SEPTEMBER 25, 1990 MINUTES
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"WORLD'S LARGEST RESORT CITY"
CITY COUNCIL
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SEP'TEMBER 25, 1990
ITEM 1. COUNCIL CONFERENCE SESSION - Conference Room - 3:00 PM
A. COMMUNITY DEVELOPMENT CITIZENS ADVISORY COMMITTEE
Alice Green, Chair
B. HISTORICAL REVIEW BOARD
Thomas L. Ackiss, Chair
ITEM 11. CITY MANAGER'S BRIEFINGS - Conference Room - 3:30 PM
A. TRAFFIC PATTERNS IN AREA OF FERRELL PARKWAY/SANDBRIDGE ROAD/
ELSON GREEN/UPTON DRIVE
Ralph Smith, Assistant Director of Public Works
B. STORMWATER RETENTION POND ORDINANCE
Ralph Smith, Assistant Director of Public Works
ITEM 111. CITY COUNCIL CONCERNS - Conference Rocxn - 4:30 PM
ITEM IV. D I N N E R - Conference Room - 5:00 PM
ITEM V. INFORMAL SESSION - Conference Room - 5:15 PM
A. CALL TO ORDER - Mayor Meyera E. Oberndorf
B. ROLL CALL OF CITY COUNCIL
C. MOTION TO RECESS INTO EXECUTIVE SESSION
ITEM Vi. FORMAL SESSION - Council Chamber - 6:00 PM
A. CALL TO ORDER - Mayor Meyera E. Oberndorf
B. INVOCATION: Reverend Richard S. Keever
Bayside Presbyterian Church
C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
D. ELECTRONIC ROLL CALL OF CITY COUNCIL
E. CERTIFICATION OF EXECUTIVE SESSION
F. MINUTES
1. INFORMAL & FORMAL SESSIONS - September 18, 1990
G. RESOLUTIONS
I Resolution authorizing and directing the City Manager to execute
certain documents with First Union Cornmercial Corporation and
Signet Trust Company re financing construction of a Judicial Center
at the Municipal Center Complex:
a. First Prime Lease Amendment
b. First Real Property Lease Modification Agreement
c. First Supplemental Trust Agreement
d. Certificate Purchase Agreement
2. Resolution authorizing the City Manager to notify the Virginia
Department of Transportation of acceptable access points located on
Princess Anne Road Phase Ill West.
3. Resolution authorizing the relocation of a nonconforming use
operated by Princess Anne Cabinets, Inc. at 3416 North Landing Road
(PRINCESS ANNE BOROUGH).
H. CONSENT AGENDA
All matters listed under the Consent Agenda are considered in the
ordinary course of business by City Council and will be enacted by
one motion In the form listed. If an Item Is removed from the Consent
Agenda, it will be discussed and voted upon separately.
1. Ordinances, upon SECOND READING:
a. To ACCEPRT and APPROPRIATE a $63,613 grant from the Department
of Criminal Justice Services in the Sheriff'5 FY 1990-1991
Operating Budget re Electronic Offender Monitoring Program.
b. To APPROPRIATE a $25,000 grant from the Chesapeake Bay Local
Assistance Department re Chesapeake Bay Preservation Program to
the Office of Environmental Management.
2. LOW BIDS:
(CIPs 6-928/5-967)
CHESAPEAKE BAY Cavalier Park/N. Linkhorn $1,141,896.92
CONTRACTORS, INC. Park Sewer and Water
Improvefnents - Phase I
(Contract 3)
SHORELINE Cavalier Park/N. Linkhorn 107,600.00
CONTRACTORS, INC. Park Sewer Pump Station -
Pinewood Road
(Contract 4)
SHORELINE Cavalier Park/N. Linkhorn 123,400.00
CONTRACTORS, INC. Park Sewer Pump Station -
Linkhorn Drive
(Contract 5)
(CIP 6-934)
A and W Bay Colony Sewer $ 687,537.05
CONTRACTORS, INC. Improvements
(Contract 4)
SHORELINE Bay Colony Sewer Pump 191,000.00
CONTRACTORS, INC. Station - Bay Colony Drive
(Contract 8)
3. Ordinance authorlzlng tax refunds In the amount of $15,407.72.
PUBLIC HEARING
1- PLANNING BY CONSENT
a. Appl lcation of SALEM ACRES (CLEO RUSH) for a Conditional Use
Permit for a home for the elderly on the West side of
Salem Road, 406 feet North of Landstown Road (2437 Salem Road),
containing 6 acres (PRINCESS ANNE BOROUGH).
Recommendation: APPROVAL
b. Application of REGENCY APARTMENTS ASSOCIATES, LTD. for a
Conditional Use Permit for a dav care center (extension) at the
Southwest cornef-of Regency' Drive and Westminster Lane
(707 Regency Drive), containing 2.85 acres (LYNNHAVEN BOROUGH).
Recommendation: APPROVAL
C. Application of WILLIAM D. ROBINSON (ROBINSONS AUTO SALES, LTD.)
for a Conditional Use Permit for motor vehicle sales and
service at the Northwest corner of Virginia e@ach Boulevard and
Rose Marie Avenue (4960 Virginia Beach Boulevard), containing
21,344 square feet (BAYSIDE BOROUGH).
Recommendation: APPROVAL
d. Application of DINING CONCEPTS BY BYRNE, INC. for a Conditional
Use Permit for an aeating est:b I i shment on the No th s i de of
Cleveland Street t t@e Ea torn terminus (5700 Cleveland
Street), containing 4.5437 acres (BAYSIDE BOROUGH).
Recommendation: APPROVAL
e. Ordinances re Master Street and Highway Plan of the City of
Virginia Beach:
1. AMEND the Principles and Policies Element;
2. AMEND the General Corridor Concept Plan map to include
Greenwich Road as a Special Landscaped Roadway (SL-1).
Recornmendation: APPROVAL
2. PLANNING
a. Application of HILDA ARCHBELL, Executrix for Estate of Sam B.
Archbell, for a Conditional Use Perrnit for a marin, at the
Southwest corner of Winston Salem Avenue and Arctic Avenue
(300 Winston Salem Avenue), containing 24,123.52 square feet
(VIRGINIA BEACH BOROUGH).
Recommendation: APPROVAL
b. Application of STAR OF THE SEA CATHOLIC CHURCH for a
Conditional Use Permit for a i)rivate school (addition) on the
North side of 15th Street, i'50 feet West f Pacific Avenue
(308 15th Street), containing 30,000 square feet (VIRGINIA
BEACH BOROUGH).
Recommendation: APPROVAL
c. Appl ication of JOHN T. ATKINSON and JAMES F. WILSON for a
Conditional Use Permit for a single-family dwelling In the AG-1
Agrlcultural District on the South side of West Landing Road,
890.24 feet West 7f-West Neck Road (2465 West Landing Road),
containing 47.7 acres (PRINCESS ANNE BOROUGH).
Recommendation: APPROVAL
d. Application of FALSE CAPE ENTERPRISES, INC., a Virginia
Corporation, for a Conditional Use Permit for an athletic club
and recreational facilities of an outdoor nature on the East
side of Las Brisas Drive beginning at a point 200 feet North of
Sandbridge Road, containing 3.30 acres (PRINCESS ANNE BOROUGH).
Recommendation: APPROVAL
e. Appl lcation of BP OIL CO. DIVISION OF SOHIO OIL CO. for a
Conditional Use Permit for a gasoline station and car wash In
conjunction with a convenience store at the Southeast corner of
Princess Anne Road and Elson Green Avenue, containing
44,100 square feet (PRINCESS ANNE BOROUGH).
DEFERRED: August 28, 1990
Recommendation: DENIAL
f. Application of WALID A. KASSIR for a Conditional Use Permit for
motor vehicle sales and service on Lots 26, 27, 28 and the
Western 27.4 feet of Lot 29, Block 4, Lynnhaven Shores
(3232 Shore Drive), containing 24,742 square feet (LYNNHAVEN
BOROUGH).
Recommendation: DENIAL
g. Application of JDH/LBS, a General Partnership, for a Change of
Zoning District Classification frorn AG-2 Agricultural District
to B-1 Neighborhood Buslness District on the Northeast side of
Princess Anne Road, 1052 feet more or less Northwest of
Glebe Road, containing 1.74 acres (PRINCESS ANNE BOROUGH).
DEFERRED January 8, 1990 and March 26, 1990.
Recornmendation: DENIAL
h. Application of WILLIAM DRINKWATER for a Change of Zoning
District Classification from R-5D Residential Duplex District
to 0-1 Office District on Lot 2 and 1/2 of Lot 4, Block 55,
Virginia Beach Development Co. (500 23rd Street), containing
7,150 square feet (VIRGINIA BEACH BOROUGH).
DEFERRED: August 28, 1990
Recommendation: DENIAL
1. Application of LARKSPIUR FARM PARTNERSHIP for a Chan-qe ol Zonlnq
District Classification from R-10 Residential Distri ct t. B_2
Community Business @strict on the East side of Princess Anne
Road, 502 feet South of Edwin Drive, containing 13 acres
(KEMPSVILLE BOROUGH).
Recommendation: DENIAL
j - Appl lcation of DONALD W. DOWNS for a Variance to Section 4.4(b)
of the Subdivision Ordinance which requires all lots created by
subdivision to meet all requirements of the City Zoning
Ordinance on the East side of Lawrence Drive, 320 feet more or
less South of Lynnbrook Landing, containing 69,100 square feet
(BAYSIDE BOROUGH).
Recommendation: DENIAL
J. UNFINISHED BUSINESS
K. NEW BUSINESS
1. REQUEST TO SCHEDULE RECONSIDERATION OF CONDITION NO. 5:
Applicatlon of PEMBROKE P4ANOR UNITED CHURCH OF CHRIST for a
Conditional Use Permit for a church expansion on Parcei K,
Section 3, Block 24, Pembroke Manor (601 Constltution Drive),
containing 2 acres more or less (BAYSIDE BOROUGH), (adopted
June 13, 1988, Item #29540).
2. Setbacks for excavations for farm ponds and drainage ponds,
Code Section 30-1.
(Council Lady Reba McClanan will sponsor Richard Browner)
L. ADJOLRNMENT
CITY COUNCIL SESSIONS
RESCHEDULED
DECEMBER 6, 1990 2:00 PM
Reschedule of December 4
NATIONAL LEAGUE OF CITIES
(All Sessions of City Council are now held weekly on Tuesday)
9/20/90 lbs
M I N U T E S
VIrIGINIA BEACH CITY COUNCIL
Virgitila Beacli, Virglnla
September 25, 1990
Mayor Meyera E. Oberndorf called to order the COUNCIL CONFERENCE SESSION of the
VIRGINIA BEACH CITY COUNCIL in the Conference Room, City Hall Building, on
Tuesday, September 25, 1990, at 3:00 P.M.
Council Members Present:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Absent:
None
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C 0 U N C I L C 0 N F E R E N C E S E S S I 0 N
COMMUNITY DEVELOPMENT CITIZENS ADVISORY COMMITTEE
3:00 P.M.
ITEM # 33466
Al Ice Green, Chair - CITIZENS ADVISORY COMMITTEE, Introduced Sadye Shaw-
Secretary and Ernest Benson, Vice-Chair. The CITIZENS ADVISORY COMMITTEE was
appointed In 1974 under the FEDERAL HOUSING AND COMMUNITY DEVELOPMENT ACT. The
obligation of the CAC is for Citizen participation to provide adequate
opportunity to share In an advisory capacity in the planning, implementation
and assessment of the Community Development Block Grant Program.
Mrs. Shaw advised the Sixth Annual Conference of the VIRGINIA ASSOCIATION OF
NEIGHBORHOODS met from September 20 to September 22, 1990, at the Radisson
Hotel In Vlrginia Beach. There were 220 Members in attendance. The VIRGINIA
ASSOCIATION OF NEIGHBORHOODS was founded on September 21, 1987. Mrs. Shaw
extended appreciation to Councilman Clyburn for his wonderful WELCOME speech,
Father Dale for the INVOCATION and Delegate McClanan and Councilwoman McCianan
for their attendance. Councilman Clyburn represented the Mayor as she was
unable to attend due to the High Holy Days. The City backed Mrs. Shaw in the
raising of funds for the event. With a donation of $200.00 from Suburban
Utilities as well as many other contributions, the goal was attained. Maryann
1. Ustick, Director - Department of Housing/Neighborhood Preservation, advised
three trolleys transported the visitors to the TARGET AREAS and the Oceanfront.
The visltors were quite impressed and it was a most successful tour.
Ms. Ustick distributed copies of the Community Development Block Grant Program
Progress Report. Copies of same are hereby made a part of the record. The
primary objective of the City's Community Development Block Grant (CDBG)
Program Is to revital ize decl ining low and moderate incorne neighborhoods. The
second major objective of the CDBG Program Is to increase the supply of decent,
safe and affordable housing to meet the needs of the City's low and moderate
income, elderly and disabled residents. Mrs. Utick identified the problems
examined In the beginning of the City's CDBG Progr&n:
Health hazards such as lack of water and sewer
facilities, outdoor privies, well contamination
and, in some cases, lack of running water.
Safety hazards such as private dirt lanes with no
public access for mail delivery and refuse
collection and, In some cases, lack of access for
fire protection and ambulance services.
Health and safety hazards caused by deteriorated
and dilapidated houses In need of major repairs or
demolition and replacement.
In recent years, the City has utilized house-by-house code enforcement or
required each property in the TARGET NEIGHBORHOODS be brought up to meet the
City's Building Maintenance Code either with or without public assistance. Over
the last sixteen (16) years, the City has received over $35-MILLION In CDBG
funds. Of this total, approximately $33,200,000 has been expended as of July 1,
1990. Seventy-five (75%) percentof the funds were utilized for infrastructure
- water and sewer improvements, street and drainage improvements. These are not
as visible as housing Improvements.
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C 0 U N C I L C 0 N F E R E N C E S E S S I 0 N
COMMUNITY DEVELOPMENT CITIZENS ADVISORY COMMITTEE
ITEM # 33466 (Continued)
Mrs. Ustick distributed a chart which illustrated the Capital Improvement
Projects which have been cornpleted:
Eleven (11) of twelve (12) neighborhoods have
completed water and sewer projects. Burton Station
Is the only neighborhood remaining Incomplete.
Six (6) of twelve (12) neighborhoods have completed
water, sewer, street and drainage projects.
Two (2) neighborhoods (GRACETOWN and NEWSOME FARM)
have street/draining projects under construction.
SEATACK will be under construction within the next
several months. The QUEEN CITY drainage project Is
under design and is hoped to be completed by the
end of 1991.
Housing programs have made significant visible Improvements in the TARGET
NEIGHBORHOODS. The following is the approximate number of housing projects
cornpleted to date:
Housing rehabilitated 217
Houses replaced (new construction) 81
Dilapidated structures demolished and cleared 124
Eighty percent (80%) of the houses in LAKE SMITH were dilapidated and could not
be rehabilitated. Only three properties now need to be removed. This Is an
example of the most visible Improvement of all the TARGET NEIGHBORHOODS.
The Section 8 Housing Subsidies Prograin receives a portion of Its
administrative funding frorn CDBG funds. This program plays a critical role In
providing affordable rental housing for tenants displaced from the TARGET
neighborhc,ods by condemnation of the unsafe dwellings in which they resided.
The Virginia Beach Community Development Corporation (VBGDC) is partially
funded by CDBG funds. Accomplishments over the past five (5) years are:
1. The Low and Moderate lncorne Homeownership Program (LMIHOP)
produces single family housing In Virginia Beach's TARGET
NEIGHBORHOODS. To date, ten (10) houses have been built and
thirteen (13) are in progress. The program's success has been
based on VBCDC's ability to obtain other funding for the program.
VBCDC has obtained commitments for $2,200,000 In 5% mortgage funds
from VHDA and over $50,000 in construction financing from private
banks. In addition, the Virginia Department of Housing and
Community Development awarded $50,000 In 3% new construction
funding for down payment assistance on houses built under the
LMIHOP Program.
2. The Transitional Housing Program (THP) provides twenty-four (24)
months of shelter and services for battered and homeless women
with children. VBCDC has obtained thirty-four (34) houses for the
program: four (4) are leased from the City, and the balance have
been either purchased or leased from HUD. Funds for the purchased
houses were obtained by winning nationally cornpetitive grant
awards: to date this amount totals $1,464,334. The leased units
are under the HUD $1.00 lease program. To match the HUD grant
awards, VBCDC has obtained $432,000 In private mortgages.
3. The VBCDC is also developing an Acquisition/Rehab/Rosale Program
to sell vacant foreclosed properties to low and moderate Income
facilities using private, state and federal funds.
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C 0 U N C I L C 0 N F E R E N C E S E S S I 0 N
COMMUNITY DEVELOPMENT CITIZENS ADVISORY COMMITTEE
ITEM # 33466 (Continued)
FUTURE PLANS
The remaining Capital Projects In the TARGET AREAS are to be completed
within the next two (2) years (1990-1992):
NEWSOME FARM STREETS & DRAINAGE 1991
QUEEN CITY DRAINAGE 1991
GRACETOWN STREETS & DRAINAGE 1991
BURTON STATION WATER & SEWER PENDING
SEATACK STREETS & DRAINAGE 1991
Given sufficient funding levels, five (5) additional TARGET
NEIGHBORHOODS are planned for cornpletion by the end of 1991: GRACETOWN,
LAKE SMITH, MILL DAM, NEWSOME FARM and REEDTOWN. DOYLETOWN, BEECHWOOD
and NEWLIGHT have been completed and REEDTOWN will be completed In
October 1990.
The two largest TARGET NEIGHBORHOODS, SEATACK and ATLANTIC PARK, will
require several more years to be cornpleted, but substantial progress
should be made In improving housing conditions and eliminating unsafe
dwellings by the end of 1991. Planning for the completion of Atlantic
Park may also be impacted by the alignment of the proposed Southeastern
Expressway.
The two neighborhoods that were 5tarted last -- BURTON STATION and
QUEEN CITY -- may also take somewhat longer to complete due to unique
title and/or environmental problems.
Limited CDBG Housing Rehabilltation funds (approximately $25,000) are
currently being made available to match state housing funds in
emergency cases citywide (outside the TARGET NEIGHBORHOODS). Once the
backlog of TARGET NEIGHBORHOOD houses awaiting rehabilitation or
replacement has been addressed, more CDBG Housing Rehabilitation funds
will be made available to low and moderate income residents in other
parts of the City that need assistance in making critical repairs to
their homes. The focus of the CDBG Program will then shift frorn
revitalizing blighted neighborhoods to preventing neighborhood decl ine.
A limited amount of CDBG funds will continue to be made available to
assist the VBCDC's Transitional Housing Program and other essential
programs to assist the homeless and to increase the availability of
decent, safe and affordable housing.
Mrs. Ustick will respond to Councilman Jones relative the land use issues
associated with BURTON STATION, as the water and sewer is still pending.
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C 0 U N C I L C 0 N F E R E N C E S E S S I 0 N
HISTORICAL REVIEW BOARD
3:30 P.M.
ITEM # 33467
Thomas L. Ackiss, Chalman, HISTORICAL REVIEW BOARD, Introduced the fol lowing
Members of the Board: R. Angus Murdoch, Vice Chairman, B. H. "Pat" Bridges,
Ann-Meade B. Simpson and Joan L. Wright.
Chairman Ackiss distributed a data sheet relative the HISTORICAL REVIEW BOAFTD.
Copy of same Is hereby made a part of the record. State level authority cornes
frorn Section 15.1 of the Code of Virginia which empowers municipal ities to
create historic districts and to appoint a board having the authority to review
and approve construction, alterations, restoration or demol ition In those
districts. Local authority comes from Section 1300 of the Zoning Ordinance
which establishes the districts and defines the role of the Board. Mr. Ackiss
distributed a map of the HISTORIC and CULTURAL DISTRICTS.
The HISTORICAL REVIEW BOARD meets monthly, usual ly on the third Wednesday at
the Central Library. In order to be considered in a given month, appl lcations
should be submitted by the first Wednesdayin addition, the Board holds special
meetings, and workshops as needed. On appl ications of consequence, the Board
meets on-site in order to evaluate proposals with a first-hand knowledge of the
site, rather than from memory.
Chairman Ackiss cited various problems:
Widespread location of historic districts
Poor Initial planning
Last minute Involvement
District Boundaries
The Municipal Center Is the most troublesome district.
Chairman Ackiss outl ined the various Ambitions and Goals of the HISTORICAL
REVIEW BOARD:
Design Guidelines: Drafting of guidelines is
underway. These will provide guidance to both Board
and owners.
Interim Inventory has been cornpiled: Additional
work needs to be done.
Photo documentation of all properties
Analysis of inventory to sift out major
historic resources
Detailed doclinentation of major resources
Decisions as to how to best preserve and
protect the major resources.
The best protection for historic resources are
well-informed owners and a well-informed public.
The Board would prefer to see historic Information
promoted through the schools, public libraries and
local organizations.
Development of Master Plans for selected districts.
Additional staff support to accomplish the
foregoing goals.
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I T E M S 0 F T H E C I T Y M A N A G E R
ITEM # 33468
The City Manager referenced a statement contained In his transmittal letter
relative the Capital Improvement Program. The City Manager offered for
Counci I's consideration a $5.00 increase in the City automobile decal fees to
be used In meeting roadway needs. These funds would be available In future
years to assist with debt service@cost.-The City Treasurer advised he must make
decisions relative ordering the necessary forms for January. As the City
Council has not been able to 6valu6td same, and there has not been opportunity
for public comment, the City Manager recommended this portion be Ignored and
the City proceed on the basis of exlsting rates for the decals.
ITEM # 33469
The City Manager referenced a Memorandum relative a Bond Sale proposed
tentatively for November 15, 1990. Because of the Instability In the money
markets In the international scene, the City Manager would recornmend this Sale
be delayed. The issue of minibonds was also referenced in the letter. This
Issue should also be held until May so the investors of the first minibond
Issue might have an opportunity to cash said minibonds and buy bonds for the
second Issue.
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C I T Y N A N A G E R I S B R I E F I N G
TRAFFIC PATTERNS IN AREA'OF FERRELL PARKWAY/SANDBRIDGE ROAD/
ELSON GREEN/UPTON DRIVE.
3:55 P.M.
ITEM # 33470
Ralph A. Smith, Assistant Director of Publ lc Works, responded to the concerns
related to traffic movernents In the vicinity ot Elson Green Avenue/Upton
Drive/Princess Anne Road area. This concern was expressed by the residents of
Red Mill subdivision as a result of the proposed Use Permit for the BP Oil
Company site at the southeast corner of Princess Anne Rood and Elson Green
Avenue. Mr. Smith utilized a map depicting the road network and the zoning for
the area. Upton Drive is included on the City's Master Street and Highway Plan
as a four-lane divided highway, with a bike path between Princess Anne Road and
future Ferrell Parkway. North of Ferrell Parkway, Upton Drive Is planned as a
four-lane undlvided highway, with a bike path. This will be a significant
north-south arterial highway, with a primary function of facilitating the
traffic associated with the commercially zoned B-2 property between Ferrell
Parkway and Princess Anne Road, as well as the residential subdivision property
of Red MIII Farms to the east and north. The cornmercial property is a very
large tract comprising an area of approximately 157 acres. This Is about one
and one-half of the size of the area of Lynnhaven Mall, with the potential for
generating substantial traffic volumes associated with Its development. By the
year 2010, traffic projections will be about 21,000 vehicles a day In this
area.
Elson Green Avenue serves as an east-west collector street through the
cornmercial site. It Intersects Princess Anne Road on the west, traverses the
commercial tract and connects through the Red Mill subdivision to the east'
eventually Intersecting Sandbridge Road. Presently, with the commercial
property undeveloped, Elson Green Avenue has the primary function as a major
residential collector street for the Red Mill Subdivision to the east. Existing
traffic control consists of a posted speed limit of 25 miles per hour. STOP
sign controls at both the Princess Anne Road and Sandbridge Road Intersections
and within the residential area on the east end. The side streets are
controlled with STOP signs at Elson Green Avenue. Some concern has been voiced
by area residents that Elson Green Avenue is being used as a shortcut for
persons going to and from the Sandbridge area. From Its intersection with
Princess Anne Road to its intersection with Sandbrige Road, Elson Green Avenue
Is 1.26 miles long along a convoluted alignment through a residential community
at a posted speed i im I t of 25 m I I es per hour. The norma I or ma I n route f or
travel to and from Sandbridge consists of Princess Anne Road and Sandbridge
Road and the distance along those roadways between the Intersections with Elson
Green Avenue Is 1.13 mlies at a posted speed limit of 45 miles per hour. On ten
different days cornmencing in October 1989, this area was examined. Fifty-one
summons were Issued and were all for residents of the area. Therefore, It
appears to be a neighborhood problem. Police Enforcement is the approprlate
approach to same.
In the last three and one-half years, there have been six accidents at this
Intersection of Princess Anne Road and Sandbridge Road. There are slight
increases In traffic durlng the summer.
It Is recommended that a southbound left turn lane be constructed on Princess
Anne Road at Sandbridge Road with consideration for Inclusion of a traffic
signal and that a directional sign for motorists destined to the Sandbridge
area be installed on Princess Anne Road near Elson Green Avenue. It will entall
a cost of approximately $127,000 for the Installation of a traffic signal
Including the requirements to modify the end of the road (curbing/access
point). If the City Council concurs, this signal can be Installed prior to next
Summer.
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C I T Y M A N A G E R l S B R I E F I N G
STORMWATER RETENTION POND ORDINANCE
4:10 P.M.
ITEM # 33471
The City Manager distributed an Ordinance to AMEND and REORDAIN Section 30-1 of
the Code of the City of Virginia Beach, Virginia, pertaining to setbacks for
excavations for farm ponds and drainage ponds.
Ralph Smith, Assistant Director for Public Works, advised the Intent of Section
30-1 is clearly to require farm ponds and drainage ponds to be completely
within the property I lnes of a farm, or other parcel and to be set back from
right-of-way and exterior property I lnes speci f ied distances. Platting lots
into the pond area encourages homeowners to accomplish routine bank
maintenance. Such setback distances are also frequently not practical for other
types of site development, especially within an urban environment where
undeveloped land is limited. The City Staff wishes to be able to
administratively grant exceptions to the provision of the Clty Code, Section
30-1 when drainage ponds or retention ponds are constructed in connection with
the City's Stormwater Management Ordinance.
Arthur Shaw, City Engineer, advised Section 30-1 does not pose a major problem
in the rural areas of the City; however, it does pose a significant problem in
the urban area where land Is at a premium and construction Is relatively dense.
Property owners try to optimize the use of their property to the best
advantage. Either It is impractical to fol low the City Code or in sorne cases,
impossible. A responsible Member of City Staff could review these ponds in the
urban environment and approve exceptions to the City Code.
Through the use of graphics, Mr. Shaw presented six (6) examples not meeting
the twenty- f I ve f oot setback f rom the property I 1 ne or the one h undred f eet
back from the street or highway:
Ocean Lakes Community Park Site Plan
Princess Anne Library/Boys & Girls Club -
Rosemont Road and Buckner Boulevard
Charter Lakes Baker Road area
Graycliff 11 Kernpsville Boulevard
Residual triangle piece of property created by
Ferrell Parkway Phase V cutting through the
property (Southeast Recreation Center
Site/Strawbrige Elernentary School/Branch Library
and Fire Station).
Princess Anne Cornmons (Parcel A)
In response to Councilwoman McClanan, Mr. Shaw advised Environmental features
would be added as an additional factor to the proposed Ordinance.
BY CONSENSUS, the Ordinance to AMEND and REORDAIN Section 30-1 of the Code of
the City of Virginia Beach, Virginia, pertaining to setbacks for excavations
for farm ponds and drainage ponds shall be SCHEDULED for the City Council
Session of October 2, 1990.
9
CHESAPEAKE BAY PRESERVATION AREA
4:50 P.M.
ITEM # 33472
The City Manager referenced WORKSHOPS related to the CHESAPEAKE BAY
PRESERVATION AREA. Information relative the Chesapeake Bay Preservation Program
issues were distributed to City Counci I and Is hereby made a part of the
record:
Outline of major topics to be addressed In an issue
paper
Copy of a Briefing paper on the Chesapeake Bay
Preservation Program presented to the Planning
Commission In May
Copy of a matrix prepared by Newport News comparing
14 local programs.
Clay Bernick believed a series of WORKSHOPS would ensure City Council had an
accurate grasp of the complexities, as opposed to depending solely upon an
issue paper and public comment for this information.
Councilman Baum suggested a field trip with relation to the CHESAPEAKE BAY
PRESERVATION AREA.
Mayor Oberndorf advised Louls Cullipher, Director of Agriculture, could arrange
same with Clay Bernick, Director of Environmental Management. The field trip
could be videotaped. The Planning Department vans could be utilized with a
one-hour BRIEFING by Clay Bernick. Approximately five hours could be set aside
prior to the City Council Session of Tuesday, October 2, 1990.
Councilman Jones advised he felt a one-hour WORKSHOP would not be sufficient.
Mr. Bernick advised the Planning Commission's earlier recommendations, in June
related to the CHESAPEAKE BAY PRESERVATION AREAS, were forwarded to Richmond
and deemed unacceptable.
Vice Mayor Fentress wished to be provided with a matrix illustrating the
differences between the City Staff and the Planning Commission recommendations.
Councilman Sessoms advised he would not be in attendance during the City
Council Session of October Second, as he would be attending a Tidewater
Regional Transit Conference.
The City Manager will SCHEDULE the WORKSHOP and FIELD TRIP for 8:30 A.M. on
October 2, 1990. An Invitation will be Issued to the State representatives.
- 10 -
C 0 N C E R N S 0 F T H E M A Y 0 R
5:10 P.M.
ITEM # 33473
Mayor Oberndorf referenced a letter from Dr. Stephen Mansfield requesting the
City Council reconsider its option to appoint the PRINCESS ANNE COUNTY
TRICENTENNIAL COMMITTEE. No funding would be requested. An Invitation to
Princess Anne (England) to participate and the request for a First Day Cover
Commemorative Stamp would certainly have great emphasis coming trom the
governing body.
BY CONSENSUS, the City Council concurred with the appointment as long as no
funding is to be provided by the City. Copies of said correspondence shall be
provided to the City Council. The appointment will be made at a later date.
- 11 -
C I T Y C 0 U N C I L C 0 N C E R N S
ITEM # 33474
Councilman Brazier advised Councilwoman Parker had requested a list of all the
consultants currently retained by the City. Councilman Brazier wished to renew
this request.
ITEM # 33475
Councilman Jones referenced the correspondence relative wells. The local Health
Department will have the privilege of allowing variances to the new well
regulations.
Vice Mayor Fentress advised his attendance at a State Board of Health Dinner.
The well regulations was the topic of conversation and the Board offered their
assistance.
The City Manager will provide a status report.
ITEM # 33476
Councllwoman Parker referenced the FY 1992-1993 OPERATING BUDGET and requested
a BRIEFING ahead of time relative the potential shortfall.
The City Manager advised an analysis would be provided by the Financial
Advisors In October.
ITEM # 33477
Vice Mayor Fentess referenced the City's ccsponsorship with the Chamber of
Commerce In the commissioning of the USS Tortuga (LSD 46) at Little Creek
(APPROVED July 9, 1990). Vice Mayor Fentress and Councilman Sessoms flew down
to New Orleans with the Navy assisting, met all the Ofticers and Enlisted Men.
They had dinner with the Officers and their wives, returning horne the next
morning. Vice Mayor Fentress and Councilman Sessoms paid their own expenses.
- 12 -
ITEM # 33478
The INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL was called to order by
Mayor meyera E. Oberndorf in the Con f erence Room, Cl ty HAII BUII d ing, on
Tuesday, September 25, 1990, 5:20 P.M.
Council Members Present:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McC[anan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Members Absent:
None
- 13 -
ITEM # 33479
Mayor Meyera E. Oberndorf entertained a motlon to permit City Council to
conduct Its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of
Virginia, as amended, for the following purposes:
1. PERSONNEL MATTERS: Discussion or consideration of or interviews of
prospective candidates for ernployment, assignment, appointment, profnotion,
performance, demotions, salaries, disciplining, or resignation of specific
public officers, appointees, or employees pursuant to Section 2.1-344(A)
(1). To-wit: Personnel - City Attorney's Office.
Upon motion by Vice Mayor Fentress, seconded by Councilman Jones, City Council
voted to proceed Into EXECUTIVE SESSION.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McCianan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 14 -
F 0 R M A L S E S S I 0 N
VIRGINIA BEACH CITY COUNCIL
Septernber 25, 1990
6:00 P.M.
Mayor Meyera E. Oberndorf cal led to order the FORMAL SESSION of the VIRGINIA
BEAOi CITY COUNCIL In the Council Chambers, City Hall Building, on Tuesday,
September 25, 1990, at 6:00 P.M.
Council Members Present:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessorns
Council Members Absent:
None
INVOCATION: Reverend Richard S. Keever
Bayside Presbyterian Church
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE L)NITED STATES OF AMERICA
- 15 -
Item VI-E.
CERTIFICATION OF
EXECUTIVE SESSION ITEM # 33480
Upon motion by Vice Mayor Fentress, seconded by Councilwoman Parker, City
Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO
RECESS.
Only public business matters lawfully exempted from
Open Meeting requirements by Virginia law were
discussed in Executive Session to whlch this
certification resolution applies;
AND,
Only such public business matters as were
ldentifled In the motion convening the Executive
Session were heard, discussed or considered by
Virginia Beach City Council.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Councll Members Voting Nay:
None
Council Members Absent:
None
CERTIFICATION OF EXECUTIVE SESSION
VIRGINIA BEACH CITY COUNCIL
WHEREAS: The Virginia Beach City Council convened into EXECUTIVE
SESSION, pursuant to the affirmative vote recorded in ITEM # 33479
Page No. 13, and in accordance with the provisions of The Virginia
Freedom of Information Act; and,
WHEREAS: Section 2.1-344.1 of the Code of Virginia requires a
certification by the governing body that such Executive Session was
conducted in conformity with Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City
Council hereby certifies that, to the best of each member's knowledge,
(a) only public business matters lawfully exempted from Open Meeting
requirements by Virginia law were discussed in Executive Session to
which this certification resolution applies; and, (b) only such public
business matters as were identified in the motion convening this
Executive Session were heard, discussed or considered by Virginia
Beach City Council.
Ruth Hodge@Smith, CMC/AAE
City Clerk September 25, 1990
- 16 -
Item VI-F.I.
MINUTES ITEM # 33481
Upon motion by Vice Mayor Fentress, seconded by Councilman Jones, City Counci I
APPROVED the Minutes of INFORMAL AND FORMAL SESSIONS of September 18, 1990.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Robert W. Clyburn, Vice Mayor Robert E.
Fentress, Harold Heischober, Louis R. Jones, Paul J.
Lanteigne, Reba S. McCianan, Mayor Meyera E.
Oberndorf, Nancy K. Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Abstaining:
James W. Brazier, Jr.
Council Members Absent:
None
Councilman Brazier ABSTAINED as he was not In attendance during the City
Council Session of September 18, 1990.
- 17 -
Item VI-G.I.a/b/c/d/
RESOLUTIONS ITEM # 33482
Robert M. Brown, I I 1, Managing Director - Shearson Lehman Brothers, Inc.,
provided the Pricing Book for Certificates of Participation, Series of 1990 In
Lease Payments under a Real Property Lease Agreement with the City of Virginia
Beach, Virginia (Judicial Center Project (The "COPs"). The COPs were offered to
Investors during a pricing period that was initiated at 10:00 A.M, September
24, 1990, and which terminated at approximately 3:30 P.M. the same day. Said
Pricing Book Is hereby made a part of the record.
Stephanie Lewis, Government Finance Associates, one of the City's Co-Financial
Advisors, advised the pricing of the Issue was fair and concurred in the
recommendation to award the Certificates at the price levels.
Upon motion by Counci Iman Sessoms, seconded by Counci Iman Jones, City Counci I
ADOPITED-
Resolution authorizing and directing the City
Manager to execute certain documents with First
Union Commercial Corporation and Signet Trust
Company re financing constructlon of a Judicial
Center at the Municipal Center Complex ($30,500,000
Certificates of Participation, Series of 1990):
First Prime Lease Amendment
F I rst Rea I Property Lea se Mod I f I cat i on Ag reemen t
First Supplemental Trust Agreernent
Certificate Purchase Agreement
Voting: 10-0
Council Members Voting Aye:
John A. Batxn, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Mayor
Meyera E. Oberndorf, Nancy K. Parker and William D.
Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Abstaining:
Reba S. McClanan
Council Members Absent:
None
Mayor Oberndorf DISCLOSED she has a cash reserve account with Legg Mason Wood
Walker, Inc., which pays over $10,000.00 a year; however, she does not have an
Interest In Legg Mason and will not benefit nor have a detriment from the sale.
*Councilwoman McC[anan ABSTAINED and declared pursuant to Section 2.1-639.14(E)
of the Code of Virginia, her son was employed as a summer intern by Shearson-
Lehman Trust, whol ly owned subsidiary of Shearson Lehman Hutton and earned in
excess of $10,000.00 annually. Therefore, this interest meets the criteria of a
personal Interest in the transaction under the Conf I ict of Interest Act.
Shearson Lehman Hutton is the underwriter for the lease purchase financing of
the Judicial Center. Councilwoman McCianan's letter of September 17, 1990, Is
hereby made a part of the record.
Cit@@f NTijrg;i@i" E3@@@@
MUNICIPAL CENIER
LESL EL LILLEY V RGINIA BEACH. 'A 23@56 900@
CITY ATTORNEY (804) @27 4531
FA@ (.@) @2. 5681
September 25, 1990
The Honorable Meyera E. Oberndorf, Mayor
Municipal Center
Virginia Beach, VA 23456
Re: Request for Conflict of Interest opinion
Dear mayor Oberndorf:
i am writing in response to your request for an opinion as to
whether you may participate in the Council's consideration on
September 25, 1990 of a resolution authorizing and directing the
City Manager to execute certain documents with First Union
Commercial Corporation and Signet Trust Company regarding financing
the construction of the judicial center at the Municipal center
Complex.
S ConclusiO--
From my review of the Conflict of IntereStS ACt and the
information provided by you as referenced below, I am of the
opinion that you have no personal interest in the transaction of
the Virginia Beach City Council concerning the resolution
referenced above and, thus you are permitted to participate in this
matter without restriction. I have, however, set out the
disclosure requirements of SS 2.1-639.14(G) should you desire to
disclose any relationship to the transaction and participate.
I base the aforesaid conclusions on the following facts and
discussions.
Facts Pre ented-
Your request for an advisory opinion is generated by the fact
that you conduct your personal business with Legg, Mason, Wood,
Walker, Inc. (Legg Mason). You advise that you have personal
investments consisting of a cash reserve trust money market
The Honorable Meyera Oberndorf, mayor -2- September 25, 1990
account, from which you receive an annual income in excess of
$lo,ooo.00. I am informed that Legg Mason refers the cash reserve
trust money market accounts to Fidelity Bank of Boston. This
service is characterized by Legg Mason as a loss leader since they
do not earn a brokerage fee in the process. Additionally, I am
informed that Legg Mason is an underwriter for the financing of the
judicial center.
On September 25, 1990, the Council will consider a resolution
to authorize and direct the City Manager to execute a First Prime
Lease Agreement, First Real Property Lease Modification Agreement,
First Supplement Trust Agreement, and a Certificate Purchase
Agreement. Legg Mason will be a party to the Certificate Purchase
Agreement.
Issue:
I.
A. City Council is a goverrlmental agency, as it is a
legislative branch of local goverrunent as defined in SS 2.1-639.2
of the Virginia State and Local Government Conflict of Interests
Act.
B. You are an officer within the meaning of S 2.1-639.2 of
the above-referenced Act.
C. The resolution is a "transaction" as defined by the Act.
A transaction includes any matters considered by any goverrunental
agency on which official action is taken or contemplated.
D. "Personal interest" is defined in SS 2.1-639.2 as a
financial benefit or liability which accrues to an officer,
employee, or to an immediate family member. The interest exists
by reason of one of five categories specified therein as: 1)
ownership in a business if the ownership interest exceeds 3% of the
total equity of the business; (2) annual income from ownership in
real or personal property or a business in excess of $10,000.00;
3) salary from the use of property or paid by a business that
exceed $10,000.00 annually; 4) ownership of real or personal
property when the interest exceeds $10,000.00 in value, exclusive
of ownership in a business, or salary; and 5) personal liability
incurred or assumed on behalf of a business which exceeds 3% of the
asset value of the business.
E. A "personal interest in the transaction" exists when an
officer or employee or a member of his immediate family has a
personal interest in property or a business or represents any
individual or business and such property, business or represented
The Honorable Meyera Oberndorf, Mayor -3- September 25, 1990
individual (i) is the subject of the transaction or (ii) may
reali7e a reasonably foreseeable direct or indirect benefit or
detriment as the result of the agency considering the transaction.
II. ApPlication of Definitions:
A. Personal Interest
My review of the f acts indicates that you do not have a
personal interest as defined above, by virtue of the fact that the
income you receive from your investments is from Fidelity Bank of
Boston. You do not own any interest in Legg Mason, nor do you
receive an annual income, earn a salary, or assume any liability
for Legg Mason.
B. Personal Interest in the Transaction
You do not have a personal interest, as defined above;
therefore, you cannot have a personal interest in the transaction
under the definition of the Conflict of Interests Act.
III. Disclosure Reguirements of Section 2.1-639. @G)
Based on the f act that you have no personal interest in the
transaction, as def ined above, it is my opinion that you are
permitted to participate as to this item. However, I have enclosed
a written declaration form, should you decide to disclose the facts
presented and participate. This disclosure form is based on S 2.1-
639.14(G). You may either make this declaration orally, which is
to be recorded in the written minutes of the City Council, or you
may file a signed written declaration with the Clerk of City
Council, who shall retain and make this document available for
public inspection for a period of five years from the date of
recording or receipt.
The Conflict of Interests Act deals with the types of
influences upon a public officer's or employee' s judgment which are
clearly improper. The law cannot, however, protect against all
appearances of improper influence. In that respect the ACt places
the burden on the individual officer to evaluate whether the facts
presented would present an appearance of impropriety which is
unacceptable or which would affect the confidence of the public in
the officer's ability to be impartial. I have opined that you may
participate in the transaction, either with or without disclosure.
However, if you are concerned that participating in the
The Honorable Meyera Oberndorf, Mayor -4- September 25, 1990
transaction, even after disclosure, creates an unacceptable
appearance of impropriety, you may abstain from participating under
S 2.1-639-14(E) provided that you first disclose your interest in
the transaction.
As a final note to any conflict of interest opinion, Section
2.1-639.18(c) provides that a written opinion of the City Attorney
made after a full disclosure of the facts, is advisory and
admissible as evidence that you did not knowingly violate the Act,
while a favorable opinion of the Commonwealth's Attorney as the
enforcing officer of the COIA, provides immunity from any alleged
violation.
Please contact me should you desire any additional
information.
Very truly yours,
Leslie
City At
LLL/EEF/awi
Enclosure
Cit@ C).f
MEYERA E. OBERNDORF MUNICIPAL CENTER
MAYOR VIRGINIA BEACH, VIRGINIA 23456-9000
(804) 427-4581
September 25, 1990
Mrs. Ruth Hodges Smith, CMC/AAE
City Clerk's office
Municipal Center
virginia Beach, VA 23456
Re: Disclosure Pursuant to Section 2.1-639.14(G), Code of
Virginia
Dear Mrs. Smith:
Pursuant to the virginia Conflict of Interests Act, Section
2.1-639.14(G), Code of virginia, I make the following declaration:
1. The transaction for which I am executing this written
disclosure is my participation in a resolution regarding
financing the construction of the judicial center at the
Municipal Center Complex.
2. The nature of my personal interest is that I have a cash
reserve trust money market account through Legg, Mason,
Wood'Walker, Inc. (Legg Mason) from which I receive an
annual income in excess of $10,000.00. Legg Mason refers
this account to Fidelity Bank of Boston and does not earn
a brokerage fee in the process.
3. I will not realize any direct or foreseeable financial
benefit or detriment as a result of this transaction.
4. The City Attorney has advised me that I am not required
to disclose this interest since it does not meet the
criteria of a personal interest in the transaction under
the Conflict of Interests Act. However, I wish to
disclose this interest and declare that I am able to
Mrs. Ruth Hodges Smith -2- September 25, 1990
participate in the transaction fairly, objectively, and
in the public interest.
Accordingly, I respectfully request that you record this
declaration in the official records of the City Council. I have
enclosed an opinion letter from Leslie L. Lilley, City Attorney,
which addresses this same matter.
Thank you for your assistance and cooperation in this matter.
Sincerely,
@. 6
Meyera E. Oberndorf
Mayor
MEO/awi
Enclosure
- 18 -
Item VI-G.l.a/b/c/d/
RESOLUTIONS ITEM # 33483
Upon motion by Councilman Heischober, seconded by Councilman Lanteigne, City
City Council voted to RECONSIDER Resolution previously ADOPTED. The Issuance
was for $32,070,000 bertificates of Participation, Series of 1990 rather than
$30,500,000 as noted In the aforementioned Resolution
Voting: 10-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Mayor
Meyera E. Oberndorf, Nancy K. Parker and William D.
Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Abstaining:
Reba S. McCianan
Council Members Absent:
None
Mayor Oberndorf DISCLOSED she has a cash reserve account with Legg Mason Wood
Walker, Inc., which pays over $10,000.00 a year; however, she does not have an
Interest In Legg Mason and will not benefit nor have a detriment from the sale.
*Councilwoman McC]anan ABSTAINED and declared pursuant to Section 2.1-639.14(E)
of the Code of Virginia, her son was employed as a summer Intern by Shearson-
Lehman Trust, wholly owned subsidiary of Shearson Lehman Hutton and earned In
excess of $10,000.00 annually. Therefore, this Interest meets the criteria of a
personal Interest In the transaction under the Conflict of Interest Act.
Shearson Lehman Hutton Is the underwriter for the lease purchase financing of
the Judicial Center. Councilwoman McCianan's letter of September 17, 1990, is
hereby made a part of the record.
- 19 -
Item VI-G.I.a/b/c/d/
RESOLUTIONS ITEM # 33484
Upon motion by Vice Mayor Fentress, seconded by Councilwoman Parker, City
Council ADOPTED:
Resolution authorizing and directing the City
Manager to execute certain documents with First
Union Commerclal Corporation and Signet Trust
Company re tinancing construction of a Judlcial
Center at the Municipal Center Complex ($32,070,000
Certificates of Participation, Series of 1990)
First Prime Lease Amendment
First Real Property Lease Modification Agreement
First Supplemental Trust Agreement
Certificate Purchase Agreement
Voting: 10-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Mayor
Meyera E. Oberndorf, Nancy K. Parker and William D.
Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Abstaining:
Reba S. McCianan
Council Members Absent:
None
Mayor Oberndorf DISCLOSED she has a cash reserve account with Legg Mason Wood
Walker, Inc., which pays over $10,000.00 a year; however, she does not have an
Interest in Legg Mason and will not benefit nor have a detriment from the sale.
*Councilwoman McCianan ABSTAINED and declared pursuant to Section 2.1-639.14(E)
of the Code of Virginia, her son was employed as a summer Intern by Shearson-
Lehman Trust, wholly owned subsidiary of Shearson Lehman Hutton and earned In
excess of $10,000.00 annually. Therefore, this Interest meets the criteria of a
personal Interest In the transaction under the Confl lct of Interest Act.
Shearson Lehman Hutton Is the underwriter for the lease purchase financing of
the Judicial Center. Councilwoman McC]anan's letter of September 17, 1990, Is
hereby made a part of the record.
1 RESOLUTION AUTHORIZING AND DIRECTING THE CITY
2 MANAGER TO EXECUTE A FIRST PRIME LEASE AMENDMENT,
3 FIRST REAL PROPERTY LEASE MODIFICATION AGREEMENT,
4 FIRST SUPPLEMENTAL TRUST AGREEMENT AND CERTIFICATE
5 PURCHASE AGREEMENT IN CONNECTION WITH THE FINANCING
6 OF CONSTRUCTION OF A JUDICIAL CENTER AT THE
7 MUNICIPAL CENTER COMPLEX
8 WHEREAS, the City of Virginia Beach, Virginia (the
9 "City") , has determined to undertake the construction of a judicial
10 center on certain real property in the municipal center complex
11 (the "Project") and to finance such construction through a plan of
12 lease-purchase financing with First Union Commercial Corporation
13 (the "Leasing Company") and the issuance of $32,070,000
14 Certificates of Participation, Series of 1990 (the "Series of 1990
15 Certificates") , which will be sold to Shearson Lehman Brothers,
16 Inc. , Craigie Incorporated, Legg Mason Wood Walker, Inc. and Wheat,
17 First Securities, Inc. (collectively, the "Underwriters") , for
18 public of f ering pursuant to an Of f ering Statement, the preliminary
19 form of which has been presented to members of the City Council;
20 and
21 WHEREAS, the Series of 1990 Certificates will represent
22 direct and proportionate interests of the holders of the Series of
23 1990 Certificates in lease payments to be made by the City pursuant
24 to a Real Property Lease Agreement dated as of October 1, 1987, as
25 supplemented and amended by a First Real Property Lease
26 Modification Agreement dated as of September 1, 1990, between the
27 Leasing Company and the City (collectively, the "Lease Agreement") ,
28 the amount of which payments will be subject to annual
29 appropriations by the City Council;
30 WHEREAS, there has been presented to this meeting a
31 Preliminary Offering Statement dated September 18, 1990, (the
32 "Preliminary Offering Statement"), with respect to the Series of
33 1990 Certificates, which has been marked to reflect the terms of
34 the Series of 1990 Certificates and other changes appropriate to
35 complete the Preliminary offering Statement as an offering
36 statement in final form (the "Offering Statement");
37 WHEREAS, there have been presented to this meeting drafts
38 of the following documents (the "Documents"), proposed in
39 connection with the issuance and sale of the Certificates:
40 (a) A First Prime Lease Amendment dated as of September
41 1, 1990 (the "First Prime Lease Amendment"), between the City and
42 the Leasing Company supplementing and amending the Prime Lease
43 dated as of October 1, 1987;
44 (b) A First Real Property Lease Modification Agreement
45 between the City and the Leasing Company supplementing and amending
46 the Real Property Lease Agreement dated as of October 1, 1987;
47 (c) A First Supplemental Trust Agreement dated as of
48 September 1, 1990, (the "First Supplemental Trust Agreement") ,
49 between the City, the Leasing Company and the Trustee supplementing
50 and amending the Trust Agreement dated as of October 1, 1987;
51 (d) A Certificate Purchase Agreement between the City,
52 as lessee, First Union Commercial Corporation, as lessor, and
53 Signet Trust Company, as Trustee, setting forth the terms of the
54 Series of 1990 Certificates and the terms pursuant to which they
55 will be sold to the Underwriters (the "Certificate Purchase
56 Agreement").
57 NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
58 CITY OF VIRGINIA BEACH, VIRGINIA:
59 1. Execution of Documents. The City Manager is authorized
60 and directed to execute the Documents and deliver them to the other
61 parties thereto. The City Manager is further authorized to cause
62 the First Prime Lease Amendment and the First Lease Modification
2
63 Agreement to be recorded in the Clerk I s of f ice of the Circuit Court
64 of the City of Virginia Beach.
65 2. Form of Documents. The Documents shall be in
66 substantially the form submitted to this meeting, which are hereby
67 approved, with such completions, omissions, insertions and changes
68 as may be approved by the City manager, the execution by the City
69 Manager to constitute conclusive evidence of the approval of any
70 such completions, omissions, insertions and changes.
71 3. Approval of Lease Payments. The principal and interest
72 components of the lease payments attributable to the Project and
73 as shown on Exhibit C to the Lease Agreement are hereby approved.
74 4. Essentiality of Project and Recommendation of Council.
75 The construction of the Project is hereby declared to be essential
76 to the efficient operation of the City, and the City anticipates
77 that the Project will continue to be essential to the operation of
78 the City during the term of the Lease Agreement. The City Council,
79 while recognizing that it is not empowered to make any binding
so commitment to make appropriations beyond the current fiscal year,
81 hereby states its interest to make annual appropriations in future
82 fiscal years in amounts sufficient to make all lease payments
83 attributable to the Project under the Lease Agreement and hereby
84 recommends that future City Councils do likewise during the term
85 of the Lease Agreement.
86 5. Of f ering Statement. The City shall arrange for the
87 delivery to the Underwriters of the Series of 1990 Certificates a
88 reasonable number of copies of the final Offering Statement, within
89 seven business days after the signing of the Certificate Purchase
90 Agreement by the Underwriters, Leasing Company, Trustee and City
91 Manager for delivery to each potential investor requesting a copy
92 of the offering Statement and to each person to whom the
93 Underwriters initially sell Series of 1990 Certificates.
3
94 6. Offering StateMent Deemed Final. Solely for the purposes
95 of Rule 15c2-12 of the Securities and Exchange commission, the City
96 manager is authorized, on behalf of the City, to deem the
97 Preliminary Offering Statement and the offering Statement in final
98 form, each to be final as of its date within the meaning of RUle
99 15c2-12, except for the omission in the Preliminary Offering
100 statement of certain pricing and other information allowed to be
101 omitted pursuant to such Rule 15c2-12. The distribution of the
102 Preliminary offering Statement and the Offering Statement in final
103 form shall be conclusive evidence that each has been deemed in
104 final form as of its date by the City, except for the omission in
105 the Preliminary Offering Statement of such pricing and other
106 information permitted to be omitted pursuant to Rule 15c-12.
107 7. Arbitrage Covenants. The City covenants that it shall
108 not take or omit to take any action the taking or omission of which
109 will cause the Series of 1990 Certificates to be "arbitrage bonds"
110 within the meaning of Section 148 of the Internal Revenue Code of
ill 1986, as amended, including regulations issued pursuant thereto
112 (the "Codell) , or otherwise cause interest on the Series of 1990
113 Certificates to be includable in the gross income for Federal
114 income tax purposes of the registered owners thereof under existing
115 law. Without limiting the generality of the foregoing, the City
116 shall comply with any provision of law that may require the City
117 at any time to rebate to the United States any part of the earnings
118 derived from the investment of the gross proceeds of the Series of
119 1990 Certificates. The City shall pay from its legally available
120 general funds any amount required to be rebated to the United
121 States pursuant to the Code.
122 8. Non-Arbitrage Certificate and Elections. Such officers
12 3 of the City as may be requested are authorized and directed to
124 execute an appropriate certificate setting forth the expected use
125 and investment of the proceeds of the Series of 1990 Certificates,
4
126 and to make any elections such officers deem desirable regarding
127 rebate of earnings to the United States, for purposes of complying
128 with Section 148 of the Code. Such certificate and elections shall
129 be in such form as may be requested by special counsel for the City
130 9. Limitation on Private Use. The City covenants that it
131 shall not permit the proceeds of the Series of 1990 certificates
13 2 to be used in any manner that would result in (a) 5% or more of
133 such proceeds being used in a trade or business carried on by any
134 person other than a governmental unit, as provided in section
135 141(b) of the Code, (b) 5% or more of such proceeds being used with
136 respect to any "output facility" (other than a facility for the
137 furnishing of Water), within the meaning of Section 141(b)(4) of
138 the Code, or (c) 5% or more of such proceeds being used directly
139 or indirectly to make or finance loans to any persons other than
140 a governmental unit, as provided in Section 141(c) of the Code;
141 provided, however, that if the City receives an opinion of
142 nationally recognized bond counsel that any such covenants need not
143 be complied with to prevent the interest on the Series of 1990
144 Certificates from being includable in the gross income for Federal
145 income tax purposes of the registered owners thereof under existing
146 law, the City need not comply with such covenants.
147 10. Other Actions. All other actions of the officers of the
148 city in conformity with the purpose and intent of this resolution
149 and in furtherance of the issuance and sale of the Series of 1990
150 Certificates are hereby approved and confirmed. The officers of
151 the City are hereby authorized and directed to execute and deliver
152 all certificates and instruments and to take all such further
153 action as may be considered necessary or desirable in connection
154 with the execution and delivery of the Documents, the issuance and
155 sale of the Certificates and the construction of the Project.
156 ii. Repeal of Conflicting Resolutions. All resolutions or
157 parts of resolutions in conflict herewith are hereby repealed.
5
158 12. Ef fective Date. This resolution shall take effect
159 immediately.
160 Adopted by the Council of the City of Virginia Beach,
161 virginia, this 25 day of September 1 1990.
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FIRST PRIME LEASE AMENDMENT
THIS FIRST PRIME LEASE AMENDMENT, dated as of September 1,
1990, between the CITY OF VIRGINIA BEACH, VIRGINIA, a Virginia
municipal corporation (the "City"), as lessor, and First Union
Commercial Corporation, a North Carolina corporation (the "Leas-
ing Company"), as lessee;
W I T N E S S E T H:
WHEREAS, the Leasing Company and the City entered into a
Prime Lease dated as of October 1, 1987 (the "Initial Prime
Lease"), whereby the Leasing Company acquired a leasehold
interest in certain real property owned by the City (the
"Original Pioperty"); and
WHEREAS, the Leasing Company desires to acquire a leasehold
interest in certain additional real property owned by the City
(the "Adjacent Property") and lease such additional real property
to the City pursuant to a Real Property Lease Agreement dated as
of October 1, 1987, as supplemented and amended by a First Real
Property Lease Modification Agreement dated as of September 1,
1990 (collectively, the "Lease Agreement"); and
WHEREAS, the Leasing Company and the city desire to make
certain amendments to the Initial Prime Lease;
NOW, THEREFORE, for and in consideration of the mutual
covenants hereinafter contained and other valuable consideration,
the parties hereto covenant and agree as follows:
ARTICLE I
Definitions
Section 101. efinitions- Except as otherwise defined
herein, terms defined in the Initial Prime Lease are used in this
First Prime Lease Amendment with the meanings assigned to them in
the Initial Prime Lease.
ARTICLE II
Amendments
Section 201. Am-ndm..t to S.-ti.- 2 of tle Init ia I Prime
Lease. Section 2 of the Initial Prime Leae is hereby amnded to
read as follows:
Section 2. Term. The term of this Lease shall com-
mence on the date of its delivery and shall expire on
September 30, 2027, unless such term is sooner terminated as
hereinafter provided.
Section 202. xhibit A. Exhibit A of the Initial Prime
Lease is hereby amended to include the real property descriptions
listed on Exhibit A hereto.
Section 203. Amendment to Section 7 of the Initial Prime
Lease. Section 7 of the Initial Prime Lease is hereby amended by
adding the following provisions:
(e) For adding to Exhibit A hereto any additional real
property on which the City plans to construct improvements
to be financed with Additional Certificates. The term
Property shall include such additional real property.
(f) In the event that a portion or portions of Pro-
perty described on Exhibit A hereto shall become unavail-
able or unsuitable for its intended use, to remove such real
property from Exhibit A and, if so desired by the City, to
add additional real property to Exhibit A to be used for
comparable purposes; provided, however, that Original
Property shall not be removed from Exhibit A prior to
payment or defeasance in full of the Series of 1987 Cer-
tificates. The term Property shall include such additional
real property.
ARTICLE III
miscellaneous
Section 301. Severability. If any provision of this First
Prime Lease Amendment shall be held invalid by any court of
competent jurisdiction, such holding shall not invalidate any
other provision hereof.
Section 302. Successors and Assigns. This First Prime
Lease Amendment shall be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors
and assigns.
Section 303. APPlicable Law. This First Prime Lease
Amendment shall be governed by the laws of the Commonwealth of
Virginia.
Section 304. Counterparts. This First Prime Lease Amend-
ment may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall
constitute but one and the same Lease.
-2-
Section 305. Ratification a@4 C@ mattin. Except for the
lllr
amendments thereto described herei., a pr.@ ions of the
Initial Prime Lease are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have caused this First Prime
Lease Amendment to be duly executed as of the date first above
written.
CITY OF VIRGINIA BEACH,
VIRGINIA
By
City Ma..gr
FIRST UNION COMMERCIAL
CORPORATION
By
Its
STATE OF VIRGINIA
The foregoing instrument was acknowledged before me in
Virginia, this day of 1 1990, by
City Manager f the City of Vir-
ginia Beach, virginia.
My commission expires:
blic
STATE OF VIRGINIA
The foregoing instrument was acknowledged before me in
Virginia, this - day of ' 1990, by
I I o First Union commercial
Corporation.
My commission expires:
No ary
EXHIBIT A
FIRST REAL PROPERTY LEASE MODIFICATION AGREEMENT
between
FIRST UNION COMMERCIAL CORPORATION
and
CITY OF VIAGINIA BEACH, VIRGIVIA
Dated as of September 1, 1990
THIS FIRST REAL PROPERTY LEASE MODIFICATION AGREEMENT, dated
as of September 1, 1990, between FIRST UNION COMMERCIAL
CORPORATION, a North Carolina corporation (the "Leasing
company"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a virginia
municipal corporation (the "City");
W I T N E S S E T H
WHEREAS, the City and the Leasing Conpany entered into a
Real Property Lease Agreement (the "Initial Lease Agreement")
dated as of October 1, 1987, whereby the Leasing Company
simultaneously acquired a leasehold interest in certain real
property (the "Original Property"), and agreed to lease such
property to the City and the City agreed to lease the same from
the Leasing Company; and
WHEREAS, the City is issuing Additional Certificates,
pursuant to the provisions of Articles IV and XIII of the Initial
Trust Agreement, as hereinafter defined, in order to finance the
Project, as hereinafter defined; and
WHEREAS, pursuant to Section 8.3 of the Initial Lease
Agreement, modification agreements may be entered into by the
Leasing Company and the City in the event Additional Certificates
are issued; and
WHEREAS, the Leasing Company and the City now desire to
modify the Initial Lease Agreeinent as set forth herein pursuant
to Section 8.3 of the Initial Lease Agreement;
NOW THEREFORE, for and in consideration of the foregoing,
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Leasing Company
and the City agree as follows:
ARTICLE I
Definitions
Section 101. efinitions. Except as otherwise defined
herein, terms defined in the Initial Lease Agreement are used in
this First Lease Modification Agreement with the meanings
assigned to them in the Initial Lease Agreement. In addition,
the following terms shall have the following meanings in this
First Lease Modification Agree'Ment.
"First Lease Modification Agreement" shall mean this First
Real Property Lease Modification Agreement between the City and
the Leasing Company dated as of September 1, 1990.
IIHVAC Facilities" shall mean the enlargement to the City's
central plant which provides heating, ventilation and air
conditioning to the City's municipal center buildings.
"Initial Trust Agreement" shall mean the Trust Agreement
between the City, Leasing company and the Trustee dated as of
october 1, 1987.
"Lease Agreement" shall mean the Initial Lease Agreement as
supplemented and amended by this First Lease Modification
Agreement.
"Prine Lease" shall mean the Prime Lease between the City
and Leasing Company dated as of october 1, 1987, as supplemented
and amended by First Prime Lease Amendment dated as of September
1, 1990.
"Project" shall inean the construction of a judicial center,
including parking facilities, on Specified Portions of the
Property.
-'Series of 1990 certificates" shall mean the Additional
Cer"ificates dated September 1, 1990, in the aggregate principal
amount of $ issued pursuant to the Trust Agreement.
"Series of 1990 Certificate Holders" shall mean registered
owners of the Series of 1990 certificates.
"Series of 1990 Certificates Insurance Policy" shall mean
the certificate insurance policy issued by the Series of 1990
Certificates Insurer insuring the payinent when due of the
principal of and interest on the Series of 1990 Certificates.
"Series of 1990 Certificates Insurer" shall mean Financial
Guaranty Insurance Company.
"Specified Portions of the Property" shall mean the property
described on Exhibit 1 hereto which constitutes all of the
Property containing improvements financed with the Series of 1990
Certificates.
"Trust Agreement" shall mean the Initial Trust Agreement, as
amended or supplemented from time to time.
ARTICLE II
Construction of Project
Section 201. . Simultaneously with
the issuance of the Series of 1990 Certificates, the Leasing
Company shall finance the construction of the Project and the
HVAC Facilities at an estimated cost of $ . The City
reasonably believes the proceeds from the Series of 1990
Certificates, together with investment earnings and an equity
contribution of the city of approximately $4,635,332 will be
sufficient to coinplete the Project and the HVAC Facilities.
Simultaneously with the execution of this First Lease
-2-
Modification Agreeraent, there shall be deposited in the
ACqUiSition and Construction Fund held by the Trustee such amount
from the Series of 1990 Certificate proceeds which together with
investment earnings thereon and the City's equity contribution is
expected to be sufficient to finance the cost of the Project and
the HVAC Facilities. Such cost shall be paid by the Trustee from
the ACqUisition and Constriiction Fund as provided by the First
Supplemental Trust Agreement.
In order to effectuate the purposes of this First Lease
Modification Agreement, the City, as agent for the Leasing
company, shall make, execute, acknowledge and deliver, or cause
to be made, executed, acknowledged and delivered, all contracts,
orders, receipts, writings and instructions, in the name of the
City or otherwise, with or to other persons, firms or
corporations, and in general do or cause to be done all such
other things as may be requisite or proper for the completion of
the Project and fulfillment of the obligations of the City under
the Lease Agreement.
ARTICLE III
De
Section 301. There shall be delivered to the Trustee from
the proceeds of the sale of the Series of 1990 Certificates the
sum of $ for deposit in the Series 1990 Debt Service
Reserve Account in the Debt Service Reserve Fund. The Leasing
Company and the City agree that upon such delivery and deposit,
the Series 1990 Debt Service Reserve Account, established
pursuant to the First Supplemental Trust Agreement, shall contain
the amount of the Series 1990 Debt Service Reserve Requirement,
as defined in the First Supplemental Trust Agreement.
-3-
ARTICLE IV
ent
Section 401. Amendment to Section 1.1 of the initial Lease
ment. (a) Section 1.1 of the Initial Lease Agreement is
hereby amended to add the following definitions:
"Seri.es 1987 Debt Service Reserve ACcount" shall mean
the Series 1987 Debt Service Reserve Account established
pursuant to Section 801 of the Initial Trust Agreement to
secure the Series of 1987 Certificates.
"Series Debt Service Reserve Account" shall mean a
Series Debt Service Reserve Account in the Debt Service
Reserve Fund for a Series of Certificates established
pursuant to Section 801 of the Initial Trust Agreement.
"Series Debt service Reserve Requirement" shall mean
the maximum amount payable on account of principal and
interest on any series of Certificates on any future March 1
or September 1.
(b) The definition of Property in Section 1.1 of the Initial
Lease Agreement is hereby amended to read as follows:
"Property" shall mean the real property described in
Exhibit A hereto. Exhibit A may be amended from time to
time pursuant to a Modification Agreement (a) to add any
additional real property described in a Modification
Agreement, on which the City intends to construct
improvements financed through the issuance of Additional
Certificates, (b) in the event that a portion or portions of
the Property becomes unavailable or unsuitable for use in a
Project, to remove such portions of the Property from
Exhibit A and, if so desired by the City, to add additional
real property to be used for comparable purposes to Exhibit
A; provided, however, that original Property shall not be
removed from Exhibit A prior to payment or defeasance in
full of the Series of 1987 Certificates, or (c) in the event
the Series of 1987 Certificates are no longer outstanding
pursuant to the terms of the Trust Agreement, to remove from
this Agreement any or all real property described on Exhibit
A hereto, on which are located no improvements financed by
the issuance of Additional Certificates.
Section 402. Amendment to Article III of the Initial Lease
Agreement. The title of Article III of the Initial Lease
Agreement is hereby amended to read as follows:
-4-
ACCrUisition of PropertV and Construction of Improy me@nts
I
Section 403. Amendment to Si the Initial Lease
ment. Section 3.1 of the Initial Lease Agreement is hereby
amended to read as follows:
Section 3.1. Purpose of Lease. The City shall acquire
the Property and construct any Projects thereon, as nay be
described in any Modification Agreement, as agent for the
Leasing conpany in accordance with Section 3.2.
Section 404. Amendment to Section 4.2 of the initial Lease
ement. Section 4.2 of the initial Lease Agreement is hereby
amended to read as follows:
Section 4.2. Lease Term. The Lease Term shall
commence on the date of delivery of this Lease Agreement
and, unless sooner terminated in accordance with the
provisions hereof, shall terminate at midnight on
September 1, 2010, or if all payments required by the Lease
Agreement have not been made on such date, when all such
payments shall have been made.
Section 405. Amendment to Section 4.4 a of the Initial
Lease A ment. Section 4.4(a) of the Initial Lease Agreement
is hereby amended to read as follows:
.Section 4.4. PreT)avment of Rentals; Ontions To
urchase. (a) The City may, at its option, elect by notice
to the Trustee to make from time to time prepayments of the
principal component of any Base Payments. Such notice to
the Trustee shall instruct the Trustee to redeem the
Certificates that correspond to the aforementioned Base
Payments. In the event that less than all of the
Certificates of one maturity are to be redeemed, the
Certificates to be redeemed shall be selected for the City
as described in the Trust Agreement. Any such prepayments
shall be in an amount sufficient to pay any applicable
premium on the Certificates to be redeemed with such amount.
Section 406. Amnltent to Section 4 .5 of the Initial Lease
j
ee.ent s hereby
Agreement. Section 4 .5 f the Initi.1 Leas. Agr
amended to read as follows:
Section 4.5. Debt Service Reserve Fund. The Leasing
Company shall cause to be delivered to the Trustee from the
proceeds of the sale of the Series of 1987 Certificates the
sum of $678,927 to fund the Series 1987 Debt Service Reserve
Account within the Debt Service Reserve Fund, established
under the Trust Agreement, to be held for the purpose of
assuring the Leasing Company of timely distribution of
payments due from the City under this Agreement, or which
would have been due but for the failure by the City Council
-5-
to appropriate funds therefor as permitted by Section 4.6,
and to provide interest and principal payments to the
Leasing Company subsequent to an event described in Section
4.6 or in Article VI. Amounts in the Series 1987 Debt
Service Reserve Account shall be used only to make payments
of that portion of Base Payments attributable to the Series
of 1987 Certificates. There shall be established a separate
Series Debt Service Reserve Account for each series of
Additional Certificates which may be issued from time to
time. Each such Series Debt Service Reserve Account will
only be used to make payments on the portion of Base
Payments attributable to the applicable series of Additional
Certificates.
Amounts held in the Debt Service Reserve Fund shall be
invested in a manner so as not to constitute this Agreement
an "arbitrage bond" within the meaning of Section 103 of the
Code. Investments purchased with amounts in the Debt
Service Reserve Fund shall be valued annually, and, subject
to Section 4.6, any deficiencies as a result of a market
value decline shall be restored by the City on or before the
next valuation date.
Investment earnings in respect of the Debt Service
Reserve Fund shall be applied as provided in the Trust
Agreement. In the event that all or a portion of the Debt
Service Reserve Fund is used to pay Base Payments, the City
is obligated, subject to Section 4.6, to restore the balance
in each Series Debt Service Reserve Account in the Debt
Service Reserve Fund to the amount of each Series Debt
Service Reserve Requirement within 12 months, from the next
available funds. Pursuant to the Trust Agreement, in lieu
of any or all amounts required to be on deposit in the
Series 1990 Debt Service Reserve Account or any Series Debt
Service Account for any future series of Additional
Certificates, the City may cause to be deposited a surety
bond or an insurance policy payable to the Trustee or a
letter of credit entitling the Trustee to draw in an amount
equal to any portion of or all of any deficiency in the
amount required to be in the applicable Series Debt Service
Reserve Account.
Section 407. Amendment to Section 4.13 of the Initial Lease
Agreement. Section 4.13 of the Lease Agreement is hereby amended
to read as follows:
4.13. Transfer at End of Lease Term. The Leasing
Company's leasehold estate in the Property shall be
transferred, conveyed and assigned to the City upon payment
by the City of all payments then due and thereafter to
become due through and including September 1, 2010, whether
pursuant to Section 4.3 or 4.4, and any other payments due
pursuant to this Agreement.
-6-
Section 408. Amendment I of the Initial Lease
ment. The Lease Agreement is hereby amended by adding the
following to Section 8.3.
(f) For adding to Exhibit A hereto any additional real
property on which the City plans to construct improvements
to be financed with Additional Certificates. The term
Property shall include such additional real property.
(g) In the event that a portion or portions of Proper-
ty, described on Exhibit A hereto, shall become unavailable
or unsuitable for its intended use, to remove such real
property from Exhibit A and, if so desired by the City, to
add additional real property to Exhibit A to be used for
comparable purposes; provided, however, that original
Property shall not be removed from Exhib"t A prior to
payment or defeasance in full of the Series of 1987
Certificates. The term Property shall include such
additional real property.
Section 409. Amendment to Exhibit A of the Initial Lease
ment. Exhibit A to the Lease Agreement is hereby amended to
read as Exhibit A hereto.
Section 410. Amendment to Exhibit C of the Initial Lease
ement. Exhibit C to the Lease Agreement is hereby amended to
read as Exhibit C hereto.
ARTICLE V
Mis ellaneous
Section 501. Covenant to Prov acilities. The
City hereby covenants that throughout the term of the Prime Lease
it will provide the Project with, at minimum, the amount of
parking spaces required by the City's building code.
Section 502. Notices. Unless otherwise provided herein,
all demands, notices, approvals, consents, requests, opinions and
other communications hereunder shall be in writing and shall be
deemed to have been given when delivered in person or mailed by
first class registered or certified mail, postage prepaid,
addressed (a) if to the City, at Municipal Center, Virginia
Beach, Virginia 23456 (Attention: Assistant City Manager for
Administration), (b) if to the Leasing Company, at First Union
Plaza - CORP-9, Charlotte, North Carolina 28288 (Attention:
), (c) if to the Trustee, at 7 North Eighth Street,
Richmond, virginia 23219 (Attention: Corporate Trust
Admihistration), and (d) if to the Series of 1990 Certificates
Insurer, at 175 Water Street, New York, New York 10038
(Attention: General Counsel). The City, the Leasing Company,
the Trustee and the Series of 1990 Certificates Insurer may, by
notice given hereunder, designate any further or different
-7-
address to which subsecfuent demands, notices, approvals,
consents, requests, opinions or other co-unications shall be
sent or persons to whose attention the same shall be directed.
Severabi@t If any provision of this First
section 503. invalid by any court
Lease Modification Agreement shall be held
Of competent jurisdiction, such holding not invalidate any other
provision hereof.
Section 504. Successors ssi ns. This First Lease
Modification Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective
sucdessors and assigns.
Section 505. This First Lease Modification
Agreement shall be governed by the laws of the commonwealth of
virginia.
Section 506. This First Lease Modification
Agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which together shall
constitute but one and the same Agreement; except that as to
delivery of the original executed copy of this First Lease
Modification Agreement as required by the Assignment Agreement,
the counterpart containing the receipt therefor executed by the
Trustee following the signatures to this First Lease Modification
Agreement shall be the original.
Section 507. The Basic Agreements
express the entire understanding and all agreements between the
parties and may not be modified except in writing signed by the
parties.
Section 508. :ion. Except for the
amendments thereto described herein, all provisions of the
Initial Lease Agreement are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have caused this First Lease
Modification Agreement to be duly executed as of the date first
above written.
FIRST UNIO14 COMMERCIAL CORPORATION
By
Its
CITY OF VIRGINIA BEACH, VIRGINIA
B
City Manager
Seen and consented to:
SIGNET TRUST COMPANY, as Trustee
B
Senior Trust OttICer
-9-
i
COMMONWEALTH OF VIRGINIA
The foregoing instrument was acknowledged before me in
, Virginia, this day of 1990, by
, City Manager of@he city of Virginia Eeach,
virginia.
My commission expires:
Notary Public
COMMONWEALTH OF VIRGINIA
The foregoing instrument was acknowledged before me in
, Virginia, this _ day of 1990,
by of
First Union Commercial Corporation.
My commission expires:
Notary Public
COMMONWEALTH OF VIRGINIA
The foregoing instrument was acknowledged before ne in
virginia, this - day of 1990, by
I Senior Trust Officer of Signet Trust
Company.
My cominission expires:
Notary Public
-10-
RECEIPT
Receipt of the foregoing original counterpart of the First
Lease Modification Agreement dated as of September 1, 1990,
between First Union commercial Corporation and the City of
Virginia Beach, virginia, is hereby acknowledged.
SIGNET TRUST COMPANY, Trustee
By
Senior Trust otticer
EXHIBIT A
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------------------
FIRST SUPPLEMENTAL TRUST AGREEMENT
between
THE CITY OF VIRGINIA BEACH, VIRGIVIA,
FIRST UNION COMMERCIAL CORPORATION
and
SIGNET TRUST COMPANY,
as Trustee
Dated as of September 1, 1990
Relating to
Certificates of Participation
series of 1990
THIS FIRST SUPPLEMENTAL TRUST AGREEMENT, dated as of
september 1, 1990, by and among the CITY OF VIRGINIA BEACH,
VIRGINIA, a Virginia runicipal corporation (the "City"), FIRST
uNioN COMMERCIAL CORPORATION, a North Carolina corporation (the
"Leasing company"), and SIGNET TRUST COMPANY, a corporation and
subsidiary trust company organized under the laws of the
commonwealth of Virginia and having its principal corporate trust
office in Richmond, Virginia (in such capacity, together with any
successor in such capacity, herein called the "Trusteell);
W I T N S S E T H :
WHEREAS, the City, the Leasing Company and the Trustee have
entered into a Trust Agreement dated as of October 1, 1987 (the
"Initial Trust Agreement"), pursuant to which were issued
$7,080,000 Certificates of Participation in Lease Payments under
a Real Property Lease Agreement with the City of Virginia Beach,
virginia (the "Series of 1987 Certificates"), to finance the
acquisition of real property (the "Original Property") to expand
the City's municipal center complex; and
WHEREAS, the City has determined it to be necessary and
expedient to construct a judicial center, including parking
faciliti:es (the "Project"), on the original Property and certain
other real property (collectively, the "Property"),
WHEREAS, the City desires to finance the Project through the
issuance of additional certificates (the "Additional
Certificates"), within the limitations and of and in compliance
with Article IV in the Trust Agreement, which Additional
Certificates will be secured on a parity with the Series of 1987
Certificates; and
WHEREAS, the Trust Agreement provides that, in connection
with the issuance of Additional Certificates, there shall be
executed and delivered to the Trustee a supplerental agreement
authorizing the issuance of Additional Certificates and setting
forth the provisions thereof; and
WHEREAS, certain amendments to the Trust Agreement are
necessary in connection with the issuance of such Additional
Certificates; and
WHEREAS, Section 1301 of the Trust Agreement provides that
the City, the Leasing Company and the Trustee may enter into
supplemental agreements without the consent of Series of 1987
Certificate holders to authorize Additional Certificates and to
make certain amendments; and
NOW, THEREFORE, for and in consideration of the mutual
covenants hereinafter contained and for other valuable
consideration, the parties hereto do hereby agree as follows:
ARTICLE I
F rr ement
Section 101. First Supplemen This
First supplemental Trust Agreement is authorized and entered into
pursuant to and in accordance with Articles IV and XIII of the
initial Trust Agreement. All covenants, conditions and
agreernents of the Initial Trust Agreement shall apply with full
force and effect to the Additional Certificates and to the
holders thereof, except as otherwise provided herein.
section 102. Pefi-nit - Except as otherwise defined
herein, terms defined in the Initial Trust Agreement are used in
this First Supplemental Trust Agreement with the meanings
assigned to them in the Initial Trust Agreement. in addition,
the following terms shall have the following meanings in this
First Supplerental Trust Agreement:
TIDTCII shall mean The Depository Trust Company, New York, New
York, a securities depository, as holder of the Series of 1990
Certificates, or its successors or assigns in such capacity.
"First Real Property Modification Agreement" shall mean the
First Real Property Modification Agreement between the City and
the Leasing Company dated as of September 1, 1990.
"First Supplemental Trust Agreement" shall mean this First
Supplemental Trust Agreement between the City, the Leasing
company and the Trustee, which supplements and amends the Initial
Trust Agreement.
"Initial Lease Agreement" shall mean the Real Property Lease
Agreement between the City and the Leasing company dated as of
october 1, 1987.
"Initial Trust Agreement" shall mean the Trust Agreement
between the City, Leasing Company and Trustee dated as of october
1, 1987.
"Payment Dates" shall mean every March 1 and September 1
beginning March 1, 1991, during the period that the Series of
1990 Certificates are outstanding.
"Series 1990 Debt Service Reserve Account" shall mean the
Series 1990 Debt Service Reserve Account established pursuant to
Section 801 of the initial Trust Agreement to secure the Series
of 1990 Certificates.
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"Series of 1990 Certificates" shall mean the $
registered certificates of participation evidencin the undivided
beneficial interests of the holders thereof in Base Payments.
"Series of 1990 Certificate Holders" shall mean registered
owners of the Series of 1990 Certificates.
"Series of 1990 Certificates Insurance Policy" shall mean
the insurance policy issued by the Series of 1990 Certificates
Insurer insuring the payment when due of -@he principal of and
interest on the Series of 1990 Certificates as provided herein.
"Series of 1990 Certificates Insurer" shall mean Financial
Guaranty Insurance Company, a New York stock insurance company.
"Special Counsel" shall mean an attorney or firm of
attorneys nationally recognized on the subject of municipal bonds
and reasonably acceptable to the Trustee.
"Trust Agreement" shall mean the Initial Trust Agreement, as
amended or supplemented from time to time.
Section 103. References to Articles and Sections. Unless
otherwise indicated, all references herein to particular articles
or sections are references to articles or sections of this First
Supplemental Trust Agreement.
ARTICLE II
Authorization, Details and Form of Series of 1990 Certificates
Section 201. Authorization of Series of 1990 Certificates.
There are hereby authorized to be issued as Additional
Certificates pursuant to Articles IV and XIII of the Trust
Agreement the Series of 1990 Certificates in the aggregate
principal amount of THIRTY MILLION FIVE HUNDRED THOUSAND
($30,500,000) evidencing undivided beneficial interests in Base
Payments to be paid by the City under the Lease Agreement. The
Series of 1990 Certificates shall be secured equally and ratably
with the Series of 1987 Certificates, except to the extent that
the Series of 1990 Certificates Insurance Policy payments will
only be made as to the Series of 1990 Certificates.
Section 202. Details of Series of 1990 Certificates. The
Series of 1990 Certificates shall be designated "Certificates of
Participation in a Lease Agreement with the City of Virginia
Beach, Virginia, Series of 1990,11 and shall be issued as fully
registered Certificates.
The Series of 1990 Certificates shall be dated 1,
1990, shall be issued in denominations of $5,000 or in-tegral
multiples thereof, shall be numbered from CIC-1 upward, and shall
bear interest at rates payable semiannually on each March 1 and
September 1 beginning March 1, 1991, and shall mature on
September 1 in years and amounts, as follows:
Year Amount Rate Year Amount Rate
Each Series of 1990 Certificate shall bear interest (a) from
its date, if such Series of 1990 Certificate is authenticated
prior to March 1, 1991, or (b) otherwise from the March 1 or
September 1 that is, or immediately precedes, the date on which
such Series of 1990 Certificate is authenticated; provided,
however, if at the time of authentication of any Series of 1990
Certificate payment of interest thereon is in default, such
Series of 1990 Certificate shall bear interest from the date to
which interest has been paid.
Principal of the Series of 1990 Certificates and the
premium, if any, thereon shall be payable to the Series of 1990
Certificate Holders upon the surrender thereof at the principal
corporate trust office of the Trustee. Interest shall be payable
by check or draft mailed to the registered owners at their
addresses as they appear on the 15th day of the month preceding
the interest payment date on registration books kept by the
Trustee. Principal and interest shall be payable in lawful money
of the United States of America.
If any principal of or interest on any Series of 1990
Certificate is not paid when due, then the overdue installments
of principal shall bear interest until paid at the same rate set
forth in such Certificate.
Section 203. Book EntrV System. Initially, one certificate
for each maturity of the Series of 1990 Certificates will be
issued and registered to DTC, which is hereby designated as the
securities depository for the Series of 1990 Certificates, or its
nominee, and immobilized in its custody. Beneficial owners of
the Series of 1990 Certificates will not receive physical
delivery of the Series of 1990 Certificates. So long as DTC is
acting as securities depository for the Series of 1990
Certificates, a book entry system will be employed, evidencing
beneficial ownership of the Series of 1990 Certificates in
principal amounts of $5,000 or integral multiples thereof for
purchases of Series of 1990 Certificates with transfers of
beneficial ownership effected on the records of DTC and its
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participants pursuant to rules and procedures established by DTC
and its participants. Interest on the Series of 1990
Certificates will be payable in clearinghouse funds to DTC or its
nominee as Series of 1990 Certificate Holder of the Series of
1990 Certificates.
Transfer of principal and interest payments to participants
of DTC shall be the responsibility of DTC; transfer of principal
and interest payments to beneficial owners by participants of DTC
shall be the responsibility of such participants and other
nominees of beneficial owners. The City and the Trustee shall
not be responsible or liable for maintaining, supervising or
reviewing the records maintained by DTC, its participants or
persons acting througli such participants.
In the event that (a) DTC determines not to continue to act
as securities depository for the Series of 1990 Certificates by
giving notice to the Trustee and the City discharging its
responsibilities hereunder, (b) the Trustee determines that
continuation of the book entry system of evidence and transfer of
ownership of the Series of 1990 certificates would adversely
affect the interests of the beneficial owners of the Series of
1990 Certificates, (c) the City determines that it is not in its
best interest to continue a book entry system with DTC, or (d)
the Trustee or the City determines that DTC is incapable of
discharging its duties, the Trustee will discontinue the book
entry system with DTC by giving notice to DTC. Upon the
occurrence of an event described in (a) or (d) above, the Trustee
will attempt to locate another qualified securities depository.
If the Trustee fails to locate another qualified depository to
replace DTC or the determination has been made in (b) or (c)
above, the Trustee will authenticate and deliver replacement
Series of 1990 Certificates to the beneficial owners or to the
DTC participants on behalf of beneficial owners substantially in
the form set forth in Exhibit A hereto. The form set forth in
Exhibit A may be modified to include any variations, omissions or
insertions that are necessary or desirable in the delivery of
replacement certificates in printed form. In delivering
replacement certificates, the Trustee shall be entitled to rely
on the records of DTC as to the beneficial owners or the records
of the DTC participants acting on behalf of beneficial owners.
The Series of 1990 Certificates would then be registrable and
exchangeable as set forth in Section 306 of the Initial Trust
Agreement.
So long as DTC is the securities depository for the Series
of 1990 Certificates (1) it shall be the Series of 1990
Certificate Holder of the Series of 1990 Certificates, (2)
transfers of ownership and exchanges shall be effected on the
records of DTC and its participants pursuant to rules and
procedures established by DTC and its participants, and (3)
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references in this First Supplemental Trust Agreement to Series
of 1990 Certificate Holders of the Series of 1990 Certificates
shall mean DTC or its nominee and shall not mean the beneficial
owners of the Series of 1990 Certificates.
Section 204. Forms of Series of 1990 Certificates. The
Series of 1990 Certificates shall be in substantially the form
set forth in Exhibit A with such appropriate variations,
omissions and insertions as are permitted or required by the
Trust Agreement.
Section 205. Execution of series of 1990 ... Certificates. The
Series of 1990 Certificates shall be executed by a duly
authorized officer or employee of the Trustee.
Section 206. Delivery of 0 certificates. The
Trustee shall execute and deliver Series of 1990 Certificates to
DTC when there have been filed with or delivered to it all items
required by Section 403 of the Initial Trust Agreement.
ARTICLE III
Redemption of Series of 1990 Certificates
Section 301. Redemption Dates and Prices. (a) Series of
1990 Certificates naturing on or before September 1, , are
not subject to optional redemptioh prior to maturity. Series of,
1990 Certificates maturing on or after September 1, I are
subject to redemption prior to maturity at the option of the
City, from and to the extent of funds on deposit with the Trustee
and available for such purpose, on or after September 1, _, in
whole at any time or in part on any Payment Date, in increments
of $5,000 or integral multiples thereof during the following
redemption periods, upon payment of the following redemption
prices (expressed as a percentage of principal amount of Series
of 1990 Certificates to be redeemed) plus interest accrued and
unpaid to the redemption date:
Period During Which Redeemed Redemption
(Both Dates Inclusive) Price
September 1, to August 31,
Septeiftber 1, to August 31,
September 1, to August 31,
September 1, to August 31,
September 1, and thereafter
(b) Series of 1990 Certificates maturing on September
1, are required to be redeemed prior to maturity, in part,
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pursuant to the following sinking fund recluirements. The Trustee
shall redeem Series of 1990 Certificates maturing on September 1,
, on September 1 in years and amounts, upon payment of 100%
of the principal amount thereof to be redeemed plus interest
accrued to the redemption date, as follows:
Year Amount
(c) The Series of 1990 certificates are required to be
redeemed prior to maturity, in whole at any time or in part on
any Payment Date, upon payment of a redemption price of 100% of
the principal amount or 100% of the Accreted Value thereof to be
redeemed plus interest accrued to the redemption date, from and
only to the extent of funds on deposit with the Trustee and
available for such purpose, in the event that the City elects not
to use proceeds from any insurance recovery or condemnation award
under the Lease Agreement to restore the Property or any portion
thereof under circumstances involving (1) loss of title to the
Property, (2) condemnation of the Property or sale in lieu
thereof, or (3) damage to or destruction of the Property.
The amount of Series of 1990 Certificates to be redeemed
pursuant to subsections (b) and (c) of this Section may be
reduced in accordance with the provisions of section 702 of the
Initial Trust Agreement.
Section 302. Manner of Redemption. If less than all of the
Series of 1990 Certificates are called for redemption, the Series
of 1990 Certificates to be redeemed shall correspond with the
prepayment of Base Payments made by the City. If less than all
of the Series of 1990 Certificates of any maturity are called for
redemption, the Series of 1990 Certificates to be redeemed shall
be selected by DTC or any successor securities depository
pursuant to its rules and procedures or, if the book entry system
is discontinued, shall be selected by the Trustee by lot in such
manner as the Trustee in its discretion may determine. In either
event, such portion of $5,000 principal amount of Series of 1990
Certificates.
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ARTICLE IV
Proceeds of Series of 1990 Certificate
Section 401. Use of Proceeds. The proceeds of the Series
of 1990 Certificates shall be paid to the Trustee and applied by
the Trustee as follows:
(a) Accrued interest on the Series of iggo
Certificates from their date to their date of delivery shall be
deposited in the Interest Account in the Certificate Fund.
(b) The sum of $ , which will. equal the
Series 1990 Debt Service Reserve Requirement immediately after
the issuance of the Series of 1990 Certificates, shall be
deposited in the Series 1990 Debt Service Reserve Account in the
Debt Service Reserve Fund.
(c) The balance of the proceeds of the Series of 1990
certificates, together with all construction grants and
reimbursements from the United States of America or the
Commonwealth of Virginia or any agency thereof, the proceeds of
short-term borrowings and any other funds received by the City
from any source for the Cost of the Project, shall be deposited
in the Acquisition and Construction Fund to be used by the
Trustee in the manner provided by the Trust Agr6eraent to pay the
Cost of the Project.
ARTICLE V
Security for Series of 1990 Certificates
Section 501. security for Series of 1990 Certificates. The
Series of 1990 Certificates shall be issued pursuant to the Trust
Agreement and shall be equally and ratably secured under the
Trust Agreement with the Series of 1987 Certificates and any
other series of Additional Certificates, issued pursuant to
Articles IV and XIII of the Initial Trust Agreement, without
preference, priority or distinction of any Certificates over any
other Certificates, except (a) to the extent that the Series of
1990 Certificates Insurance Policy payments will only be made as
to the Series of 1990 Certificates; and (b) to the extent the
moneys in each Debt Service Reserve Account shall only secure the
series of Certificates for which it was established.
ARTICLE VI
Amendments to TruSt Agreement
Section 601. Amendments to section 201
Agreement. (a) Section 201 of the Initial Trust Agreement is
hereby amended to delete the definition of Debt Service Reserve
Requirement and add the following definitions:
"Series Debt Service Reserve Account" shall mean a
Series Debt Service Reserve Account in the Debt Service
Reserve Fund for a series of Certificates establ;-shed
pursuant to Section 801 of the Initial Trust Agreenent.
"Series Debt Service Reserve Requirenient" shall mean
the maximum amount payable on account of principal and
interest on any series of Certificates on any future March 1
or Sept(tmber 1.
(b) The definition of Property in Section 201 of the Initial
Trust Agreement is hereby amended to read as follows:
"Property" shall mean the real property described in
Exhibit A to the Lease Agreement. Exhibit A may be amended
from time to time pursuant to a Modification Agreement (a)
to add any additional real property described in a
Modification Agreement, on which the City intends to
construct improvements financed through the issuance of
Additional Certificate8, (b) in the event that a portion or
portions of the Property becomes unavailable or unsuitable
for use in a Project, to remove such portions of the
Property from Exhibit A and, if so desired by the City, to
add additional real property to be used for comparable
purposes to Exhibit A; provided, however, that original
Property shall not be removed from Exhibit A prior to
payment or defeasance in full of the Series of 1987
Certificates, or (c) in the event the Series of 1987
Certificates are no longer outstanding pursuant to the terms
of the Trust Agreement, to remove from this Agreement any or
all real property described on Exhibit A hereto, on which
are located no improvements financed by the issuance of
Additional Certificates.
Section 602. Amendment to Section 201 of the Initial Trust
ement. Section 201 of the Initial Trust Agreement shall be
amended to add the following definition:
"Series 1987 Debt Service Reserve Account" shall mean the
Series 1987 Debt Service Reserve Account established in
Section 801.
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Section 603. Amendment to Section 501(a) of the Initial
Trust Agreement. Section 501(a) of the Initial Trust Agreement
is hereby-amended to read as follows:
(a) The Series of 1987 Certificates are required to be
redeemed prior to maturity, in whole at any time upon
payment of a redemption price of 100% of the principal
amount thereof to be redeemed plus interest accrued to the
redemption date, to the extent moneys are on deposit in the
Series 1987 Debt Service Reserve Account and are available
therefor, upon the occurrence of either of the following:
(1) Failure of the City to appropriate funds for
the payment of Base Payments under the circumstances
and upon the terms described in the Lease Agreement.
(2) An event of default under the Lease
Agreement.
Section 604. Amendment to section 801 of the Initial Trust
Agreement. Section 801 of the Initial Trust Agreement is hereby
amended to read as follows:
Section 801. Creati rvice Reserve Fund.
The City of Virginia Beach, Virginia, Real Estate Lease Debt
Service Reserve Fund, to be held by the Trustee, is hereby
established. Within the Debt Service Reserve Fund, there
shall be separate Series Debt Service Reserve Accounts f,r
the Series of 1987 Certificates and each series of
Additional certificates. The moneys in any such account is
hereby pledged to the series of Certificates for which it is
established. The Trustee shall: (a) deposit in the series
1987 Debt Service Reserve Account of the Debt Service
Reserve Fund from the proceeds of the Series of 1987
Certificates the amount specified in Section 305(b), and (b)
fund the series Debt Service Reserve Account of any series
of Additional Certificates in an amount equal to the Series
Debt Service Reserve Requirement.
Section 605. Amendment to Section 801 of the Initial
ment. Section 801 of the Initial Trust Agreement shall be
amended to add the following paragraph at the end of Section 801:
In lieu of all or any portion of the required amounts
to be on deposit in the Series 1990 Debt Service Reserve
Account or any Debt Service Reserve Account for any future
series of Certificates, the City maY cause to be deposited
to the credit of the Series 1990 Debt Service Reserve
Account a surety bond or an insurance policy payable to the
Trustee f6r the benefit of the registered owners of the
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Certificates or a letter of credit entitling the Trustee on
any interest payment date to draw in an amount equal to all
or any portion of the difference between the applicable
SerieS Debt Service Reserve Requirement and the sum then to
the credit of the applicable Series Debt Service Reserve
ACcount, if any. The Trustee shall accept any such
qualifying deposit in lieu of all or any portion of such
required amounts. The City may, from time to time,
substitute cash, surety bonds, insurance policies or letters
of credit for any of such forms of security so long as such
substituted security complies with the requirements of this
Section and upon terms and conditions set forth in a
supplement to the Initial Trust Agreemerit.
Any surety bond, insurance policy or letter of credit
shall be payable (upon the giving of notice and the
presentation of any certificates as required thereunder) on
any int,arest payment date on which money shall be required
to be transferred to the Certificate Account, and such
transfer cannot be met by the amount on deposit in the
applicable Series Debt Service Reserve Account or provided
from any other fund or under the Resolution. In such event,
the Trustee shall take all necessary action to draw money
under such surety bond, insurance policy or letter of
credit. The insurer providing such surety bond or insurance
policy shall be an insurer whose municipal bobd insurance
policy insuring the payment, when due, of the principal of,
and interest on municipal bond issues result in such issues
being rated in the highest category by Moody's or by
Standard & Poor's, or any insurer who has the highest
policyholder rating accorded insurers by A.M. Best & Co., or
any comparable services. The letter of credit issuer shall
be a bank or trust company whose long-term debt obligations
are rated by Moody's or by Standard & Poor's within its two
highest rating categories and the letter of credit itself
shall be rated within the two highest rating categories by
Moody's or by Standard & Poor's. The letter of credit shall
provide that the Trustee have the ability to draw on it
immediately prior to its expiration or termination. All
such rating requirements apply at all times that any such
surety bond, insurance policy or letter of credit is in
place. If the rating on any such surety bond, insurance
policy or letter of credit falls below such rating
requirements, the City shall replace such surety bond,
insurance policy or letter of credit with either cash or a
surety bond, insurance policy or letter of credit that
qualifies under the terms of this Section. Any surety bond,
insurance policy or letter of credit shall provide that any
fees in connection with such security be paid from available
funds of the City.
If a disbursement is made pursuant to any such surety
bond, insurance policy or letter of credit by direct
payments by the provider of such surety bond, insurance
policy or letter of credit, the City shall be obligated
either (a) to reinstate the maximum limits of such surety
bond, insurance policy or letter of credit and any other
aTftounts due thereunder as a result of any such disbursement,
by making payments directly to the provider of such surety
bond, insurance policy or letter of credit or by making such
payments from future deposits to the Series Debt Service
Reserve Account, or (b) to deposit to the credit of the
Series Debt Service Reserve Account moneys in the amount of
the disbursement made under such surety bond, insurance
policy, letter of credit, or a combination of such surety
bond, insurance policy or letter of credit, such that in any
event the amount to the credit of the Series Debt Service
Reserve Account (i-ncluding any amounts available to be drawn
under aiiy surety bond, insurance policy or letter of credit)
equals the Series Debt Service Reserve Requirement as soon
as practicable, and in any such event within one year by
depositing one"twelfth of the required amount each month.
Section 606. Amendment to Section 802 of the Initial Trust
Agreement. Section 802 of the Initial Trust Agreement is hereby
amended to include the following subsection (c):
(c) In the event that the amount in the Debt Service
Reserve Fund shall exceed the Debt Service Reserve
Requirement, the City may direct the Trustee to transfer
such excess from the Debt Service Reserve Fund to the
Certificate Fund on any Payment Date.
Section 607. Amendment to Section 802 of the Initial Trust
Agreement. Section 802 of the Initial Trust Agreement is hereby
amended to include the following subsection (d):
(d) In the final maturity year for any series of
Certificates, the moneys in the Series Debt Service Reserve
Account attributable to such series of Certificates shall be
credited against the Base Payments attributable to such
series of Certificates due that year. On the scheduled date
of final payment of any series of Certificates, the Trustee
may transfer to the Certificate Fund the moneys in such
Series Debt Service Reserve Account. In lieu of the portion
of the Base Payment attributable to such series of
Certificates, the Trustee may use such funds to pay the
principal and interest due on such Certificates on their
final Payment Date.
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Section 608. Amendment to Section 901 of the Initial Trust
ement. The first paragraph of Section 901 of the Initial
Trust Agreement is hereby amended to read as follows:
Section 901. Investment of Moneys in Funds. Any
moneys held in the funds created by this Agreement may
be separately invested and reinvested by the Trustee,
as directed by an Authorized City Representative, in
the following:
Section 609. Amendment to Section 901 of the Initial Trust
Agreement. Section 901 of the Initial Trust Agreement is hereby
amended to include the following subsection (i).
(i) The State Non-Arbitrage Program of the
Commonwealth of Virginia ("Snap").
ARTICLE VII
Series of 1990 Certificates Insurance
Section 701. PaVment Procedure Pursuant to Series of 1990
Certificates Insurance Policy. As long as the Series of 1990
Certificates Insurance Policy shall be in full force and effect
for the Series of 1990 Certificates and the Series of 1990
Certificates Insurer performs its obligations under the Series of
1990 Certificates Insurance Policy, the City and the Trustee
agree to comply with the following provisions:
(i) If, on the third day preceding any Payment Date the
Trustee determines that there will be insufficient funds in the
Certificate Fund to pay the principal of or interest on the
Series of 1990 Certificates on such interest payment date, the
Trustee shall so notify Series of 1990 Certificates Insurer and
Citibank, N.A., New York, New York or its successor as its Fiscal
Agent (the "Fiscal Aqent") of the amount of such deficiency. If,
by said interest payment date, the City has not provided the
amount of such deficiency, the Trustee shall simultaneously make
available to Series of 1990 Certificates Insurer and the Fiscal
Agent, the registration books for the Series of 1990 Certificates
maintained by the Trustee. In addition:
(A) The Trustee shall provide Series of 1990
Certificates Insurer with a list of Series of 1990 Certificate
Holders entitled to receive principal or interest payments from
Series of 1990 Certificates Insurer under the terms of the Series
of 1990 Certificates Insurance Policy and shall make arrangements
for Series of 1990 Certificates Insurer and its Fiscal Agent (1)
to mail checks or drafts to the registered owners of Series of
1990 Certificates entitled to receive full or partial interest
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payments from Series of 1990 Certificates Insurer and (2) to pay
principal Series of 1990 Certificates surrendered to the Fiscal
Agent by the Series of 1990 certificate Holders entitled to
receive full or partial principal payments from Series of 1990
Certificates Insurer; and
(B) The Trustee shall, at the time it makes the
registration books available to Series of 1990 Certificates
Insurer pursuant to (i) above, notify Series of 1990 Certificate
Holders entitled to receive the payment of principal or interest
thereon from Series of 1990 Certificates Insurer (1) as to the
fact of such entitlement, (2) that Series of 1990 Certificates
Insurer will remit to it all or a part of the interest payments
next coming due, (3) that, except as provided in Section (ii)
below, in the event that any Series of 1990 Certificate Holder is
entitled to receive full payment of principal from Series of 1990
Certificates Insurer, it must tender their Series of 1990
Certificate ("along with an appropriate instrument of assignment
in form satisfactory to the Fiscal Agent to permit ownership of
such Series of 1990 Certificates to be registered in the name of
Series of 1990 Certificates Insurer) and (4) that, except as
provided in Section (ii) below, in the event that any Series of
1990 Certificate Holder is entitled to receive partial payment of
principal from Series of 1990 Certificates Insurer, it must
tender the Series of 1990 Certificate for payment thereon first
to the Trustee who shall note on such Series of 1990 Certificates
the portion of the principal paid by the Trustee and then, along
with an appropriate instrument of assignment in form satisfactory
to the Fiscal Agent, which will then pay the unpaid portion of
principal to the Series of 1990 Certificate Holder.
(ii) In the event that the Trustee has notice that any
payment of principal of or interest on a Series of 1990
Certificate has been recovered from its Series of 1990
Certificate Holder pursuant to the United States Bankruptcy Code
by a trustee in bankruptcy in accordance with the final,
nonappealable order of a court having competent jurisdiction, the
Trustee shall, at the time provide notice to Series of 1990
Certificates Insurer notify all Series of 1990 Certificate
Holders that in the event that any Series of 1990 Certificate
Holders's payment is so recovered, such Series of 1990
Certificate Holders will be entitled to payment from Series of
1990 Certificates Insurer to the extent of such recovery and the
Trustee shall furnish to Series of 1990 Certificates Insurer its
records evidencing the payments of principal of and interest on
the Series of 1990 Certificates which have been made by the
Trustee and subsequently recovered from Series of 1990
Certificate Holders, and the dates on which such payments were
made.
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(iii) Series of 1990 Certificates Insurer shall, to the
extent it makes payment of principal of or interest on Series of
iggo certificates, become subrogated to the rights of the
recipients of such payments in accordance with the terms of the
Series of 1990 Certificates Insurance Policy, and to evidence
such subrogation (1) in the case of subrogation as to claims for
past due interest, the Trustee, shall note Series of 1990
Certificates Insurer's rights as subrogee on the registration
books maintained by the Trustee upon receipt from Series of 1990
Certificates Insurer of proof of the payment of interest thereon
to the Series of 1990 Certificate Holders, and (2) in the case of
subrogation as to claims for past due principal, the Trustee
shall note Series of 1990 Certificates Insurer's rights as
subrogee on the registration books maintained by the Trustee upon
receipt of proof to the Series of 1990 Certificate Holders of
such Series of 1990 Certificates.
Section 702. Terms by Which Series of 1990 Certificates To
Remain outstanding. Notwithstanding anything herein to the
contrary, if the principal and/or interest due on the Series of
1990 Certificates shall be paid by Series of 1990 Certificates
Insurer pursuant to the Series of 1990 Certificates Insurance
Policy, the Series of 1990 Certificates shall remain Outstanding
for all purposes, not be defeased or otherwise satisfied and not
be considered paid, and the assignment and all covenants,
agreements and other obligations to the registered owners shall
continue to exist and shall run to the benefit of Series of 1990
Certificates Insurer, and Series of 1990 Certificates Insurer
shall be subrogated to the rights of such registered owners;
provided, however, that in the event payment is not made when due
on the Series of 1990 Certificates as a result of an Event of
Nonappropriation under the terms of the Lease Agreement, the
Section 703. Consent of Series of 1990 Certificates
Insurer. Any provision of this First Supplemental Trust
Agreement expressly recognizing or granting rights in or to
Series of 1990 Certificates Insurer may not be amended in any
manner which affects the rights of Series of 1990 Certificates
Insurer hereunder without the prior written consent of Series of
1990 Certificates Insurer.
Section 704. Consent of Series of 1990 Certificates Insurer
as Certificate Holder. Notwithstanding any other provision
contained in the Trust Agreement, so long as Series of 1990
Certificates Insurer is performing its obligations under the
Series of 1990 Certificates Insurance Policy, Series of 1990
Certificates Insurer shall be deemed to be the Series of 1990
Certificate Holder at all times for delivering Series of 1990
Certificate Holder consent for the following purposes: (a)
execution and delivery of any supplemental trust agreement
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pursuant to Article IV of the Initial Trust Agreement; (b)
removal of the Trustee and selection and appointment of any
successor trustee; and (c) initiation or approval of any action
not described in (a) or (b) above which requires Additional
Certificate Holder consent. Notice of any consent qiven by
Series of 1990 Certificates Insurer pursuant to this Section
shall be given by the Trustee to Standard & Pocrls and Moody's
Investors Service, Inc.
Section 705. Consent of Series of 1990 Certificates Insurer
Upon Default. Notwithstanding anything herein to the contrary,
upon the occurrence and continuance of an Event of Default or
failure by the City to appropriate moneys for a Base Payment, the
Series of 1990 Certificates Insurer shall be entitled to control
and direct the enforcement of all rights and remedies granted to
the Series of 1990 Certificate Holders or the Trustee for the
benefit of the Series of 1990 Certificate Holders under this
First supplenental Trust Agreement and Series of 1990
Certificates Insurer shall also be entitled to approve all
waivers of Events of Default. This provision is effective only
if the Series of 1990 Certificates Insurer performs its
obligations under the Series of 1990 Insurance Policy and the
Series of 1990 Certificates constitute a majority of the then
outstanding Certificates.
Section 706. Series of 1990 Certificates Insurer Consent as
to Successor Trustee. Notwithstanding anything herein to the
contrary, no successor Trustee shall be appointed without the
consent of Series of 1990 Certificates Insurer, which consent
shall not be unreasonably withheld.
Section 707. Notices To Be Given to Series of 1990
Certificates Insurer. (a) While the Series of 1990 Certificates
Insurance Policy is in effect, the City, the Trustee or [DTC], as
appropriate, shall furnish to Series of 1990 Certificates
Insurer: (i) as soon as practicable after the filing thereof, a
copy of any financial statement of the City and a copy of any
audit and annual report of the City; (ii) a copy of any notice to
be given to the registered owners of the Series of 1990
Certificates, including, without limitation, notice of any
redemption of or defeasance of Series of 1990 Certificates, and
any certificate rendered, relating to the security for the Series
of 1990 Certificates; and (iii) such additional information it
may reasonably request.
(b) The Trustee shall notify Series of 1990 Certificates
Insurer of any failure of the City to provide relevant notices or
certificates required under the terms of the Trust Agreement,
promptly after attaining actual knowledge thereof.
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(c) Notwithstanding anything herein to the contrary, the
Trustee shall immediately notify Series of 1990 Certificates
Insurer if at any time there are insufficient moneys to make any
payments of principal and/or interest as required and immediately
upon the occurrence of any Event of Default hereunder.
(d) Notice of any draw upon or deficiency due to market
fluctuation in the amount, if any, on deposit in the Reserve
Fund.
(e) Notice of the redemption, other than mandatory sinking
fund redemption, of any of the Series of 1990 Certificates,
including the principal amount, maturities and CUSIP numbers
thereof.
(f) Such additional information as the Series of 1990
Certificates Insurer may reasonably request from time to time.
Section 708. Parties Interested Herein. Nothing in the
Trust Agreement expressed or implied is intended or shall be
construed to confer upon, or to give to, any person or entity,
other than the City, the Trustee, Series of 1990 Certificates
Insurer and the registered owners of the Series of 1990
Certificates, any right, remedy or claim under or by reason of
this First Supplemental Trust Agreement or any covenant,
condition or stipulation hereof, and all covenants, stipulations,
promises and agreements in the Trust Agreement contained by and
on behalf of the City shall be for the sole and exclusive benefit
of the City, the Trustee, Series of 1990 Certificates Insurer and
the registered owners of the Certificates.
ARTICLE VIII
Arbitrage Rebate
Section 801. Use of Proceeds Certificate. The appropriate
officers of the City shall execute a Use of Proceeds Certificate
or Certificates setting forth the expected use and investment of
the proceeds of the Series of 1990 Certificates and containing
such covenants as may be necessary in order to show compliance
with the provisions of the Internal Revenue Code of 1986, as
amended (the "Codell), and applicable regulations relating to the
exclusion from gross income of interest on the series of 1990
Certificates. The City Council, on behalf of the City, has
covenanted that the proceeds from the issuance and sale of the
Series of 1990 Certificates will be invested and expended as set
forth in such Use of Proceeds Certificate or Certificates and
that the City shall comply with the other covenants and
representations contained therein. Furthermore, the City
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Council, on behalf of the City, has covenanted that the City
shall comply with the provisions of the Code so that interest n
the Series of 1990 Certificates will remain excludable from gross
income for Federal income tax purposes. Such Certificates may
also provide for any elections such officers deem desirable
regarding rebate of earnings to the United States for purposes of
complying with the provisions of Code Section 148.
ARTICLE IX
Miscellaneous
Section 901. Covenant to Provide Parki The
City hereby covenants that throughout the term of the Prime Lease
it will provide the Project with, at minimum, the amount of
parking spaces required by the City's building code.
Section 902. Limitation 2. hts. With the exception of
the rights herein expressly conferred nothing expressed or
mentioned in or to be implied from this First Supplemental Trust
Agreement is intended or shall be construed to give any person
other than the parties hereto and the registered owners of the
Certificates any legal or equitable right, remedy or claim under
or in respect to this First Supplemental Trust Agreement or any
covenant, condition and agreement herein contaihed; this First
Supplemental Trust Agreement and all of the covenants, conditions
and agreements hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and the registered
owners of the Certificates as herein provided.
Section 903. Prohibited Activities. The Trustee shall not
knowingly engage in any activi les or take any action that to its
knowledge will result in (a) any Certificate becoming an
"arbitrage bond" within the meaning of Section 103(b)(2) and
Section 148 of the Code and the regulations and rulings
thereunder then applicable to such Certificate, or (b) interest
on any Certificate otherwise becoming taxable to the holders
thereof under the Federal income tax laws; provided, however,
that, after an Event of Default, the Trustee may take any action
that it views to be in the best interest of the Series of 1990
Certificate Holders.
Section 904. Successors a si ns. This First
Supplemental Trust Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
Section 905. . If any provision of this First
Supplemental Trust Agreement shall be held invalid by any court
of competent jurisdiction, such holdinq shall not invalidate any
other provision hereof.
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Section 906. Applicable Lav. This First Supplemental Trust
Agreement shall be governed by the applicable laws of the
Commonwealth of Virginia.
Section 907. Counterparts. This First Supplemental Trust
Agreement may be executed in several counterparts, each of which
shall be an original and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Trust Agreement to be executed in their respective
corporate names by their duly authorized officers as of the date
first above written.
CITY OF VIRGINIA BEACH, VIRGINIA
By
City Manager
FIRST UNION COMMERCIAL -'ORPORATION
By
Its
SIGNET TRUST COMPANY, 4s Trustee
By
Senior Trust Officer
Exhibit A
UNITED STATES OF AMERICA
COMMONWEALTH OF VIRGINIA
REGISTERED REGISTERED
No. CIC- $
CERTIFICATE OF PARTICIPATION
Evidencing a Direct and Proportionate Interest of the
Holder Hereof in Payments To Be Made by the
CITY OF VIRGINIA BEACH, VIRGINIA
under a Real Property Lease Agreement
INTEREST RATE 14ATURITY DATE DATED DATE CUSIP
September 1, September 1, 1990
REGISTtRED OWNER: CEDE & CO.
PRINCIPAL AMOUNT
The registered owner hereof has a direct and proportionate
interest in the right of receipt of those certain Base Payments
(the "Base Payments") made by the City of Virginia Beach, Vir-
ginia, a virginia municipal corporation (the "City"), under a
Real Property Lease Agreement dated as of October 1, 1987, as
supplemented and amended by a First Real Property Lease Modifica-
tion Agreement dated as of September 1, 1990 (collectively, the
"Lease Agreement"), between First Union Commercial Corporation, a
North Carolina corporation (the "Lease Company"), and the City.
The registered owner hereof is entitled to receive the principal
amount stated above on the maturity date stated above, subject to
prior redemption as provided herein, together with interest
hereon at the annual rate stated above, payable semiannually on
each March I and September 1, beginning March 1, 1991. Interest
is payable (a) from September 1, 1990, if this Certificate is
executed prior to March 1, 1991, or (b) otherwise from the March
1 or September 1 that is or immediately precedes the date on
which this Certificate is executed (unless payment of interest
hereon is in default, in which case this Certificate shall bear
interest from the date to which interest has been paid).
Interest is payable by check or draft mailed to the registered
owner at his address as it appears on the 15th day of the month
preceding each interest payment date on registration books kept
by the Trustee. Principal, premium, if any, and interest are
payable in lawful money of the United States of America.
Notwithstanding any other provision hereof, this Certificate
is subject to a book entry system maintained by The Depository
Trust Company (IIDTCII) and the payment of principal and interest,
the providing of notices and other matters will be made as
described in the city's Letter of Representation to DTC.
This Certificate is one of an issue of Certificates of
Participation (the "Certificates") in the aggregate principal
amount of $30,500,000, dated September 1, 1990, which pay inter-
est semiannually until maturity or prior redemption on March I
and September 1, and are of like tenor, except as to interest
rates and maturity dates, numbered consecutively from CIC-1
upward.
The Certificates are issued pursuant to and are equally and
ratably secured by a Trust Agreement dated as of October 1, 1987,
as amended by a First Supplemental Trust Agreement dated as of
September 1, 1990 (collectively, the "Trust Agreement"), among
the City, the Leasing Company and the Trustee, for the purpose of
providing funds to finance the construction of a judicial faci-
lity on certain parcels of real property in the City's municipal
center complex (the "Project"). The Project will be leased by
the Leasing Company to the City pursuant to the Lease Agreement
whereby the City has agreed to make Base Payments to the Leasing
Company. The Leasing Company has assigned to the Trustee in an
Assignment Agreement dated as of October 1, 1987 (the "Assignment
Agreement"), its right to receive all Base Payments and certain
other payinents under the Lease Agreement. The Lease Agreement
may be terminated at the option of the Leasing Company or the
City if funds are not appropriated by the City to make Base
Payments in subsequent years, all as more particularly described
in the Lease Agreement. The Certificates are secured equally and
ratably with the Series of 1987 Certificates to the extent
provided in the Trust Agreement. Additional Certificates on
parity with the Certificates may be issued on the terms provided
in the Trust Agreement.
The obligation of the City to make payments under the Lease
Agreement does not constitute a debt of the City within the
meaning of any constitutional or statutory limitation nor a
liability of or a lien or charge upon funds or property of the
City beyond any fiscal year for which the City has appropriated
moneys to make such payments. The City has covenanted in the
Lease Agreement that the City Manager shall include in the City's
annual budget the amount of payments under such Agreement, but
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the City is not obligated to make appropriation for such purpose.
Neither the Trustee nor the Leasing Company shall have any
obligation or liability to the registered owner hereof with
respect to the City's obligations to make payments under the
Lease Agreement or with respect to the performance by the City of
any other covenant contained therein.
The Certificates are additionally secured by a Deed of Trust
dated as of October 1, 1987, as supplemented and amended by a
First Deed of 'Ilrust Modification Agreement dated as of September
1, 1990 (collectively, the "Deed of Trust"), between the Leasing
Company and Walter F. Witt, Jr., and Patrick J. Milmoe, as
trustees, which creates a lien on the leasehold estates in the
Property created by a Prime Lease dated as of October 1, 1987, as
supplemented and amended by a First Prime Lease Amendment dated
as of September 1, 1990 (collectively, the "Prime Lease"),
between the City and the Leasing Company and a security interest
in any improvements which may be located on the Property from
time to time, including the Project. However, the Dead of Trust
shall be terminated upon the payment or defeasance of the Series
of 1987 Certificates anticipated to be September 1, 1994.
Reference is hereby made to the Lease Agreement, the Trust
Agreement, the Assignment Agreement, the Prime Lease and the Deed
of Trust (copies of which are on file with the Trustee at its
principal office in Richmond, Virginia), for a destription of the
property pledged and assigned, the rights, duties and obligations
of the Leasing Company, the City, the Trustee and the holders of
the Certificates, the terms upon which the Certificates are
issued, the pledge and covenants securing the Certificates and
the terms and conditions upon which the Certificates will be
deemed to be paid.
The Certificates may not be called for redemption by the
City except as provided herein and in the Trust Agreement.
Certificates maturing on or before September 1, _, are not
subject to optional redemption prior to maturity.
Certificates maturing on or after September 1, are
subject to redemption prior to maturity at the option of the
City, from and to the extent of funds on deposit with the Trustee
and available for such purpose, on or after September 1, _, in
whole at any time or in part in increments of $5,000 or integral
multiples thereof on any interest payment date, upon payment of
the following redemption prices (expressed as a percentage of
principal amount of Certificates to be redeemed) plus interest
accrued to the redemption date:
if redeemed September 1, through August 31, , inclusive;
if redeemed September 1, through August 31, 1 inclusive;
if redeemed September 1, through August 31, , inclusive;
if redeemed September 1, or thereafter.
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Certificates maturing on September 1, _, are required to
be redeemed prior to maturity in part in accordance with the
sinking fund requirements of Section 202 of the First
supplemental Trust Agreement on September 1 in years and amounts,
upon payment of 100% of the principal amount thereof plus inter-
est accrued to the redemption date, as follows:
Year amount
If less than all the Certificates are called for optional
redemption, the Certificates to be redeemed correspond to the
Base Payments prepaid by the City. If less than all of the
Certificates of any maturity are called for redemption, the
Certificates to be redeemed shall be selected by DTC or any
successor securities depository pursuant to its rules and proce-
dures or, if the book entry system is discontinued, shall be
selected by the Trustee by lot in such manner as the Trustee in
its discretion may determine. In either event, each portion of
$5,000 principal amount shall be counted as one Certificate for
such purpose.
If any of the Certificates or portions thereof are called
for redemption, the Trustee shall send notice of the call for
redemption identifying the Certificates or portions thereof to
be redeeme@, by registered or certified mail, not less than 30
nor more than 60 days prior to the redemption date, to DTC or its
nominee as the registered owner of the Certificates. Provided
funds for their redemption are on deposit at the place of payment
on the redemption date, all Certificates or portions thereof so
called for redemption shall cease to bear interest on such date,
shall no longer be secured as set forth in the Trust Agreement
and shall not be deemed to be outstanding under the provisions of
the Trust Agreement. if a portion of this Certificate shall be
called for redemption, a Certificate in principal amount equal
to the unredeemed portion hereof will be issued to the registered
owner upon the surrender hereof.
The registered owner of this. certificate shall have no
right to enforce the provisions of the Trust Agreement or to
institute action to enforce the covenants therein or to take any
action with respect to any Event of Default under the Trust
Agreement or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the Trust
Agreement. Modifications or alterations of the Trust Agreement,
or of any supplement thereto, may be made only to the extent and
in the circumstances permitted by the Trust Agreement.
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The Certificates are issuable as registered Certificates in
denominations of $5,000 or integral multiples thereof. Upon
surrender for transfer or exchange of this certificate at the
principal corporate trust office of the Trustee, 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 Trustee, the Trustee shall execute and
deliver a new Certificate in the manner and subject to the
limitations and conditions provided in the Trust Agreement,
having an equal aggregate principal amount, in authorized denomi-
nations, of the same series, form and maturity, bearing interest
at the same rate, and registered in the name or names as re-
quested by the then registered owner hereof or his duly authoriz-
ed attorney or legal representative. Any such exchange shall be
at the expense of the city, except that the Trustee may charge
the person requesting such exchange the amount of any tax or
other governmental charge required to be paid with respect
thereto.
The Trustee 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 registered owner, except that interest payments shall be made
to the person shown as registered owner on the 15th day of the
month preceding each interest payment date.
Amendments or supplements to the Trust Agreement, the Lease
Agreement, the Deed of Trust and the Assignment may be made only
to the extent and in the circumstances permitted thereby.
All acts, conditions and things required to happen, exist or
be performed precedent to and in the issuance of this Certificate
have happened, exist and have been performed.
IN WITNESS WHEREOPP Signet Trust Company, as Trustee, has
caused this certificate to be issued pursuant to the Trust
Agreement and to be executed by an authorized officer or employee
as of September 1, 1990.
Date Executed:
SIGNET TRUST COMPANY, as Trustee
By Authorized Sgnature
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sell(s), assign(s) and
transfer(s) unto
(Please print or type
nam( e, of Transferee)
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE:
the within certificate and all rights thereunder, hereby ir-
revocably constituting and appointing
I Attorney, to transfer said
certificate on the books KepL ior the registration thereof, with
full power of substitution in the premises.
Dated:
Signature Guaranteed
NOTICE: Signature(s) ust be (Signature of RegisLerea Owner)
guaranteed by a member firm
of the New York Stock NOTICE: The signature above must
Exchange or a commercial bank correspond with the name of the
or trust company. registered owner as it appears on
the front of this certificate in
every particular, without altera-
tion or enlargement or any change
whatsoever.
-7-
STATEMENT OF INSURANCE
Financial GuarantY Insurance Company ("Financial Guaranty")
has issued a policy containing the following provisions with
respect to the Certificates, such policy being on file at the
principal office of the Trustee:
Financial Guaranty hereby unconditionally and irrevocably
agrees to pay for disbursement to the Certificateholders that
portion of the principal of and interest on the Certificates
which is then due for payment and which the City shall have
failed to provide. Due for payment means, with respect to the
principal, the stated naturity date thereof, or the date on which
the same shall have been duly called for mandatory sinking fund
redemption, but not any earlier date on which the payment of
principal of the Certificates is due by reason of acceleration,
and with respect to interest, the stated date for payment of such
interest.
Upon receipt of telephonic or telegraphic notice, subse-
quently confirmed in writing, or written notice by registered or
certified mail, from a Certificateholder or the Trustee to
Financial Guaranty that the required payment of principal or
interest has not been made by the City on the Lease Agreement to
the Trustee, Financial Guaranty on the due date of such payment
or within one business day after receipt of notice of such
nonpayment, whichever is later, will make a deposit of funds, in
an account with Citibank, N.A., or its successor as its agent
(the "Fiscal Agent"), sufficient to make the portion of such
payment not paid by the City. Upon presentation to the Fiscal
Agent of evidence satisfactory to it of the certificateholder's
right to receive such payment and any appropriate instruments of
assignment required to vest all of such Certificateholder's right
to such payment in Financial Guaranty, the Fiscal Agent will
disburse such amount to the Certificateholder.
As used herein the term "Certificateholder" means the person
other than the Leasing Company or the City, as such terms are
defined in the bond documents, who at the time of nonpayment of a
Certificate is entitied under the terms of such Certificate to
payment thereof.
This policy is non-cancellable for any reason.
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CITY OF VIR INIA BEACH, VIRGINIA
CERTIFICATES OF PARTICIPATION
Series of 1990
Certificate Purchase ement
September 25, 1990
city of Virginia Beach, virginia, as Lessee
municipal Center
virginia Beach, Virginia 23456
First Union commercial Corporation, as Leasing Company
First Union Plaza
CORP-9
Charlotte, North Carolina 28288
Signet Trust Company, as Trustee
7 North Eighth Street
Richmond, Virginia 23219
Ladies and Gentlemen:
This is to confirm the agreement among the CITY OF VIRGINIA
BEACH, VIRGINIA, as lessee (the "City"), FIRST LTNION COMMERCIAL
CORPORATION, charlotte, North Carolina, as lessor (the "Leasing
Company"), SIGNET TRUST COMPANY, Richmond, virginia, as trustee
(the "Trusteell)and the undersigned (the "Underwriters")
concerning the purchase by the Underwriters of $
aggregate principal amount of Certificates of Pa ticipation,
payable in years and amounts and bearinq interest at rates as set
forth in Exhibit A (the 111990 Certificates"). The 1990
Certificates are issued as Additional Certificates under the
Trust Agreement, dated as of october 1, 1987 (the "Initial Trust
Agreement") as amended by the First Supplemental Trust Agreement
(the "First Supplemental Trust Agreement"), dated as of September
1, 1990, among the City, the Leasing Company and the Trustee (the
"Trust Agreement"). The 1990 Certificates, together with
certificates issued october 13, 1987 under the Initial Trust
Agreement (the 111987 Certificates") and any other Additional
Certificates to be issued under the Trust Agreement
(collectively, the "Certificates"), represent a direct and
proportionate interest in payments to be made to the Leasing
company by the City pursuant to a Real Property Lease Agreement,
dated as of October 1, 1987 (the "Initial Lease Agreement"), as
amended by a First Real Property Lease Modification Agreement
-1-
dated as of September 1, 1990 (the "First Lease Modification
Agreement"), between the Leasing Company and the City (the "Lease
Agreement"). The interest of 1987 Certificate holders are
secured by a Deed of Trust, dated as ofl October 1, 1987, as
amended by the First Deed of Trust modification Agreement, dated
as of September 1, 1990, (the "First Deed of Trust Modification
Agreement"), from the Leasing Company to Walter F. Witt, Jr. and
Patrick J. Milmoe, as trustees (the "Deed of Trust"). This offer
is made subject to acceptance by the City.b6fore 5:00 p.m., EDT,
on September 25, 1990. Until accepted, this offer may be
withdrawn by the underwriters upon written notice delivered to
the City at any time. All terms not otherwise defined in this
Agreement have the meanings set forth in the Trust Agreement.
i. Pr ose of Financin . The Lease Agreement provides for
(i) the construction of a Judicial Center (the toprojectit) on
certain real property (the "Land") owned by the City and leased
to the Leasing Company pursuant to a Prime Lease, dated as of
october 1, 1987, between the City and the Leasing Company, as
amended by a First Prime Lease Amendment, dated as of September
1, 1990, between the City and the Leasing Company (the "First
Prime Lease Amendment"), (the Land and the Project, collectively,
the "Property") and (ii) lease of the Property to the City. The
1990 Certificates will be issued to pay all or a portion of the
cost of the construction, installation and equipping of the
Project and all costs and expenses incurred in connection with
the Project, including legal expenses and fees and costs of
issuing the 1990 Certificates. Under the Trust Agreement and the
Assignment Agreement, dated as of october 1, 1987, as amended by
the First Assignment Modification Agreement, dated as of
September 1, 1990 (the "First Assignment Modification"), from the
Leasing Company to the Trustee (the "Assignment Agreement"), the
Leasing Company has assigned to the Trustee for the benefit of
the holders of the 1987 Certificates and of any Additional
Certificates its rights (the "Rights") under the Lease Agreement,
including (i) its right to receive lease payments to be paid by
the City (the "Base Payments"), (ii) its right, if any, to
receive proceeds of condemnation of and insurance on the
Property, (iii) its right to re-enter and take possession of the
Property in the event of nonappropriation of Base Payments by the
city and to sell its leasehold estate in the Property, and (iv)
its right to exercise remedies upon default by the City. The
1990 Certificates will be payable solely from the Base Payments
to be made by the City pursuant to the Lease Agreement. In
addition, the Financial Guaranty Insurance company has issued its
Municipal Bond New Issue Insurance Policy to guarantee the
payment of principal of and interest on the 1990 Certificates
when due, in the event of nonpayment. The Underwriters propose
to purchase the 1990 Certificates pursuant to this Agreement and
to sell them to investors. The First Lease Modification
Agreement, the First Supplemental Trust Agreement, the First
Prime Lease Amendment, the First Deed of Trust Modification
-2-
Agreement, the First Assiqnment Modification and the 1990
Certificates will be in the forms pxeviously furnished to us,
with such subsequent modifications as may be approved by you and
US.
2. obli ations to Purchase. The underwriters agree to
purchase the 1990 Certificates, and the Leasing Company and the
City agree to direct the Trustee to execute and deliver the 1990
Certificates to or upon the direction of the Underwriters.
3. Lease Payments s L . The
Underwriters understand that the obligat ty to make
payments under the Lease Agreement constitutes a current expense
of the City, payable from funds of the city legally available for
such purposes and subject to annual appropriation. This
obligation does not constitute a debt of the City within the
meaning of any constitutional or statutory limitation and does
not constiti-.te a liability of or a lien or charge upon the funds
or property of the City beyond the fiscal year for which the City
has appropriated funds to make such payments.
4. Purchase Price. The purchase price of the 1990
Certificates will be $ plus accrued interest from
September 1, 1990, to he date of the Closing (as hereinafter
defined).
5. )r Certificates. The delivery
of the 1990 Certificates (the "Closing") will take place in
Norfolk, Virginia, on or about October 17, 1990, or at such other
time and place as may be mutually agreeable to the parties to
this Agreement. At the Closing, the Trustee will deliver the
1990 Certificates to or at the direction of the Underwriters in
definitive form, duly executed, toqether with the other documents
mentioned in this Agreement, against the wire transfer to the
Trustee of clearing house funds in the amount of the purchase
price set forth in Section 4.
6. The
Leasing Company makes the followinc ons and
warranties:
(a) The Leasing company is a corporation, duly
organized under the laws of the State of North Carolina and in
good standing under the laws of the commonwealth of Virginia.
The Leasing Company has all necessary power and authority to
enter into, and to perform its obligations under, the Prime
Lease, the Lease Agreement, the Trust Agreement, the Assignment
Agreement, the Deed of Trust and this Agreement.
(b) The execution and delivery of the First Prime
Lease Amendment, the First Deed of Trust modification Agreement,
the First Lease Modification Agreement, the First Supplemental
-3-
Trust Aqreement, the First Assignment Modification and this
duly authorized and
Agreement by the Leasing company have been rovisions will not
such execution and compliance with their p
conflict with or constitute a breach of or default under such
documents or any law, administrative regulation, court decree,
resolution, charter, bylaw or other agreement to which the
Leasing company is subject or by which it is bound.
7. resentat n and Warrant ies of Trustee The Trustee
following io s tes:
makes the representations and warran
(a) The Trustee is a trust company duly organized and
in good standing under the laws of the Commonwealth of Virginia
and has all the necessary power and authority to enter into, and
to perform its obligations under, the Trust Agreement, the
Assignment Agreement, the Deed of Trust, the Certificates and
this Agreement.
(b) The execution and delivery of the First
Supplemental Trust Agreement, the First Deed of Trust
Modification Agreement, the 1990 Certificates and this Agreement
by the Trustee is duly authorized and such execution and
compliance with their provisions will not conflict with, or
constitute a breach of or default under such documents or any
law, administrative regulation, court decree, resolution,
charter, bylaw or other agreement to which the Trustee is subject
or by which it is or may be bound.
8. ities of Cit The City makes
the following representations and warranties:
(a) The City is a validly existing political
subdivision of the Commonwealth of Virginia and has all the
necessary power and authority to enter into and perform its
obligations under the prime Lease, the Lease Agreement, the Trust
Agreement and this Agreement.
(b) The execution and delivery of the First Prime
Lease Amendment, the First Lease Modification Agreement, the
First Supplemental Trust Agreement and this Agreement by the City
is duly authorized and such execution and compliance with their
provisions will not conflict with, or constitute a breach of or
-4-
default under such documents or any law, administrative
regulation, court decree, resolution, charter, bylaw or other
agreement to which the City is subject or by which it is bound.
(c) The information contained in the Offering
Statement with respect to the city and the information in the
sections "Estimated Use of Proceeds" and "The Project", including
any information incorporated by reference (collectively, the
is true and correct and does not contain any
"Information"), . to state any material
untrue statement of a material fact or omit
fact necessary to make the statements made therein, in light Of
the circumstances under which they are made, not misleading. The
City is not now aware of any fact or circumstance which between
the date of this Agreement and the closing would result in the
Information not being true and correct or containing any untrue
statement of a material fact or omitting to state any material
fact necessary to make such statements, in light of the
circumstances under which they are made, not misleading.
(d) The Preliminary Offering Statement, with the
exception of information relating to offering prices, principal
amounts, interest rates, ratings and selling compensation, was
final as of its date.
(e) The City is not now, and since December 31, 1975
has at no time been, in default as to principal or interest with
respect to payment of any obligation.
9. offerin Statement- Offerin b the Underwriters.
(a) Concurrently with acceptance of this Agreement,
the City will deliver to the Underwriters two copies of the
Offering Statement in substantially the form of the Preliminary
offering Statement, dated September 18, 1990 (the "Preliminary
Offering Statement"), marked to include such changes as will have
been accepted by the Underwriters and are necessary or desirable
to reflect the terms of this Agreement and to complete the
document as an Offering Statement in final form (together with
any amendment or supplement thereto, the "Offering Statement")
and to provide sufficient quantities of the Offering Statement to
the Underwriters.
(b) Solely for purposes of Rule 15c2-12 of the
Municipal Securities Rulemaking Board, the Offering Statement is
deemed final by the City as of this date.
(c) If between the date of this Agreement and 90 days
following the Closing, any fact or circumstance comes to the
city's attention, which materially and adversely affects the City
or the transactions contemplated by the Offering Statement or
would cause the offering Statement to contain an untrue statement
of a material fact or to omit to state a material fact which
-5-
would be included therein for the purposes for which the offering
Statement was to be used or which is necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading, and if in the opinion of the
Underwriter such fact or circumstance requires an amendment or
supplements to the official statement, the City will cooperate in
amending or supplementing the offering Statement in the form and
manner acceptable to the Underwriter.
(d) The underwriters represent and warrant that they
will offer the i990 Certificates only pursuant to the offering
Statement and only in states where the offer and sale of the 1990
Certificates are legal, either as exempt securities, as exempt
transactions or as a result of due registration of the 1990
Certificates for sale in any such state. The Underwriters agree
to make a public offering of the iggo certificates at the initial
offering prices set forth in the 1990 offering Statement, but the
Underwriters reserve the right to change such prices as they deem
necessary or desirable in connection with the offering and sale
of the 1990 certificates and to sell 1990 Certificates to dealers
(including dealers depositing 1990 Certificates into investment
trusts) and others at prices lower than the public offering
prices.
10. s The representations and
warranties set forth in this Agreement will survive the closing
and remain operative and in full force and effect regardless of
(a) any investigation made by or on behalf of the Underwriters
and (b) payment for the 1990 Certificates.
ii. . The Underwriters, obligations
under this Agreement are subject to the satisfaction on the date
of the Closing of the following conditions precedent:
(a) The accuracy On the date of the Closing, as if
made on such date, of all representations and warranties of the
City, the Leasing Company and the Trustee contained in the Prime
Lease, the Lease Agreement, the Trust Agreement, the Assignment
Agreement, the Deed of Trust, the Certificates (collectively, the
"Documents") and this Agreement as the case may be;
(b) Performance by the City, the Leasing company and
the Trustee of their obligations under this Agreement;
(c) There being no material adverse change in the
condition (financial or otherwise) of the City between (i) the
most recent dates as to which information is given in the
offering Statement and (ii) the date of the Closing; and
(d) Receipt by the underwriters of executed copies of
the following, in form and substance satisfactory to the
Underwriters:
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(i) The Documents.
(ii) A COPY Of the mortgagee policy of title
insurance on the Leasing company's leasehold interest
in the Property, issued by a company acceptable to the
Underwriters and containing only such exceptions to the
title that are acceptable to the Underwriters.
(iii) A non-arbitrage certificate of the City,
dated the date of Closing.
(iv) A certificate of the City, dated the date of
Closing, stating that (A) the information with respect
to the City and the information in the sections
"Introduction", "Estimated Use of Proceeds" and "The
Project" contained in the Offering Statement, including
the information incorporated by reference, is true and
correct and does not contain any untrue statement of a
material fact or omit to state any material fact
necessary to make the statements made therein, in light
of the circumstances under which they are made, not
misleading; and (B) there has been no material adverse
change in the condition (financial or otherwise) of the
City between the most recent dates as to which
information is given in the offering Statement and the
date of the Closing, other than as reflected in or
contemplated by the offering Statement.
(v) Pursuant to issuance of the Policy (as
defined below), evidence that Moody's Investors
service, Inc., has published a rating with respect to
the Certificates of "Aaall and Standard & Poor's
Corporation has published a rating with respect to the
Certificates of "A-AAII and that such ratings are in
effect on the date of Closing.
(vi) The opinion, dated the date of Closing, of
the City Attorney, substantially in the form of Exhibit
B to this Agreement.
(vii) The opinion, dated the date of Closing, of
Hunton & Williams, Special Counsel, substantially in
the form attached as Exhibit C to this Aqreement.
(viii) The supplemental opinion, dated the date
of Closing of Hunton & Williams, Special Counsel,
substantially in the form attached as Exhibit D to this
Agreement.
(ix) The opinion, dated the date of Closing, of
McGuire, Woods, Battle & Boothe, counsel to the
-7-
I
underwriters, substantially in the form of Exhibit E to
this Agreement.
(x) The opinion, dated the date of Closing, of
counsel to the Leasing Company, substantially in the
form of Exhibit F to this Agreement.
(xi) The opinion dated the date of Closing, of
counsel to the Trustee, substantially in the form of
Exhibit G to this Agreement.
(xii) The insurance policy (the "Policy") issued
by Financial Guaranty Insurance company with respect to
the 1990 Certificates.
(xiii) Such other certificates, instruments and
opinions as the Underwriters may reasonably deem
ne--essary or desirable.
12. TerminatiOn. The Underwriters may terminate its
obligation to purchase the 1990 Certificates at any time before
Closing if any of the following occur:
(a) The City will have a substantial loss by fire,
flood, accident or other calamity or loss of title to the
Property or the Project or any part of the Property or the
Project which, in the reasonable opinion of the Underwriters,
renders it inadvisable to proceed with the sale of the 1990
Certificates, whether or not such loss will have been insured;
(b) Any legislative, executiveI regulatory or
administrative action or any court decision, which (i) may have
the effect, directly or indirectly, of making interest on the
1990 Certificates or on obligations such as the 1990 Certificates
to the extent that payments for such certificates are derived
from any state or political subdivision includable in gross
income for purposes of federal income taxation or (ii) in the
reasonable opinion of the Underwriters materially affects the
market price of the 1990 Certificates or the market price
generally of obligations of the general character of the 1990
Certificates;
(c) Any action by the Securities and Exchange
Commission, other governmental agency or a court which would
indicate that the issuance, offer or sale of the Certificates
contravenes any provision of the federal securities laws, or
which would require registration of the 1990 Certificates or any
instrument securing the 1990 Certificates under the Securities
Act of 1933, as amended, or qualification of the Trust Agreement
under the Trust Indenture Act of 1939, as amended;
-8-
I
(d) In the reasonable opinion of the Underwriters, the
market price of the 199o certificates, or the market price
generally of obligations of the general character of the 1990
Certificates, has been adversely affected because of additional
material restrictions on trading in securities not in force as of
the date of this Agreement, or any banking moratorium, or the
inception or escalation of any war or mador military hostilities,
or the occurrence of any disaster, national emergency or crisis;
(e) Any event or condition will have occurred or will
exist that, in the reasonable opinion of the Underwriters, makes
untrue or incorrect, as of the date of Closing, any statement or
information contained in the Offering Statement, including
Appendices A and B, or which requires that information not
contained in the offering Statement should be contained in it in
order to make information contained in it not misleading in any
material respect as of such time;
(f) Any downgrading or withdrawal of any rating of the
1990 Certificates or the rating of any obligations of the City;
(g) The introduction of or enactment by any government
body, department or agency in the Commonwealth of Virginia or the
City of any leqislation, ordinance, rule or regulation or a
decision rendered by any court of competent jurisdiction within
the Commonwealth of Virginia which, in the reasonable opinion of
the Underwriters, materially and adversely affects the market
price of the 1990 Certificates.
13. Fees and Expe s@es. The Underwriters agree to pay their
own costs relating to advertising and selling expenses and.the
fees and disbursements of their counsel. The City agrees to pay
from the proceeds of the 1990 Certificates or other sources
available to it all other costs incurred in connection with the
financing, including but not limited to expenses of the City, the
Leasing Company, the City's Financial Advisor and the Trustee,
the fees and disbursements of their counsel, the cost of printing
or reproducing the Preliminary offering Statement, the offering
Statement and the 1990 Certificates, the fees and expenses of The
Depository Trust company, premiums to the company issuing the
title insurance policy, the Policy premium, or any fees and
expenses related to the rating of the 1990 Certificates and any
fees required for the registration of the 1990 Certificates under
any state securities laws.
14. Notices. All communications under this Agreement will
be in writing and will be deemed delivered, if delivered in
person, telegraphed or sent by certified mail, return receipt
requested, to the respective parties as follows:
-9-
Underwriters: Shearson Lehman Brothers, Inc.
Two World Trade Center
104th Floor
New York, New York 10048
ATTENTION: Robert M. Brown, iii
Leasing: First Union Commercial Corporation
Company First Union Plaza, CORP-9
Charlotte, North carolina 28288
ATTENTION: Scott Nagelson
Trustee: Signet Trust Company
7 North Eighth Street
Richmond, Virginia 23219
Attention: Corporate Trust
Administration
city: city of virginia Beach, virginia
Department of Finance
Municipal Center
Virginia Beach, Virginia 23456
ATTENTION: Director of Finance
15. -n.information. The
Underwriters agree to supply to Special ounsel such information
concerning the offering and sale of the lggo certificates as is
reasonably requested by it for the purpose of calculating the
,,yield" on the 1990 Certificates under Section 148 of the
Internal Revenue Code of 1986, as amended, and any applicable
regulations or rulings.
16. . This Agreement may not be assigned, in
whole or in part, by any party without the prior written consent
of the other parties.
17. Miscellaneous. This Agreement is made solely for the
benefit of each of the parties and their respective successors
and assigns. This Agreement, which includes the Exhibits and any
documents required to be delivered under it, contains the entire
agreement among the parties with respect to the purchase of the
-10-
iggo certificates by the Underwriters, supersedes all prior
arrangements or understandings with respect thereto and may not
be modified except in writing signed by all the parties.
Very truly yours,
SHEARSON LEHMAN BROTHERS, INC.
on behalf of itself,
craigie Incorporated
Legg Mason Wood Walker, Inc.
and Wheat, First Securities,
Inc.
By:
Its:
Confirmed and Accepted:
CITY OF VIRGINIA BEACH, VIRGINIA,
as lessee
By:
Its:
FIRST UNION COMMERCIAL CORPORATION,
as lessor
By:
Its:
SIGNET TRUST COMPANY, as Trustee
By:
Its:
I
I
EXHIBIT A
Maturity Principal interest
Se teluber I Amount Rate
Exhibit B
[Letterhead of City Attorney]
october 1990
city of virginia Beach, Virg inia
Municipal Center
virginia Beach, Virginia 23320
Hunton & Williams
707 East Main street
Richmond, virginia 23219
Financial Guaranty Insurance Company
175 Water Street
New York, New York 10038
Certificates of Participation
Evi ecing Diret and Proportionate Interests of
Owners Thereof in Payments To Be Made by
the city of Virginia Beach, Virginia, under
Ladies and Gentlemen:
I am the CitY Attorney for the City of Virginia Beach,
Virginia (the "City,,). In connection with the issuance and sale
of $ Certificates of Participation dated September 1,
1990 th. -Selies of 1990 Certificates"), evidencing direct and
proportionate interests in payments to be made by the city under
a Real Property Lease Agreement dated as of october 1, 1987, as
supplemented and amended by a First Lease Modification Agreement
dated as of September 1, lggo (collectively, the "Lease Agree-
ment"), between the City and First Union commercial Corporation
(the "Leasing Company"), I have examined the following:
(i) The Constitution and statutes of the Commonwealth of
virginia.
(ii) An ordinance adopted by City Council on September 18,
1990, awarding the Prime Lease, hereinafter defined, to the
Leasing Company.
(iii) A resolution adopted by City Council on September 25,
1990, authorizing among other things the execution and delivery
of:
city of Virginia Beach, virginia
Hunton & Williams
Financial GuarantY Insurance Company
October 1990
Page 2
(a) A First Prime Lease Amendment dated as of Septem-
ber 1, 1990 (the "First Prime Lease Amendment"), supplement-
ing and amending a Prime Lease dated as of October 1, 1987
(collectively, the "Prime Lease"), whereby the City will
lease to the Leasing Company certain real property (the
"Property").
(b@ A First Real Property Lease modification Agreement
dated as of September 1, 1990 (the "First Lease modification
Agreement"), supplementing and amending a Real Property
Lease Agreement dated as of October 1, 1987 (collectively,
the "Lease Agreement"), whereby the Leasing Company will
lease to the City the Property.
(c) A First Supplemental Trust Agreement among the
City, the Leasing Company and Signet Trust Company (the
"Trusteell) dated as of September 1, 1990 (the "First Sup-
plemental Trust Agreement"), supplementing and amending a
Trust Agreement dated as of October 2, 1987 (collectively,
the "Trust Agreement"), providing for the issuance of the
certificates representing direct and proportionate interests
in payments to be made by the City under the Lease Agree-
ment.
(d) Financing Statements dated the date hereof per-
fecting the security interests created by the Deed of Trust
(the "Financing Statements").
(iv) The Preliminary offering Statement dated September 18,
iggo, and the Offering Statement in final form dated September
25, 1990 (collectively, the "Offering Statement"), with respect
to the offering of the Series of 1990 Certificates.
I have examined mortgagee title insurance policy No.
I as endorsed, bearing an effective date of
1990, in the amount of $ -, issued by
Ticor Title Insurance Company (the "Title Policy"), relating to
the Property as described on Exhibit A to the Deed of Trust from
the Leasing Company to certain trustees dated as of October 1,
1987, as supplemented and amended by a First Deed of Trust
Modification Agreement dated as of September 1, 1990 (collective-
ly, the "Deed of Trust").
city of Virginia Beach, virginia
Hunton & Williams
Financial Guaranty Insuran.ce Company
october 1990
Page 3
I have not caused a search to be conducted of the U.C.C-
indices of the Clerk's Office of the Circuit Court of the City or
the State Corporation commission (the "SCCII).
Based upon and subject to the foregoing and upon such other
information and documents as I consider necessary for the purpose
of rendering this opinion, I am of the opinion that:
(a) Th(@ city is a duly organized Virginia municipal cor-
poration and has all necessary power and authority to enter into
and perform the Prime Lease, the Lease Agreement and the Trust
Agreement.
(b) The Prime Lease has been granted in accordance with the
provisions of Sections 15.1-307 through 316 of the Code of
Virginia of 1950, as amended.
(c) The Prine Lease, the Lease Agreement and the Trust
Agreement have been duly authorized, executed and delivered by
the City.
(d) The authorization, execution and delivery of the Prime
Lease, the Lease Agreement and the Trust Agreement and compliance
with the provisions thereof are within the corporate powers of
the City and do not and will not conflict with or constitute a
violation of, breach of, or default under (1) the Charter of the
City, (2) any federal or virginia constitutional provision or any
other provision of Virginia law, (3) any agreement or other
instrument to which the City is a party or by which the City is
bound, or (4) to the best of my knowledge after due investiga-
tion, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the City or any of its
properties.
(e) There is no litigation at law or in equity or any
proceeding before any governmental agency pending or, to the best
of my knowledge after due investigation, threatened with respect
to (1) the organization or existence of the City, (2) the City's
power to make Base Payments, as defined in the Lease Agreement,
(3) its authority to execute and deliver the Prime Lease, the
Lease Agreement and the Trust Agreement, (4) the validity or
enforceability of any of such instruments or the transactions
contemplated thereby, (5) the title of the officers who executed
such instruments, or (6) any authority or proceedings relating to
City of virginia Beach, virginia
Hunton & Williams
Financial Guaranty Insurance Company
october 1990
Page 4
the execution and delivery of any of such instruments by the
city.
(f) To the best of my knowledge after due investigation,
the City is not a party to any contract or agreement or subject
to any charter or other restrictions not disclosed in the Offer-
ing Statement (including the financial statements constituting a
part thereof), the performance or breach of which has or may have
a material alverse effect upon the financial condition or opera-
tions of the City.
(g) To the best of my knowledge after due investigation,
information contained in the section of the Offering Statement
entitled "Litigation" and the statements and information con-
tained in Appendix A to the offering Statement exclusive of
financial information contained therein are true and correct and
do not contain any untrue statement of a material fact and do not
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(h) The Deed of Trust creates a lien on the Property, other
than the Equipment, hereinafter defined, free and clear of all
prior liens and encumbrances except those shown on Schedule - to
the Title Policy.
(i) The Deed of Trust has been duly recorded in the Clerk's
office.
(j) A financing statement showing the Leasing Company as
debtor, with respect to the security interest created in favor of
Walter F. Witt, Jr. and Patrick J. Milmoe, as trustees, in any
furnishings and equipment and substitutions and replacements
therefor acquired by the Leasing Company and located on the
Property (collectively, the "Equipment"), has been filed in the
Clerk's Office and, pursuant to Section 8.9-403(4) of the Uniform
Commercial Code of.Virginia (the IIUCCII), I have requested thereon
that it be indexed in the Clerk's office against the Leasing
Company, together with a notation that such financing affects
real estate. A financing statement showing the Leasing Company,
as debtor, with respect to the Equipment has also been mailed to
the SCC for filing.
city of virginia Beach, virginia
Hunton & Williams
Financial Guaranty Insurance Company
october 1990
Page 5
(k) The Deed of Trust and filings referred to in the
preceding paragraph, when filed, create a perfected security
interest in the Equipment.
Very truly yours,
Leslie L. Lilley
City Attorney for the City of
Virginia Beach, Virginia
Exhibit C
[Letterhead of Special Counsel]
october -1 1990
Mayor and Council
City of Virg,inia Beach
Virginia Beach, Virginia
$ Certificates of Participation
Evide cing Direct and Proportionate Interests of
Owners Thereof in Payments To Be Made by
the city of virginia Beach, virginia, under
Ladies and Gentlemen:
we have acted as special counsel in connection with the
issuance of $ in principal amount of Certificates of
Participation the 'Series of 1990 Certificates") evidencing direct
and proportionate interests of owners thereof in payments to be
made by the city of Virginia Beach, Virginia (the "City"), under
a Real Property Lease Agreement between First Union Commercial
Corporation, Charlotte, North Carolina (the "Leasing Company") , and
the City dated as of October 1, 1987, as supplemented and amended
by a First Real Property Lease Modification Agreement dated as of
September 1, 1990 (collectively, the "Lease Agreementit) . The
Series of 1990 Certificates are being issued under a Trust
Agreement among the City, the Leasing Company and Signet Trust
Company, Richmond, Virginia (the "Trusteell) , dated as of october 1,
1987, as supplemented and amended by a First Supplemental Trust
Agreement dated as of September 1, 1990 (collectively, the "Trust
Agreement"), to provide funds for the construction of a judicial
center (the "Project") on property located in the City's municipal
center complex (the "Property") . The City has entered into a Prime
Lease with the Leasing Company dated as of October 1, 1987, as
supplemented and amended by a First Prime Lease Amendment dated as
of September 1, 1990 (collectively, the "Prime Lease") , whereby the
City has leased the Property and the Project to the Leasing
Company. The Leasing Company has entered into a Deed of Trust with
Mayor and Council
city of Virginia Beach
october 1990
Page 2
Patrick J. milmoe and Walter F. Witt, Jr., as trustees, dated as
of october 1, 1987, as supplemented and amended by a First Deed of
Trust modification Agreement dated as of September 1, 1990 (collec-
tively, the "Deed of Trust") , granting a lien on and security
interest in its leasehold estate in the Property and the Project
for the benefit of holders of the Series of 1990 Certificates toge-
ther with the holders of the Series 1987 Certificates issued
pursuant to the Trust Agreement (the "Series of 1987 Certifi-
cates"). The Deed of Trust will terminate upon the payment or
defeasance of the Series of 1987 Certificates, and, therefore, the
Deed of Trust will not secure the Series of 1990 Certificates after
September 1, 1994, or such earlier time as the Series of 1987
Certificates may be defeased. The Leasing Company has also entered
into an Assignment Agreement with the Trustee dated as of October
1, 1987, as supplemented and amended by a First Assignment
Modification Agreement dated as of September 1, 1990 (collectively,
the "Assignment Agreement") , whereby the Leasing Company has
assigned to the Trustee for the benefit of the holders of the
certificates the rights of the Leasing Company under the Lease
Agreement, including rental payments to be made by the City.
We have examined certified copies of proceedings and other
papers relating to the issuance of the Series of 1990 Certi-
ficates, as well as executed counterparts of the Prime Lease, the
Lease Agreement, the Trust Agreement and the Assignment Agreement.
Reference is made to the form of the Series 1990 Certificates for
information concerning their details, payment and redemption
provisions and their purpose.
Reference is also made to the opinions of
, Charlotte, North Carolina, counsel to the Leasing Company,
Viii-iams, Mullen, Christian & Dobbins, Richmond, Virginia, counsel
to the Trustee, and Leslie L. Lilley, Esquire, City Attorney, as
to various matters.
Reference is also made to a mortgagee title insurance policy
issued by with respect to title to
the Property and recor( pect thereto. We have relied
on the statement in the mortgagee t tle insurance policy as to the
City's ownership of the Property, have not examined the title to
any part of the Property, and express no opinion as to such matters
as expressed therein, either expressly or by implication or to the
extent that enforceability of a remedy may be dependent on the
title to or ownership of the Property.
Mayor and council
city of virginia Beach
october 1990
Page 3
Without undertaking to verify the same by independent
investigation, we have relied on certifications by representatives
of the city as to certain facts relevant to both our opinion and
requirements of the Internal Revenue Code of 1986, as amended (the
"Codell) . The City has covenanted to comply with the provisions of
the Code regarding, among other matters, the use, expenditure and
investment of proceeds of the Series of 1990 Certificates and the
timely payment to the United States of any arbitrage rebate amounts
with respect to the series of 1990 Certificates, all as set forth
in the resolution adopted by the city on September 25, 1990 (the
"Covenants"). The Trustee has covenanted not to take any actions
which it knows would cause interest payable to holders of the
Series of 1990 Certificates derived from the interest component of
rental payments to become taxable to holders of the Series of 1990
Certificates (the "Trustee's Covenants").
Financial Guaranty Insurance Company (the "Insurer") has
issued its municipal Bond Insurance Policy (the "Policy") agreeing
to make payment of the amounts due on the Series of 1990 Certifi-
cates by the City pursuant to the Lease Agreement or otherwise by
the terms of the Trust Agreement. Reference is made to the Policy
for a full statement of its terms and conditions and to the opinion
of counsel to the Insurer, dated today, as to due authorization,
execution and delivery of the Policy and the enforceability
thereof, upon which you are relying as to matters therein. No
opinion as to such matters is dxpressed herein.
Based on the foregoing and assuming the due authorization,
execution and delivery of the documents described above by parties
other than the City, we are of the opinion that:
1. The Prime Lease, the Lease Agreement and the Trust Agree-
ment have been duly authorized, executed and delivered by the City,
constitute valid and binding obligations of the City, and are
enforceable in accordance with their terms (except that no opinion
is expressed as to the enforceability of the obligation of the City
Manager under the Lease Agreement to use his best efforts to obtain
an appropriation).
2. The Series of 1990 Certificates have been duly authorized
and issued pursuant to the Trust Agreement, constitute valid and
binding obligations evidencing ownership of principal, premium, if
any, and interest components of rental payments to be made by the
City pursuant to the Lease Agreement and other funds provided
pursuant to the Trust Agreement, and are enforceable in accordance
with their terms. The right of holders of the Series of 1990
Mayor and Council
city of virginia Beach
october 1990
Page 4
Certificates to receive the rental payments to be made by the City
pursuant to the Lease Agreement is on a parity with the right of
holders of the series of 1987 Certificates to receive such pay-
ments, except to the extent that payments on the Series of 1990
certificates are paid by the Insurer under the Policy. Addition-
al Certificates secured equally and ratably with the Series of 1990
Certificates and the Series of 1987 Certificates may be issued from
time to time under the conditions, limitations and restrictions set
forth in the Trust Agreement and the Lease Agreement. The City's
obligation to make such rental payments is subject to and dependent
upon its making annual appropriations for such purpose. Such
obligation does not constitute a debt of the city within the
meaning of any constitutional or statutory limitation nor a
liability of or a lien or charge upon funds or property of the City
beyond any fiscal year for which the City has appropriated moneys
for such purpose.
3. The rights of holders of the Series of 1990 Certificates
and the enforceability of such rights, including the enforcement
by the Trustee of the obligations of the City under the Trust
Agreement and the Lease Agreement, may be limited or otherwise
affected by (a) bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the rights of creditors generally and (b)
principles of equity, whether considered at law or in equity.
4. Under existing law, to the extent that interest payable
to holders of the Series of 1990 Certificates is derived from the
interest component of rental payments made by the City under the
Lease Agreement and designated as interest on Exhibit C thereto,
such interest (a) is not included in gross income for Federal
income tax purposes and (b) is not an item of tax preference for
purposes of the Federal alternative minimum income tax imposed on
individuals and corporations; however, with respect to corporations
(as defined for Federal income tax purposes) subject to the
alternative minimum income tax, such interest is taken into account
in determining adjusted net book income (adjusted current earnings
for taxable years beginning after December 31, 1989) for purposes
of computing such tax. Failure of the City to comply with the
Covenants or failure of the Trustee to comply with the Trustee's
Covenants could cause interest on the Series of 1990 Certificates
to be included in gross income for Federal income tax purposes
retroactively to their date of issue.
5. Under existing law, to the extent that interest payable
to holders of the Series of 1990 Certificates is derived from the
interest component of rental payments to be made by the City under
Mayor and Council
city of Virginia Beach
october 1990
Page 5
the Lease Agreement and designated as interest on Exhibit C
thereto, such interest is exempt from taxation by the Commonwealth
of virginia.
Our services as special counsel to the City have been limited
to rendering the foregoing opinion based on our review of such
proceedings and documents as we deem necessary to approve the
validity of the Series of 1990 Certificates and the tax-exempt
status of the amounts paid to holders of the Series of 1990
Certificates derived from the interest component of rental payments
made by the City under the Lease Agreement and designated as
interest on Exhibit C thereto. We express no opinion herein as to
the financial resources of the City or the Insurer, the City's
ability to make rental payments, the Insurer's ability to make
payments under the Policy or the accuracy or completeness of any
information, including the Preliminary offering Statement dated
September 18, 1990, and the Offering Statement dated September 25,
1990, that may have been relied upon by anyone in making the
decision to purchase Series of 1990 Certificates.
Very truly yours,
Exhibit D
(Letterhead of Special Counsel]
october -1 1990
Shearson Lehman Brothers, Inc.
Wheat, First Securities, Inc.
Craigie Incorporated
Legg Mason Wood Walker, Inc.
c/o Shearson Lehman Hutton Inc.
looth Floor
Two World Trade Center
New York, New York 10048
$ certificate of Participation
Evidencing Direct and Proportionate Interests
of Owners Thereof in Payments To Be Made by the
city of virginia Beach, virginia
under a Real Property Lease Agreement
Ladies and Gentlemen:
Reference is made to our opinion delivered today as special
counsel in connection with your purchase of $
Certificates of Participation, Series of 1990 (the "Series of
Certificates"), dated September 1, iggo, evidencing direct and
proportionate interests of owners thereof in payments to be made
by the City of virginia Beach, Virginia (the "City"), under a
Real Property Lease Agreement dated as of October 1, 1987, as
supplemented and amended by a First Real Property Lease
Modification Agreement dated as of September 1, 1990. We hereby
advise you that we now deliver such opinion for your benefit, as
well as for the benefit of the City, and you are entitled to rely
upon such opinion as if it were addressed to you.
At your request, we have undertaken a review of certain
matters pertaining to the Series of 1990 Certificates we have
reviewed. We have also reviewed a Certificate Purchase Agreement
between the City, as Lessee, First Union Commercial Corporation,
as Lessor, and Signet Trust Company, as Trustee (collectively,
the "Parties"), setting forth the terms of the Series of 1990
Shearson Lehman Brothers, Inc.
Wheat, First Securities, Inc.
Craigie Ihcorporated
Legg mason Wood Walker, Inc.
october _, 1990
Page 2
Certificates and the terms pursuant to which they will be sold to
you (the "Certificate Purchase Agreement"), certain sections
described below of the offering Statement, dated September 25,
1990, relating to the Series of 1990 Certificates (the "Offering
Statement"), as well as such agreements, instruments, opinions,
certificates and other documents as we deem necessary for
purposes of the advice contained in the letter. We have not
verified and are not passing upon, and we do not assume any
responsibility for, the accuracy or completeness of the
statements contained in the Offering Statement, except only to
the extent indicated in paragraph two below.
on the basis of the foregoing, we advise you that:
(1) In our opinion the Certificate Purchase Agreement has
been duly authorized, executed and delivered by the City and,
assuming its due authorization, execution and delivery by the
Parties other than the City, constitutes a legal, valid and
binding obligation of the City, and is enforceable against the
City in accordance with its terms. The enforceability of the
obligations of the City under the Certificate Purchase Agreement
may be limited, however, by bankruptcy, insolvency,
reorganization, moratorium and similar laws and by equity
principles which may limit the specific performance of certain
remedies.
(2) The statements in the offering Statement in the sections
entitled "Introduction," "The 1990 certificates," "Security for
the Certificates," "Investment Considerations," "Certificate
Holders' Remedies in Events of Default," "Summaries of Legal
Documents" and "Tax Exemption" fairly summarize the material
provisions of the Certificates and the documents, statutes and
opinions referred to therein. The Special Counsel opinion as
executed is in substantially the form set forth in Exhibit C.
We are furnishing this letter solely for your benefit. It
is not to be relied on by any other person or firm without our
written consent.
Very truly yours,
EXHIBIT E
[Letterhead of Underwriters' Counsel]
October -, 1990
Shearson Lehman Brothers, Inc.
New York, New York
Craigie Incorporated
Richmond, Virginia
Legg Mason Wood Walker, Inc.
New York, New York
Wheat, First Securities, Inc.
Richmond, Virginia
City of Virginia Beach, Virginia
Certificates of Participation
Series of 1990
Ladies and Gentlemen:
We have acted as your counsel in connection with your
purchase and offering of $ Certificates of
Participation, Series of 1990 (the "Certificates") pursuant to
the Certificate Purchase Agreement, dated September _, 1990 (the
"Certificate Purchase Agreement"), among you, Signet Trust
Company, as trustee (the "Trusteell), First Union Coinmercial
Corporation, Charlotte, North Carolina (the "Leasing Company")
and the city of Virginia Beach, virginia (the "City"), The
Certificates are being issued in connection with (i) the Trust
Agreement, dated as of October 1, 1987, as amended (the "Trust
Agreement"), among the City, the Leasing Company and the Trustee
and (ii) the Real Property Lease Agreement, dated as of October
1, 1987, as amended (the "Lease Agreement"), between the City and
the Leasing Company. All capitalized terms not otherwise defined
in this opinion have the meanings set forth in the Certificate
Purchase Agreement.
In connection with our opinion, we have examined the
Offering Statement, the law and such proceedings and instruments
as we deem necessary to render this opinion.
September 1990
Page 2
As to questions of fact material to our opinion, without
undertaking to verify them by independent investigation, we have
relied upon representations of the City, the Leasing Company and
the Trustee in the Certificate Purchase Agreement, the Trust
Agreement and the Lease Agreement, the certified proceedings of
the City, the certified corporate proceedings of the Leasing
Company and the Trustee, and certifications by the officers and
representatives of the City, the Leasing Company and the Trustee.
We have assumed the authenticity of all documents submitted
to us as originals, the conformity to original documents of all
submitted to us as certified or photostatic copies and
authenticity of the originals of such latter documents.
Based upon, and subject to, the foregoing, it is our opinion
that:
1. The Certificate Purchase Agreement has been duly
authorized, executed and delivered by you and, assuming due
authorization, execution and delivery by the City, the Leasing
Company and the Trustee, constitutes your valid and binding
agreement, enforceable against you in accordance with its terms.
2. The offering, sale and delivery of the Certificates do
not require registration of the Certificates or any separate
security represented by the Certificates under the Securities Act
of 1933, as amended (the 111933 Act"). The Trust Agreement is not
required to be qualified as an indenture pursuant to the Trust
Indenture Act of 1939,as amended.
The enforceability of the Certificate Purchase Agreement is
subject to the provision of applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in
effect, relating to or affecting the enforcement of creditor's
rights. Such obligations are also subject to usual equitable
principles which may limit specific enforcement of certain
remedies. Certain indemnity provisions of the Certificate
Purchase Agreement may be limited by applicable securities laws
and judicial decisions.
As your counsel, we have rendered legal advice and
assistance to you in the preparation of the Offering Statement.
Rendering such assistance involved, among other things,
discussions and inquiries concerning various legal and related
subjects, reviews of responses to such inquiries, and reviews of
certain City, Leasing Company and Trustee records, documents and
proceedings. we have also held telephone conversations with and
participated in discussions, conversations and conferences with
(i) your representatives, (ii) officers and representatives of
the City and its counsel, (iii) officers and representatives of
the Leasing Company and its counsel and (iv) officers and
September -1 1990
Page 3
representatives of the Trustee and its counsel. In the course of
such correspondence, discussions, conversations and conferences,
the contents of portions of the offering Statement and related
matters were discussed and revised. We have also reviewed the
opinions of Special Counsel, counsel to the City, counsel to the
Leasing Company and counsel to the Trustee.
On the basis of the information which was developed in the
course of rendering the legal advice and assistance referred to
above, but without having undertaken to determine independently
the accuracy or completeness of the statements contained in the
Offering Statement, nothing has come to our attention that would
lead us to believe that the Offering Statement (except for the
financial statements and other financial and statistical data
included in or attached to the offering Statement, as to which no
view is expressed) contains an untrue statement of a material
fact or omits to state a material fact required to be stated in
it or necessary to make the statements in it, in light of the
circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in
the preparation of the Offering Statement are such, however, that
we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Offering Statement, except as expressly set forth in this
opinion.
We do not express any opinion or belief as to the financial
statements or other financial and statistical information
included in the offering Statement, including (without
limitation) the information contained in Appendix A and Appendix
B to the offering Statement. This letter is furnished by us to
meet the requirements of the Certificate Purchase Agreement and
is furnished solely for your benefit.
Very truly yours,
EXHIBIT F
[Letterhead of Counsel to Leasing Company]
October -1 1990
Shearson Lehman Brothers, Inc. Mayor and Council
New York, New York City of Virginia Beach,
Virginia
craigie Incorporated Virginia Beach, Virginia
Richmond, Virginia
Hunton & Williams
Legg Mason Wood Walker, Inc. Richmond, virginia
New York, New York
Signet Bank, as Trustee
Wheat, First Securities, Inc. Richmond, Virginia
Richmond, Virginia
McGuire, Woods, Battle & Boothe
Richmond, Virginia
City of Virginia Beach, Virginia
Certificates of Participation
Series of 1990
Ladies and Gentlemen:
I have served as counsel to First Union commercial
Corporation, Charlotte, North Carolina (the "Leasing Company")
in connection with the issuance of the Series of 1990
Certificates (the "Series of 1990 Certificates") pursuant to (i)
the Trust Agreement, dated as of October 1, 1987, as amended by
the First Supplemental Trust Agreement, dated September 1, 1990
(the "Trust Agreement"), among the Leasing Company, Signet Trust
Company, as trustee (the "Trusteell) and the City of Virginia
Beach, Virginia (the "City") and (ii) the Real Property Lease
Agreement, dated as of October 1, 1987, as amended by the First
Real Property Lease modification Agreement, dated as of September
1, 1990 (the "Lease Agreement") between the Leasinq Company, as
lessor, and the city, as lessee. The financing will provide
funds for the construction of a judicial center (the "Project")
on and as a part of the property (the "Property") located in the
City's municipal complex. A portion of the Property was acquired
Shearson Lehman Brothers, Inc.
September -1 1990
Page 2
with proceeds of the Series of 1987 Certificates (together with
the Series of 1990 Certificates, the "Certificates"), issued
pursuant to the Trust Agreement. All capitalized terms not
otherwise defined will have the meaning set forth in the Trust
Agreement, unless the context clearly requires otherwise.
The city has also entered into a Prime Lease with the
Leasing Company, dated as of october 1, 1987, as supplemented and
amended by a First Prime Lease Amendment, dated as of September
1, 1990 (the "Prime Lease"), whereby the City has leased the
Property and the Project to the Leasing Company. The Leasing
Company has entered into a Deed of Trust, dated as of October 1,
1987, as supplemented and amended by a First Deed of Trust
Modification Agreement, dated as of September 1, 1990 (the "Deed
of Trust"), with Patrick J. Milmoe and Walter F. Witt, Jr., as
trustees, granting a lien and security interest in its leasehold
estate in the Property and the Project for the benefit of the
Certificate holders. The Leasing Company has also entered into
an Assignment Agreement with the Trustee, dated as of October 1,
1987 (the "Assignment Agreement"), whereby the Leasing company
has assigned to the Trustee for the benefit of the Certificate
holders the rights of the Leasing Company under the Lease
Agreement, including rental payments to be made by the City.
In connection with our opinion, we have reviewed, among
other things, the laws of the Commonwealth of virginia, articles
of incorporation and the by-laws of the Leasing Company, the
Lease Agreement, the Trust Agreement, the Prime Lease, the Deed
of Trust and the Assignment Agreement (collectively, the
"Certificate Documents"), the Certificates and the Certificate
Purchase Agreement, dated September _, 1990 (the "Certificate
Purchase Agreement"), among the Leasing Company, the Trustee, the
City and the Underwriters (as defined in the Certificate Purchase
Agreement) and such additional documents, certificates and
instruments related thereto, as we deem necessary in rendering
the opinions contained herein.
We have assumed that all signatures on documents and
instruments examined by us are genuine, all documents submitted
to us as originals are authentic and all documents submitted to
us as copies conform to the originals. In addition, we have
assumed, without independent investigation or verification, the
due authorization, execution and delivery of the documents,
instruments and agreements by all parties thereto other than the
Leasing Company. We have made such independent investigations as
we have deemed necessary or appropriate in order to render the
opinions contained herein.
Shearson Lehman Brothers, Inc.
September _, 1990
Page 3
Based on the foregoing, it is our opinion that:
1. The Leasing Company is duly organized, validly
existing and in good standing under the laws of North Carolina
and has full power and authority to own its properties and to
operate its business as now conducted and to conduct business in
Virginia as a foreign corporation.
2. The Leasing Company has full power and authority to
enter into, execute, deliver and perform its obligations under
the Certificate Documents, the Certificate Purchase Agreement and
the Certificates.
3. The Certificate Documents, the Certificate Purchase
Agreement and the Certificates have been duly authorized, and the
Certificate Documents and the Certificate Purchase Agreement have
been duly executed and delivered by the Leasing Company and,
subject to paragraph 4 below, are valid and legally binding
obligations of the Leasing Company, enforceable in accordance
with their terms.
4. The enforceability of the obligations of the
Leasing Company under the Certificate Documents, the Certificate
Purchase Agreement and the Certificates is subject to the
provisions of applicable bankruptcy, insolvency, reorganization,
moratorium and sirnilar laws, now or hereafter in effect, relating
to or affecting the enforcement of creditors' rights generally.
Such obligations are also subject to usual equitable principles
which may limit the specific enforcement of certain remedies but
which do not affect the validity of such documents. Certain
indemnity provisions of the Certificate Documents and the
Certificate Purchase Agreement may be unenforceable pursuant to
court decisions invalidating such indemnity agreements on grounds
of public policy.
5. The execution and delivery by the Leasing company
of the Certificate Documents, the Certificate Purchase Agreement
and the Documents and the performance by the Leasing Company of
its obligations under them do not and will not conflict with, or
constitute a breach or result in a violation of (a) the articles
of incorporation or by-laws of the Leasing company, (b) any
constitutional or statutory provision, (c) to the best of my
knowledge after due investigation, any agreement or other
instrument to which the Leasing Company is a party or by which it
is bound, or (d) to the best of my knowledge after due
investigation, any order, rule, regulation, decree or ordinance
of any court, government or governmental authority having
jurisdiction over the Leasing Company or its property.
EXHIBIT G
[Letterhead of Counsel to Trustee]
october -, 1990
Shearson Lehman Brothers, Inc. Mayor and Council
New York, New York City of Virginia Beach,
Virginia
craigie Incorporated Virginia Beach, Virginia
Richmond, Virginia
Hunton & Williams
Legg Mason Wood Walker, Inc. Richmond, Virginia
New York, New York
Signet Bank, as Trustee
Wheat, First Securities, Inc. Richmond, Virginia
Richmond, Virginia
McGuire, Woods, Battle & Boothe
Richmond, Virginia
City of Virginia Beach, virginia
Certificates of Participation
Series of 1990
Ladies and Gentlemen:
We have served as counsel to Signet Trust Company, as
trustee (the "Trusteell) in connection with the issuance of the
Series of 1990 Certificates (the "Series of 1990 Certificates")
pursuant to (i) the Trust Agreement, dated as of October 1, 1987,
as amended by the First Supplemental Trust Aqreement, dated
September 1, 1990 (the "Trust Agreement"), among First Union
Commercial Corporation, Charlotte, North Carolina (the "Leasing
Company"), the Trustee and the City of Virginia Beach, Virginia
(the "City") and (ii) the Real Property Lease Agreement, dated as
of October 1, 1987, as amended by the First Real Property Lease
Modification Agreement, dated as of September 1, 1990 (the "Lease
Agreement") between the Leasing Company, as lessor, and the City,
as lessee. The financing will provide funds for the construction
of a judicial center (the "Project") on and as a part of the
property (the "Property") located in the City's municipal
complex. A portion of the Property was acquired with proceeds of
Shearson Lehman Brothers, Inc.
September _, 1990
Page 2
the Series of 1987 Certificates (together with the Series of 1990
Certificates, the "Certificates"), issued pursuant to the Trust
Agreement. All capitalized terms not otherwise defined will have
the meaning set forth in the Trust Agreement, unless the context
clearly requires otherwise.
The Leasing Company has entered into a Deed of Trust,
dated as of october 1, 1987, as supplemented and amended by a
First Deed of Trust Modification Agreement, dated as of September
1, 1990 (the "Deed of Trust"), with Patrick J. Milmoe and Walter
F. Witt, Jr., as trustees, granting a lien and security interest
in its leasohold estate in the Property and the Project for the
benefit of the Certificate holders. The Leasing Company has also
entered into an Assignment Agreement with the Trustee, dated as
of October 1, 1987 (the "Assignment Agreement"), whereby the
Leasing Company has assigned to the Trustee for the benefit of
the Certificate holders the rights of the Leasing company under
the Lease Agreernent, including rental payments to be made by the
city.
In connection with our opinion, we have reviewed, among
other things, the laws of the Commonwealth of Virginia, articles
of incorporation and the by-laws of the Trustee, the Lease
Agreement, the Trust Agreement, the Deed of Trust and the
Assignment Agreement (collectively, the "Certificate Documents"),
the Certificates and the Certificate Purchase Agreement, dated
September _, 1990 (the "Certificate Purchase Agreement"), among
the Leasing Company, the Trustee, the City and the Underwriters
(as defined in the Certificate Purchase Agreement) and such
additional documents, certificates and instruments related
thereto, as we deem necessary in rendering the opinions contained
herein.
We have assumed that all signatures on documents and
instruments examined by us are genuine, all documents submitted
to us as originals are authentic and all documents submitted to
us as copies conform to the originals. In addition, we have
assumed, without independent investigation or verification, the
due authorization, execution and delivery of the documents,
instruments and agreements by all parties thereto other than the
Trustee. We have made such independent investigations as we have
deemed necessary or appropriate in order to render the opinions
contained herein.
Shearson Lehman Brothers, Inc.
September _, iggo
Page 3
Based on the foregoing, it is our opinion that:
1. The Trustee is duly organized, validly existing and
in good standing as a trust company under the laws of the
Commonwealth of Virginia, with full power and authority to
conduct its business as now conducted.
2. The Trustee has full power and authority to enter
into, execute, deliver and perform its obligations under the
Certificate Documents, the Certificate Purchase Agreement and the
Certificates and to accept the trust created by the Trust
Agreement.
3. The Certificate Documents and the Certificate
Purchase Agreement have been duly authorized, executed and
delivered by the Trustee, and the Certificates have been duly
executed and delivered (and such execution and delivery has been
authorized) by the Trustee pursuant to the terms of the Trust
Agreement.
Very truly yours,
WJSOOO2.CPA
Shearson Lehman Brothers, Inc.
September _, 1990
Page 4
6. To the best Of my knowledge after due
investigation, there is no litigati,n at law or in equity or any
proceeding before any governmental agency involving the Leasing
Company pending or threatened in which any liability of the
Leasing Company is not adequately covered by.insurance or in
which any judgment or orderwould have a material adverse effect
upon the business or assets of the Leasing company or which would
affect the Leasing company's existence or authority to do
business the acquisition of the Property, the validity of the
Certific;te Documents or the performance of the Leasing Company's
obligations under them.
Very truly yours,
- 20 -
Item VI-G.2.
RESOLUTIONS ITEM # 33485
Upon motion by Vlce Mayor Fentress, seconded by Councilman Heischober, City
Council ADOPTED:
Resolution authorizing the City Manager to notify
the Virginia Department of Transportation of
acceptable access points located on Princess Anne
Road Phase Ill West.
Councilwoman McCianan wished to be assured the access points would require turn
lanes on the part of the property owners.
Ralph Smith, Assistant Director of Public Works, advised where there Is a Traffic
Engineering need for turn lanes, They will be provided at project cost If it is
an existing access point at this time. For future development, the cost of
providing the turn lane will be incumbent on the owner of the property.
Voting: 9-1
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Paul J. Lanteigne, Reba S. McCianan,
Mayor Meyera E. Oberndorf and William D. Sessoms, Jr.
Council Members Voting Nay:
Nancy K. Parker
Council Members Abstaining:
Louls R. Jones
Council Members Absent:
None
*Councilman Louls Jones ABSTAINED and declared pursuant to Section 2.1-
639.14(E) of the Code of Virginia, he owns land with a value In excess of
$10,000.00, which Is located along the Princess Anne Road Eastern Phase.
Therefore, this Interest meets the criteria of a personal Interest in the
transaction under the Conflict of Interest Act. Councilman Louis Jones' letter
of July 9, 1990, is hereby made a part of the record.
I A RESOLUTION AUTHORIZING THE CITY
2 MANAGER TO NOTIFY THE VIRGINIA
3 DEPARTMENT OF TRANSPORTATION OF
4 ACCEPTABLE ACCESS POINTS LOCATED ON
5 PRINCESS ANNE ROAD PHASE III WEST
6 WHEREAS, the Princess Anne Road Phase III is designated
7 in the City's Master Street and Highway Plan as a controlled
8 access highway; and
9 WHEREAS, on September 4, 1990, the City Council of
10 Virginia Beach reaffirmed by resolution the continued designation
11 of Princess Anne Road as a controlled access roadway; and
12 WHEREAS, Virginia Department of Transportation (VDOT)
13 has requested that the City of Virginia Beach approve the
14 retention of ten access points as shown on that certain drawing
15 attached hereto as "Exhibit All and entitled "PRINCESS ANNE ROAD
16 PH. III WEST PREPARED BY P/W ENGINEERING DRAFTING DATE 9/13/90";
17 and
18 WHEREAS, said access points are for access to existing
19 private properties which presently have direct access to Princess
20 Anne Road; and
21 WHEREAS, the City Council of the City of Virginia Beach
22 agrees that eight of the ten access points are acceptable to the
23 City, as shown on Exhibit A;
24 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
25 CITY OF VIRGINIA BEACH, VIRGINIA:
26 That the City Manager is directed to notify VDOT that
27 they are authorized to proceed with acquisition of the authorized
28 right-of-way as depicted on Exhibit A, thus ensuring that the
29 eight access points depicted thereon as being acceptable to the
30 City, will provide reasonable access to the property owners
31 located contiguous to Princess Anne Road.
32 Adopted by the Council of the City of Virginia Beach,
33 virginia, on the 25 day of September 1990.
34 CA-3935
35 NONCODE\CA-3935.RES
36 R-1
LU
- 21 -
Item VI-G.3.
RESOLUTIONS ITEM # 33486
Attorney Bob Bishoff, represented the applicant
Upon motion by Councilwoman McClanan, seconded by Councilman Baum, City Council
ADOPTED:
Resolution authorizing the relocation of a
nonconforming use operated by Princess Anne
Cabinets, Inc. at 3416 North Landing Road (PRINCESS
ANNE BOROUGH).
Voting: 11-0
Council Members Voting Aye:
John A. BaLin, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
APPROVED A6 TO
i,S TO i.rGAL
1 A RESOLUTION AUTHORIZING THE
2 RELOCATION OF A NONCONFORMING USE
3 OPERATED BY PRINCESS ANNE CABINETS,
4 INC.
5 WHEREAS, Princess Anne Cabinets, Inc. (hereinafter
6 referred to as the Applicant) is the owner of a cabinet
7 manufacturing operation on the property located at 3416 North
8 Landing Road, in the Borough of Princess Anne; and
9 WHEREAS, the aforesaid property is located within the
10 AG-2 Agricultural District, in which manufacturing is not a
11 permitted use; and
12 WHEREAS, the manufacturing of cabinets by the Applicant
13 is a lawful nonconforming use; and
14 WHEREAS, the Applicant desires to relocate the part of
15 its operation consisting of the cutting of lumber from one
16 building on the property to another; and
17 WHEREAS, the property is primarily surrounded by
18 agricultural operations and is not located within close proximity
19 to any residential areas;
20 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
21 CITY OF VIRGINIA BEACH, VIRGINIA:
22 That the City Council hereby finds that the lumber-
23 cutting portion of the Applicant's operation would be equally
24 appropriate to the district in the proposed location as in its
25 present location.
26 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF
27 VIRGINIA BEACH, VIRGINIA:
28 That the Applicant, Princess Anne Cabinets, Inc. , be,
29 and hereby is, authorized to relocate the lumber-cutting portion
30 of its operation from its present location to the location marked
31 on the attached diagram as "PROPOSED MANUFACTURING BUILDING
32 (EXISTING)".
33 Adopted by the Council of the City of Virginia Beach,
34 virginia, on the 25 day of September 1 1990.
35 \ordin\noncode\pacab.res
36 CA-3929
37 R-1
2
- 22 -
Item VI -H.
CONSENT AGENDA ITEM # 33487
Upon motion by CouncII man He l schober, seconded by CouncII man Sessoms, CitY
Council APPROVED in ONE MOTION items 1, 2 and 3 of the CONSENT AGENDA.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba S.
mcCianan, Mayor Meyera E. Oberndorf, NanCy K. Parker
and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 23 -
Item VI-H.I.a.
CONSENT AGENDA ITEM # 33488
Upon motion by Councilman Heischober, seconded by Councilman Sessoms, City
Council ADOPTED, upon SECOND READING:
Ordinance to ACCEPT and APPROPRIATE a $63,613 grant
from the Department of Criminal Justice Services in
the Sheriff's FY 1990-1991 Operating Budget re
Electronic Offender Monitoring Program.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba S.
McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
1 AN ORDINANCE TO ACCEPT AND APPROPRIATE A $63,613 GRANT
2 FROM THE DEPARTMENT OF CRIMINAL JUSTICE SERVICES
3 IN THE SHERIFF'S FY 90-91 OPERATING BUDGET
4 FOR THE ELEGTRONIC OFFENDER MONITORING PROGRAM
5 WHEREAS, the Sheriff's Office is responsible for the incarceration of all
6 prisoners in the City of Virginia Beach;
7 WHEREAS, The Department of Criminal Justice Services is aware of the
8 overcrowded conditions at Virginia Beach correctional facilities and has awarded
9 the Sheriff's Office $63,613 to initiate an electronic offender monitoring
10 program;
11 WHEREAS, the grant provides funding for a full-time grant position and
12 associated equipment, supplies, and travel through June 30, 1991 with no city
13 funding match required;
14 WHEREAS, the program will increase bed space at Virginia Beach correctional
15 facilities by allowing selected inmates to serve their sentences at home while
16 being electronically monitored.
17 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
18 BEACH, VIRGINIA that a grant in the amount of $63,613 be accepted and one full-
19 time grant position be established in the Sheriff's Office FY 90-91 Operating
20 Budget only for the term of the grant.
21 BE IT FURTHER ORDAINED that appropriations be offset by a $63,613 increase
22 in estimated revenue.
23 Adopted by the City Council of the City of Virginia Beach, Virginia, this
24 25 day of September , 1990.
25 This shall be effective from the day of its adoption.
26 First Reading: September 18, 1990
27 Second Reading: September 25, 1990
- 24 -
Item VI-H.l.b-
CONSENT AGENDA ITEM # 33489
Upon motion by Councilman Heischober, seconded by Councilman Sessoms, City
Council ADOFRED, upon SECOND READING:
ordinance to APPROPRIATE a $25,000 grant trom the
Chesapeake Bay Local Assistance Department re
Chesapeake Bay Preservation Program to the Otfice
of Environmental Manageinent.
Voting: 11-0
Council Members Voting Aye:
John A. Baurn, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McCianan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Mernbers Voting Nay:
None
Council Members Absent:
None
1 AN ORDINANCE TO APPROPRIATE A $25,000 GRANT FROM THE CHESAPEAKE BAY
2 LOCAL ASSISTANCE DEPARTMENT AND TO TRANSFER $11,301 FROM VARIOUS
3 SOURCES WITHIN THE FY 1990-1991 OPERATING BUDGET TO THE OFFICE OF
4 ENVIRONMENTAL MANAGEMENT FOR THE CHESAPEAKE BAY PRESERVATION PROGRAM
5 WHEREAS, the State Chesapeake Local Assistance Department has
6 provided a grant in the amount of $25,000 to support the hiring of an
7 Environmental Information Coordinator, with the Srant requiring a city match of
8 $11,301;
9 WHEREAS, an existing vacant position from within the FY 1990-1991
10 Operating Budget will be transferred and converted to a full-time grant positior@t
11 which shall exist only as long as the state grant funds are Ivailable;
12 WHEREAS, other staffing requirements to support the Chesapeake Bay
13 Preservation Program may be made, on an as needed basis, through the reassigrunent
14 of existing city staff;
15 WHEREAS, the funding to provide the $11,301 grant match will be
16 identified from within the FY 1990-1991 Operating Budget and transferred to the
17 Office of Envirorunental Management.
18 NOW THEREFORE BE IT ORDAINED BY THE CITY COTJNCIL OF THE CITY OF
19 VIRGINIA BEACH, VIRGINIA that a $25,000 grant from the Chesapeake Bay Local
20 Assistance Department be accepted and appropriated to the Office of EnvirDnmental
21 Management for the purpose of hiring a grant position, which shall exist only
22 as long as grant funding is available for its support; that an existing position
23 be transferred and converted into this grant position; and that $11,301 be
24 transferred from various sources within the FY 1990-1991 Operating Budget to
25 provide for the local match.
26 BE IT FURTHER ORDAINED, that estimated revenues be increased by
27 $25,0000 to reflect the grant from the Chesapeake Bay Local Assistance
28 Department.
29 This ordinance shall be effective from the day of its adoption,
September 18, 1990
30 First Reading
31 Second Reading September 25, 1990
32 Adopted on this day 25 September 1990.
1
- 25 -
item VI-H.2
CONSENT AGENDA ITEM # 33490
Upon motion by Counci Iman Heischober, seconded by Councilman Sessoms, City
Council APPROVED:
LOW BIDS:
(CiPs -928/5-967)
CHESAP: AKE BAY Cavalier Park/N. Linkhorn $1,141,896.92
CONTRACTORS, INC. Park Sewer and Water
Improvements - Phase I
(Contract 3)
SHORELINE Cavalier Park/N. Linkhorn 107,600.00
CONTRACTORS, INC. Park Sewer Pump Station -
Pinewood Road
(Contract 4)
SHORELINE Cavalier Park/N. Linkhorn 123,400.00
CONTRACTORS, INC. Park Sewer Pump Station -
Linkhorn Drive
(Contract 5)
(CIP 6-934)
A and W Bay Colony Sewer $ 687,537.05
CONTRACTORS, INC. improvements
(Contract 4)
SHORELINE Bay Colony Sewer Punp 191,000.00
CONTRACTORS, INC. Station - Bay Colony Drive
(Contract 8)
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba S.
McC]anan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 26 -
Item VI-H.3
CONSENT AGENDA ITEM # 33491
Upon motion by Councilman Heischober, seconded by Councilman Sessoms, City
Council ADOPTED:
Ordinance authorizing Tax Refunds In the amount of
$15,407.72 upon application of certain persons and
upon certification of the City Treasurer for
payment.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba S.
McCianan, Mayor Meyera E. Oberndorf, Nancy K. Parker
and William D. Sessoms, Jr.
Councll Members Voting Nay:
None
Council Members Absent:
None
9/12/90 EMC
RM NO. C.A. 7
AN ORDINANCE AUTHORIZING TAX REFUNDS
UPON APPLICATION OF CERTAIN PERSONS
AND UPON CERTIFICATION OF THE TREASURER
FOR PAYMENT
BE IT ORDAINEO BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA:
That the following applications for tax refunds upon certification of the Treasurer are hereby approved:
NAME Tax Type Ticket Exonera- D ate Penalty I nt. Total
Year of Tax Number tion No. Paid
Runnymede Corp 90 RE(2/2) 97816-1 6/5/90 451.38
Urban Associates III 90 RE(2/2) 115585-0 6/5/90 431.64
Atlantic Permanent Fed SB 90 RE(2/2) 59476-2 6/5/90 124.04
Cobo Corp 90 RE(1/2) 21594-9 11/14/89 215.43
Cobo Corp 90 RE(2/2) 21594-9 5/9/90 215.43
Winston G Snider 90 RE(1/2) 44053-5 4/24/90 324.13
Winston G Snider 90 RE(2/2) 44053-5 7/2/90 314.15
Fundamerica Corp 90 RE(1/2) 105666-3 11/28/89 81.57
Fundamerica Corp 90 RE(2/2) 105666-3 5/9/90 81.57
Frank E & Martha Ragland 90 RE(2/2) 92306-9 8/28/90 85.02
RML Corp 90 RE(1/2) 92138-3 12/5/89 5,190.70
RML Corp 90 RE(2/2) 92138-3 6/5/90 5,190.70
W F & Marcelene Schwegler 90 RE(2/2) 100926-0 6/5/90 1,002.40
Virginia Beach FSB 90 RE(2/2) 117421-4 6/5/90 224.50
Virginia Beach FSB 90 RE(2/2) 117461-5 6/5/90 414.94
Virginia Beach FSB 90 RE(2/2) 117462-4 6/5/00 306.52
Leonard D Frierman 90 RE(1/2) 38609-6 12/5/89 354.30
Margaret L Frierman 90 RE(2/2) 38609-6 5/15/90 354.30
Anna Belle Croonenburghs N/A Pkng 317309 6/22/90 10.00
Stanley A Harris N/A Pkng 295792 7/6/90 20.00
Donald E McGuoirk N/A Pkng 257272 8/1/90 10.00
Sharen Decherd 90 Dog V11590 7/30/90 5.00
Total 15,407.72
This ordinance shall be effective from date of adoption.
The above abatement(s) totaling t;
were approved by
the Council of the City of Virginia
Beach on the 25 day of ptemb@r, 1990
surer
Approved as to form:
Ruth Hodges Smith
City Clerk
Lesl
- 27 -
item VI-H.3a.
RECOGNITION ITEM # 33492
Mayor Oberndorf I nv i ted the C I ty C I erk to I n trod uce the f o I I ow I ng C I erks
visiting from the OLD DOMINION UNIVERSITY MUNICIPAL CLERKS INSTITUTE:
Kimberly Rau Deputy Clerk - City of Laurel, Maryland
Carol L. Jacobs Town Clerk - Town of Ocean City, Maryland
Linda Hawley City Clerk - City of Manassas, Virginia
- 28 -
item IV-1.1/2
PUBLIC HEARING ITEM # 33493
PLANNING
Mayor meyera E. Oberndorf DECLARED a PUBLIC HEARING on:
PLANNING BY CONSENT
(a) SALEM ACRES (CLEO RUSH) CONDITIONAL USE PERMIT
(b) REGENCY APARTMENTS ASSOCIATES, LTD- CONDITIONAL USE PERMIT
(c) WILLIAM D. ROBINSON CONDITIONAL USE PERMIT
(ROBINSONS AUTO SALES, LTD.)
(d) DINING CONCEPTS BY BYRNE, INC. CONDITIONAL USE PERMIT
(e) MASTER STREET AND HIGHWAY PLAN AMEND the Principles and
Policies Element
AMEND the General
Corridor Concept Plan Map
to include Greenwich Road
as a Special Landscaped
Roadway.
PLANNING
(a) HILDA ARCHBELL
EXECUTRIX FOR ESTATE of Sam B. Archbell CONDITIONAL USE PERMIT
(b) STAR OF THE SEA CATHOLIC CHURCH CONDITIONAL USE PERMIT
(c) JOHN T. ATKINSON and JAMES F. WILSON CONDITIONAL USE PERMIT
(d) FALSE CAPE ENTERPRISES, INC., CONDITIONAL USE PERMIT
A VIRGINIA CORPORATION
(e) BP OIL CO. DIVISION OF SOHIO OIL CO. CONDITIONAL USE PERMIT
(f) WALID A. KASSIR CONDITIONAL USE PERMIT
(g) JDH/LBS, a General Partnership CHANGE OF ZONING
DISTRICT CLASSIFICATION
(h) WILLIAM DRINKWATER CHANGE OF ZONING
DISTRICT CLASSIFICATION
(1) LARKSPUR FARM PARTNERSHIP CHANGE OF ZONING
DISTRICT CLASSIFICATION
(j) DONALD W. DOWNS VARIANCE
- 29 -
Item VI-1.1.
PUBLIC HEARING ITEM # 33494
PLANNING BY CONSENT
Upon motion by Councilman Heischober, seconded by Councilman Jones, City
Council APPROVED in ONE MOTION Items 1, b, c, d and e of the PLANNING BY
CONSENT AGENDA.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McC]anan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 30 -
Item VI-I.l.a.
PUBLIC HEARING ITEM # 33495
PLANNING BY CONSENT
Upon motion by Councilman Heischober, seconded by Councilman Jones, City
Council APPROVED an ordinance upon application of SALEM ACRES (CLEO RUSH) for a
Conditional Use Permit:
ORDINANCE UPON APPLICATION OF SALEM ACRES (CLEO
RUSH) FOR A CONDITIONAL USE PERMIT FOR A HOME FOR
THE ELDERLY R09901332
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Salem Acres (Cloo
Rush) for a Conditional Use Pemit for a home for
the elderly on the west side of Salem Road, 406
teet north of Landstown Road. Said parcel is
located at 2437 Salem Road and contains 6 acres.
PRINCESS ANNE BOROUGH.
The following conditions shall be required:
1. The facility will have a maximum ot eight elderly
residents.
2. State licenses must be obtained prior to
establishing an elderly housing facility at this
location.
3. Regular transportation services must be provided
for all residents.
4. An automatic fire alarm system and an acceptable
fire protection system must be approved by the City
Fire Marshall.
The OWNER or LEGAL REPRESENTATIVE of the Owner, has reviewed the conditions for
APPROVAL and has signed a STATEMENT OF CONSENT. Said STATEMENT OF CONSENT is
hereby made a part of the proceedings.
This Ordinance shall be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nlneteen Hundred and Ninety.
- 31 -
Item VI-I.l.a.
PUBLIC HEARING ITEM # 33495 (Continued)
PLANNING BY CONSENT
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
STATEMENT OF CONSENT
APPLICANT: SALEM ACRES (CLEO RUSH)
APPLICATION: Conditional Use Permit -
Salem Road/Landstown Road
DESCRIPTION: Home for the Elderly
CITY COUNCIL SESSION: September 25, 1990
THE UNDERSIGNED OWNER OR LEGAL REPRESENTATIVE FOR THE OWNER, (or Agent
for the Owner), HAS REVIEWED THE CONDITIONS FOR APPROVAL (REQUIREMENTS)
RECOMMENDED BY THE VIRGINIA BEACH PLANNING COMMISSION TO THE VIRGINIA BEACH
CITY COUNCIL FOR AFFIRMATIVE ACTION ON THIS DATE AS THEY APPLY TO THE
REFERENCED APPLICATION FOR AMENDMENT TO THE ZONING MAP OF THE CITY OF VIRGINIA
BEACH, VIRGINIA, AND HEREBY ACCEPTS AND AGREES TO:
1. The facility will have a maximum of eight elderly residents.
2. State licenses must be obtained prior to establishing an
eiderly housing facility at this location.
3. Regular transportation services must be provided for all
residents.
4. An automatic fire alarm system and an acceptable fire
protection system must be approved by the City Fire Marshall.
w er
By:
Attorney/Agent
Date:
- 32 -
Item VI-I.I.b-
PUBLIC HEARING ITEM # 33496
PLANNING BY CONSENT
Upon motion by Councilman Heischober, seconded by Councilman Jones, Clty
Council ADOPITED an Ordinance upon application of REGENCY APARTMENTS ASSOCIATES
LIMITED PARTNERSHIP for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF REGENCY APARTMENTS
ASSOCIATES LIMITED PARTNERSHIP FOR A CONDITIONAL
USE PERMIT FOR A DAY CARE CENTER R09901333
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Regency Apartments
Associates Limited Partnership for a Conditional
Use Permit for a day care center (extension) at the
southwest corner of Regency Drive and Westminister
Lane. Said parcel Is located at 707 Regency Drive
and contains 2.85 acres. LYNNHAVEN BOROUGH.
The following condition shall be required:
1. An automatic sprinkler system and automatic fire
alarm system meeting the approval of the Fire
Department and the City Fire Protectlon Engineer,
is to be provided.
The OWNER or LEGAL REPRESENTATIVE of the Owner, has reviewed the conditions for
APPROVAL and has signed a STATEMENT OF CONSENT. Said STATEMENT OF CONSENT is
hereby made a part of the proceedings.
This Ordinance shall be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Mernbers Voting Nay:
None
Council Mernbers Absent:
None
STATEMENT OF CONSENT
APPLICANT: REGENCY APARTMENTS ASSOCIATES, LTD.
APPLICATION: Conditional Use Permit -
Regency Drive/Westminster Lane
DESCRIPTION: Day Care Center (extension)
CITY COUNCIL SESSION: September 25, 1990
THE UNDERSIGNED OWNER OR LEGAL REPRESENTATIVE FOR THE OWNER, (or Agent
for the Owner), HAS REVIEWED THE CONDITIONS FOR APPROVAL (REQUIREMENTS)
RECOMMENDED BY THE VIRGINIA BEACH PLANNING COMMISSION TO THE VIRGINIA BEACH
CITY COUNCIL FOR AFFIRMATIVE ACTION ON THIS DATE AS THEY APPLY TO THE
REFERENCED APPLICATION FOR AMENDMENT TO THE ZONING MAP OF THE CITY OF VIRGINIA
BEACH, VIRGINIA, AND HEREBY ACCEPTS AND AGREES TO:
1. An automatic sprinkler system and auto(natic fire alarm
system, meeting the approval of the Fire Department and the
City Fire Protection Engineer, is to be provided.
Owner
By:
Attorney/Agent
Date:
- 33 -
Item VI-I.l.c.
PUBLIC HEARING ITEM # 33497
PLANNING BY CONSENT
Upon motion by Counc II man He l schober, seconded by Counc i I man Jones, Cl ty
Council ADOPTED an Ordinance upon application of WILLIAM D. ROBINSON (ROBINSONS
AUTO SALES LTD.) for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF WILLIAM D. ROBINSION
(ROBINSONS AUTO SALES LTD.) FOR A CONDITIONAL USE
PERMIT FOR MOTOR VEHICLES SALES & SERVICE R09901334
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRIGNIA
Ordinance upon application of William D. Robinson
(Robinsons Auto Sales Ltd.) for a Conditional Use
Permit for motor vehicles sales and service at the
northwest corner of Virginia Beach Boulevard and
Rose Marie Avenue. The parcel Is located at 4960
Virginia Beach Boulevard and contains 21,344 5quare
feet. BAYSIDE BOROUGH.
The following conditions shall be required:
1. The new landscape and sign ordinance shal I be
adhered to.
2. All repair are to be made inside the building. No
outside repairs or storage of auto parts wil I be
allowed.
3. This site Is approved for light automobile repair
uses only as permitted at automobile service
stations and defined in Section 111 of the City
Zoning Ordinance under the definition of
"automobile service station".
4. Any Increase In Impervious area must meet the
requirernents of the Stormwater Management Ordinance
through the use of Best Management Practices.
Infiltration systems under pavernent shall not be
allowed.
The OWNER or LEGAL REPRESENTATIVE of the Owner, has reviewed the conditions for
APPROVAL and has signed a STATEMENT OF CONSENT. Said STATEMENT OF CONSENT Is
hereby made a part of the proceedings.
This Ordinance shall be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
- 34 -
Item VI-I.l.c.
PUBLIC HEARING ITEM # 33497 (Continued)
PLANNING BY CONSENT
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
STATEMENT OF CONSENT
APPLICANT: WILLIAM D. ROBINSON
(ROBINSONTS AUTO SALES, LTD.)
APPLICATION: Conditlonal Use Permit -
Virginia Beach Boulevard/Rose Marie Avenue
DESCRIPTION: Motor Vehicle Sales and Service
CITY COUNCIL SESSION: September 25, 1990
THE UNDERSIGNED OWNER OR LEGAL REPRESENTATIVE FOR THE OWNER, (or Agent
for the Owner), HAS REVIEWED THE CONDITIONS FOR APPROVAL (REQUIREMENTS)
RECOMMENDED BY THE VIRGINIA BEACH PLANNING COMMISSION TO THE VIRGINIA BEACH
CITY COUNCIL FOR AFFIRMATIVE ACTION ON THIS DATE AS THEY APPLY TO THE
REFERENCED APPLICATION FOR AMENDMENT TO THE ZONING MAP OF THE CITY OF VIRGINIA
BEACH, VIRGINIA, AND HEREBY ACCEPTS AND AGREES TO:
1. The new landscape and sign ordinances shall be adhered to.
2. Al I repairs are to be made Inside the building. No outside
repairs or storage of auto parts will be allowed.
3. This site Is approved for I lght automobile repair uses only
as permitted at automobile service stations and deflned In
Section 111 of the City Zoning Ordinance under the definition
of "automobile service station".
4. Any increase in Impervious area must meet the requirements of
the Stormwater Management Ordinance through the use of Best
Management Practices. Infiltration systems under pavement
shall not be allowed.
0),
Owner
By:
Attorney/Agent
Date:
- 35 -
Item VI-I.l.d.
PUBLIC HEARING ITEM # 33498
PLANNING BY CONSENT
Upon motion by Councilman Heischober, seconded by Councilman Jones, City
Council ADOPTED an Ordinance upon application of DINING CONCEPTS BY BYRNE, INC.
for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF DINING CONCEPTS BY
BYRNE, INC. FOR A CONDITIONAL USE PERMIT FOR AN
EATING ESTABLISHMENT R09901335
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Dining Concepts by
Byrne, Inc. for a Conditional Use Permit for an
eati ng estab I I shment on the north s I de of C I evel and
Street at the eastern terminus. Said parcel is
located at 5700 Cleveland Street and contains
4.5437 acres. BAYSIDE BOROUGH.
The following condition shall be required:
1. The hours of operation shall be from 8:00 A.M. to
4:00 P.M.
The OWNER or LEGAL REPRESENTATIVE of the Owner, has reviewed the conditions for
APPROVAL and has signed a STATEMENT OF CONSENT. Said STATEP4ENT OF CONSENT Is
hereby made a part of the proceedings.
This Ordinance shall be effective In accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginla, on the Twenty-
fifth of Septernber. Nineteen Hundred and Ninety.
Voting: 11-0
Council Members Voting Aye:
John A. Ba um, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
STATEMENT OF CONSENT
APPLICANT: DINING CONCEPTS BY BYRNE, INC.
APPLICATION: Conditional Use Permit -
Cleveland Street
DESCRIPTION: Eating Establishment
CITY COUNCIL SESSION: September 25, 1990
THE UNDERSIGNED OWNER OR LEGAL REPRESENTATIVE FOR THE OWNER, (or Agent
for the Owner), HAS REVIEWED THE CONDITIONS FOR APPROVAL (REQUIREMENTS)
RECOMMENDED BY THE VIRGINIA BEACH PLANNING COMMISSION TO THE VIRGINIA BEACH
CITY COUNCIL FOR AFFIRMATIVE ACTION ON THIS DATE AS THEY APPLY TO THE
REFERENCED APPLICATION FOR AMENDMENT TO THE ZONING MAP OF THE CITY OF VIRGINIA
BEACH, VIRGINIA, AND HEREBY ACCEPTS AND AGREES TO:
1. The hours of operation shall be from 8:00 AM to 4:00 PM.
Owner
By:
Attorney/Agent
Date:
- 36 -
Item VI-I.l.e.
PUBLIC HEARING ITEM # 33499
PLANNING BY CONSENT
Upon motion by Councilman Heischober, seconded by Councilman Jones, City
Council ADOPTED:
Ordinances re Master Street and Highway Plan of the
City of Virginia Beach:
AMEND the Principles and Policies Element;
AMEND the General Corridor Concept Plan Map to
Include Greenwich Road as a Special Landscaped
Roadway (SL-1).
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessorns, Jr.
Council Members Voting Nay:
None
Council Mernbers Absent:
None
- 37 -
Item VI-I.2.a.
PUBLIC HEARING ITEM # 33500
PLANNING
Attorney Robert Byrum, 2145 Old Greenbrier, represented the applicant
Upon motion by Vice Mayor Fentress, seconded by Councilman Jones, City Council
ADOPTED an Ordinance upon application of HILDA ARCHBELL, Executtix for Estate
of Sam B. Archbell, for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF HILDA ARCHBELL,
EXECUTRIX FOR ESTATE OF SAM B. ARCHBELL, FOR A
CONDITIONAL USE PERMIT FOR A MARINA R09901336
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Hilda Archbell,
Executrix for Estate of Sam B. Archbell, for a
Conditional Use Permit for a marina at the
southwest corner of Winston Salem Avenue and Arctic
Avenue. Said parcel is located at 300 Winston Salem
Avenue and contains 24,123.52 square feet. VIRGINIA
BEACH BOROUGH.
This Ordinance shall be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
Voting: 10-1
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Mayor
Meyera E. Oberndorf, Nancy K. Parker and William D.
Sessoms, Jr.
Council Members Voting Nay:
Reba S. McClanan
Council Members Absent:
None
- 38 -
Item VI-1.2.b.
PUBLIC HEARING ITEM # 33501
PLANNING
Sister Teresa Ballisty, Principal, Star of the Sea School
Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City
Council ADOPTED an Ordinance upon application of STAR OF THE SEA CATHOLIC
CHURCH for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF STAR OF THE SEA
CATHOLIC CHURCH FOR A CONDITIONAL USE PERMIT FOR A
PRIVATE SCHOOL (ADDITION) R09901337
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Star of The Sea
Catholic Church for a Conditional Use Permit for a
private school (addition) on the north side of 15th
Street, 150 feet west of Pacific Avenue. Said
parcel is located at 308 15th Street and contains
30,000 square feet. VIRGINIA BEACH BOROUGH.
The following condition shall be required:
1. The applicant shall construct a privacy fence along
the western property line.
This Ordinance shall be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 39 -
Item VI-1.2.c.
PUBLIC HEARING ITEM # 33502
PLANNING
John T. Atkinson, the applicant, represented himself
Upon motion by Councilwoman McClanan, seconded by Councilman Clyburn, City
Council ADOPTED an Ordinance upon appl lcation of JOHN T. ATKINSON and JAMES F.
WILSON for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF JOHN T. ATKINSON AND
JAMES F. WILSON FOR A CONDITIONAL USE PERMIT FOR A
SINGLE FAMILY DWELLING R09901338
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of John T. Atkinson and
James F. Wilson for a Conditional Use Permit for a
single family dwelling In the AG-1 Agricultural
District on the south side of West Landing Road,
890.24 feet west of West Neck Road. The parcel is
located at 2465 West Landing Road and contains 47.7
acres. PRINCESS ANNE BOROUGH.
The tollowing condition shall be required:
1. Health Department approval Is required for an on-
site septic system.
This Ordinance shall be effective In 'accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and Wllliam D. Sessoms, Jr.
Council Mernbers Voting Nay:
None
Council Members Absent:
None
- 40 -
Item VI-1.2.d.
PUBLIC HEARING ITEM # 33503
PLANNING
Wymer W. Manning, Talbot & Associates, 2877 Guardian Lane, Phone: 340-0322,
Project Engineer with Talbot and Associates, represented the applicant
Upon motion by Councilwoman McClanan, seconded by Councilman Jones, City
Council ADOPTED an Ordinance upon application of FALSE CAPE ENTERPRISES, INC.,
a Virginia Corporation, for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF FALSE CAPE
ENTERPRISES, INC., A VIRGINIA CORPORATION, FOR A
CONDITIONAL USE PERMIT FOR AN ATHLETIC CLUB AND
RECREATIONAL FACILITIES OF AN OUTDOOR NATURE
R09901339
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of False Cape
Enterprises, Inc., a Virginia Corporation, for a
Conditional Use Permit for an athletic club and
recreational facilities of an outdoor nature on
certain property located on the east side of Las
Brisas Drive beginning at a point 200 feet north of
Sandbridge Road. The parcel contains 3.30 acres.
PRINCESS ANNE BOROUGH.
The following conditions shall be required:
1. An open fence shall be installed along the border
ot the property adjacent to the residential areas,
Including the North side of Parcel C-2C. With the
exception of Parcel C-2A, Category I landscaping
shall be installed along the Interfor portion of
the fence for the entire length of that property.
A berm shall be utilized with the shrubbery Inside
the fence along the north side of the Day Care
Center. The height of the berm and landscaping
shall be determined In accordance with the
requirements of City Staff.
2. The utilization of Best Management Practices for
controlling stormwater runoff which are reasonably
applicable to the development of the site and In
keeping with the recommendations for the proposed
Back Bay/North Landing River Management District.
3. Lighting and noise from the development, as well as
the tennis courts and swimming pool should be
oriented so as to not spi I I over onto any of the
adjoining residential properties.
4. The facilities shall be closed at midnight.
5. The appl icant shal I comply with the City' s sign
ordinance and landscaping reuirements.
This Ordinance shal I be effective in accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September, Nineteen Hundred and Ninety.
- 41 -
Item VI-1.2.d.
PUBLIC HEARING ITEM 33503 (Continued)
PLANNING
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McCianan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 42 -
Item VI-1.2.e.
PUBLIC HEARING ITEM # 33504
PLANNING
Attorney Howard W. Martin, Jr., 1640 Sovran Center, Nortolk, Phone: 623-3000,
represented the applicant
Allan H. Williams, 2516 Elson Green Court, Phone: 721-7361, represented the Red
Mill Fdrm Civic Association, and registered In OPPOSITION.
Upon motion by Councilwoman McClanan, seconded by Councilman Lanteigne, City
Council ADOPTED an Ordinance upon application of BP OIL COMPANY DIVISION OF
SOHIO OIL COMAPNY for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF BP OIL COMPANY
DIVISION OF SOHIO OIL COMPANY FOR A CONDITIONAL USE
PERMIT FOR A GASOLINE STATION AND CAR WASH IN
CONJUNCTION WITH A CONVENIENCE STORE R09901340
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of BP Oil Company,
Division of Sohio Oil Company for a Conditional Use
Permit for a gasoline station and car wash in
conjunction with a convenience store at the
southeast corner of Princess Anne Road and Elson
Green Avenue. Said parcel contains 44,100 square
feet. More detailed information is available in the
Department of Planning. PRINCESS ANNE BOROUGH.
The following conditions shall be required:
1. In accordance with the current Master Street and
Highway Plan, a variable width dedication is
required along the entire Princess Anne Road
frontage to provide for an ultimate four-lane
divided right-of-way section. A variable
dedication up to 21 feet Is required. An
additional 12-foot dedication Is also required for
a right turn lane onto Elson Green Avenue. A total
dedication of approximately 33 feet Is required
along Princess Anne Road.
2. Final site plan must be revised to show an area
reserved for the location and construction of a
detention and/or infiltration BMP facility.
Infiltration trenches located underneath pavement
shall not be allowed.
3. An agreement submitted by Mr. W. W. Reasor, the
landowner, providing for a maxlmum of three (3)
access points, including the one on the BP site
(located on the portion of Princess Anne Road down
to the Intersection), shall be recorded with the
Clerk of the Circuit Court.
4. The site plan presented to City Council during the
Formal Session of September 25, 1990, shall be
filed with the Office of the City Clerk.
- 43 -
item VI-1.2-e-
PUBLIC HEARING ITEM # 33504 (Continued)
PLANNING
5. The s i g n sha I I be mon ument type an d comp I y w I th
but not exceed, the square footage and height of
the Sign Ordinance.
6. The applicant shall cornply with architectural
rendering displayed during the City Council Session
of September 25, 1990.
7. The deceleration lane on Princess Anne Road and
onto Elson Green Avenue shall be as depicted on the
site plan. There shall be no left turn trom
Princess Anne Road Into the site. There shall be
only one curb cut on Princess Anne Road for
"right-turn-int, and "right-turn-out".
8. The landscaping shall conform with the City's
Landscaping Standards as well as the rendering
presented during the City Council Session of
September 25, 1990.
The City will proceed with the installation of the
traffic light at the intersection of Princess Anne
Road and Sandbridge Road pursuant to the Briefing
presented to City Council on September 25, 1990.
The City and applicant will continue to cooperate with
the Civic League in working towards appropriate
traffic controls at the intersection.
This Ordinance shall be effective In accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-
fifth of September_ Nineteen Hundred and Ninety.
Voting: 11-0
Council Mernbers Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 44 -
item VI-1.2.f.
PUBLIC HEARING ITEM # 33505
PLANNING
Captain L. K. Fenlon, 2224 Scallop Road, Phone: 481-2500, represented the Great
Neck Association of Civic Leagues, registered In OPPOSITION
Upon motion by Councilman Brazier, seconded by Councilman Heischober, City
Council DENIED an Ordinance upon applicatlon of WALID A. KASSIR for a
Conditional Use Permit:
ORDINANCE UPON APPLICATION OF WALID A. KASSIR FOR A
CONDITIONAL USE PERMIT FOR MOTOR VEHICLE SALES
Ordinance upon appication of Walid A. Kassir for a
Conditional Use Permit for motor vehicle sales and
service on Lots 26, 27, 28 and the western 27.4
feet of Lot 29, Block 4, Lynnhaven Shores. Said
parcel is located at 3232 Shore Drive and contains
24,742 square feet. LYNNHAVEN BOROUGH.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
4 5
I tem .2.
PUBLIC HEARING ITEM # 33506
PLANNING
Senator Moody "Sonny" Stallings, represnted the applicant
Attorney Larry Slipow, the applicant, represented himself
Upon motion by Councilwoman McC[anan, seconded by Councilman Sessoms, City
Council ADOPTED an Ordinance upon application of JDH/LBS for a Change of Zoning
District Classification:
ORDINANCE UPON APPLICATION OF JDG/LBS, A GENERAL
PARTNERSHIP FOR A CHANGE OF ZONING DISTRICT
CLASSIFICATION FROM AG-2 TO B-1 Z09901292
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
ordinance upon application of JDG/LBS, a General
Partnership for a Change of Zoning District
Classification from AG-2 Agricultural District to
B-1 Neighborhood Business District on certain
property located on the northeast side of Princess
Anne Road, 1052 feet more or less northwest of
Glebe Road. Said parcel contains 1.74 acres. More
detailed Information is available in the Department
of Planning. PRINCESS ANNE BOROUGH.
The applicant agreed to adhere to the following:
a. At the time ot development, the applicant shall
consider locating the curb cut (entrance) Into the
property adjacent to the property to the East and
coordinate access with adjoining property owners.
b. The left turn lane shall be extended and
participatory when necessary.
c. 6-1 Zoning requires a thirty-five-(35) foot height
limitation.
d. The property Is located within the Historical
District and shall be compatible with the
surrounding area in accordance with historical
standards.
This Ordinance shall be effectlve In accordance with Section 107 (f) of the
Zoning Ordinance.
Adopted by the Council of the City of Virginla Beach, Virginia, on the Twenty-
fifth of SeptembeE, Nineteen Hundred and Ninety.
46 -
I tem .2.
PUBLIC HEARING ITEM # 33506 (Continued)
PLANNING
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and WilliaM D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
Councilman Lanteigne DISCLOSED Attorney Slipow had represented him previously.
- 47 -
Item VI-1.2.h.
PUBLIC HEARING ITEM # 33507
PLANNING
Senator Moody "Sonny" Stallings, represented the applicant
William C. Clarke, 700 North Oriole Drive, Phone: 422-5528, spoke in SUPPORT of
the applicaiton
John M. Connell, 409 - 23rd Street, Phone: 428-1526, reigstered In OPPOSITION
A MOTION was made by Vice Mayor Fentress, seconded by Councilwoman Parker to
DENY an application of WILLIAM DRINKWATER for a Chanqe of Zoninq District
Classification from R-5D Residential Duplex District to 0-1 Office District on
Lot and 1/2 of L t 4, Blck 55, evelopment Co. (500 23rd
Street), containing 7,150 square feet (VIRGINIA BEACH BOROUGH).
Upon SUBSTITUTE MOTION by Councilman Heischober, seconded by Councilman Jones,
City Council ALLOWED WITHDRAWAL of the Ordinance upon appl ication of WILLIAM
DRINKWATER for a Change of Zoning District Classification:
ORDINANCE UPON APPLICATION OF WILLIAM DRINKWATER
FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM
R-5D TO 0-1
Ordinance upon appl lcation of Wi I I lam Drinkwater
for a Change of Zoning District Classification frorn
R-5D Residential Duplex District to 0-1 Office
District on Lot 2 and 1/2 of Lot 4, Block 55,
Virginia Beach Development Company. Said parcel is
located at 500 23rd Street and contains 7150 square
feet. VIRGINIA BEACH BOROUGH.
Voting: 7-4
Council Members Voting Aye:
John A. Baun, James W. Brazier, Jr., Harold
Heischober, Louis R. Jones, Paul J. Lanteigne, Reba
S. McClanan and William D. Sessoms, Jr.
Council Members Voting Nay:
Robert W. Clyburn, Vice Mayor Robert E. Fentress,
Mayor Meyera E. Oberndorf and Nancy K. Parker
Council Members Absent-.
None
Councilwoman Parker DISLCOSED, prusuant to Secton 2.1-639.14(G of the Code of
Virginia, although she and her husband own property at 417 23rd Street and 417
23 1 /2 Street, as wel I as 513 23rd Street, the property is not adjacent to or
contiguous to the Drinkwater property. She is abie to participate In the
rezoning request fairly, objectively and most importantiy In the public
Interest. The opinion rendered by the State Attorney General's office and
declaration of Councilwoman Parker Is hereby made a part of the record.
Councilman Sessoms DISCLOSED pursuant to Section 2.1-639.18 of the Code of
Virginia of 1950, as amended, although he Is an employee of Central Fidelity
who holds a mortgage on this property, he Is able to participate in the
rezoning request fairly, objectively and most Importantly In the public
Interest. The opinion rendered by the Cornmonwealth Attorney's Office and
declaration of Councilman Sessoms Is hereby made a part of the record.
W LLI.M D SESSOMS JR 809 GREENTREE AF?CH
COUNC LMAN-AT @RGE VIRGINIA BEACH, VIRGIN A 23@51
(804) 455-5132
September 25, 1990
Mrs. Ruth Smith, AAE/CMC
City Clerk
Municipal Center
Virginia Beach, Virginia 23456
Dear Mrs. Smith:
Re: Drinkwater Application -
Conflict of Interest opinion
With regard to the above-referenced zoning application, I am
attaching an opinion of the Commonwealth' s Attorney which indicates
I may vote without restriction on this agenda item. Kindly file
this opinion with the records of this transaction pursuant to the
requirements of the law.
Very truly yours,
hl@ f
William D! Ses.@s, Jr.
Councilman
WDS/fhw
Enclosure
8@D4 4-@7 9647
W i; T 3 E H H TE 9@D I 5 No 00@-' F' 02
LT@ OF
OFFICE OF THE COMMONWEALTH'S ATTORNEY
CITY OF VIRGINIA BEACH
ROBERT J, HUMPHREY@', MUNICIF'AL CENTER
VIHC31NIA BEAG'H, ViRf;INIA @li456 9M
($n4) 427-4401
August 23, 1990
T'he Honorable William D. Sessoms, Jr.
Councilman
CiLy of Virginia Beach
SM Orccntree Arch
Virginia Beach, Virginia 23451
Dear Councilman Sessoms:
In a letter to me datc(i August 21, 1990, you havc request(--d my opinion pursuant to
SS2.1-639.18 of thc Code of Virginia of 1950, as ameiided, regarding the application of the State and
@c,li Conflict of Interest Act to the rezoning application filed by Mr. William Drinkwater and which
is scheduled to bc considered by City @uncil on August. 28, 1990.
You have also enclosed a copy of the opinitiii of my predeccssor, Paul A. Sclortino, to Mc)c)dy
E. Stallings, Jr. regarding Iiis interpretation of the State and LOCal CA)nOict of Interest Act as it
applies to this same zoning applicati(3n which was previously considered by Virginia Beach City
Council on March 27, 1989.
After reviewing th(- facts disclosed in your letter of August 21st and revicwing Mr. @-iortinot;
opinion it) Mr. Stallings of May 26, 1989, I am of the i)pinion that the State and @l Conflict of
Interest Act is not applicable to your inv(ilvement in the rezoning application by Mr. Drinkwater.
The Virginia Beach City Council is clearly a "g()vernmental agency" within the meaning of
SS2.1-639.2 of the State and Conflict of Interest Act and yc)u uilquestionably are a "Officee
within the meaning of the Act. I'he issue turns on whether or not you hav(-, a 'personal inicrest in
a transactic)n' as defined by the Act. As Mr. Sciortino po@ited out in his letter to you of May 26,
1989, a "Personal inter@,;t iii a transaction" exists "when an officer ... has a personal intercst in ... a
busincss . . . and such. . . busincss ... may realize a reasonably fo@ble @t or indirect bl-nefit
or detriment as a result of the action of the agency considcring the transaction." (Emphasis added).
You do not indicate in your letlct of August 21st whether or not your income from Central
Fidelity Bank is contingent upc)n tlie performance of the loans you make in y()ur capacity as an
804 427 9647
'@-W AT'Y. ')R. BERCH TE @iD4-4--7-9647 Hu-] "@O 10:06 @10.0(2 P.[-13
Page 2
The Honorable William D. Scssonis, Jr.
August 23, 1990
employee of Central Fidclity, howcvcr, in any evcnt yc)u iiidicate that this particular picw of propcrly
is not in your pcrsonal portfolio.
Given that situation, I find that I must agree with Mr. Sciortino's assessment that thc effrct
Oft your personal interest as an employee c3f Central Fidelity Bank I)y the aciion of City Council with
respect to this property L, remote and spcculative or contingent upon factors beyond your r-ontrol as
a member of Council, As Mr. Sciortino has already pointed out to you previously, the Attorney
General of Virginia hai ruled that, if this is the case, a counrilmember may vote vathout restriction
on tbe transaction before Council. See COT advisory opinion no. 8-AI5(1988); 1986-87 Attorney
CTeneral Annual Report page 11.
It is therefore my judgment that a change in the zoning of this property would involve no
reasonably forcseeable direct or indirect benefit or dettiment to yc)ur personal interest as defined by
the State and Local la)nflict of Interest Act and accordingly you may vote without restriction on that
agenda item.
If yc)u require any clarification on any point or if you hav(-, any other questions, picase don't
hL,sitate to contact nie.
RJH-jas
ce: Leslie L. 1-iticy, City Attorney
NANCY K. PARKER 604 GOLDSBORO "ENUE
COUNCILWOMAN VIRGINIA BEACH, VIRGINIA 2u5i
AT-LARGE 425-1589
August 24, 1990
The Honorable Meyera E. Oberndorf, Mayor,
Members of City Council
Municipal Center
Virginia Beach, Virginia 23456
Dear Mayor Oberndorf & Members of Council:
Re: Drinkwater Application - Council Docket on
August 28, 1990
Due to the conflicting opinions rendered by former
Commonwealth's Attorney Paul Sciortino and present Commonwealth's
Attorney Robert Humphreys concerning my ability to participate in
the Drinkwater application, I am requesting a review of these
opinions by Attorney General Mary Sue Terry pursuant to Virginia
Code SS 2.1-639.23. As I am informed that this opinion will not be
rendered for approximately 30 days, I respectfully request that the
Drinkwater application be deferred until such time as the opinion
is available.
Thank you for your consideration of this matter.
Very truly yours,
tian ' -P rker
y
O.. 1 ember
MKP/clb
cc: William Drinkwater
Moody Stallings, Jr., Esquire
Aubrey V. Watts, Jr., City Manager
Ruth Hodges Smith, City Clerk
NANCY K. PARKER 604 GOLDSBORO AVENUE
COUNCILWOMAN 1 9 9@RGINIA BEACH, VIRGINIA 23451
AT-LARGE September 25, (804) 425-1589
The Honorable Meyera E. Oberndorf, Mayor
Members of City Council
Dear Mayor Oberndorf and Members of Council:
I would like to take a moment before we begin the discussion
on the Drinkwater rezoning to disclose the fact that my husband and
I own property in the vicinity of this residential neighborhood.
The residential property we own is located at 417 23rd Street
and 417 23 1/2 Street (two half lots) which is in the 400 block. The
other is located at 513 23rd Street. In no case is our property
adjacent to or contiguous to the Drinkwater property which is
located at 500 23rd Street. The number of similar properties
located in the 400 block of 23rd Street is approximately 17. The
number of similar properties in the 500 block is approximately 14.
These blocks are part of a larger neighborhood called the old
Beach. As a member of a group of property owners owning property
in the vicinity of the Drinkwater parcel, I am able to participate
in the rezoning request fairly, objectively and most importantly,
in the public interest. My husband and I are not related to nor
involved with Mr. Drinkwater in this or any other transaction.
I am basing my ability to vote on the opinion rendered by the
State Attorney General's office (see attachment) which I requested
after receiving conflicting opinions from two Commonwealth's
Attorneys.
I would appreciate the City Clerk retaining and making
available for public inspection this declaration for a period of
five years as provided in SS 2.1-639.14(E) of the Code of virginia.
Very truly your@
Nan@c K. ark.
City Councilmember
NKP/awi
SEP L@- 'qC 11:41 i;TTOR@IE',, ENEPQL P.1
Post-it- brand fax transmiftal memo 7M I#Of pag"
Phbn. 4
7 93
F..
90cts .311@
CC)MMONW,E.,@LTH L)f @IRCJINIA K. @i@,sh.11 Co.@
Mary Sue Terry
Office of the Attofrie-v GeneT(@
September 20, 1990
The Honorable Nancy K. Parker
Member, Virginia Beach City Councll 0. R.@..th@l
604 Goldsboro Avenue
V@nta Beach, Virginia 23451
Dear Ms. Parker:
Pursuant to S 2.1-639.23(B) of the Code of Virginia, a portion of the State and @al
C.overnrnent Conflict of Interests Act, Ss 2.1-639.1 Wough 2.1-639.24 (the "Act"), you
ask that I review an advisory opinion rendered to you by the Commonwealth's Attorney
for the City of Virginia Beach concerning your ability lawfully to participate In discus-
alona or voto on a particular rezoning application. Th@ C*nclu3ion3 exprtsaed In thla <oplii-
ion ue based on the Information presented in your letter to the Commonwealth!s Attor-
ney, dated Augwt 21, 1990. If the information in that letter Is incorrect or incomplete,
you may not rely upon this opinion In the event your oonduet later is challenged.
1. Facts
You are a member of the Virginia Beach City Council (the "Council'I. William
Drinkwater has applied to the Councll for rezoning* of a parcel of land that he owris (the
"Drinkwater property"). You state that you and your husband own several rental dwelling
units In the vicinity of, but not Immediately adjacent to, the Drinkwater property.
According to the map forwarded with your request, there appear to be at least 12 other
parcels wtiost ivudtivim I&I rcialluit tv Ilic Drlxikwater palrcal are comparable to that of
your parcels and at least 16 whose location Is comparable to that of your third parcel.
You ask whether the Act prohibits you from participating in the Council's discus-
sions and vote on Mr. Drinkwatet% ipplicatioti for rezoning. in an opinion dated Au-
gmt 24, 1990, the CommonwealtWs Attorney concludes that the Act requires you to
de.e.lare. yniir pemnal interest in the rezoning transaction and to disqualify yotwaalf fvom
participation in the Council's discusion andvote.
11. ADolicable Statutes
A. Def initions
As a member ot the Council, you ar* an "officer" of a loeal "governmental agency,"
subject to the Act'3 prohibitions and restrictions. See S 2.1-639.2.
iThe app'i@tion seeks io rezone the Drinkwater property from the R-SD (single fami-
ly/duplex 500 square toot lot) clessificatior 'O the 0-1 (office) classification.
7@6 '2071.804 -@@71 8j4r, (V/TCD)
qEF 25 190 11:42 ATTOR14EY GEHER@L P.2
The Honorable Nancy K. Parker
September 20, 1990
Page 2
A "personal Interest" is def lned in S 2.1-639.2 as
a finanoial benefit or liability accruing to an officer or employee or to a
member of his immediate family. Such intereat sh&U exist hy reason of
(1) ownership in a business if the ownership interest exceeds three PdPcerit Of
th* tvtal uqvity vr tllu bu3itit;@i (ii) attsitual iti%;v,tlw tItaL CA.Zcc@ vr Allay @ca-
sonably be anticipated to exceed, $10,000 from ownership in real or personal
property or a busine33; (iii) seary, other compensation, fringe benefits, or
henefits from the tise of property, or any combination thereof, paid or pro-
vided by a business that exeeeds, or may reasonably be anticipated to
exeeed, $10,000 annually; (iv) ownership of real or personal property if the
interest exceeds $10,000 in value and excluding ownership in a business,
income, or salary, other compensation, fringe benefits or benefits from the
use of property; or (v) personal liability Incurred gr assumed oD behalf of a
business if the liability exceeds three percent of the asset value of the
business.
A "transaction" is defined as "any matter considered by any governmental or advi-
sory agency, whether in a committee, subcommittee, or other entity of that agency or
before the ageney itself, on which official action is taken or contemplated." Id.
A "personal interest in a transaction" Is defined in S 2.1-639.2 as
a personal Interest of an officer or employee in any matter considered by his
ageney. Sueh personal interest exists when an officer or employee or a
iYicolbcr if li!3 iiiiiiiediutv fttiiiily lias u pertioital iittcre.Nt iii property or u
business, or represents any Individual or business and such property, business
or represented individual or business (1) is the subject of the transaction or
(ii) may realize a reasonably foreseeable direct or indirect benefit or detri-
ment as a result of the action of the agency corwdering the transaction.
B. Transactions
Section 2.1-639.11(A) restricts the ability of an officer to participate in an official
trarL3action before his agency when the officer has a personal interest in the tr*n"dtlon.
If the transaction applies solely to property or a business In which the officer has a per-
sonal Interest, S 2.1-639.11(A)(1) requires the officer3 disqualification from outicipation
in the transaction and the recordation of that disqualification. it the trans&otion affects
a group of individuals or businesses and the officer ts a niember of that group or has a
personal interest in a business that Is a member of the group, S 2.1-639.11(A)(2) provides
that the officer 11[mlay partiotpate In the transaction if he ts a member of a ... group
the members of whieb are affeeted by the transaction, and he complies with the declara-
tion requirement3 Of (S 2.1-639.14(G)]." Section 2.1-639.11(A)(3) permits the officer to
participate In the transaction, without any disclosure or declaration requirements, If the
transaction affects the public wenerally. even though the idersonal Intereat of the officer.
as a member of the public, al3o may be affected.
Seetion 2.1-639.14(G) providest
SEP 25 '90 11:43 HTTORIIE"' -,ENEPRL P.3
The Honorable Nancy K. Parker
September 20, 1990
Page 3
An officer or employee of loefil government who is requirad to doolare his
Intereat puntiant to S 2.1-939.11(A)(2) shan declare his lntepost by stating
(1) the transaction involved, (11) the nature of the off ieer's or employee's per-
sonal Interest affected by the transaction, (ill) that he is a member of a
bu3iness, profession, occupation, or group the members of which are affected
by the transaction, and (iv) that he is able to participate In the transaction
fairly, objectively, and In the public interest. The officer or employee shall
either make his declaration or&Uy to be reeorded In written minutes of his
agency or file a siped written declaration with the clerk or administrative
head of his governmental or advisory agency, as appropriate, who sh@. in
eitner case, retain and make available for public Inspection such declaratteii
for a period of five years from tho date of recording or receipt. If reason-
able time is not available to comply with the provisions of this subsection
prior to participation in the transaction, the off Icer or employee shan pre-
pare and file the required declaration by the end of the next b@iii@ duy.
111. Disqualification from Voting on Drinkwater Rezoning Application Not Required
For purposes of the Act, a husband and wife are treated as one pemn, itkid the per-
sonal Interests of one spouse are Imputed to the other. See 5 2.1-039.2 ("Immediate
family," "personal Interest"). You have a personal Intereat In the property owned by you
and your hullband because your interest In that property exceeds $10,000 in value. See
S 2.1-639.2.4 In the facts you present, the transaction Is the deliberation and vote by the
Councll on Mr. Drinkwater's rezoning application. You have a personal interest In the
transaction if the Council's actions will have a "reasonably foreseeable" direct or Indirect
effect on your property. See Id.
Because the rezoning of the Drinkwater grgperty could effect the values of neigh-
boring properties, you and your husband "may realize a reasonably foreseeable direct or
indirect boneflt or detriment" as a result of the aotion of the Councll. It is my opinion,
therofore, that you have a personal intareat it) the Counell's eotzidcration of the rozoultv
application. The transsetion before the Council does not, however, apply solely to your
property, necessitating ynur disqualifIL-ation pursuant to 5 2-1-639.11(A)(1). Id. ("personal
interest In a trangaction"). Scetion 2.1-639-11(A,)(2) provides that a local govarnmetit
off loer H[m]Qy participate in the transactioii If hu to a iuciubar wf n . . . i;roup the mem-
bers of which are affeated by the transaetion, and he compliae with the decluation
requirements of (S 2.1-639.14(G)]." You are a member of a group of owners of properties
In the vicinity of the Drinkwater property who wiU be similarly affected by the Council's
vote on the rezoning. Th,-.re are at least 12-18 o@r parcelz whose loostions In relation
to the Drinkwater property are comparable to yours. It is further my opinion, therefore,
that you may participate in the CouncUls discussion and vote concerning the rezoning
appllcatlgu, u long as you comply with tbe disclosure and declaration requirements of
S 2.1-639.14(G).
2For purposes of this opinion, I assume that the rental dwe)lings owned by you and
your husband each exceed $10,000 In value.
SEF 25 '90 11:44 ATTORriEY GENEFPL F.4
The Honorable Nancy X. Parker
September 20, 1990
Pag 4
@ Syst@m of government is dependent In large part upon its citizcnsl maintaining
the highest trust in their public officials. The conduct and PhArRi-ter of public offici@ Is
of particular concern to state and local governments, beoause it is chiefly tbrough that
oonduct and character that tlie government's reputation is derived. The purpore of thi-,
conflict of interests law is to assure the citizens of the Commonwealth that the judg-
ment of publie offiders and employees will not be comproiniscd C?e iLffe,,-ted by iiittppro-
priate cotiflicts. To this end, the Aet defines eertain standapds or types of conduct which
clearly are improper. The law cannot, however, protect against au appearances of con-
flict. It is incumbent upon you, therefore, in the perfOL-manee of your duties as a mem-
ber of the Council, to evaluate whether your discussio@ or vote on the Drinkwater
rezoning application will present an appearance of Impropriety which you find unaccept-
able and which will affect the confidence of the public in your ability to perform your
duties on the Council impalrtially.
Witn kindest regards, I am
Sineerely,
(,I;r
M&ry Okit T@@-y
Attorney General
5-.63/333-A24
- 48 -
Item VI-1.2.i.
PUBLIC HEARING ITEM # 33508
PLANNING
The tollowing spoke In SUPPORT of the application:
Attorney Gary C. Byler, partner, represented the applicant
Attorney Kathryn Byler Clark, partner, represented the applicant
William P. Moore, 111, 769 Plnebrook Drive, Phone: 495-2209
Mel inda Kickl lghter, 700 Hi I I ingdon Court, Phone: 495-1776, represented the
applicant
George Delano, 521 Buffer Drive, Phone: 497-6126, represented the Larkspur
Civic League
Douglas A. Moses, 661 Sam Sneed Lane, Phone: 467-4885
The following registered In OPPOSITION:
Elizabeth M. Ball, 801 Hanover Drive, Phone: 467-1780
A MOTION was made by Councilman Clyburn, seconded by Councilman Baum to DENY an
Ordinance upon application of LARKSPUR FARM PARTNERSHIP for a Change of Zoning
District Classification from R-10 Residential District to B-2 Community
Business District.
A SUBSTITUTE MOTION was made by Councilman Sessoms, sconded by Councilman
Lanteigne to ADOPT an Ordinance upon application of LARKSPUR FARM PARTNERSHIP
for a Change of Zoning District Classification frofn R-10 Residential District
to B-2 Community Buslness District.
Voting: 5-5 (MOTION LOST TO A TIE VOTE)
Council Members Voting Aye:
James W. Brazier, Jr., Vice Mayor Robert E.
Fentress, Harold Heischober, Paul J. Lanteigne and
William D. Sessoms, Jr.
Council Members Voting Nay:
John A. Baum, Robert W. Clyburn, Reba S. MCC[anan,
Mayor Meyera E. Oberndorf and Nancy K. Parker
Council Members Abstaining:
Louls R. Jones
Council Members Absent:
None
Councilman Jones ABSTAINED as he made an offer on this property which was
previously rejected.
- 49 -
Item VI-1.2.i.
PUBLIC HEARING ITEM # 33508 (Continued)
PLANNING
A MOTION was made by Councilman Clyburn, seconded by Councilman Baun to DENY an
Ordinance upon application of LARKSPUR FARM PARTNERSHIP for a Change of Zon lng
District Classification from R-10 Residential District to B-2 Community
Business District.
ORDINANCE UPON APPLICATION OF LARKSPUR FARM
PARTNERSHIP FOR A CHANGE OF ZONING DISTRICT
CLASSIFICATION FROM R-10 TO B-2
Ordinance upon application of Larkspur Farm
Partnership for a Change of Zoning District
Classification from R-10 Residential District to
B-2 Community Business District on the east side of
Prlncess Anne Road, 502 feet south of Edwin Drive.
The parcel contains 13 acres. More detailed
Information Is available In the Department of
Planning. KEMPSVILLE BOROUGH.
Voting: 5-5 (MOTION LOST TO A TIE VOTE resulting In DENIAL of
the application)
Council Members Voting Aye:
John A. Baum, Robert W. Clyburn, Reba S. McClanan,
Mayor Meyera E. Oberndorf and Nancy K. Parker
Council Members Voting Nay:
James W. Brazier, Jr., Vice Mayor Robert E. Fentress,
Harold Heischober, Paul J. Lanteigne and William D.
Sessoms, Jr.
Council Members Abstaining:
Louls R. Jones
Council Members Absent:
None
Councilman Jones ABSTAINED as he made an otfer on this property which was
previously rejected.
- 50 -
Item VI-1.2.j.
PUBLIC HEARING ITEM # 33509
PLANNING
Sadye Shaw, 5569 Daniel Smith, Phone: 497-5735, reigistered in OPPOSITION
Upon motion by Counc i I man Jones, seconded by Counc II woman Parker, Cl ty CouncII
DENIED the app[cialton of DONALD W. DOWNS for a Variance to Section 4.4(b) of
the Subdivision Ordinance.
Application of Donald W. Downs for a variance to
Sectlon 4.4(b) of the Subdivision Ordinance. The
property Is located on the east side of Lawrence
Drive, 320 feet more or less south of Lynnbrook
Landing. BAYSIDE BOROUGH.
Voting: 11-0
Council Members Voting Aye:
John A. Baun, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Haroid
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McClanan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Mernbers Absent:
None
- 51 -
Item VI-K.1-
NEW BUSINESS ITEM # 33510
Arthur Knauer, Administrator for Day Care - Pembroke Manaor United Chruch of
Christ, 601 Constitution Drive, Phone: 499-1870
Sam Bryant, Jr., 4501 Constitution Court, Phone: 499-2015, represented his
parents who are adjacent property owners
Upon motion by Councilman Jones, seconded by Councilman Heischober, City
Council SCHEDULED RECONSIDERATION of Condition No. 5 In the Application of
PEMBROKE MANOR UNITED CHURCH OF CHRIST for a Conditional Use Permit for a
church exi)ansion on Parcel K, Section 3, Block 24, Pembroke Manor (601
Constitution Drive), containing 2 acres more or less (BAYSIDE BOROUGH),
(adopted June 13, 1988, Item #29540). RECONSIDERATION was SCHEDULED for the
City Council Session of October 16, 1990.
Voting: 11-0
Council Members Voting Aye:
John A. Baum, James W. Brazier, Jr., Robert W.
Clyburn, Vice Mayor Robert E. Fentress, Harold
Heischober, Louls R. Jones, Paul J. Lanteigne, Reba
S. McCianan, Mayor Meyera E. Oberndorf, Nancy K.
Parker and William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
None
- 52 -
item VI-K.2.
NEW BUSINESS ITEM # 33511
REMOVED FROM THE AGENDA AFTER INFORMAL BRIEFING:
Setbacks for excavations for tarm ponds and
drainage ponds, Code Section 30-1.
- 53 -
item VI-K-3-
NEW BUSINESS ITEM # 33512
ADD@
Mayor Oberndorf referenced her letter of September 20, 1990, to Members of CitY
Counci I advi sing of her Meet l ng on September 17, 1990, wi th Reverend Wi IIlam
David Abrams and Reverend Jerome Ross. Many people have applauded
Dale, Rabbi in inter-racial relations.
the progress the City has made In the last year
Reverend Dale with other leaders from varied religious and ethnic backgrounds,
have suggested that a group which represents the diverse cultural, racial and
ethnic nature of the city go through an information gathering process to arrive
at a clear picture of where the City stands In their relation with one another.
Thse initial findings will be made available for public response and only afer
I ebated and discussed will an attempt be made
these findings have been fair y d If there is no objection to
to respond to the challenges that are identified. rend Dale and
thls recommended course of action, the Mayor will meet with Reve
others and request they begin their work.
- 54 -
Item VI-L.l.
ADJOLRNMENT ITEM # 33513
Upon motion by Councilman Baum, and BY CONSENSUS, City Council ADJOURNED the
Meeting at 9:42 P.M.
@y
Chief Deputy City Clerk
.th Modg @S.1 h,@C y @-,. Ob@@.dif
City Clerk Mayor
City of Virginia Beach
Virginia