24012 703 -563 -2861 Owner i,3 _ .y-j 4 Owner ' Z2! -" --2j- -,hibit 2 : , , ) , i , � , cl .... 1 , , , , , 1, 4 1 , , , ¢11n EXHIBIT 3 Tax Map No. 6050103 Ida S. Turner 513 Gladies Street, NW Roanoke, VA 24017 Tax Map No. 6050218 & 6050217 Clarence Leon Thacker & Judith Arlene Thacker 2657 Mallard Drive, SW Roanoke, VA 24018 Tax Map No. 6050116 Charlene G. Dean and Paxton C. Hawthorne & Joyce C. Hawthorne 228 Cassell Lane, SW Roanoke, VA 24018 Tax Map No. 6050511 & 6050513 Ferris P. Murray, Jr. PO Box 6217 Roanoke, VA 24017 m i 3i 1 1 u11g' RE710/E 6LIDIES SlREEf ;, ._ rX.afCs �EXISi.PIPE 01 11 1 1 �DII ,w�l�_-78 c s '.I �,i p , Esc $Igo lR =m ='N Bi. B100 i ZA 1 1 v ° B.•BIOP $ 1 1 1 ?4dGG Erg'. V� w vs FILL AND TO m 1 l 1 1 11 TN STURNENR 6• ® LOT I S.TURNf ID IRtO) Oro D &N P0.' �` lx \ \3 LUTHE 06SO .SS. i • T � �A \ � $ GAS � s u!a,d CLP y \} tN 1951 a 1J1� y & Y iNI is fj)rb.'i � 1 / Pt Terlyc Cal/ . Eas:. exrt,9 �• 11 "< \ 14.3 j 14-4 .� $ S1 dew a 1 \ 19 n 52 :a rc y7n //. E 33� 6 1� a)� q 67 1I116f1i .. r m �CHPfliEOl NE01�S The Honorable David A. Bowers, Mayor and Members of Council Roanoke, Virginia Dear Members of Council: Roanoke CIP/ Planning COmmn5Y0' May 8, 1995 Subject: Request from Duoc Tan Nguyen and Pho Thi Lam, represented by W. Ben Snead, Jr., attorney, that property located at 4129 and 4135 Salem Turnpike, N.W.; Official Tax Numbers 6050101 and 6050102, be rezoned from Residential Single - Family District, RS -3, to Neighborhood Commercial District, CN, such rezoning to be subject to conditions proffered by the petitioner. Current Situation: A. Purpose of rezoning request is to place two (2) adjoining lots, comprising approximately 0.399 acres and with existing structures, into a zoning classification consistent with previous and proposed uses as a Neighborhood Convenience Store and a Neighborhood Service Establishment. B. Previous use of the structure on the lot bearing tax number 6050102 was as a neighborhood convenience store which operated through 1990. Use of the structure on the lot bearing tax number 6050101 was for a furniture refinishing business which operated through 1994. C. Peters Creek Road Extension will connect with Salem Turnpike immediately to the east of the site to be rezoned. Road extension project is to begin this spring. Various alternatives related to development along the road extension and roads with which it will intersect have been explored in the Peters Creek Road Extension Corridor Development Study by staff of the Fifth Planning District Commission. D. Petition to rezone from RS -3 district to C -2, General Commercial District was filed on March 15, 1995, and an amended petition was submitted on March 28, 1995. The following conditions were proffered by the petitioner: Room 162 Municipal Building 215 Church Avenue, S. W. Roanoke, Virginia 24011 (703) 981 -2344 Members of Council Page 2 The use of the land to be rezoned will be limited to use as a Neighborhood Convenience Store and Neighborhood Service Establishment. There will be no outdoor storage or display of materials to be sold. E. Plannina,Commission public hearing was held on Wednesday, April 5, 1995. Mr. W. Ben Snead, Jr., attorney, appeared on behalf of the petitioners and briefed the Commission as to the purpose of the rezoning request. Mr. Snead stated that the rezoning was being requested to allow the existing buildings, which had recently been used as a convenience market and upholstery business, to reopen as a convenience store and laundromat, respectively. He noted that the two uses of the property had been proffered and so would remain a neighborhood convenience store and neighborhood service establishment, and that there would be no outdoor storage. Ms. Tamasin Roop, City Planner, gave the staff report. She stated that the staff believed CN zoning would be most appropriate since the property would be adjacent to the Peters Creek Road Extension and that location was not desirable for higher intensity uses. She said also that CN designation would limit the amount of signage and that a landscaped buffer would be required along the rear property line. Only one contact had been received from the neighborhood, she said, and that was for information. Addressing questions from the Commission, Ms. Roop said that hours of operation had not been discussed and Mr. Marlles stated that it was not known if sidewalks would be installed at the front of the property as part of the Peters Creek Road Extension project. No one from the audience appeared before the Commission to speak on behalf of or in opposition to the request. II. Issues: A. Zoning of the subject property is Residential Single- family District, RS -3. The surrounding zoning pattern is as follows: to the north is RS -3; to the south is RS -3 and General Commercial District, C -2; to the west is C -2; and to the east is RS -3, RM -1 and RM -2. B. LQd = surrounding the subject property is as follows: to the north are residential uses; immediately to the east is vacant land on which construction will begin this spring for the Peters Creek Road Extension and beyond that are residential uses; to the west are both commercial and residential property uses, including a used car dealership across Gladies Street; and land to the south, across Salem Turnpike, is vacant. Members of Council Page 3 The property to be rezoned is below an embankment which shields it from the view of most of the residential uses immediately to the north. It holds two commercial -type structures which currently are vacant. C. JZgg limitations. According to a proffer by the petitioner, uses of the subject property would be limited to a neighborhood convenience store and a neighborhood service establishment. D. Access to the property is currently by way of Salem Turnpike and Gladies Street. The City Traffic Engineer noted that with construction of the Peters Creek Road Extension, the subject site will be adjacent to a busy, signalized intersection and that access will probably be difficult, especially during peak traffic hours. He said also that traffic generated by the site will likely be associated with traffic already in the area. E. Outdoor storage arld display. There would be no outdoor storage and display of materials to be sold, according to petitioner's proffer. F. eighborhood organization does not exist for this area. G. Comprehensive Plan recommends: development or reuse of small neighborhood shopping areas to serve the needs of area residents; and 2. protection of neighborhood character and environmental quality. IV. Alternatives: A. Approve the rezoning request. Zoning would become Neighborhood Commercial, CN, subject to certain conditions, and the proposed use of the site for a Neighborhood Convenience Store and a Neighborhood Service Establishment would be allowed to take place. 2. Land use for a neighborhood convenience store and a Laundromat would be consistent with previous uses of existing structures on subject property. Uses would be buffered from adjacent residential property to the north by required screening and by existing topography. Conditions proffered by petitioners also would provide assurances to neighborhood. 3. Access to and from the site would be by way of Salem Turnpike and Gladies Street. City Traffic Engineer anticipated no increase in traffic due to rezoning and related uses. Members of Council Page 4 4. jys outdoor storaee,7nQ dismay of materials to be sold would be allowed, according to condition proffered by petitioner. 5. Neighborhood organization does not exist for this area. 6. Comprehensiv e Plan issues as set forth would be followed. B. IDgpy the rezoning request. 1. "in of the subject property would remain Residential Single - family, RS-3, and the proposed use as a neighborhood convenience store and neighborhood service establishment would not be allowed to take place. 2. Land use would remain Residential Single- family and structures on subject property would remain vacant. 3. U5g limitations would not be an issue. 4. Acct ,fig to the site would not be an issue. 5. Outdoor storage gpd disolav would not be an issue. 6. Neighborhood would be unchanged. 7. Comprehensive p),g_Ir issues as set forth could be followed at a later date. V. Recommendation: The Planning Commission, by a vote of 5 -0 (Mrs. Coles and Mr. Bradshaw absent) recommends approval of the requested rezoning, finding that the request would be consistent with previous uses of property and would address visual factors, thus allowing for uses compatible with surrounding neighborhoods and development. Respectfully submittted, //nJA l' . Carolyn H. Coles, Chairman Roanoke City Planning Commission z/ A. Roanoke City Planning Commission VIRGINIA. CN }flEEflEO 1�3 April 5, 1995 Mrs. Carolyn H. Coles, Chairman and Members of the Planning Commission Roanoke, Virginia Dear Members of the Commission: Subject: Request from Duoc Tan Nguyen and Pho Thi Lam, represented by W. Ben Snead, Jr., attorney, that property located at 4129 and 4135 Salem Turnpike, N.W., Official Tax Numbers 6050101 and 6050102, be rezoned from RS -3, Residential Single - Family District, to CN, Neighborhood Commercial District, such rezoning to be subject to conditions proffered by the petitioner. Current Situation: A. Purpose of rezoning request is to place two (2) adjoining lots, comprising approximately 0.399 acres and with existing structures, into a zoning classification consistent with previous and proposed uses as a Neighborhood Convenience Store and a Neighborhood Service Establishment. B. Previous use of the structure on the lot bearing tax number 6050102 was as a neighborhood convenience store which operated through 1990. Use of the structure on the lot bearing tax number 6050101 was for a furniture refinishing business which operated through 1994. C. Peters Creek Road Extension will connect with Salem Turnpike immediately to the east of the site to be rezoned. Road extension project is to begin this spring. Various alternatives related to development along the road extension and roads with which it will intersect have been explored in the Peters Creek Road Extension Corridor Development Study by staff of the Fifth Planning District Commission. D. Petition to rezone from RS -3, Residential Single Family District to General Commercial District, C -2, was filed on March 15, 1995. The following condition was proffered by the petitioner: Room 162 Municipal Building 215Church Avenue, S.W. Roanoke, Virginia 24011 (703) 981 -2344 Members of the Commission Page 2 "The use of the land to be rezoned will be limited to use as a Neighborhood Convenience Store and Laundromat." E. Amended petition to rezone from RS -3, Residential Single Family District, to CN, Neighborhood Commercial District, was filed on March 28, 1995. The following conditions were proffered by the petitioner: "The use of the land to be rezoned will be limited to use as a Neighborhood Convenience Store and Neighborhood Service Establishment." 2. "There will be no outdoor storage or display of materials to be sold." Il. ss : A. Zoning of the subject property is RS -3, Residential Single Family District. The surrounding zoning pattern is as follows: to the north is RS -3; to the south is RS -3 and C -2; to the west is C -2; and to the east is RS -3, RM -1 and RM -2. B. Land use surrounding the subject property is as follows: to the north are residential uses; immediately to the east is vacant land on which construction will begin this spring for the Peters Creek Road Extension and beyond that are residential uses; to the west are both commercial and residential property uses, including a used car dealership across Gladies Street; and land to the south, across Salem Turnpike, is vacant. The property to be rezoned is below an embankment which shields it from the view of most of the residential uses immediately to the north. It holds two commercial -type structures which currently are vacant. C. Use limitations. According to a proffer by the petitioner, uses of the subject property would be limited to a neighborhood convenience store and a neighborhood service establishment. D. Access to the property is currently by way of Salem Turnpike and Gladies Street. The City Traffic Engineer noted that with construction of the Peters Creek Road Extension, the subject site will be adjacent to a busy, signalized intersection and that access will probably be difficult, especially during peak traffic hours. He said also that traffic generated by the site will likely be associated with traffic already in the area. E. Outdoor storage od display, There would be no outdoor storage and display of materials to be sold, according to petitioners proffer. Members of the Commission Page 3 F. Neighborhood organization does not exist for this area. G. Comprehensive Plan recommends: 1. development or reuse of small neighborhood shopping areas to serve the needs of area residents; and 2. protection of neighborhood character and environmental quality. IV. Alternatives: A. Planning Commission approve the rezoning request. I. Z nin would become CN, Neighborhood Commercial, subject to certain conditions, and the proposed use of the site for a Neighborhood Convenience Store and a Neighborhood Service Establishment would be allowed to take place. 2. Land us for a neighborhood convenience store and a Laundromat would be consistent with previous uses of existing structures on subject property. Uses would be buffered from adjacent residential property to the north by required screening and by existing topography. Conditions proffered by petitioners also would provide assurances to neighborhood. 3. Access to and from the site would be by way of Salem Turnpike and Gladies Street. City Traffic Engineer anticipated no increase in traffic due to rezoning and related uses. 4. N_Q outdoo r storage and display of materials to be sold would be allowed, according to condition proffered by petitioner. 5. Neighborhood organization does not exist for this area. 6. Comprehensive Plan issues as set forth would be followed. B. Planning Commission deny the rezoning request. I. Zoning of the subject property would remain RS -3, Residential Single- family, and the proposed use as a neighborhood convenience store and neighborhood service establishment would not be allowed to take place. Land use would remain Residential Single Family and structures on subject property would remain vacant. Members of the Commission Page 4 3. Use limitations would not be an issue. 4. Access to the site would not be an issue. 5. Outdoor storagg and disDlay would not be an issue. 6. Neighborhood would be unchanged. 7. Comprehensive plan issues as set forth could be followed at a later date. V. Recommendation: The Planning staff recommends approval of the requested rezoning, finding that the request would be consistent with previous uses of property and would address visual factors, thus allowing for uses compatible with surrounding neighborhoods and development. Respectfully submitted, Job R. arlles, Agent Roan a City Planning Commission JRM:TR:MPF attachments cc: Assistant City Attorney Director of Public Works City Engineer Building Commissioner Petitioner's Agent ROANOKO meows cneerreee r&V Ilk Dear Adjoining Property Owner: Roanoke City Planning Commission March 27, 1995 The Roanoke City Planning Commission will hold a public hearing on Wednesday, April 5, 1995, at 1:30 p.m., in the City Council Chambers, fourth floor, Municipal Building, 215 Church Avenue, S.W., in order to consider the following request: Request from Duoc Tan Nguyen and Pho Thi Lam, represented by Ben Snead, Attorney, that property located at 4129 and 4135 Salem Turnpike, N.W., bearing Official Tax Nos. 6050101 and 6050102, be rezoned from RS -3, Residential Single Family District, to C -2, General Commercial District, such rezoning to be subject to certain conditions proffered by the petitioner. According to records mpphed to us by the petitioner, you own property that may be affected by the proposed rezoning. If you would care to make any comments concerning the request, you are welcome to attend the public hearing as listed above. Also, feel free to contact Tam Roop (703) 981 -1522, if you have any questions regarding the petition. Thank you. If enclosure Sincerely, p Martha P. Franklin, Secretary Roanoke City Planning Commission Room 162 Municipal Building 215 Church Avenue, S.W. Roanoke, Virginia 24011 (703) 981 -2344 TO THE CITY CLERK OF THE CITY OF ROANOKE, VIRGINIA PERTAINING TO THE REZONING REQUEST OF: Dux Tan Nguyen and Pho Thi lam on Salem Turnpike, NW ) from RS -3 to C -2, Conditional )AFFIDAVIT COMMONWEALTH OF VIRGINIA ) TO -WIT: CITY OF ROANOKE ) The afloat, Martha Pace Franklin, first being duly sworn, stales that she Secretary of the Roanoke City Planning Commission, and as such is competent to make this affidavit of her own personal knowledge. Affidavit stales that, pursuant to the provisions of Section 15.1 -341, Code of Virginia, (1950), as amended, on behalf of the Planning Commission of the City of Roanoke, she has sent by fuss -Wass ..it on the 27th day of March, 1995, notices of a public hearing to be held on the 5th day of April, 1995, on the rezoning captioned above to the owner or agent of the parcels listed below at their last known address: Parcel Owner A"jld u Occupant AAdd es 6050103 Ida S. Turner 513 Galdies Street, NW Roanoke, VA 24017 6050215 Clarence L. and Judith A. Thacker 2657 Mallard Drive, SW 6050217 Roanoke, VA 24018 6050116 Charlene G. Dean 228 Cassell Lane, SW Paxton and Joyce Hawthorne Roanoke, VA 24018 L. G. Naff, et als 6050511 Ferris P. Murray, Jr. P. O. Box 6217 6050513 Roanoke, VA 24017 6050113 Raeford L. Goode, at als P. O. Box 1093 c/o Progressive Products Corp. Salem, VA 24153 Martha Pace Franklin SUBSCRIBED AND SWORN to before me, a Notary Public, in the City of Roanoke, Virginia, this 27th day of March, 1995. Notary My Commission Expires: NOTICE OF PUBLIC HEARING BEFORE THE ROANOKE CITY PLANNING COMMISSION TO WHOM IT MAY CONCERN: The Roanoke City Planning Commission will hold a public hearing on Wednesday, April 5, 1995, at 1:30 p.m. or as soon as the matter may be heard, in the City Council Chamber, fourth floor, Municipal Building, 215 Church Avenue, S.W., in order to consider the following: Request from Duoc Tan Nguyen and Pho Thi Lam, represented by Ben Snead, Attorney, that property located at 4129 and 4135 Salem Turnpike, N.W., bearing Official Tax Nos. 6050101 and 6050102, be rezoned from RS -3, Residential Single Family District to C -2, General Commercial District, such rezoning to be subject to certain conditions proffered by the petitioner. A copy of said applications are available for review in the Department of Planning and Community Development, Room 162, Municipal Building. All parties in interest and citizens may appear on the above date and be heard on the matter. Martha P. Franklin, Secretary Roanoke City Planning Commission Please print in newspaper on Tuesday, March 21, 1995 and Tuesday March 28, 1995 Please bill: W. Ben Snead, Jr., Attorney 5520 -F Williamson Road, N.W. Roanoke, VA 24012 (703) 563 -2861 Please send affidavit of publication to: Department of Planning and Community Development Room 162, Municipal Building 215 Church Avenue, S.W. Roanoke, VA 24011 lbn INTERDEPARTMENTAL REFERRAL Roonoke Gry Plonn 19 Commission REQUEST FOR COMMENT Date: 3/15/95 x Rezoning _ Street /Alley Closure _ Other APPLICANT: ouoc Tan Nguyen and Rho Thi Lam LOCATIO:lem Turnpike, Tax Nos. 6050101 and 102 REQUEST: Rezone from RS -3 to C -2, conditional Your review and comments on the above - referenced item are requested. Please comment by 3/2095 . Hearing is scheduled for a L5�2 @5 . Please return all comments to Martha. Thank you. John R. ladles, Agent Roanoke City Planning Commission copies to: Robert K. Bengtson, Traffic Engineer C William F. Clark, Director of Public Works Versal Dearing, Engineering Technician Skip Dunlap, Planning Technician•L John D. Kern, Director, RRPO 7I M. J. Khan, Civil Engineer Ronald H. Miller, Building Commissioner H. Daniel Pollock, Housing Development Coordinator Haig Sluss, Manager, Water Department Steven J. Talevi, Assistant City Attorney hief, Economic Development ckoi C . Room 162 Municipal Building 215 Church Avenue. SW Roanoke. Virginia 24011 (]03) 981 -2366 \..mpwv c�an�eneo �eex Date: 3/15/95 Raonone Gay Plorninq Commission INTERDEPARTMENTAL REFERRAL REQUEST FOR COMMENT x Rezoning _ Street /Alley Closure _ Other APPLICANT: oucc Tan Nguyen and Pho Thi Lam LOCATION�.ilem Ti Tax Nos. 6050101 and 102 REQUEST: Rezone from AS -3 to C -2, conditional Your review and comments on the above - referenced item are requested. Please comment by 3/20/95 . Hearing is scheduled for 4/5/95 . Please return all comments to Martha. Thank you. John R. Marlles, Agent Roanoke City Planning Commission co es to: ,QfI IC obert B. Bengtson, Traffic Engineers µtG William F. Clark, Director of Public Works Versal Dearing, Engineering Technician Skip Dunlap, Planning Technician John D. Bern, Director, RRPOa �� �� �✓� " M. J. Khan, Civil Engineer Ronald H. Miller, Building Commissioner> H. Daniel Pollock, Housing Development Coordinators�/- " M. Craig Sluss, Manager, Water Department dyd et) l'f Steven J. Talevi, Assistant City Attorney yak �r p C ef, Economic Development ° ` "J_ a 4W Room 162 Municipal Building 215 Church Aven4e. S.W. Roanoke, Virginia 24011 P03) 81 81234d � k--H- Ste). --1? H i` Bu i Id in_&_B One Story, Masonry Structure 3P 7' 50326 o b 6050325 ,y 6050322 , 6050108 oy �O 6050323 MOOMAW 'OS0107 6050111 6050106 N y ry N 6050105 r°oy 605022 0 -5 6056219 .. 50214 w 60SO10q 6050218 3 N N � 6050103 u;! CN 605„ 4129 - 4135 Salem Turnpike, N.W. Official Tax Map Nos. 6050101 - 6050102 SALEM ROS ¢it U P� U P 4Zo 2741803 R -7 2 rnA IN M or oN 0 June 27, 2312 TO WHOM IT MAY CONCERN My name is Duoc Nguyen and I will be out of the country from July 8 - 23, 2012.1 am writing this letter giving permission to Cristina O. Servellon to speak on my behalf in the city council meeting on July 16, 2012 at 7:00 PM. Thank you. Respe (fully yours, Duoc Nguyen The Roanoke Times Roanoke, Virginia Affidavit of Publication The Roanoke Times ------------------------------------------------- I----------------------- PHO THI LAM & DUOC NGUYEN PHO THI LAM & DUOC NGUYEN 2822 HUNTINGTON ROAD, NW ROANOKE VA 24012 REFERENCE: 83966661 13042776 NPH -Salem Turnpike State of Virginia City of Roanoke I, (the undersigned) an authorized representative of the Times -world Corporation, which corporation is publisher of the Roanoke Times, a daily newspaper published in Roanoke, in the State of Virginia, do certify that the annexed notice was published in said newspapers on the following dates: City /County of Roanoke, Commonwealth /State of Virginia. Swcrn and subscribed before me this jl�" day of JULY 2012. Witness my hand and official seal.., _ Notary Public ,."V V�'f:. PUBLISHED ON: 06/29 07/06 NO➢CE OF PUBLIC NEARING me council 0 me CU f xaenpn0 wm nala a pu n= ilmr., an ManEay, luly l6„ 2 C. as Inereatler ea ine matler may be heard. In me I Council Chamber, fourth half m me noel c. ra mr. app apllafog, has Cnu ml�eGre nu e, 6. W., u30a3yr6) TOTAL COST: 540.40 FILED ON: 07/11/12 ------------------------------------------- -------- ---------------- - - - - - -- Authorized _ V- / ,, ` Signature: //j// /� y� Q e ,(4 kaki !9illing Services Representative to NOTICE OF PUBLIC HEARING The Council of the City of Roanoke will hold a public hearing on Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the Council Chamber, fourth floor, in the Noel C. Taylor Municipal Building, 215 Church Avenue, S.W., Roanoke, Virginia, to consider the following: Request from Done Nguyen and Pho Thi Lam, to amend conditions proffered as part of a rezoning on properties located at 4129 and 4135 Salem Turnpike, N.W., bearing Tax Nos. 6050101 and 6050102. The application is to repeal all conditions, such conditions being related to limitation of permitted uses. The zoning of the properties will remain CN, Commercial - Neighborhood District, permitting these land use categories: residential; accommodations and group living; commercial; industrial; assembly and entertainment; public, institutional and community facilities; transportation; utility; agricultural; and certain uses accessory with a maximum density of one dwelling unit per 1,800 square feet of lot area and a maximum floor area ratio of 5.0. The comprehensive plan designates the properties for commercial use. The neighborhood plan's future land use map designates the properties for commercial use. The proposed uses of the properties are a neighborhood convenience store and a hair salon. Copies of the application are available for review in the Office of the City Clerk, Room 456, Noel C. Taylor Municipal Building, 215 Church Avenue, S.W., Roanoke, Virginia. All parties in interest and citizens may appear on the above date and be heard on the matter. if you are a person with a disability who needs accommodations for this hearing, please contact the City Clerk's Office, at 853 -2541, before noon on the Thursday before the date of the hearing listed above. GIVEN under my hand this 26tfday of June 12012. Stephanie M. Moon, MMC City Clerk. K:ATalcNOpinnning cnmmicsion ]'public hearing a ucrs12 0 1 214 1 29 &4135 Salemt k,,- noph.tlac Notice to Publisher: Publish in the Roanoke Times on Friday, June 29 and Friday, July 6, 2012. Send affidavit to: Stephanie M. Moon, MMC, City Clerk 215 Church Avenue, S. W., Room 456 Roanoke, Virginia 24011 (540) 853 -2541 K_ANOncu \2U12U.1, NPH 4129 k 4135 SnI,. Tum,,k,doc Send Bill to: Duoc Nguyen and Pho Thi Jam 2822 Huntington Road, N. W. Roanoke, Virginia 24012 (540) 798 -1464 AFFIDAVIT APPLICANT: Duoc Nguyen and Pho Thi Lam LOCATION: 4129 and 4135 Salem Turnpike, NW. Tax Map Nos. 6050101 and 6050102 REQUEST: Amend Proffered Conditions —from CN (c) to CN COMMONWEALTH OF VIRGINIA ) ) TO -WIT: CITY OF ROANOKE ) The affiant, Rebecca Cockram, first being duly sworn, states that she is Secretary to the Roanoke City Planning Commission, and as such is competent to make this affidavit of her own personal knowledge. Affidavit states that, pursuant to the provisions of Section 15.2 -2204, Code of Virginia, (1950), as amended, on behalf of the Planning Commission of the City of Roanoke, she has sent by first -class mail on the 25th day of May, 2012, notices of a public hearing to be held on the 21 st day of June, 2012, on the request captioned above to the owner or agent of the parcels as set out below: Tax No. Owner and Mailing Address 2741601 MYERS YVONNIE D 3894 OLD STEVENS RD NW ROANOKE VA 24017 2741602 ROBERTSON JAMES M JR & KAREN M 620 LESLIE LN NW ROANOKE VA 24017 2741603 STONE WISTER L & JULIA G 614 LESLIE LN NW ROANOKE VA 24017 2741620 SALEM PRESBYTERIAN CHURCH SALEM VIRGINIA INC PO BOX 536 SALEM VA 24153 6050103 DEBRA BOOTH YATES YATES DAVID LEWIS 513 GLADIES ST NW ROANOKE VA 24017 6050113 CHURCH ALIVE INTERNATIONAL INC PO BOX 12346 ROANOKE VA 24024 6050116 CHARLEYE G DEAN HAWTHORNE PAXTON C & JOYCE C 7533 FERNWAY DR ROANOKE VA 24018 6050217 THACKER CLARENCE LEON & JUDITH ARLENE 2657 MALLARD DR SW ROANOKE VA 24018 6050511 TRS KINGDOM LIFE MINISTRIES INTERNATIONAL 2002 MERCER AVE NW ROANOKE VA 24017 6050513 COMMONWEALTH OF VIRGINIA 215 CHURCH AVE SW 250 RM ROANOKE VA 24011 Other notices sent to Robin Murphy Kelso, President 4449 Summit Drive, NW Roanoke, VA 24017 Janet and Ed Wooding 903 Glen Ridge Road, NW Roanoke, VA 24017 Jamie McCarthy 4514 Stonewall Rd Roanoke, VA 24017 Jim Crawford 822 13th Street SW Roanoke, VA 24016 i)', c�a�f,� Rebecca Cockram SUBSCRIBED AND SWORN to before me, a Notary Public, in the City of Roanoke, Virgi ' , this 25th day of May, 2012. aa� R. Notary Public CAN1AACE R. MARTIN WTARa (aueuC Commonwealth of Virginia Reg. #28201 My Commission Expires (T CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 853 -2541 Fax: (540) 853 -1145 E -mail: derkoromeokeva.gov STEPHANIE M. MOON, MMC JONATHAN E. CRAFT City Clerk Deputy City Clerk July 3, 2012 CECELIA T. wERR Assistant Deputy City Clerk Duoc Nguyen and Pho Thi Lam 2822 Huntington Road, N. W. Roanoke, Virginia 24012 Dear Mr. Nguyen: Pursuant to provisions of Resolution No. 25523 adopted by the Council of the City of Roanoke on Monday, April 6, 1981, 1 have advertised a public hearing for Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chamber, Room 450, Noel C. Taylor Municipal Building, 215 Church Avenue, S. W., on the request of Duoc Nguyen and Pho Thi Lam, to amend conditions proffered as part of a rezoning on properties located at 4129 and 4135 Salem Turnpike, N. W. For your information, I am enclosing copy of a notice of public hearing. Please review the document and if you have questions, you may contact Steven J. Talevi, Assistant City Attorney, at 540 - 853 -2431. (twill be necessary foryou, oryour representative, to be present at the July 16th public hearing. Failure to appear could result in a deferral of the matter until a later date. Sincerely, c �7 `ms'l _'�'�'� Stephanie M. Moon, MM City Clerk SMM:ctw Enclosure To Adjoining Property Owners Ladies and Gentlemen: Pursuant to provisions of Resolution No. 25523 adopted by the Council of the City of Roanoke on Monday, April 6, 1981, 1 have advertised a public hearing for Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chamber, Room 450, Noel C. Taylor Municipal Building, 215 Church Avenue, S. W., on the request of Duoc Nguyen and Pho Thi Lam, to amend conditions proffered as part of a rezoning on properties located at 4129 and 4135 Salem Turnpike, N. W. This letter is provided for your information as an interested property owner and /or adjoining property owner. If you have questions with regard to the matter, please call the Department of Planning, Building and Development at 540- 853 -1730. If you would like to receive a copy of the report of the City Planning Commission, please call the City Clerk's Office at 540 - 853 -2541. Sincerely, Stephanie M�MooYn MMm\ C ��, City Clerk SMM:ctw CITY OF ROANOKE ,°. OFFICE OF THE CITY CLERK 215 Church Avenue, 5. W., Suite 456 r Roanoke, Virginia 24011 -1536 Telephone: (540)853 -2541 Fax: (540) 853 -1145 E -mail derk@roanokeva.gov JONATHAN E. CRAEf STEPHANIE M. MOON, MMC Deputy City Clerk City Clerk July 3, 2012 CECELUT.weeu Assistant Deputy City Clerk To Adjoining Property Owners Ladies and Gentlemen: Pursuant to provisions of Resolution No. 25523 adopted by the Council of the City of Roanoke on Monday, April 6, 1981, 1 have advertised a public hearing for Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chamber, Room 450, Noel C. Taylor Municipal Building, 215 Church Avenue, S. W., on the request of Duoc Nguyen and Pho Thi Lam, to amend conditions proffered as part of a rezoning on properties located at 4129 and 4135 Salem Turnpike, N. W. This letter is provided for your information as an interested property owner and /or adjoining property owner. If you have questions with regard to the matter, please call the Department of Planning, Building and Development at 540- 853 -1730. If you would like to receive a copy of the report of the City Planning Commission, please call the City Clerk's Office at 540 - 853 -2541. Sincerely, Stephanie M�MooYn MMm\ C ��, City Clerk SMM:ctw STEPHANIE M. MOON, MIMIC City Clerk CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 853 -2541 Fax: (540) 853-1145 E -mail: clerk @roanokova.gov July 17, 2012 Maryellen F. Goodlatte, Esquire Glenn, Feldmann, Darby & Goodlatte P.O. Box 2887 Roanoke, Virginia 24001 -2887 Dear Ms. Goodlatte: JONATHAN E. CRAFT Deputy City Clerk CECELIA T. WEBB Assistant Deputy City Clark I am enclosing copy of Ordinance No. 39453 - 071612 permanently vacating an alley off of 41h Street, S. E., adjacent to Official Tax Nos. 4012110, 4012107, 4012115, 4012116, 4012117, 4012118 and 4012119, for a total of area of approximately 7,716 square feet. Pursuant to Ordinance No. 39453- 071612, if certain conditions have not been met within one year from July 16, 2012, then such ordinance shall be null and void with no further action by City Council being necessary. The abovereferenced measure was adopted by the Council of the City of Roanoke at a regular meeting held on Monday, July 16, 2012, and is in full force and effect upon its passage. Sincerely, yyam�,,� Stephanie Moon, �.' • ryVv� City Clerk Enclosure Maryellen F. Goodlatte, Esquire July 17, 2012 Page 2 pc: The Rescue Mission of Roanoke, Inc., P.O. Box 11525, Roanoke, Virginia 24022 Kenneth R. Lipscomb, 88 Lookout Ridge, Lynchburg, Virginia 24501 Liz Dudley, 533 6th Street, S. E., Roanoke, Virginia 24013 Laura Padgett, 1040 Morgan Avenue, S. E., Roanoke, Virginia 24013 Dallas Powell, 501 Bullitt Avenue, S. E., Roanoke, Virginia 24013 The Honorable Brenda S. Hamilton, Clerk, Roanoke City Circuit Court Christopher P. Morrill, City Manager Timothy R. Spencer, Acting City Attorney Ann H. Shawver, Director of Finance Susan Lower, Director of Real Estate Valuation Philip Schirmer, City Engineer Rebecca Cockram, Secretary, City Planning Commission IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39453- 071612. AN ORDINANCE permanently vacating, discontinuing and closing a certain public right -of -way in the City of Roanoke, Virginia, as more particularly described hereinafter; and dispensing with the second reading by title of this ordinance. WHEREAS, The Rescue Mission of Roanoke, Incorporated, filed an application with the Council of the City of Roanoke, Virginia ( "City Council "), in accordance with law, requesting City Council to permanently vacate, discontinue and close a public right -of -way described hereinafter; WHEREAS, the City Planning Commission, after giving proper notice to all concerned as required by §30 -14, Code of the City of Roanoke (1979), as amended, and after having conducted a public hearing on the matter, has made its recommendation to Council; WHEREAS, a public hearing was held on such application by City Council on July 16, 2012, after due and timely notice thereof as required by §30 -14, Code of the City of Roanoke (1979), as amended, at which hearing all parties in interest and citizens were afforded an opportunity to be heard on such application; WHEREAS, it appearing from the foregoing that the land proprietors affected by the requested closing of the subject right -of -way have been properly notified; and WHEREAS, from all of the foregoing, City Council considers that no inconvenience will result to any individual or to the public from permanently vacating, discontinuing and closing such public right -of -way. IO \Talevi\ measures \Olenning commission mess,,,, @012 \0rd - vacate alley off of 4th st (o,sixe misson)doc THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke, Virginia, that the public right -of -way situate in the City of Roanoke, Virginia, and more particularly described as follows: Permanently vacate an alley off of 4" Street, S.E., adjacent to Official Tax Nos. 4012110, 4012107, 4012115, 4012116, 4012117, 4012118 and 4012119, for a total area of approximately 7,716 square feet be, and is hereby permanently vacated, discontinued and closed, and that all right and interest of the public in and to the same be, and hereby is, released insofar as City Council is empowered so to do with respect to the closed portion of the right -of -way, reserving however, to the City of Roanoke and any utility company or public authority, including, specifically, without limitation, providers to or for the public of cable television, electricity, natural gas or telephone service, an easement for sanitary sewer and water mains, television cable, electric wires, gas lines, telephone lines, and related facilities that may now be located in or across such public right -of -way, together with the right of ingress and egress for the maintenance or replacement of such lines, mains or utilities, such right to include the right to remove, without the payment of compensation or damages of any kind to the owner, any landscaping, fences, shrubbery, structure or any other encroachments on or over the easement which impede access for maintenance or replacement purposes at the time such work is undertaken; such easement or easements to terminate upon the later abandonment of use or permanent removal from the above - described public right -of -way of any such municipal installation or other utility or facility by the owner thereof. BE IT FURTHER ORDAINED that the applicant shall submit to the Subdivision Agent, receive all required approvals of, and record with the Clerk of the Circuit Court for the City of Roanoke, a subdivision plat, with such plat combining all properties which would otherwise be landlocked by the requested closure, or otherwise disposing of the land within the right- of-way K- \Talevi \meesuae \planning wmmission measuas\2012 \Ord- vecatc alley off of 4th st (rescue miasion).doc to be vacated in a manner consistent with law, retaining appropriate easements, together with the right of ingress and egress over the same, for the installation and maintenance of any and all existing utilities that may be located within the right -of -way. BE IT FURTHER ORDAINED that the applicant shall, upon a certified copy of this ordinance being recorded by the Clerk of the Circuit Court for the City of Roanoke, Virginia, where deeds are recorded in such Clerk's Office, file with the City Engineer for the City of Roanoke, Virginia, the Clerk's receipt, demonstrating that such recordation has occurred. BE IT FURTHER ORDAINED that if the above conditions have not been met within a period of twelve (12) months from the date of the adoption of this ordinance, then such ordinance shall be null and void with no further action by City Council being necessary. BE IT FINALLY ORDAINED that pursuant to the provisions of § 12 of the City Charter, the secondreading of this ordinance by title is hereby dispensed with. ATTEST: CL, City Clerk. KATaleviA measures \planning commission measurest201P Ord- vacate alleyoffof Jthsr(recoe mission).doc 3 � o I` CITY COUNCIL AGENDA REPORT w To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Request from The Rescue Mission of Roanoke, Incorporated, to permanently vacate an alley off of 4th Street, S.E., adjacent to tax map parcels nos. 4012110, 4012107, 4012115, 4012116, 4012117, 4012118 and 4012119, for a total area of 7,716 square feet. The Planning Commission held a public hearing on Thursday, June 21, 2012. By a vote of 7 -0, the Commission recommended approval of the vacation of the alley request. Existing utilities (sanitary sewer) will require retention of a public utility easement throughout the vacated right -of -way. Such easement will limit the development potential of the land. The applicant should not be charged for the alley. Vacation should be subject to the following conditions: The applicant shall submit a subdivision plat to the Agent for the Planning Commission, receive all required approvals of, and record the plat with the Clerk of the Circuit Court for the City of Roanoke. Such plat shall combine all properties which would otherwise dispose of the land within the right -of -way to be vacated in a manner consistent with law, and retain appropriate easements for the installation and maintenance of any and all existing utilities that may be located within the right -of -way, including the right of ingress and egress. Upon meeting all other conditions to the granting of the application, the applicant shall deliver a certified copy of this ordinance for recordation to the Clerk of the Circuit Court of Roanoke, Virginia, indexing the same in the name of the City of Roanoke, Virginia, as Grantor, and in the name of the petitioner, and the names of any other parties in interest who may so request, as Grantees. The applicant shall pay such fees and charges as are required by the Clerk to effect such recordation. 3. Upon recording a certified copy of this ordinance with the Clerk of the Circuit Court of the City of Roanoke, Virginia, the applicant shall file with the Engineer for the City of Roanoke, Virginia, the Clerk's receipt, demonstrating that such recordation has occurred. 4. If the above conditions have not been met within a period of one year from the date of adoption of this ordinance, then such ordinance shall be null and void with no further action by City Council being necessary. Application Information Request: Ailey vacation _ _ Adjoining Owner/applicant The Rescue Mission of Roanoke, Incorporated City Staff Person: Frederick Gusler, AICP Site Address /Location: 421 41" St, SE, 321 & 327 Tazewell Ave, SE _ Official Tax Nos. of adjoining properties: 401 2107, 40121 10, 401 211 5 -9 inclusive Site Area: _ _ Specific measurement TBD _ Existing Zoning MX Proposed Zoning _ n/a Existing Land Use: Retail, medical clinic, office Proposed Land Use: Retail, medical clinic, office Neighborhood Plan: Belmont /Fallon _ Specified Future Land Use: Office /residential Filing Date: April 1 7, 201 2 Background The alley the applicant has requested vacation of was originally platted between 3" and 4" Streets. It once connected to another alley to the south that provided access to properties on the 300 block of Dale Avenue. This alley system has largely been vacated since the Virginia Department of Transportation (VDOT) began acquiring right -of -way for Interstate 581. The subject alley currently dead ends at the fenced VDOT right -of -way for Interstate 581. Considerations The subject alley provides secondary access to the rear of the applicant's property at 321 Tazewell Avenue. Otherwise, the alley is not used for access. The property at 327 Tazewell Avenue is fenced by the alley and is thus not accessible from it. The owners of that property stated in writing in an attachment to the application that they support the request. Surrounding Zoning and Land Use: District Land Use ed -use Medical clinic, office ed -use Retail c), Institutional Planned Unit ment rWestD, Homeless shelter and substance abuse rehabilitation facilit town Automotive repair Compliance with the Zoning Ordinance: The zoning map will not be impacted by the vacation. Conformity with the Comprehensive Plan and Neighborhood Plan Vision 2001 -2020 notes the use of alleys in the Community Design chapter as a component of good urban design. The Belmont /Fallon Neighborhood Plan recommends the use of alleys for trash collection and rear access for residents, and that "functional and open alleys will be maintained." The subject alley is no longer part of a functional alley network that provides secondary access. Public Utilities: There is a sewer line and at least three manholes in the alley. The Western Virginia Water Authority advised that a double locked gate would suffice to provide it with access, should the alley be vacated. Roanoke Gas also noted that it has facilities in the alley that would need to be accessed. The applicant was advised that arrangements with these companies would need to be made prior to City Council voting on the request. City Department Comments None Public Comments: None Planning Commission Work Session: The value of the subject alley was discussed and the potential impact of vacation on future development. Staff advised that the alley at present does not add development potential for the applicant. Staff noted that long -term the vacation of the alley could allow the applicant to create one large parcel; however the cost of relocating the utilities would be very expensive and likely prohibitive. Planning Commission Public Hearing Discussion The applicant's attorney explained that the primary reason for the request was to control access at night, as many people congregated in the alley and it was a public safety issue. Mr. Van Hyning asked for an explanation of the public safety concern. The applicant's attorney stated that the applicant has had complaints of people congregating in the alley, the alley is dark at night and the applicant can't control what goes on there since it is public. The applicant's attorney stated that it would be fenced with a gate that would allow access to utility companies but prevent nighttime access by the public. Mr. Williams asked who congregated there. Ms. Goodlatte stated that she didn't know. Staff stated that there had been a lot of police calls, and the alley, based on its use as a public alley, isn't of use to anyone but the applicant and their neighbor. Ira Katz, Chai Planning Commiss o cc: Chris Morrill, City Manager Timothy Spencer, Acting City Attorney Steven J. Talevi, Assistant City Attorney Nancy Joy Sylvester - Johnson, The Rescue Mission, Inc. Maryellen F. Goodlatte, Esquire Street or Alley Vacation or Closure Application k f -out h blonr, No..l C 215 Chnrh ;Avenu ,, S'r''. ItounrJ.,: Vbp�nia 2''.011 1'honn', (540)53 -2541 1 -ax. (:1 0) 853 -1146 y117 f�t I I JIbIn �O'J "in.lrrldia.non El Shl 1 or AI Vac,dioll I )Street or ,liq Clo. to BY Barricade Pr0pe rtv f iformatic,! uhc Id 'c 011ici II I ,a No(") -- — _ (il applicable): Location and o'alerptlon of Street I hmalleyrlt4th Su,,,1,S[ tdadjaceiittof m.ippaicets 1012110,4 O12107, 10121154012116, - 1012117, or alley to be CloFEdl 4012118, and 1012119, ite"son for request and proposed use [Gating s,fety reasons, the owners ofproperty adjoining the olley wish to be able to gate the area at night. of closed street or the alley at night will prevent entry intothis darkened area by unauthorized persons and will improve alley) deanllness of the are.,. Name: The Rescue Mission of Roanoke, Incorpor.iled Phone Number: rl f54o1777 -7055 —. Addo F Box 11575,Roanoke, VA 24022 — J E- 6ial1: 1101 rescrtemission.not _ / CEO -- ':pplicml of nalurrL r -j APAhmized Agept Informgtign ilf mpplLegbial, Flame (Maryellen F Goodlatte Uo Glenn Feldmann Dmb e Goodlatte - 1 . Y -. ] Phone Number. L +1 (8401 zz4 -8000 .`address P O. Box 2887, Ro nloko VA 24001 -2887 -- -- -� — — -— — _ � E- Liail: �mgoodlattetagfdg com Authorized Agent's S191ri re'. �J_�/ D Alley (Kirk Ave n Alley Vacation: Rescue Mission J TA 0 s TPZEWE" D ROS X Subject Alley DALE INPUD r? h DALE RM 1 v G ALLEY VACATION The Rescue Mission of Roanoke, Incorporated Adjoining Property Owners TAX MAP NO. OWNERS I ADDRESS 4012107 City Rescue Mission of Roanoke Incorporated P. O. Box 525 Roanoke, VA 24003 4012110 Kenneth R. Lipscomb 88 Lookout Ridge Lynchburg , VA 24501 4012201 City Rescue Mission of Roanoke Incorporated 401 4" Street, S.E. Roanoke, Virginia 24013 4012115 Rescue Mission of Roanoke Incorporated P. O. Box 11525 Roanoke, VA 24022 4012116 Rescue Mission of Roanoke Incorporated P. O. Box 11525 Roanoke, VA 24022 4012117 Rescue Mission of Roanoke Incorporated P. O. Box 11525 Roanoke, VA 24022 4012118 Rescue Mission of Roanoke Incorporated P. O. Box 11525 Roanoke, VA 24022 4012119 Rescue Mission of Roanoke Incorporated P. 0. Box 11525 Roanoke, VA 24022 CITY CLERK City Billing „< Invoice Summary> CBE153 = => INVOICE BILLED Invoice Type =_> MISCCLRK CITY CLERK COLLECTION REPORT DATE OF WORK = => 04/19/2012 Customer Id# = => 00040574 CITY CLERK Status = => UNBILLED ------------------------------------------------------------------------------- Total Items: ------------------------------------------------------------------------------- 01 Invoice Total: 100.00 Account = => R001110123400000319 STREET AND ALLEY CLOS 100.00 Invoice Complete- REFERENCE # 2012005184 Print (Y /N)? N Bill Now (Y /N)? _ F1 =Menu F3 =Exit CBX006 City of Roanoke EVELYN W POWERS PO BOX 1451 ROANOKE, VA 24007 (540) 853 -2561 Cashier: TRTA1 Location: RDA Session: TA Till- 04192012 Date: 4/19/2012 Payment Receipt: _ C.5661 Miscellaneous $100.00 Type: City Wide Charge: 2012005089- MISCCLRK Account Number: Invoice Number: 40574 Detail Flag: Tendered Information: Amount Duc: Check $100,00 Total tendered: $100.00 $100.00 Thank you for Your payment. Thank you The Roanoke Times Roanoke, Virginia Affidavit of Publication The Roanoke Times ___________________ ______________________ _________ _______________________ GLENN, FELDMANN, DARBY & GOODL PO BOX 2887 37 CAMPBELL AVE ROANOKE VA 24001 REFERENCE: 80078049 13042750 NPH- Rescue Mission State of Virginia City of Roanoke I, (the undersigned) an authorized representative of the Times -world Corporation, which corporation is publisher of the Roanoke Times, a daily newspaper published in Roanoke, in the State of Virginia, do certify that the annexed notice was published in said newspapers on the following dates: ^_ity, %County of Roanoke, Commonwealth /State of Vir nia. Sworn and subscribed befcro me this �day of JULY 2012. Witness my hand and official seal. j _ ,� Notary Public PUBLISHED ON: 06/29 07/06 jQ:, �OZ ©SAG IQ S P 10 S, TOTAL COST: 353.20 FILED ON:.. 07/11/12 ____________________ _____ __________________________ NOTICE OF PUBLIC NEAMNO Authorized Signature: filling Services Representative LZ�y. NOTICE OF PUBLIC HEARING The Council of the City of Roanoke will hold a public hearing on Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the Council Chamber, fourth floor, in the Noel C. Taylor Municipal Building, 215 Church Avenue, S.W., Roanoke, Virginia, to consider the following: Request from The Rescue Mission of Roanoke, Incorporated, to permanently vacate an alley off of 4`h Street, S.E., adjacent to Official Tax Nos. 4012110, 4012107, 4012115, 4012116, 4012117, 4012118 and 4012119, for a total area of 7,716 square feet. Copies of the application are available for review in the Office of the City Clerk, Room 456, Noel C. Taylor Municipal Building, 215 Church Avenue, S.W., Roanoke, Virginia. All parties in interest and citizens may appear on the above date and be heard on the matter. If you are a person with a disability who needs accommodations for this hearing, please contact the City Clerk's Office, at 853 -2541, before noon on the Thursday before the date of the hearing listed above. GIVEN under my hand this 2L±_hday of jun, 12012. Stephanie M. Moon, MMC City Clerk. K Tul,.,Ia ing commissionIIpIbh, hewing no ices 2012V%acae alleyolror 4th sI(rescue mission) - noph -doc Notice to Publisher: Publish in the Roanoke Times on Friday, June 29 and Friday, July 6, 2012. Send affidavit to: Stephanie M. Moon, MMC, City Clerk 215 Church Avenue, S. W., Room 456 Roanoke, Virginia 24011 (540) 853 -2541 Send Bill to: Maryellen F. Goodlatte, Esquire Glenn, Feldmann, Darby & Goodlatte P.O. Box 2887 Roanoke, Virginia 24001 -2887 (540) 224 -8000 K \N.,,,a,Q012Vn1, PH -Va.w alley di441h,t¢rseuc mlai on) .d.c AFFIDAVIT APPLICANT: The Rescue Mission LOCATION: Alley off 4'h Street, S.E., adjacent to tax map nos. 4012110, 4012107, 4012115,4012116,4012117,4012118 and 4012119, for a total area of 7,716 square feet. REQUEST: Alley Closure COMMONWEALTH OF VIRGINIA ) TO -WIT: CITY OF ROANOKE ) The affiant, Rebecca Cockram, first being duly sworn, states that she is Secretary to the Roanoke City Planning Commission, and as such is competent to make this affidavit of her own personal knowledge. Affidavit states that, pursuant to the provisions of Section 15.2 -2204, Code of Virginia, (1950), as amended, on behalf of the Planning Commission of the City of Roanoke, she has sent by first -class mail on the 25th day of May, 2012, notices of a public hearing to be held on the 21 st day of June, 2012, on the request captioned above to the owner or agent of the parcels as set out below: Tax No. Owner and Mailing Address 4012107 CITY RESCUE MISSION OF ROANOKE INCORPORATED (THE) PO BOX 525 ROANOKE VA 24003 4012201 CITY RESCUE MISSION OF ROANOKE IN 401 4TH ST SE ROANOKE VA 24013 4012115 RESCUE MISSION OF ROANOKE INCORPORATED (THE) 4012116 PO BOX 11525 4012117 ROANOKE VA 24022 4012118 4012119 4012110 LIPSCOMB KENNETH R 88 LOOKOUT RIDGE LYNCHBURG VA 24501 Other notices sent to: Liz Dudley, Chair 533 6th Street SE Roanoke, VA 24013 Laura Padgett 1040 Morgan Ave SE Roanoke, VA 24012 Dallas Powell 501 Bullitt Ave SE Roanoke, VA 24013 Rebecca Cockram SUBSCRIBED AND SWORN to before me, a Notary Public, in the City of Roanoke, Virgini 1is 25th day of May, 2012. Notary Public CANDACE R. MARTIN NOTARY PURLIC Commonwealth of Virginia Reg. #282076 I.MY Commission Expires + CITY OF ROANOKE �it n OFFICE OF THE CITY CLERK - 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 953 -2541 Fa.: (540) 953 -1145 E -ma0: elerWroanolNVe.gov STEPHANIE M. MOON, MMC JONATHAN E. CRAFT City Clerk Deputy City Clerk July 3, 2012 CECEL1AT.weee Aeaietnnt Deputy City Clerk Maryellen F. Goodlatte, Esquire Glenn, Feldmann, Darby & Goodlatte P.O. Box 2887 Roanoke, Virginia 24001 -2887 Dear Ms. Goodlatte: Pursuant to provisions of Resolution No. 25523 adopted by the Council of the City of Roanoke on Monday, April 6, 1981, 1 have advertised a public hearing for Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chamber, Room 450, Noel C. Taylor Municipal Building, 215 Church Avenue, S. W., on the request of The Rescue Mission of Roanoke, Incorporated, to permanently vacate an alleyoff of 4'h Street, S. E., for a total area of 7,716 square feet. For your information, I am enclosing copy of a notice of public hearing. Please review the document and if you have questions, you may contact Steven J. Talevi, Assistant City Attorney, at 540 - 853 -2431. It will be necessary for you, or your representative, to be present at the July 16th public hearing. Failure to appear could result in a deferral of the matter until a later date. Sincerely, ryN Stephanie �'MM City Clerk SMM:ctw Enclosure s CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 r Roanoke, Virginia 24011 -1536 Telephone: (540)853 -3541 Fax: (540)853 -1145 E -mail elerkCroanokeva.tov JONATHAN E. CRAFT STEPHANIE M. MOON, MMC Deputy City Clerk City Clerk July 3, 2012 CECELIA T. wEHH Assistant Deputy City Clerk To Adjoining Property Owners Ladies and Gentlemen: Pursuant to provisions of Resolution No. 25523 adopted by the Council of the City of Roanoke on Monday, April 6, 1981, 1 have advertised a public hearing for Monday, July 16, 2012, at 7:00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chamber, Room 450, Noel C. Taylor Municipal Building, 215 Church Avenue, S. W., on the requestof The Rescue Mission of Roanoke, Incorporated, to permanently vacate an alleyoff of 4`h Street, S. E., for a total area of 7,716 square feet. This letter is provided for your information as an interested property owner and /or adjoining property owner. If you have questions with regard to the matter, please call the Department of Planning, Building and Development at 540- 853 -1730. If you would like to receive a copy of the report of the City Planning Commission, please call the City Clerk's Office at 540 - 853 -2541. Sinc�erel(y,,��� - Stephanie M. Moon, MMC City Clerk SMM:ctw .� GoCITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540)853 -2541 Fax: (540)851 -1145 E -mail elerh@rmmokeva.gov JONATHAN E. CRAFT STEPHANIEM.MOON,MMC Deputy City Clerk City Clerk April 19, 2012 Rebecca Jo Cockram, Secretary City Planning Commission Roanoke, Virginia Dear Ms. Cockram: CECELIA T. WEBB Assistant Deputy City Clerk Pursuant to Section 36.1- 690(e), Code of the City of Roanoke (1979), as amended, I am attaching copy of an Original Application for Street or Alley Vacation received in the City Clerk's Office on April 19, 2012, from the Rescue Mission of Roanoke, Incorporated, requesting that the alley off of 4th Street, S. E., and adjacent to Official Tax Map Nos. 4012110, 4012107, and 4012115 — 4012117, respectively, be permanently vacated discontinued and closed. Sincerely, Stephanie M. Moon, MMC City Clerk Enclosure PC: The Honorable Mayor and Members of the Roanoke City Council Maryellen F. Goodlatte, Attorney, Glenn Feldmann Darby & Goodlatte, P. O. Box 2887, Roanoke, Virginia 24001 -2887 Susan S. Lower, Director, Real Estate Valuation Philip C. Schirmer, City Engineer Timothy R. Spencer, Acting City Attorney Steven J. Talevi, Assistant City Attorney p�)L IN THE COUNCIL OF THE CITY OF ROANOKE, VIRGINIA The 16th day of July, 2012. No. 39454- 071612. AN ORDINANCE authorizing the City Manager to execute the necessary documents providing for the conveyance of two parcels of City -owned property, being approximately 47.892 acres, along Coyner Springs Road, in Botetourt County, Virginia, designated as Botetourt County Official Tax No. 108(9)2, and a portion of Botetourt County Official Tax No. 108(9)1, to Ned B. Jeter, B, and Darrell B. Jeter, upon certain terms and conditions; and dispensing with the second reading of this ordinance. WHEREAS, a public hearing was held on July 16, 2012, pursuant to §§ 15.2 -1800 and 15.2 -1813, Code of Virginia (1950), as amended, at which hearing all parties in interest and citizens were afforded an opportunity to be heard on such conveyance. THEREFORE, BE IT ORDAINED by the Council of the City of Roanoke that: I . The City Manager and the City Clerk are hereby authorized, for and on behalf of the City, to execute and attest, respectively, the necessary documents providing for the conveyance of two parcels of City -owned property, being approximately 47.892 acres, designated as Botetourt County Official Tax No. 108(9)2 and a portion of Botetourt County Official Tax No. 108(9)1, to Ned B. Jeter, 11, and Darrell B. Jeter, for the purchase price of $4,000 per acre, for a total of $191,568, upon certain terms and conditions, and as more particularly stated in the City Council Agenda Report dated July 16, 2012. 2. All documents necessary for this conveyance shall be in form approved by the City Attorney. 3. Pursuant to the provisions of Section 12 of the City Charter, the second reading of this ordinance by title is hereby dispensed with. ATTEST: #4C.'try Clerk. 0 Convey 47 .842 acres.Coyner S}ninp to Ned Leta & Dna,11 J,1,7-16-12 doe CITY COUNCIL AGENDA REPORT To: Honorable Mayor and Members of City Council Meeting: July 16, 2012 Subject: Sale of City -Owned Property Located in Botetourt County Adjacent to the Coyner Springs Community Cemetery to Ned B. Jeter, II and Darrell B. Jeter Background: Mr. Ned Jeter and his family have leased property in the area from the City located in the Coyner Springs area of Botetourt County for many years for farming purposes. In March 2011, he and his sons purchased 20.845 acres of City -owned property adjacent to Coyner Springs Community Cemetery for pasture and crop land. Approximately 47.892 acres remain of City -owned land along Coyner Springs Road also known as parcel numbers 108(9)1 and 108(9)2. (Please see attached plat). Mr. Jeter has not previously leased this property from the City nor has this property ever been used for a public purpose. Mr. Deter has expressed a desire that his sons, Ned B. Jeter, II and Darrell B. Jeter be allowed to purchase the remaining approximate 47.892 acres at Four Thousand Dollars ($4,000) per acre for agriculture use. This price is consistent with the assessments of adjacent Botetourt County properties of similar condition, context, and use, and is therefore determined to be valued appropriately. Considerations: Disposition of this property at the offered value will eliminate the need for City forces to maintain the property. The property has no identified future public use. A public hearing is required prior to City Council authorizing disposition of the property. Recommended Action: Following the holding of a public hearing, authorize the City Manager to execute a deed, and any other appropriate documents, approved as to form by the City Attorney, necessary to transfer the parcels to Ned B. Jeter, II and Darrell B. Jeter. Christopher . M rill City Manager Distribution: Council Appointed Officers R. Brian Townsend, Assistant City Manager for Community Development Susan Lower, Director of Real Estate Valuation Robert Ledger, Economic Development Manager Cassandra Turner, Economic Development Specialist CURVE 1 RADIUS ARC LENGTH I CHORD LENGTH I CHORD BEARING DELTA ANG1E TANGENT Cl 1 927.19 313.30 1 311.81 1 S 14'2507" E 19'21'38' 158.16' C2 921.00' 56788' 558.93' S 03'51'02' E 35'19'42' 293.29' C3 600.46' 28154 1 280.91' 5 12'3953' E 2703'1]° 144.46' C4 130295' 607.79' 602.29' S 08'3846' E 264344' 309.53' LINE BEARING DISTANCE LEGEND: L1 S 04'25'20" E 78.68' • IRON FOUND L2 S 04'44'78" E 85.49' ♦ SPIKE NAIL SET U S 24'05'21" E 750.32' w ■ FENCE CORNER POST L4 5 21'30'53" E 49.45' U� L5 S 1729'20" W 68.16" U� zU a Lfi 5 7708'26' W 58D2' L7 S 1]3]31' W 216.90' yZom LB S 13'24'51' W 87.49' z w a�oo L9 S 0]16'03° W 78.54' E ism L10 S 02'02'26" W 55.01' ooZ L11 N 75'28'38' E 52.17 UU?ti I L12 5 00'51'46° W 35.86' L13 S 26'11'32° E 145.2] 7�a�o n L14 5 24'49'25" E 230.55' Q U GI L15 S 22'00'38" E 79.39' a L16 5 04'43'05" W 107.01' o m L77 S D8'41'S4" W 79.85' 0 L18 S 053748" W 147.93' L79 S 03'05'05" W 53.75' z L20 a $ N z l� A 47.892 ACRES N 2 0 !pram ZM #1p8(9) �=0 jpB(13 /!p-` NOTES: `ri'. I q0` d41� PLAT BASED ON MONUMENTS FOUNDmw 7pb AS SHOWN HEREON OF CURRENT MEASUREMENTS DATA FROM PREVIOUS FIELD _Z / (�� �o'v w �\ SURVEYS OF AdJOING PROPERTIES AND RECORDS. FLOOD PLAIN FROM q S' `so SCALED BOTETOUT COUNTY CIS FROM STUDY DATED DECEMBER 17, 2010. a m ° 101 THIS PLAT WAS DRAWN WITHOUT THE BENEFIT OF A TITLE REPORT BY AN ATTORNEY r AND THEREFORE MAY NOT NECESSARILY INDICATE ALL ENCUMBRANCES UPON THE PROPERTY. w ¢' PLAT OF THE PROPERTY OF CITY OF ROANOKE 0 DB 565, PG 692; TAX ID# 108(9)2 TAX ID# 108(9)2 & PART OF TAX ID# 108(9)1 -I TO BE CONVEYED TO mi- DARRELL B. JETER Io AND NED B. JETER, III Q� 900 �,y�p VALLEY DISTRICT-BOTETOURT COUNTY-VIRGINIA CNZ{iF -W MCMURRY SURVEYORS, INC. pfA6p RI 1 -p DALEVILLE, VIRGINIA 240830250 +01 SCALE 1" = 400' JUNE 21, 2012 �oI ® JEEER\BOUND.DWG N 75'30'02° W 142.10' L21 S 86'27'24° E 362.89' The Roanoke Times Roanoke, Virginia Affidavit of Publication The Roanoke Times __________________ _______________________________ y_______________________ JETER FARMS C/O NED B. DETER 181 BLUE RIDGE BLVD ROANOKE VA 24012 REFERENCE: 80177461 13048056 NPH -Sale of City Pro State of Virginia City of Roanoke I, (the undersigned) an authorized representative of the Times -World Corporation, which corporation is publisher of the Roanoke Times, a daily newspaper published in Roanoke, in the State of Virginia, do certify that the annexed notice was published in said newspapers on the following dates: City /County of Roanoke, Commonwealth /State of Virginia. Sworn and subscribed before me this Ilth day of JULY 2012. Witness my hand and official seal. n\ Notary Public PUBLISHED ON: 07/06 'PEG oMM�ss\ z _ TOTAL COST: 203.44 FILED ON: _ __07/11/12 __________ NOTICE OF PUBLIC NEI NNIO Authorized �. Signature: Billing Services Representative 04�c NOTICE OF PUBLIC HEARING The City of Roanoke proposes to convey approximately 47.892 acres ofCity -owned property to Ned B. Jeter, 11 and Darrell B. Jeter, designated as Botetourt County Official Tax No. 108(9)2, and a portion of Tax No. 108(9)1, to be used for agricultural purposes in connection with their commercial farming operation. Pursuant to the requirements of §§15.2-1800 and 1813, Code of Vrginia (1950), as amended, notice is hereby given that the City Council of the City of Roanoke will hold a public hearing on the above matter at its regular meeting to be held on Monday, July 16, 2012, commencing at 7:00 p.m., or as soon thereafter as the matter may be heard, in the Council Chambers, 4" Floor, Noel C. Taylor Municipal Building, 215 Church Avenue, S.W., Roanoke, Virginia, 24011. Further information is available from the Office of the City Clerk for the City of Roanoke at (540) 853 -2541. Citizens shall have the opportunity to be heard and express their opinions on said matter. If you are a person with a disability who needs accommodations for this hearing, please contact the City Clerk's Office at (540) 853 -2541, before 12:00 noon on Thursday, July 12, 2012. GIVEN under my hand this2nd day of July 12012. Stephanie M. Moon, City Clerk Notice to Publisher: Publish in the Roanoke Times on Friday, July 6, 2012. Send affidavit to: Send Bill to: Stephanie M. Moon, MMC, City Clerk Jeter Farms c/o 215 Church Avenue, S. W., Room 456 Ned B. Jeter, II Roanoke, Virginia 24011 181 Blue Ridge Blvd (540) 853 -2541 Roanoke, Virginia 24012 (540) 312 -7754 ed n I{U rdtiiSow Address to Roanoke City Council Meeting held on Monday, July 16, 2012 in the Council Chambers Good evening. I am Colin C. Murchison. I live at 2711 Richelieu Ave, SW, Roanoke, vA. I moved to Roanoke in 1975 and have lived in the City to this date. My two children were born here at Community Hospital and attended public schools in the City. I worked in downtown Roanoke my entire work career. I am a fiscal conservative and have for quite a while been concerned about the fiscal well being of the City and it's ability to fund the basic services that government should provide. I have observed, what I consider, wasteful spending. I am also extremely concerned about the City using citizens funds to contribute to political campaigns - local, state, and national. I object to the use of City funds to assist any candidate — Republican, Democrat, Independent, Tea Party, or any other. I hereby officially request Council to instruct the City Manager to prepare a detailed, audited expense report for the campaign event held in downtown Roanoke on July 13, 2012. It should include, but not be limited to, all costs, direct & indirect, for police, fire & rescue, EMS, city maintenance crews, traffic & engineering crews, sub - contracts, rentals, loss of revenue as a result of closing the city owned Market Garage as well as managers time. Placing and picking up street and crowd barriers, renting and/or erecting and dismantling bleachers, other seating, speaker platform, sound system, lighting, clean up (before & after the event) should be accounted for in detail. This report should be published on the city's web site & distributed to all news outlets. A similar report should be prepared for all future campaign events. Last, but not least, the Obama campaign & any other campaigns should be billed for the entire amount Otherwise it is a donation which may be illegal. Thank you for this opportunity to speak, Colin C. Murchison COMMITTEE VACANCIES /REAPPOINTMENTS July 16, 2012 VACANCIES: Three - yearterms of office to replace Eddie Wallace, Jr., Kae Bolling and Carl Kopitzke as members of the Mill Mountain Advisory Committee ending June 30, 2015. Three -year term of office to replace Braxton Naff ending June 30, 2015; and an unexpired term of Felicia Journiette ending June 30, 2014, as members of the Roanoke Neighborhood Advocates. Three -year term of office to replace Jay Foster as a City representative of the Roanoke Valley - Alleghany Regional Commission ending June 30, 2015. Unexpired term of office of Letitia Smith as a member of the Personnel and Employment Practices Commission ending June 30, 2014. Four -year term of office of Duane Smith as a Commissioner of the Roanoke Redevelopment and Housing Authority ending August 31, 2016. July 23, 2012 Mr. Thomas W. Ruff 131 Wildhurst Avenue, N. E. Roanoke, Virginia 24012 Dear Mr. Ruff: Your term of office as a member of the Towing Advisory Board expired on October 31, 2011. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Towing Advisory Board from July 18, 2005 to October 31, 2011. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Steph/ Moon, MMC li) City Clerk S M M: ctw Enclosure pc: Samuel Roman, Secretary, Towing Advisory Board CITY OF ROANOKE OFFICE OF THE CITY CLERK r: 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540) 853 -2541 Fax: (540) 853 -1145 F. -ma6: clerk@roavokeva.gov JONATHAN E. CRAFT STEPHANIE M. MOON, MMC Deputy City Clerk City Clerk CECELIA T. WEBB Aseislanl Deputy City Clerk July 23, 2012 Mr. Thomas W. Ruff 131 Wildhurst Avenue, N. E. Roanoke, Virginia 24012 Dear Mr. Ruff: Your term of office as a member of the Towing Advisory Board expired on October 31, 2011. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Towing Advisory Board from July 18, 2005 to October 31, 2011. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Steph/ Moon, MMC li) City Clerk S M M: ctw Enclosure pc: Samuel Roman, Secretary, Towing Advisory Board CERTIFICATE OF APPRECIATION PRESENTED TO THOMAS W. RUFF AS A MEMBER OF THE TOWING ADVISORY BOARD FROM JULY 18, 2005 TO OCTOBER 31, 2011 ON THIS 23RD DAY OF JULY , 2012 IN RECOGNITION OF PUBLIC SERVICE FAITHFULLY RENDERED TO THE CITY OF ROANOKE APPROVED: AVID A. BOWERS MAYOR ATTEST: STEPHANIE M. MOON CITY CLERK July 23, 2012 Mr. Jay E. Foster 3726 Heatherton Road, S. W. Roanoke, Virginia 24014 Dear Mr. Foster: Your term of office as a member of the Roanoke Valley - Alleghany Regional Commission expired on June 30, 2012. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Roanoke Valley - Alleghany Regional Commission from October 1, 2007 to June 30, 2012. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Stephanie M. Moon, City Clerk SMM:ctw Enclosure pc: Wayne Strickland, Secretary, Roanoke Valley - Alleghany Regional Commission CITY OF ROANOKE �Aa OFFICE OF THE CITY CLERK r 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 Telephone: (540)851 -2541 Fax: (540)853 -1145 E -mail: derk@r0aMkeva.90v JONATHAN E. CRAFT STEPHANIE M. MOON, MMC Deputy City Clerk City Clerk CECELIAT. WEBB Assistant Deputy City Clerk July 23, 2012 Mr. Jay E. Foster 3726 Heatherton Road, S. W. Roanoke, Virginia 24014 Dear Mr. Foster: Your term of office as a member of the Roanoke Valley - Alleghany Regional Commission expired on June 30, 2012. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Roanoke Valley - Alleghany Regional Commission from October 1, 2007 to June 30, 2012. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Stephanie M. Moon, City Clerk SMM:ctw Enclosure pc: Wayne Strickland, Secretary, Roanoke Valley - Alleghany Regional Commission CERTIFICATE OF APPRECIATION PRESENTED TO JAY FOSTER AS A MEMBER OF THE ROANOKE VALLEY - ALLEGHANY REGIONAL COMMISSION FROM OCTOBER 1, 2007 TO JUNE 30, 2012 ON THIS 23RD DAY OF JULY , 2012 IN RECOGNITION OF PUBLIC SERVICE RENDERED TO THE CITY OF ROANOKE APPROVED: wrcl ATTEST: UkgS M. MOO i CITY CLERK July 23, 2012 Edward C. Bradley 3839 Winding Way Road, S. W. Roanoke, Virginia 24014 Dear Mr. Bradley: Your term of office as a member of the Personnel and Employment Practices Commission expired on June 30, 2012. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Personnel and Employment Practices Commission from September 2, 2003 to June 30, 2012. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Stephanie M. Moon, MMC City Clerk SMM:ctw Enclosure pc: Carolyn Glover, Secretary, Personnel and Employment Practices Commission CITY OF ROANOKE OFFICE OF THE CITY CLERK 215 Church Avenue, S. W., Suite 456 Roanoke, Virginia 24011 -1536 'felephove: (540)853 -2541 Fax: (540) 853 -1145 E- mail: derkoatummkeva.gov JONATHAN E. CRAFT 5 fEPHANIE M. MOON, MMC Deputy City Clerk City Clerk CECEEIA WEBR Assistavt Deputy City Clerk July 23, 2012 Edward C. Bradley 3839 Winding Way Road, S. W. Roanoke, Virginia 24014 Dear Mr. Bradley: Your term of office as a member of the Personnel and Employment Practices Commission expired on June 30, 2012. On behalf of the Members of Roanoke City Council, I would like to express appreciation for your service to the City of Roanoke as a member of the Personnel and Employment Practices Commission from September 2, 2003 to June 30, 2012. Please find enclosed a Certificate of Appreciation and an aerial view photograph of the Roanoke Valley in recognition of your years of service. Sincerely, Stephanie M. Moon, MMC City Clerk SMM:ctw Enclosure pc: Carolyn Glover, Secretary, Personnel and Employment Practices Commission CERTIFICATE OF APPRECIATION PRESENTED TO EDWARD C. BRADLEY AS A MEMBER OF THE PERSONNEL AND EMPLOYMENT PRACTICES COMMISSION FROM SEPTEMBER 2, 2003 TO JUNE 30, 2012 ON THIS 23RD DAY OF JULY , 2012 IN RECOGNITION OF OUTSTANDING PUBLIC SERVICE FAITHFULLY RENDERED TO THE CITY OF ROANOKE APPROVED: DAVID A. BOWERS MAYOR ATTEST: STEPHANIE M. MO N CITY CLERK