08-17-2017 Regular MeetingREGULAR MEETING OF THE ISLE OF WIGHT COUNTY BOARD OF SUPERVISORS
HELD IN THE ROBERT C. CLAUD, SR. BOARD ROOM OF THE ISLE OF WIGHT
COUNTY COURTHOUSE ON THURSDAY, THE SEVENTEENTH DAY OF AUGUST IN
THE YEAR TWO THOUSAND AND SEVENTEEN
PRESENT:
Rex W. Alphin, Chairman, Carrsville District
William M. McCarty, Vice -Chairman, Newport District
Rudolph Jefferson, Hardy District
Joel C. Acree, Windsor District
Richard L. Grice, Smithfield District
ALSO IN ATTENDANCE:
Mark C. Popovich, County Attorney
Randy R. Keaton, County Administrator
Donald T. Robertson, Assistant County Administrator
Carey M. Storm, Clerk
CALL TO ORDER
Chairman Alphin called the Board of Supervisors' meeting to order at 5:00 p.m.
and welcomed all present.
APPROVAL OF AGENDA/AMENDMENTS
Upon motion of Supervisor McCarty, all those present voting in favor (5-0), the
agenda was approved with the following amendments:
Under New Business, a request was added for consideration of a proposed
change in the Board's December meeting; a request was added to recognize
Emanuel Baptist Church on its 150th anniversary; and, a request was added
regarding a request for a change in the Board's work session of September 7,
2017.
Under the County Administrator's report, an item was added concerning an
update on the Nike Park Bike Trail project.
CLOSED MEETING
The following matters were identified for discussion in closed meeting by County
Attorney Popovich:
Pursuant to Section 2.2-3711(A)(1) of the Code of Virginia concerning a discussion
regarding the appointment of specific appointees to County boards, committees
or authorities; pursuant to 2.2-3711(A)(7) regarding consultation with legal
counsel regarding probable litigation related to Rushmere CDC where such
consultation would adversely affect the negotiating or litigation posture of this
public body; pursuant to 2.2-3711(A)(7) regarding consultation with legal counsel
regarding actual litigation related to the Perry vs. Isle of Wight County where such
consultation would adversely affect the negotiating or litigation posture of this
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public body; and, pursuant to 2.2-3711(A)(7) regarding consultation with legal
counsel regarding actual litigation related to International Paper where such
consultation would adversely affect the negotiating or litigation posture of this
public body;
Upon motion of Supervisor Grice and all voting in favor, the Board entered the
closed meeting for the reasons stated by County Attorney Popovich.
Upon motion of Supervisor McCarty and all voting in favor, the Board reconvened
into open meeting.
Upon motion of Supervisor Jefferson, the following Resolution was adopted:
CERTIFICATION OF CLOSED MEETING
WHEREAS, the Board of Supervisors has convened a closed meeting on this date
pursuant to an affirmative recorded vote and in accordance with the provisions of
the Virginia Freedom of Information Act; and,
WHEREAS, Section 2.2-3712(D) of the Code of Virginia requires a certification by
this Board of Supervisors that such closed meeting was conducted in conformity
with Virginia law;
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors hereby certifies
that, to the best of each member's knowledge, (i) only public business matters
lawfully exempted from open meeting requirements by Virginia law were discussed
in the closed meeting to which this certification resolution applies, and (ii) only such
public business matters as were identified in the motion convening the closed
meeting were heard, discussed or considered by the Board of Supervisors.
VOTE
AYES: Acree, Alphin, Grice, Jefferson and McCarty
NAYS: 0
ABSENT DURING VOTE: 0
ABSENT DURING MEETING: 0
INVOCATION/PLEDGE OF ALLEGIANCE
Chairman Alphin delivered the invocation and led the Pledge of Allegiance to the
American Flag.
CITIZENS' COMMENTS
The following individuals spoke in favor of the Nike Park Bike/multi-use trail
project: Greg Vassilakos of Smithfield; Ed Easter of 12224 Hideaway Lane; Teresa
Frantz of 418 Holmes Way; Kerri Lindsay of 205 Creek Side Drive; Karen Mahart of
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206 Joshua Circle; Catherine Cooper of 390 South Church Street; Chris Dunham of
106 Arabian Trail; Leah Abbott Leaman of Smithfield; Andy Cripps, President of
the Chamber of Commerce; and, Sheila Bates of Smithfield. Approximately ten
other individuals stood in support of the project.
Herb DeGroft of 15411 Mill Swamp Road; John Butler of 15654 Woodland Drive;
and, Jose Hernandez spoke against the Nike Park Bike/multi-use trail project.
Mark Middlecoop of 123 Hollow Drive requested that the Board be proactive on
SB -964 by imposing penalties on individuals who do not abate running bamboo.
Jane March submitted a petition in support of the inspection and installation of a
weight limit sign on the bridge over Pope Swamp on Fire Tower Road and the
installation of a "no through truck traffic" sign. She further requested a reduction
in the speed limit in the residential section of Tar Road and Route 460. She
informed the Board that other petitions in favor of her request have been
submitted to the County's Department of Planning & Zoning.
Valerie Butler, President of the NAACP, requested the removal of the Confederate
monument at the Courthouse.
The following individuals spoke in favor of the Board continuing to conduct an
invocation at Board meetings: Debra Hall of Windsor; Herb DeGroft of 15411 Mill
Swamp Road; Sam Cratch of 115 Arabian Trial; Debbie Bales Cratch of 115 Arabian
Trail; and, Sherry Perry of Melissa Drive.
Donald Williams, One Driver's Lane, spoke against the Board conducting an
invocation at its meetings.
Marie Bailey of Rocky Road informed the Board about incidences involving the
shooting of high-powered rifles near her home; roundup being administered on
cotton fields; and, the aftermath of her son's death.
Upon motion of Supervisor McCarty, all those present voting in favor (5-0), the
following Consent Agenda was adopted.
A. Resolution to Accept and Appropriate a Litter Prevention Grant from Keep
Virginia Beautiful
B. Resolution to Accept and Appropriate Funding from VACORP Risk
Management for Repairs for County Property
C. Resolution to Authorize the Submission of a Grant Application and to
Accept and Appropriate Grant Funds from the Virginia Department of
Criminal Justice Services
D. Amendment to Isle of Wight County Economic Development Incentive
Grant Agreement for Franklin Lumber, LLC
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E. June 1, 2017 Work Session Minutes; June 15, 2017 Regular Meeting
Minutes; and, July 17, 2017 Regular Meeting Minutes
REGIONAL AND INTER -GOVERNMENTAL REPORTS
Supervisor Grice reported on discussions held at the most recent meeting of the
Smithfield Intergovernmental Relations Committee involving the sports complex
Memorandum of Understanding; the park -to -park trail sections 1 and 2; and, the
Scott farm boundary line adjustment.
Supervisor Jefferson recognized Chairman Alphin's contributions as Chair of the
Western Tidewater Regional Jail Board and reported on items discussed at the Jail
Board's most recent meeting concerning its budget, the electronic monitoring
program and the County's utilization of jail inmates.
County Administrator Keaton reported on items discussed at the most recent
meeting of the Southeastern Public Service Authority (SPSA) involving the
approval of the City of Suffolk's rezoning and Conditional Use Permit for Cell 7 at
the landfill; SPSA's proposed tipping fee; and, the status of the contract with
RePower.
APPOINTMENTS
On motion of Chairman Alphin, Pam Vaughan was appointed to the Blackwater
Regional Library Board representing the Carrsville District.
Chairman Alphin advised that appointments of individuals to serve on the Isle of
Wight County Comprehensive Plan Task Force will occur at the Board's September
meeting.
SPECIAL PRESENTATIONS
Tommy Catlett, Virginia Department of Transportation, provided maintenance
updates for roadways in the County, to include paving, mowing and ditch
maintenance.
Mr. Catlett was requested to review and provide the Board with a status of the
speed limit study on Old State Highway/Blount Corner Road; Whippingham
Parkway Bridge; the shoulder along Route 620; the Carrsville Community Bridge
signs/safety study; and, the Route 460 safety study/the County's desire that the
Town of Windsor be included in the study.
Mr. Catlett was requested to take appropriate action for an inspection and
installation of a weight limit sign on the bridge over Pope Swamp on Fire Tower
Road; installation of a "no through truck traffic" sign; and, a reduction in the
speed limit in the residential section of Tar Road and Route 460.
Jamie Oliver, Transportation Planner, advised that the Morgart's Beach paving
contract has been awarded.
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Robbie Lee, Fair Vice President, updated the Board on activities planned for the
2017 County Fair.
COUNTY ATTORNEY'S REPORT
County Attorney Popovich requested authorization to proceed with the
abandonment of Robertson Lane. He explained that a recent inquiry from a title
company produced a maintenance agreement which referenced the lane being
county -owned, but not maintained. He advised that research on his part revealed
that in 1916, a deed had been recorded between two parcels of land in that area
which conveyed the strip now known as Robertson Lane to the County as a public
road; however, in 1932, VDOT had taken an inventory of all county -owned roads
brought into the State secondary system, of which Robertson Lane was not
included. He advised in 1972, a Circuit Court opined Robertson Lane was private;
however, such court opinion does not overturn a recorded deed.
Upon motion of Supervisor McCarty, all those present voting in favor (5-0), the
County Attorney was authorized to proceed with the road abandonment process
for Robertson Lane, as set forth in Section 15.2-2006 of the Code of Virginia
(1950, as amended), to clarify the land records and divest the County of any
interest in Robertson Lane.
County Attorney Popovich advised the Board regarding the recent opinion of the
Circuit Court of Appeals that the Rowan County Board of Commissioners'
invocation procedure has been ruled unconstitutional and that because that is the
same procedure followed by the County, he wanted to open this opportunity to
discuss changes to the Board's procedures.
Upon motion of Supervisor McCarty, all those present voting in favor (5-0), the
matter proposed options related to the giving of the legislative invocation to
comply with applicable law as articulated in Lund v. Rowan County, was tabled
and staff was directed to draft and send to the Board recommended language for
a survey for placement on the County's website to solicit comments from the
public.
PUBLIC HEARINGS
Chairman Alphin opened the public hearing on the following:
Amendment and Reenactment of the County Code Ordinance to Amend and
Reenact Section 15-5 of the County Code to Comply with State Law Regarding the
Definition of Pollution Control Equipment and Facilities
County Attorney Popovich presented the proposed amendment for the Board's
consideration which is technical in nature and being proposed to conform the
County's ordinance with the State code.
Chairman Alphin called for persons to speak in favor of or in opposition to the
proposed amendment.
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No one appeared and spoke.
Chairman Alphin closed the public hearing and upon motion of Supervisor
Jefferson, all those present voting in favor (5-0), the following Ordinance
amendment was adopted and the Chairman authorized to execute it on behalf of
the Board:
AN ORDINANCE TO AMEND AND REENACT THE ISLE OF WIGHT COUNTY CODE
BY AMENDING AND REENACTING CHAPTER 15. TAXATION. ARTICLE I. IN
GENERAL. SECTION 15-5. CERTIFIED POLLUTION CONTROL EQUIPMENT EXEMPT
FROM TAXATION
WHEREAS, the Board of Supervisors of Isle of Wight County, Virginia, deems it
necessary to revise its local ordinance related to taxation in order to comply with
current state law;
NOW, THEREFORE, BE IT ORDAINED by the Isle of Wight County Board of
Supervisors that Chapter 5. Taxation. Article I. In General. Section 15-5. Certified
Pollution Control Equipment Exempt from Taxation be amended and reenacted as
follows:
Sec. 15-5. - Certified pollution control equipment exempt from taxation.
o Download (docx)EmailCompare(a) Certified pollution control
equipment and facilities, as defined herein, are hereby declared to be a separate
class of property and shall constitute a classification for local taxation separate
from other such classification of real or personal property and such property shall
be exempt from local taxation.
(b) As used in this section,
(1) "Certified pollution control equipment and facilities" shall mean any property,
including real or personal property, equipment, facilities or devices used primarily
for the purpose of abating or preventing pollution of the atmosphere or waters of
the Commonwealth and which the state certifying authority having jurisdiction
with respect to such property has certified to the Department of Taxation as
having been constructed, reconstructed, erected, or acquired in conformity with
the state program or requirements for abatement or control of water or
atmospheric pollution or contamination. Such property shall include, but is not
limited to, any equipment used to grind, chip, or mulch trees, tree stumps,
underbrush, and other vegetative cover for reuse as mulch, compost, landfill gas,
synthetic or natural gas recovered from waste or other fuel, and equipment used
in collecting, processing, and distributing, or generating electricity from, landfill
gas or synthetic or natural gas recovered from waste, whether or not such
property has been certified to the Department of Taxation by a state certifying
authority. Such property shall also include solar energy equipment, facilities, or
devices owned or operated by a business that collect, generate, transfer, or store
thermal or electric energy whether or not such property has been certified to the
Department of Taxation by a state certifying authority. For solar photovoltaic
(electric energy) systems, this exemption applies only to (i) projects equaling 20
megawatts or less, as measured in alternating current (AC) generation capacity,
for which an initial interconnection request form has been filed with an electric
utility or a regional transmission organization on or before December 31, 2018; (ii)
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projects equaling 20 megawatts or less, as measured in alternating current (AC)
generation capacity, that serve any of the public institutions of higher education
listed in § 23.1-100 or private college as defined in § 23.1-105 of the Code of
Virginia (1950, as amended); (iii) 80 percent of the assessed value of projects for
which an initial interconnection request form has been filed with an electric utility
or a regional transmission organization after January 1, 2015, and greater than 20
megawatts, as measured in alternating current (AC) generation capacity, for
projects first in service on or after January 1, 2017; (iv) projects equaling 5
megawatts or less, as measured in alternating current (AC) generation capacity,
for which an initial interconnection request form has been filed with an electric
utility or a regional transmission organization on or after January 1, 2019; and (v)
80 percent of the assessed value of all other projects equaling more than 5
megawatts, as measured in alternating current (AC) generation capacity for which
an initial interconnection request form has been filed with an electric utility or a
regional transmission organization on or after January 1, 2019. The exemption for
solar photovoltaic (electric energy) projects greater than 20 megawatts, as
measured in alternating current (AC) generation capacity shall not apply to
projects upon which construction begins after January 1, 2024. Such property
shall not include the land on which such equipment or facilities are located.
(2) "State certifying authority" shall mean the State Water Control Board, for
water pollution; the State Air Pollution Control Board, for air pollution; the
Department of Mines, Minerals and Energy, for solar energy projects and for coal,
oil, and gas production, including gas, natural gas and coalbed methane gas; and
the Virginia Waste Management Board, for waste disposal facilities, natural gas
recovered from waste facilities, and landfill gas production facilities, and shall
include any interstate agency authorized to act in place of a certifying authority of
the Commonwealth. (9-7-72, §§ 1, 2.)
(STATE LAW REFERENCE—Sec. 58.1-3660 of the Code of Virginia (1950, as
amended).)
Following a recess, Chairman Alphin called for a public hearing on the following:
Request for Real and Personal Property Tax Exemption from Mathomank Village
Tribe Rushmere Community Development Corporation
Donald T. Robertson, Assistant County Administrator, addressed the County's
adopted policy which outlines requirements for requests for real and personal
property tax exemption.
Chairman Alphin called for persons to speak in favor of or in opposition to the
request.
Rosa Turner of Old Stage Highway provided background information on the
Rushmere Community Development Corporation.
Albert Burckard of Titus Point Lane spoke in support and urged the Board to
approve the application.
Brigitte Rowlett Nash Hodges of Old Stage Highway spoke in support of the
application.
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Chairman Alphin closed the public hearing and called for comments from the
Boa rd.
Responsive to concerns expressed by the Board relative to compliance by the
applicant with the requirements of the County's Policy Manual; validation of the
Mathomank Village Tribe; and, that the applicant is conducting business at a
location that is not zoned for the application's stated use, Ms. Turner referenced
a letter of acknowledgement contained in the Board's agenda from the Bureau of
Indian Affairs regarding recognition of the Mathomank Village Tribe. She advised
that all building and zoning permits have been received from the County and the
location is in the Village Service Center.
County Administrator Keaton advised that the building and zoning permits are not
current and that there are two existing structures on the property, one a private
resident and the other a former daycare facility which remains in a gutted state.
He further advised that the property is currently zoned Rural Agricultural
Conservation and that a Conditional Use Permit had been issued for a daycare in
2002. He advised that some of the activities on the application under
consideration would not be allowed under the current zoning and would require a
Conditional Use Permit. He advised that the State and Federal governments have
no evidence of a Mathomank Village Tribe and complete information has not
been provided by the applicant to meet the County's Policy Manual requirements.
Supervisor McCarty read aloud the letter contained in the agenda from the United
States Department of the Interior, Office of the Secretary, dated August 23, 2016
addressed to Ms. Turner and submitted on behalf of the Rushmere Community
Development Corporation or Mathomank Village Tribe recognizing receipt by the
Office of Federal Acknowledgement of a one-page document referred to as a
Letter of Intent on August 22, 2016 advising that information not needed to
respond to the request for information has been redacted and that until such
material is received in accordance with Section 83.21 and all of its subsections,
you are not considered a petitioner.
Responsive to the Board's expressed concerns, Ms. Turner advised that power
had been restored to the building in October 2016 and there are plans to install
piping and walls in the future.
Supervisor Grice commented that the Mathomank Village Tribe is not included in
the list of 567 recognized American Indian and Alaskan native tribes and villages.
Supervisor Jefferson commented in recognition of staff's identified discrepancies,
he would recommend the applicant reapply after clearing up these discrepancies
with staff.
Supervisor Acree commented that he would like for Ms. Turner to identify specific
people being rendered services in the County.
Chairman Alphin commented it would be appropriate to deny the application
based on the current information provided to the Board.
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Upon motion of Supervisor Jefferson, all those present voting in favor (5-0), the
request was denied based on factual discrepancies in the application, the lack of
appropriate zoning consistent with the identified uses in the application and the
condition of the secondary structure on the property formerly used to provide
services.
COUNTY ADMINISTRATOR'S REPORT
Responsive to the Board's previous direction to staff to report back to the Board
relative to the feasibility of videotaping Planning Commission meetings, County
Administrator Keaton reported on short and long-term options, the short-term
option being to authorize overtime to staff at an annual cost of $2,500 which
could be accomplished as a budget amendment.
Upon motion of Supervisor Acree, all those present voting in favor (5-0), $2,500 in
annual overtime costs to film Planning Commission meetings was authorized and
staff was directed to provide data regarding the number of viewers of such
meetings and a list of all IT projects to the Board.
The Board was invited to a ribbon cutting ceremony and formal opening of the
County's Kayak launch at Nike Park scheduled for 10:00 a.m. on Friday, September
1, 2017.
Under Matters for the Board's information, County Administrator Keaton
apprised the Board that the EMS Revenue Recovery Program has experienced a
significant increase of 39% since 2016.
UNFINISHED OLD BUSINESS
Jimmy Sanderson, Davenport & Company, provided a briefing on the County's
opportunity for a General Obligation Bond refunding and advised that rates will
be locked in on September 7, 2017 with specific savings communicated to the
Board at a future date.
Upon motion of Supervisor Grice, all those present voting in favor (5-0), the
following Resolution was adopted authorizing staff to proceed with the refunding
opportunity as presented by Davenport & Company:
RESOLUTION PROVIDING FOR THE ISSUANCE, SALE AND AWARD OF GENERAL
OBLIGATION REFUNDING BONDS OF ISLE OF WIGHT COUNTY, VIRGINIA, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $48,000,000, PROVIDING FOR
THE FORM, DETAILS AND PAYMENT THEREOF, AND PROVIDING FOR THE
REFUNDING OF CERTAIN GENERAL OBLIGATION BONDS OF THE COUNTY
WHEREAS, pursuant to Section 10(b) of Article VII of the Constitution of Virginia
and Section 15.2-2639 (formerly Section 15.1-227.40) of the Code of Virginia of
1950, as amended, Isle of Wight County, Virginia (the "County"), has elected by
affirmative vote of the qualified voters of the County, to be treated as a city for
the purpose of!issuing its bonds;
WHEREAS, on September 30, 2010, the County issued its $12,145,000 General
Obligation Refunding Bonds, Series 2010D (the "2010D Bonds");
WHEREAS, on June 29, 2011, the County issued its $17,630,000 General
Obligation Public Improvement and Refunding Bonds, Series 2011A (the "2011A
Bonds");
WHEREAS, on September 27, 2012, the County issued its $48,465,000 General
Obligation Public Improvement and Refunding Bonds, Series 2012 (the "2012
Bonds");
WHEREAS, the County administration, in consultation with Davenport & Company
LLC, the County's financial advisor (the "Financial Advisor"), has recommended to
the Board of Supervisors of the County (the "Board") that the County authorize
the refunding of a portion of the outstanding 2010D Bonds, 2011A Bonds and
2012 Bonds, as well as any other County obligations that the County
Administrator, in collaboration with the Financial Advisor, determines to refund
and restructure for debt service savings and cash flow purposes (collectively, the
"Refunded Bonds"), and the issuance and sale of one or more series of general
obligation refunding bonds (the "Bonds") to refund the Refunded Bonds; and
WHEREAS, the County administration, in consultation with the Financial Advisor,
has recommended to the Board that the County issue and sell the Bonds in an
aggregate principal amount not to exceed $48,000,000 through a negotiated sale
with one or more qualified investment banking firms;
BE IT RESOLVED BY THE BOARD OF SUPERVISORS OF ISLE OF WIGHT COUNTY,
VIRGINIA:
1. Issuance of Bonds. Pursuant to the Constitution and statutes of the
Commonwealth of Virginia, including the Public Finance Act of 1991, the Board
hereby approves the issuance and sale of the Bonds in the maximum aggregate
principal amount of $48,000,000 to provide funds to refund the Refunded Bonds
and to pay the related costs of issuance and refunding.
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2. Bond Details.
(a) The Bonds shall be issued as a single series of federally tax-exempt
bonds or as two separate series of federally tax-exempt and taxable bonds as
determined by the County Administrator, shall be designated "General Obligation
Refunding Bonds, Series 2017B," or such other designation as determined by the
County Administrator, shall be in registered form, shall be dated such date as
determined by the County Administrator and shall be in denominations of $5,000
and integral multiples thereof. Subject to Section 8, the issuance and sale of the
Bonds are hereby authorized on terms as shall be satisfactory to the County
Administrator; provided, however, that the Bonds shall (i) have a "true" or
"Canadian" interest cost not to exceed 4.25%, taking into account any original
issue discount or premium thereon, and (ii) mature or be subject to mandatory
sinking fund redemptions in annual installments ending no later than
December 31, 2042. Principal of the Bonds shall be payable annually, and interest
on the Bonds shall be payable semiannually on dates determined by the County
Administrator.
(b) Each Bond shall bear interest at such rate as shall be determined at
the time of sale, calculated on the basis of a 360 -day year of twelve 30 -day
months. Principal and premium, if any, shall be payable to the registered owners
upon surrender of Bonds as they become due at the office of the Registrar (as
hereinafter defined). Interest shall be payable by check or draft mailed to the
registered owners at their addresses as they appear on the registration books
kept by the Registrar on a date prior to each interest payment date that shall be
determined by the County Administrator (the "Record Date"); provided, however,
that at the request of the registered owner of the Bonds, payment may be made
by wire transfer pursuant to the most recent wire instructions received by the
Registrar from such registered owner. Principal, premium, if any, and interest
shall be payable in lawful money of the United States of America.
(c) Initially, one Bond certificate for each maturity of the Bonds shall be
issued to and registered in the name of The Depository Trust Company, New York,
New York ("DTC'), or its nominee. The County has heretofore entered into a
Blanket Letter of Representations relating to a book -entry system to be
maintained by DTC with respect to the Bonds. "Securities Depository" shall mean
DTC or any other securities depository for the Bonds appointed pursuant to this
Resolution.
(d) In the event that (i) the Securities Depository determines not to
continue to act as the securities depository for the Bonds by giving notice to the
Registrar, and the County discharges the Securities Depository of its
responsibilities hereunder, or (ii) the County in its sole discretion determines (A)
that beneficial owners of Bonds shall be able to obtain certificated Bonds or (B) to
select a new Securities Depository, then its chief financial officer shall, at the
direction of the County, attempt to locate another qualified securities depository
to serve as Securities Depository and authenticate and deliver certificated Bonds
to the new Securities Depository or its nominee, or authenticate and deliver
certificated Bonds to the beneficial owners or to the Securities Depository
participants on behalf of beneficial owners substantially in the form provided for
in Section 5; provided, however, that such form shall provide for interest on the
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Bonds to be payable (X) from the date of the Bonds if they are authenticated prior
to the first interest payment date or (Y) otherwise from the interest payment date
that is or immediately precedes the date on which the Bonds are authenticated
(unless payment of interest thereon is in default, in which case interest on such
Bonds shall be payable from the date to which interest has been paid). In
delivering certificated Bonds, the chief financial officer shall be entitled to rely on
the records of the Securities Depository as to the beneficial owners or the records
of the Securities Depository participants acting on behalf of beneficial owners.
Such certificated Bonds will then be registrable, transferable and exchangeable as
set forth in Section 7.
(e) So long as there is a Securities Depository for the Bonds (i) it or its
nominee shall be the registered owner of the Bonds, (ii) notwithstanding anything
to the contrary in this Resolution, determinations of persons entitled to payment
of principal, premium, if any, and interest, transfers of ownership and exchanges
and receipt of notices shall be the responsibility of the Securities Depository and
shall be effected pursuant to rules and procedures established by such Securities
Depository, (iii) the Registrar and the County shall be neither responsible nor
liable for maintaining, supervising or reviewing the records maintained by the
Securities Depository, its participants or persons acting through such participants,
(iv) references in this Resolution to registered owners of the Bonds shall mean
such Securities Depository or its nominee and shall not mean the beneficial
owners of the Bonds and (v) in the event of any inconsistency between the
provisions of this Resolution and the provisions of the above -referenced Blanket
Letter of Representations such provisions of the Blanket Letter of
Representations, except to the extent set forth in this paragraph and the next
preceding paragraph, shall control.
3. Redemption Provisions.
(a) The Bonds may be subject to redemption prior to maturity at the
option of the County at a price and on or after dates, if any, determined by the
County Administrator.
(b) Any term bonds may be subject to mandatory sinking fund
redemption upon terms determined by the County Administrator.
(c) If less than all of the Bonds are called for redemption, the maturities
of the Bonds to be redeemed shall be selected by the County's chief financial
officer in such manner as the chief financial officer may determine to be in the
best interests of the County. If less than all the Bonds of a particular maturity are
called for redemption, the Bonds within such maturity to be redeemed shall be
selected by the Securities Depository pursuant to its rules and procedures or, if
the book -entry system is discontinued, shall be selected by the Registrar by lot in
such manner as the Registrar in its discretion may determine. In either case, (i)
the portion of any Bond to be redeemed shall be in the principal amount of
$5,000 or some integral multiple thereof and (ii) in selecting Bonds for
redemption, each Bond shall be considered as representing that number of Bonds
that is obtained by dividing the principal amount of such Bond by $5,000. The
County shall cause notice of the call for redemption identifying the Bonds or
portions thereof to be redeemed to be sent by facsimile or electronic
transmission, registered or certified mail or overnight express delivery, not less
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than 30 nor more than 60 days prior to the date fixed for redemption, to the
registered owner of the Bonds. The County shall not be responsible for sending
notice of redemption to anyone other than DTC or another qualified Securities
Depository or its nominee unless no qualified Securities Depository is the
registered owner of the Bonds. If no qualified Securities Depository is the
registered owner of the Bonds, notice of redemption shall be sent to the
registered owners of the Bonds. If a portion of a Bond is called for redemption, a
new Bond in principal amount equal to the unredeemed portion thereof will be
issued to the registered owner upon the surrender thereof.
(d) In the case of an optional redemption, the notice may state that (i) it
is conditioned upon the deposit of moneys, in an amount equal to the amount
necessary to effect the redemption, no later than the date fixed for redemption or
(ii) the County retains the right to rescind such notice on or prior to the date fixed
for redemption (in either case, a "Conditional Redemption"), and such notice and
optional redemption shall be of no effect if such moneys are not so deposited or if
the notice is rescinded as described herein. Any Conditional Redemption may be
rescinded at any time. The County shall give prompt notice of such rescission to
the affected Bondholders. Any Bonds subject to Conditional Redemption where
redemption has been rescinded shall remain outstanding, and the rescission shall
not constitute an event of default. Further, in the case of a Conditional
Redemption, the failure of the County to make funds available on or before the
date fixed for redemption shall not constitute an event of default, and the County
shall give immediate notice to all organizations registered with the Securities and
Exchange Commission as securities depositories or the affected Bondholders that
the redemption did not occur and that the Bonds called for redemption and not
so paid remain outstanding.
4. Execution and Authentication. The Bonds shall be signed by the
manual or facsimile signature of the Chairman or Vice Chairman of the Board and
shall be countersigned by the manual or facsimile signature of the Clerk or Deputy
Clerk of the Board, and the Board's seal shall be affixed thereto or a facsimile
thereof printed thereon; provided, however, that if both of such signatures are
facsimiles, no Bond shall be valid until it has been authenticated by the manual
signature of an authorized officer or employee of the Registrar and the date of
authentication noted thereon.
5. Bond Form. The Bonds shall be in substantially the form of Exhibit A
attached hereto, with such completions, omissions, insertions and changes not
inconsistent with this Resolution as may be approved by the officers signing the
Bonds, whose approval shall be evidenced conclusively by the execution and
delivery of the Bonds.
G. Pledge of Full Faith and Credit. The full faith and credit of the County
are irrevocably pledged for the payment of principal of and premium, if any, and
interest on the Bonds. Unless other funds are lawfully available and appropriated
for timely payment of the Bonds, the Board shall levy and collect an annual ad
valorem tax, over and above all other taxes authorized or limited by law and
without limitation as to rate or amount, on all locally taxable property in the
County sufficient to pay when due the principal of and premium, if any, and
interest on the Bonds.
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7. Registration, Transfer and Owners of Bonds.
(a) The County Administrator is hereby authorized and directed to
appoint a qualified bank or trust company as paying agent and registrar for the
Bonds (the "Registrar"). The Registrar shall maintain registration books for the
registration and registration of transfers of Bonds. Upon presentation and
surrender of any Bonds at the corporate trust office of the Registrar, together
with an assignment duly executed by the registered owner or his duly authorized
attorney or legal representative in such form as shall be satisfactory to the
Registrar, the County shall execute, and the Registrar shall authenticate, if
required by Section 4, and deliver in exchange, a new Bond or Bonds having an
equal aggregate principal amount, in authorized denominations, of the same form
and maturity, bearing interest at the same rate, and registered in name(s) as
requested by the then registered owner or its duly authorized attorney or legal
representative. Any such exchange shall be at the expense of the County, except
that the Registrar may charge the person requesting such exchange the amount
of any tax or other governmental charge required to be paid with respect thereto.
(b) The Registrar shall treat the registered owner as the person
exclusively entitled to payment of principal, premium, if any, and interest and the
exercise of all other rights and powers of the owner, except that interest
payments shall be made to the person shown as owner on the registration books
on the Record Date.
8. Sale of Bonds.
(a) The Board hereby approves the following terms of the sale of the
Bonds. The Bonds shall be sold through a negotiated sale with one or more
qualified investment banking firms (collectively, the "Underwriter") as the County
Administrator, in collaboration with the Financial Advisor, determines to be in the
best interests of the County. The County Administrator, in collaboration with the
Financial Advisor, is hereby authorized and directed to determine (i) the
aggregate principal amount of the Bonds, subject to the limitations set forth in
Section 1, (ii) the interest rates of the Bonds, the maturity schedule of the Bonds
and the prices to be paid for the Bonds by the Underwriter, subject to the
limitations set forth in Section 2, (iii) the redemption provisions of the Bonds,
subject to the conditions set forth in Section 3, and (iv) the dated date, the
principal and interest payment dates and the Record Date of the Bonds, all as the
County Administrator determines to be in the best interests of the County.
(b) Following the determination of the final terms of the Bonds and their
sale, the County Administrator shall execute and deliver to the Underwriter a
bond purchase agreement (the "Bond Purchase Agreement") between the County
and the Underwriter. The Bond Purchase Agreement shall be in the form
approved by the County Administrator, in collaboration with the County Attorney
and the County's bond counsel, and shall reflect the final terms of the Bonds. The
execution of the Bond Purchase Agreement by the County Administrator shall
constitute conclusive evidence of his approval thereof. Following the sale of the
Bonds, the County Administrator shall file a copy of the Bond Purchase
Agreement with the records of the Board. The actions of the County
Administrator in selling the Bonds to the Underwriter shall be conclusive, and no
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further action with respect to the sale and issuance of the Bonds shall be
necessary on the part of the Board.
9. Official Statement. A draft of a Preliminary Official Statement
describing the Bonds, copies of which have been provided to the members of the
Board, is hereby approved as the form of the Preliminary Official Statement by
which the Bonds will be offered for sale, with such completions, omissions,
insertions and changes not inconsistent with this Resolution as the County
Administrator, in collaboration with the Financial Advisor, may consider
appropriate. After the Bonds have been sold, the County Administrator, in
collaboration with the Financial Advisor, shall make such completions, omissions,
insertions and changes in the Preliminary Official Statement not inconsistent with
this Resolution as are necessary or desirable to complete it as a final Official
Statement. The County Administrator's execution of the final Official Statement
shall constitute conclusive evidence of his approval of any such completions,
omissions, insertions and changes. The County shall arrange for the delivery to
the Underwriter of the Bonds of a reasonable number of copies of the final
Official Statement, within seven business days after the Bonds have been sold, for
delivery to each potential investor requesting a copy of the Official Statement and
to each person to whom the Underwriter initially sells Bonds.
10. Official Statement Deemed Final. The County Administrator is
hereby authorized, on behalf of the County, to deem the Preliminary Official
Statement and the Official Statement in final form, each to be final as of its date
within the meaning of Rule 15c2-12 ("Rule 15c2-12") of the Securities and
Exchange Commission, except for the omission in the Preliminary Official
Statement of certain pricing and other information permitted to be omitted
pursuant to Rule 15c2-12. The distribution of the Preliminary Official Statement
and the Official Statement in final form shall be conclusive evidence that each has
been deemed final as of its date by the County, except for the omission in the
Preliminary Official Statement of such pricing and other information permitted to
be omitted pursuant to Rule 15c2-12.
11. Preparation and Delivery of Bonds. After the Bonds have been
awarded, the Chairman or Vice Chairman and the Clerk or Deputy Clerk of the
Board are hereby authorized and directed to take all proper steps to have the
Bonds prepared and executed in accordance with their terms and to deliver the
Bonds to the Underwriter upon payment therefor.
12. Escrow Deposit Agreement. The County Administrator is hereby
authorized and directed to execute one or more escrow deposit agreements
(each an "Escrow Agreement") between the County and an escrow agent to be
appointed by the County Administrator (the "Escrow Agent") with respect to the
Refunded Bonds. The Escrow Agreement shall be in the form approved by the
County Administrator, in collaboration with the County Attorney and the County's
bond counsel, and shall provide for the deposit and investment of a portion of the
Bond proceeds for the defeasance of the Refunded Bonds. The execution of the
Escrow Agreement by the County Administrator shall constitute conclusive
evidence of such official's approval of the Escrow Agreement. The Escrow
Agreement shall provide for the irrevocable deposit of a portion of the Bond
proceeds (the "Refunding Portion") in an escrow fund (the "Escrow Fund") that
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shall be sufficient, when invested in noncal#able, direct obligations of the United
States Government (the "Government Obligations"), to provide for payment of
principal of and interest on the Refunded Bonds; provided, however, that such
Refunding Portion shall be invested in such manner that none of the Bonds will be
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue
Code of 1986, as amended, and regulations issued pursuant thereto (the "Code").
The Escrow Agent is hereby authorized and directed to execute initial and final
subscription forms for the purchase of the Government Obligations and such
other contracts and agreements necessary to provide for the defeasance of the
Refunded Bonds as are approved by the County Administrator, in collaboration
with the County Attorney and the County's bond counsel.
13. Deposit of Bond Proceeds. The County Treasurer is hereby
authorized and directed (a) to provide for the delivery of the Refunding Portion to
the Escrow Agent for deposit in the Escrow Fund, in an amount that shall be
sufficient, together with any other funds deposited with the Escrow Agent and the
interest thereon, when invested as provided in the Escrow Agreement (i) to pay
when due the interest on the Refunded Bonds to the first dates on which they
may be redeemed at the option of the County and (ii) to pay upon the earlier of
maturity or redemption the principal of the Refunded Bonds and (b) to provide
for the deposit of the remaining proceeds of the Bonds in a special account to be
used to pay the costs incurred in refunding the Refunded Bonds and issuing the
Bonds. The County Treasurer and the Director of Budget and Finance, either of
whom may act, are hereby authorized and directed to take all such further action
as may be necessary or desirable in connection with the payment and refunding
of the Refunded Bonds.
14. Redemption of Refunded Bonds. The County Administrator is hereby
authorized and directed to determine, in collaboration with the Financial Advisor,
which maturities (or portions thereof) of the 2010D Bonds, 2011A Bonds and
2012 Bonds, if any, shall constitute the Refunded Bonds and whether any
additional County obligations shall be refunded and restructured as Refunded
Bonds for debt service savings and cash flow purposes. The Refunded Bonds are
specifically and irrevocably called for redemption on the first respective dates on
which they may be redeemed at the option of the County. The Escrow
Agreement shall provide for notice of redemption to be given to the registered
owners of the Refunded Bonds in accordance with the respective resolutions
providing for the issuance of the Refunded Bonds.
15. Arbitrage Covenants.
(a) The County represents that there have not been issued, and
covenants that there will not be issued, any obligations that will be treated as part
of the same issue of obligations as any Bonds issued on a federally tax-exempt
basis (the "Tax -Exempt Bonds") within the meaning of Treasury Regulations
Section 1.150-1(c).
(b) The County covenants that it shall not take or omit to take any action
the taking or omission of which will cause the Tax -Exempt Bonds to be "arbitrage
bonds" within the meaning of Section 148 of the Code or otherwise cause interest
on the Tax -Exempt Bonds to be includable in the gross income for federal income
tax purposes of the registered owners thereof under existing law. Without
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limiting the generality of the foregoing, the County shall comply with any
provision of law that may require the County at any time to rebate to the United
States any part of the earnings derived from the investment of the gross proceeds
of the Tax -Exempt Bonds, unless the County receives an opinion of nationally
recognized bond counsel that such compliance is not required to prevent interest
on the Tax -Exempt Bonds from being includable in the gross income for federal
income tax purposes of the registered owners thereof under existing law. The
County shall pay any such required rebate from its legally available funds.
16. Non -Arbitrage Certificate and Elections. Such officers of the County
as may be requested by the County's bond counsel are hereby authorized and
directed to execute an appropriate certificate setting forth (a) the expected use
and investment of the proceeds of the Tax -Exempt Bonds in order to show that
such expected use and investment will not violate the provisions of Section 148 of
the Code and (b) any elections such officers deem desirable regarding rebate of
earnings to the United States for purposes of complying with Section 148 of the
Code. Such certificate shall be prepared in consultation with the County's bond
counsel, and such elections shall be made after consultation with bond counsel.
17. Limitation on Private Use. The County covenants that it shall not
permit the proceeds of the Tax -Exempt Bonds or the facilities refinanced
therewith to be used in any manner that would result in (a) 5% or more of such
proceeds or facilities being used in a trade or business carried on by any person
other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5%
or more of such proceeds or facilities being used with respect to any output
facility (other than a facility for the furnishing of water), within the meaning of
Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used
directly or indirectly to make or refinance loans to any persons other than a
governmental unit, as provided in Section 141(c) of the Code; provided, however,
that if the County receives an opinion of nationally recognized bond counsel that
any such covenants need not be complied with to prevent the interest on the Tax -
Exempt Bonds from being includable in the gross income for federal income tax
purposes of the registered owners thereof under existing law, the County need
not comply with such covenants.
18. Continuing Disclosure Agreement. The County Administrator is
hereby authorized to execute and deliver a continuing disclosure agreement (the
"Continuing Disclosure Agreement") setting forth the reports and notices to be
filed by the County and containing such covenants as may be necessary to assist
the Underwriter in complying with the provisions of Rule 15c2-12. The Continuing
Disclosure Agreement shall be substantially in the form of the draft attached to
the Preliminary Official Statement, with such completions, omissions, insertions
and changes that are not inconsistent with this Resolution.
19. Other Actions. All other actions of officers of the County in
conformity with the purposes and intent of this Resolution and in furtherance of
the issuance and sale of the Bonds are hereby ratified, approved and confirmed.
The officers of the County are hereby authorized and directed to execute and
deliver all certificates and instruments and to take all such further action as may
be considered necessary or desirable in connection with the issuance, sale and
delivery of the Bonds.
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20. Repeal of Conflicting Resolutions. All resolutions or parts of
resolutions in conflict herewith are hereby repealed.
21. Effective Date. This Resolution shall take effect immediately.
County Administrator Keaton introduced the issue of the Sports Complex
Memorandum of Understanding between the County and the Town of Smithfield.
Following advisement by County Attorney Popovich that policies and procedures
are in the process of being developed for consideration by County and Town staff,
upon motion of Supervisor McCarty, the following Memorandum of
Understanding was approved (5-0) pending completion and approval of the
policies:
MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN
ISLE OF WIGHT COUNTY
AND
the TOWN OF SMITHFIELD
THIS AGREEMENT, made this day of , 2017, by and between
the COUNTY OF ISLE OF WIGHT ("County"), and the TOWN OF SMITHFIELD
("Town").
WITNESSETH:
1. BACKGROUND:
The Town of Smithfield has purchased a tract of land within the corporate
boundaries of the Town for the purpose of constructing an athletic activity
complex which will provide ballfields for youth athletics and recreation. The
Town has received generous corporate and personal donations to defray a large
part of the cost of constructing the athletic complex. The County has agreed to
donate the sum of $250,000 to the Town to be allocated for construction of the
facilities. In consideration of the mutual benefits and obligations contained
herein, the aforementioned parties therefore do agree to the following terms:
2. ISLE OF WIGHT COUNTY DONATION; PAYMENT:
The Isle of Wight County Board of Supervisors, by motion adopted February 18,
2016, has agreed to donate a sum not to exceed $250,000 to be paid to the Town
of Smithfield solely for construction costs of the facility. Payment shall be made
by the County in five equal installments of $50,000, the first payment of which
shall be due and payable upon execution of this Memorandum of Understanding
(MOU) by both parties and each July 1't thereafter until July 1, 2021. Nothing in
this MOU shall prohibit the County from paying its donation commitment in
advance, at the County's sole discretion.
3 ATHLETICS ACTIVITY COMPLEX TO BE CONSTRUCTED:
UN
The Town of Smithfield will construct the improvements necessary and desirable
for an athletics activity complex upon a tract of land located in the Town of
Smithfield, generally known as the Little Farm, containing 97.94 acres, more or
less, and identified as Tax Map Parcel No. 21-01-051. The Town shall have the
sole responsibility for the construction, ownership and management of the facility
upon such terms and conditions as the Town Council shall deem most appropriate
in its sole discretion.
4. LIABILITY
Any and all users of the athletics activity complex, not a party to this MOU, shall
be required to provide a Certificate of Insurance (COI) for liability purposes, with
the Town as an additional named insured party under said user's policy. Liability
policy limits must be not less than $1,000,000 per occurrence. The amount of
required coverage may be changed by the Town as circumstances may warrant.
5. USE OF THE FACILITY
The Town agrees that the athletic fields and future indoor facility to be
constructed within the athletics complex may be used by the Isle of Wight County
schools, the Isle of Wight County Parks and Recreation department, the Windsor
Athletic Association, the Town of Windsor, as well as other not-for-profit
recreational associations, subject to availability. Scheduling for the use of the
fields shall be the responsibility of the Town. All use of the athletic fields/facility
shall be in accordance with the Use Policies and Procedures, as they may be
amended from time to time, which are attached hereto and incorporated by
reference. Said Use Policies and Procedures shall be developed, implemented
and/or modified by the Town following good faith discussions and negotiations as
to the terms contained therein with the County..
6. ACCESS
It is hereby agreed that the Town shall construct a sidewalk or other appropriate
pedestrian connection from the Westside Elementary School to the athletic
complex at its sole expense.
7. MAINTENANCE
The maintenance of the athletics complex shall be the sole responsibility of the
Town. The Town may assign the obligation for maintenance, either in whole or in
part, to any other organization as it may deem appropriate. This responsibility
for maintenance shall include an obligation to pick up litter that may blow onto
the Westside Elementary School property from the athletics complex.
8. SEVERABILITY OF PARTS OF AGREEMENT
It is hereby declared to be the intention of the parties hereto that the sections,
paragraphs, sentences, and clauses of this MOU are severable. If any section,
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paragraph, sentence, or clause shall be found to be invalid for any reason, such
invalidity shall not affect any of the remaining portions of the MOU.
NEW BUSINESS
Jamie Oliver, Transportation Planner, updated the Board on the Nike Park Trail
project and advised that additional money from VDOT will be forthcoming which
will lower additional funds needed from the County.
County Administrator Keaton reported on County funding associated with the
project to date in the amount of $600,000, of which $300,000 is related to
condemnation and legal fees.
Responsive to the recommendation of Don Jennings, Director of Utility Services,
for the award of a contract to HDR for engineering consulting services associated
with the County's closed landfill, Supervisor Acree moved, with all those present
voting in favor (5-0), to authorize a five-year extension of HDR's indefinite
services contract.
County Administrator Keaton relayed the applicant's desire that the following
item be postponed until the Board's next meeting:
Eagle Harbor Tract 8 Master Signage Plan/Application of Woods Lane, LLC and
Eagle Harbor LLC, Owners, for Amendment to an Approved Site Plan for the
Inclusion of a Master Signage Plan on Property Located at the Corner of Carrollton
Boulevard (Route 17) and Smith's Neck Road.
County Administrator Keaton advised that the Board's 2017 retreat is scheduled
for October 11th and 12th with a venue to be communicated at a future date.
Responsive to a need for a change in the September 7, 2017 Work Session and
December 21, 2017 regular meeting dates, upon motion of Supervisor Acree, all
those present voting in favor (5-0), the Board's September 7, 2017 work session
was changed to September 6, 2017 at 4:00 p.m.; the December 7, 2017 work
session of the Board is cancelled; and, the Board's December 21, 2017 regular
meeting is rescheduled to December 14, 2017 at 6:00 p.m.
The Director of Public Works was requested to send the Litter Blitz to the various
Homeowners' Associations, developers, churches and civic organizations located
in the County.
In recognition of Emanuel Baptist Church's 150th year anniversary, Supervisor
Jefferson moved, all those present voting in favor (5-0), that staff be directed to
develop a resolution recognizing the 150th year anniversary of Emanuel Baptist
Church.
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ADJOURNMENT
At 10:00 p.m., Chairman Alphin declared the meeting adjourned.
Rex W. Alphin, Chairman
Ocw�q w4; Sk2?t
Care ills t rm, Clerk
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