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MAY 28, 2002 AGENDACITY COUNC~ MAYOR MEYERA E. OBERNDORE At-Large VICE MAYOR WILLIAM D. SESSOMS, JR., At-Large LINWOOD O. BRANCH, IlL Beach - District 6 MARGARET L. EURE, Center~ille - District 1 WILLIAM W. HARRISON, JR., Lynnhaven - District 5 BARBARA M. HENLEY, Princess Anne - District 7 LOUIS R. JONES, Bayside - District 4 REBA S. McCLANAN, Rose Hall - District $ ROBERT C. MANDIGO, JR., Kempsville - District 2 NANCY K. PARKER, At-Large ROSEMARY WILSON, At-Large JAMES K. SPORE, City Manager LESLIE L. L1LLEY, City Attorney RUTH HODGES-SMITH, MMC, City Clerk "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA CITY HALL BUILDING I 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-9005 PHONE: (757) 427-4304 FAX.. (757) 426-5669 EMAIL: Ctycncl@city. virginia.beach, va. us May28,2002 CITY COUNCIL BRIEFING A. Towing Advisory Board Carolyn Lincoln, Chair - Conference Room - 2:00PM CITY MANAGER'S BRIEFING'S Ao HRT Service Plan Robert J. Scott, Director - Planning Bo Shore Drive Transportation Study and Design Guidelines Dean Block, Director - Public Works Robert J. Scott, Director - Planning Trigon Marathon Public Safety and Traffic Plan James Cervera, Deputy Chief- Police John Herzke, City Engineer - Public Works 1'11. REVIEW OF AGENDA ITEMS IV. CITY COUNCIL COMMENTS V. INFORMAL SESSION - Conference Room - 5:00PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION 6:00 PM FORMAL SESSION - Council Chamber - ..., VI. A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. INVOCATION: Reverend Jim Tongue Virginia Beach United Methodist Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION MINUTES 1. INFORMAL AND FORMAL SESSION May14,2002 G. AGENDA FOR FORMAL SESSION Ho MAYOR'S PRESENTATION 1. PROCLAMATION a. Virginia Beach Foundation Week - May 20-26, 2002 PRESENTATION 1. ACHIEVEMENT for EXCELLENCE in FINANCIAL REPORTING Government Finance Officers Association Patricia A. Phillips, Director - Finance PUBLIC COMMENT 1. Local and State Combined Vehicle Registration Ko ORDINANCES 1. Ordinance to AMEND § 33-114.3 of the City Code re sidewalks in the B-3A Pembroke Central Business Core District. 2. Ordinance to AUTHORIZE acquisition of property in fee simple re right-of-way for Norfolk Avenue Multi-Purpose Trail by either agreement or condemnation. 3. Ordinance to AUTHORIZE the City Manager to execute a Deed of Release and Exchange re Agricultural Lands Preservation easement on Baum Road. (PRINCESS ANNE -DISTRICT 7) Ordinances to AUTHORIZE temporary encroachments: (a) City's drainage easement by ROBERT J. and LAUREN L. WEINBERG to construct/maintain a wharf and bulkhead at 2401 Brasileno Drive. (PRINCESS ANNE - DISTRICT 2) Lo City's right-of-way by HOWARD N. and KATHLEEN A. WEINBERG to construct/maintain a wharf and bulkhead at 2064 Tazewell Road. (PRINCESS ANNE - DISTRICT 2) (c) City's right-of-way by PHILILP J. GEIB to construct/maintain a wharf and bulkhead at 2084 Tazewell Road. (PRINCESS ANNE - DISTRICT 2) (d) City's right-of-way of South / North Kentucky Avenue and Southern Boulevard by CHARLES and SUSAN L. BARKER to construct/maintain two (2) communication cables. (ROSE HALL- DISTRICT 3) RESOLUTIONS Resolution re plan of financing for Phase I of the Town Center project with the Development Authority dated 1 June 2002: a. Support Agreement (draft dated 20 May 2002) b. Agreement of Trust (draft dated 20 May 2002) c. First Supplemental Agreement of Trust (draft dated 20 May 2002) b. Bond Purchase Agreement (draft dated 22 May 2002) Resolution re participation of Chesapeake Bay Alcohol Safety Action Program (CBASAP) in the Virginia Retirement System. Mo PLANNING Application of ROBERT F. THOUROT for the enlargement o_fa non-conforming use to reconstruct the existing duplex and add a second story to the rear unit at 2254 Maple Street, containing 7,500 square feet. (DISTRICT 4 - BAYSIDE) Recommendation: APPROVAL Application of SUNKIST C. FARRELLI for the enlargement qfa non-conforming use to renovate the existing duplex into a single family home at 305 26th Street, containing 2,450 square feet. (DISTRICT 6 - BEACH) Recommendation: INDEFINITE DEFERRAL Application of DOMINION CHRISTIAN CENTER for a Conditional Use Permit re a church on the north side of Lyrmhaven Parkway, east of Round Hill Road (2159 Lynnhaven Parkway), containing 1.68 acres. (CENTERVILLE - DISTRICT 1) Deferred: Recommendation: May 14, 2002 APPROVAL Applications of CHECKERED FLAG MOTOR CAR CO., for Conditional Use Permits: re automobile rentals at the southeast comer of Virginia Beach Boulevard and Clearfield Avenue (5225 Virginia Beach Boulevard), containing 9.92 acres. (KEMPSVILLE - DISTRICT 2) o o re off-site employee parking and automobile storage on'the east side of N. Lynnhaven Road, north of Mustang Trail (216 N. Lyrmhaven Road), containing 1.15 acres. (BE'ACH - DISTRICT 6) Recommendation: APPROVAL Application of ATLANTIC ENTERPRISES, INC., for a Conditional Use Permit re a commercial parking lot at the southwest comer of Atlantic Avenue and 30th Street (2906 Atlantic Avenue), containing 36,120 square feet. (BEACH - DISTRICT 6) Recommendation: APPROVAL Application of 7-ELEVEN, INC., for a Conditional Use Permit re fuel sales in conjunction with a convenience store at the southwest comer of Laskin Road and Village Drive, containing 1.085 acres. (BEACH - DISTRICT 6) Recommendation: APPROVAL Application of THIRTY-SEVEN-01 ASSOCIATES, L.L.C., for a Conditional Use Permit re Drive-Thru Window (Bank) on lots 4 & 5, block 87, Virginia Beach Development Co. (3701 Pacific Avenue), containing 15,120 square feet. BEACH - DISTRICT 6) Recommendation: APPROVAL Application of VOICE STREAM for the modification of conditions approved February 10, 1998, on the application for a communication tower at 409 First Colonial Road.. (BEACH - DISTRICT 6) Recommendation: APPROVAL Application of VIRGINIA BEACH S.P.C.A., for a Conditional Use Permit re an animal shelter on Parcel A-1, Bow River, (3040 Holland Road), containing 2.65 acres. (PRINCESS ANNE - DISTRICT 7) Recommendation: APPROVAL APPOINTMENTS: CHESAPEAKE BAY ALCOHOL SAFETY ACTION PROGRAM COMMUNITY SERVICES BOARD Raymond Kirby - Family Member 05/~/02slb AGENDA\05~28~02 www.vbgov.eom UNFINISHED BUSINESS NEW BUSINESS ADJOURNMENT If you are physically disabled or visually impaired and n~d assistanc~ at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) May28,2002 CITY COUNCIL BRIEFING A. Towing Advisory Board Carolyn Lincoln, Chair - Conference Room - 2:00PM CITY MANAGER'S BRIEFING'S HRT Service Plan Robert J. Scott, Director - Planning Bo Shore Drive Transportation Study and Design Guidelines Dean Block, Director - Public Works Robert J. Scott, Director - Planning Co Trigon Marathon Public Safety and Traffic Plan James Cervera, Deputy Chief- Police John Herzke, City Engineer - Public Works 111. REVIEW OF AGENDA ITEMS IV. CITY COUNCIL COMMENTS V. INFORMAL SESSION - Conference Room - 5:00PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION - Council Chamber- .. -. 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf Co INVOCATION: Reverend Jim Tongue Virginia Beach United Methodist Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION Fo MINUTES 1. INFORMAL AND FORMAL SESSION May 14, 2002 G. AGENDA FOR FORMAL SESSION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here 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 cedification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: 'That the Virginia Beach City Council hereby cedifies that, to the best of each membeds knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. Ho MAYOR'S PRESENTATION 1. PROCLAMATION a. Virginia Beach Foundation Week - May 20-26, 2002 _ gVhereas: q4}hereas: r~hereas: The Virginia Beach q:oundation is the only Virginia Beach-basedcommunityfoundation serving Virginia Beach, as well as the greater yfampton Roads community; and The primary goal of The Virginia Beach qvoundation is to make all philanthropic efforts in Virginia Beach as easy, ~icient and effective as possi61e; and The mission of The Virginia Beach youndation is to stimulate a sense of philanthropy in the community; to provide a vehicle and a service to donors with various interests; to respond to changing and emerging community needs, no~v and into the future; and to serve as a resource, broker, catalyst and leader in the community; and The Virginia Beach q:oundation brings together the resources and efforts of the citizens, civic leaders, businesses andnonprofit organizations of Virginia Beach to make a dzfference in the lives of all citizens; and The Virginia Beach q~oundation has worked, since its founding in 1987, to improve our community's Quality of Life by awarding more than $2,000,000.00 in grants to over 340 nonprofit agencies, programs and organizations; and The Virginia Beach woundation is committed to meeting the needs flour community not only now, but for generations to come; and The Virginia Beach Boundation is celebrating its 15th Anniversary in 2002: L ~eyera B. Oberndo~ Mayor of the Oty of Virginia Beach, Virginia, do hereby Proclaim' May 20-26, 2002 The Virginia $each qvoundation Week In Virginia Beach, and I callupon all citizens to recognize andsupport the efforts of The Virginia $each Goundation in bettering our community's Quality of Life. In Witness Whereof, I have hereunto set my handandcaused the OfficialSealof the Oty of Virginia Beach, Virginia, to be affixed this Seventh day of ~ay, Two Thousand Two. ~4eyera W.. Oberadorf 31ayor PRESENTATION -- '~ 1. ACHIEVEMENT for EXCELLENCE in FINANCIAL REPORTING Government Finance Officers Association Patricia A. Phillips, Director - Finance PUBLIC COMMENT 1. Local and State Combined Vehicle Registration K. ORDINANCES Ordinance to AMEND § 33-114.3 of the City Code re sidewalks in the B-3A Pembroke Central Btlsiness Core District. Ordinance to AUTHORIZE acquisition of property in fee simple re right-of-way for Norfolk Avenue Multi-Purpose Trail by either agreement or condemnation. Ordinance to AUTHORIZE the City Manager to execute a Deed of Release and Exchange re Agricultural Lands Preservation easement on Baum Road. (PRINCESS ANNE - DISTRICT 7) Ordinances to AUTHORIZE temporary encroachments: (a) City's drainage easement by ROBERT J. and LAUREN L. WEINBERG to construct/maintain a wharf and bulkhead at 2401 Brasileno Drive. (PRINCESS ANNE - DISTRICT 2) (b) City's right-of-way by HOWARD N. and KATHLEEN A. WEINBERG to construct/maintain a wharf and bulkhead at 2064 Tazewell Road. (PRINCESS ANNE - DISTRICT 2) (c) City's right-of-way by PHILILP J. GEIB to construct/maintain a wharf and bulkhead at 2084 Tazewell Road. (PRINCESS ANNE - DISTRICT 2) (d) City's right-of-way of South / North Kentucky Avenue and Southern Boulevard by CHARLES and SUSAN L. BARKER to construct/maintain two (2) communication cables. (ROSE HALL- DISTRICT 3) CITY OF VIRGINIA.BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager An Ordinance to Amend and Reordain Section 33.114.3 of the City Code pertaining to sidewalks in the B-3A Pembroke Central Business Core District MEETING DATE: May 28, 2002 Background: In 1995, Section 33.114.3 of the City Code was created to e,,~abl~sh"' ' minimum standards for unobstructed pedestrian clear zones, including height and width, for all sidewalks proposed within the urban Central Business Core District (B-3A). Considerations: As the Town Center's street and sidewalk designs began to take shape, including the relationship of other streetscape activities such as outdoor cafes and plazas, it became evident that a reduction of the minimum unobstructed sidewalk width from ten feet to eight feet would not compromise safe and efficient pedestrian movement. Sidewalks in the oceanfront resort area have successfully incorporated pedestrianway minimums of eight feet for many years. It is important to note that the proposed eight foot dimension is a minimum standard and that greater sidewalk widths would be provided, where appropriate. Recommendations: Staff recommends approval Attachments: * Recommended City Code Amendment: Section 33.114.3 · Sidewalk Width Illustration (Typical) 1 2 3 5 7 8 9 10 tl 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 AN ORDINANCE TO AMEND AND REORDAIN SECTION 33-114.3 OF THE CITY CODE PERTAINING TO SIDEWALKS IN THE B-3A PEMBROKE CENTRAL BUSINESS CORE DISTRICT SECTION AMENDED: ~ 33-114.3 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 33-114.3 of the City Code is hereby amended and reordained to read as follows: Sec. 33-114.3. Administrative approval of certain encroachments within the B-3A Pembroke Central Business Core District. Notwithstanding the provisions of section 33-114.1 of this Code, the city manager or his designee may, and is hereby vested with the authority to, approve the encroachment, upon or over any public street or sidewalk in the B-3A Pembroke Central Business Core District, of outdoor cafes or portions thereof or other storefront uses, provided at least ~ eiqht (8) feet of sidewalk width with eight (8) or more feet of vertical clearance remains unobstructed along such encroachments. Such encroachments must conform with all applicable zoning and building codes, regulations and standards. COMMENT The amendment reduces the minimum amount of unobstructed sidewalk width along encroachments in the B-3A Pembroke Central Business Core District from 10 feet to 8 feet. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2002. CA-8412 wmmk ordre s k 33-144- 3 ordin, wpd R-1 March 21, 2002 APPROVED AS TO CONTENT: P%a-Jni~ Depar{ment APPROVED AS TO LEGAL SUFFICIENCY//~~.~,: CiTy Attorney's Office CITY OF VIRGINIA BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Norfolk Avenue Multi-Purpose Trail Right of Way Acquisition, CIP 4-001 MEETING DATE: May 28, 2002 Background: This project is for the development of a 10-foot wide paved multi-purpose trail, landscaping, street crossing and access improvements, parallel to Norfolk Avenue, from Birdneck Road to Pacific Avenue. The majority of the area to be used for the 1.4 mile project improvements is the City-owned property along the north side of Norfolk Avenue, which was previously the Norfolk/Southern Rail Road right of way. Two private properties (one owner) are affected, however, from which we will need 5 feet of right of way or approximately 1,003 square feet. This project has been approved for a $293,124 grant from the Federal Highway Administration. Considerations: The project has been part of the long term Resort Area Transportation Plan and the Oceanfront Improvements Plan. It will provide for a safe, attractive pedestrian and bicycle linkage from Birdneck Road to Pacific Avenue along Norfolk Avenue. The project will link to future trail improvements associated with the Birdneck Road Widening Project (ClP 2-149). Public Information: Advertisement of City Council Agenda Alternatives: Decrease the width of the trail or not build the project Recommendations: Approval of ordinance to acquire right of way and easements by condemnation or negotiation. Attachments: Ordinance Location Map Recommended Action: Approve Submitting De City Manac Public Works ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AN ORDINANCE TO AUTHORIZE ACQUISITION' OF PROPERTY IN FEE SIMPLE FOR RIGHT OF WAY FOR NORFOLK AVENUE MULTI-PURPOSE TRAIL, CIP 4- 001 BY EITHER AGREEMENT OR CONDEMNATION WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a public necessity exists for the construction of this project to provide a safe and attractive pedestrian and bicycle trail from Birdneck Road to Pacific Avenue via Norfolk Avenue for the welfare of the people in the City of VirQnia Beach: NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: Section 1. That the City Council authorizes ~ condemation pursuant to Sections 15.2-1901, et seq., the: acquisition by purchase or C0~e of Virginia of 1950, as ~' : mended, of all that certain real property in fee simple, now owned by Sea Bay Development Corporation and known as GPINS 2427-14-2347 and 2427-14-1347 (collectively the "Property") as shown on the plans entitled "NORFOLK AVENUE MULTI-PURPOSE TRAIL, CIP 4-001" (the "Project"), and more specifically described on the acquisition plats for the Project (collectively the "Plans"), the Plans being on file in the Engineering Division, Department of Public Works, City of Virginia Beach, Virginia. Section 2. That the City Manager is hereby authorized to make or cause to be made on behalf of the City of Virginia Beach, to the extent that funds are available, a reasonable offer to the owners or persons having an interest in the Property. If refused, the City Attorney is hereby authorized to institute proceedings to condemn the Property. Adopted by the Council of the City of Virginia Beach, Virginia, on the __ day of ,2002. APPROVE AS T . CONTENT APPROVED AS TO LEGAL CITY ATTORNEY PINEWOOD DR, SCAL--E LOCATION MAP 1"=1600' \~\ : Ii ,: : : : _ : , \\\ , , |,r ~ , , I ~.----------. \\\ ,, ,, t: I : : : ',', \\\ ,/ ..... ,, \\\ :'-n.._.; x, i , : .. : : .. ", , ' , , ' ~ , \\\: /: : ', ', ' ' : \\\: / ' ' ,i : : , , I , F ,, , x.' \ . ~< , . -.,...× w , , 2427--14-1347 : I, ~ 2427--14-2347 I -~ , ",, :t ' ,, , ~ ^CQU~SmON A~,~,'-,- ~ ~ ' ~ .... , r, ,~ ~ ~ ~~ ~ ~ --- ~ NORFOLK AVE. ~ ~'"~ lOCAl! OS ~P SHOWING RIGH¢OF-WAY 10 BI ACQUIR[D FOR PROPOS[D ~ORFO[K AV[SU[ 1~![ C.I.P. S~[[:I" ~ 50' PREPARED BY PAN ENG. CADD BUREAU 5-14-O2 CITY OF VIRGINIA BEACH AGENDA ITEM' TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager An Ordinance Authorizing and Directing the City Manager to Execute a Deed of Release and Exchange Pertaining to an Agricultural Lands Preservation Easement on Land Located on Baum Road, in the Princess Anne District MEETING DATE: May 28, 2002 Background: John A. Baum, Wesley L. Baum, Marshall P. Baum, Glenn Clark Baum, Jean Baum Brown and Charlotte Baum Ives placed their property under an Agricultural Lands Preservation Easement ("Preservation Easement') pursuant to the City's Agricultural Reserve Program on August 6,1997. The property under easement consists of approximately 454.67 acres. As part of the transaction, the Sellers reserved for future development two 3-acres sites which were not placed under the Preservation Easement. Both of the reserved sites front on Baum Road. Edward Evans and Stacey E. Rowland, the successors in title to the Sellers and current owners of the subject property, now desire to exchange both of the current 3-acre reserved sites for two new reserved sites. Considerations: The attached plat shows the areas which would be exchanged. The current reserved sites are designated on the plat as "ARP ESMT EXCEPTION FOR SITE 1" and "ARP ESMT EXCEPTION FOR SITE 2." These areas would be placed under the ARP easement if the proposed exchange is approved by the City Council. The proposed reserved sites are designated as "PARCEL 1" and "PARCEL 2," and would be buildable sites (once subdivided) if the exchange is approved. A letter from the appraiser who performs appraisals of property considered for the Agricultural Reserve Program states that there is no difference in value between the sites as they now exist and as they would exist after the exchange. The City's Agricultural Lands Preservation Ordinance, which establishes the Agricultural Reserve Program, expressly provides for exchanges of reserved areas, and states that the City Council shall allow an exchange under certain conditions. Those conditions are set forth in the attached ordinance as findings of the City Council. They are as follows: (1) the acquisition of the proposed Preservation Easement in lieu of the existing Preservation Easement does not adversely affect the City's interests in accomplishing the purposes of the Ordinance; (2) the proposed Preservation Easement area meets all of the eligibility requirements set forth in Section 7 of the Ordinance; (3) the land to be encumbered by the proposed Preservation Easement is of at least equal fair market value, is of greater value as permanent open space, and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land as the property on which the existing Preservation Easement is located; and (4) the consideration for the acquisition of the new Preservation Easement consists solely of the extinguishment of the existing Preservation Easement. (Continued on page 2) Recommended Action: Approval ~ i~ yb n~iat t~gg eDt :e~ g)e~ Y~(~g~.~Iture Agenda Request Continued An Ordinance Authorizing and Directing the City Manager to Execute a Deed of Release and Exchange Pertaining to an Agricultural Lands Preservation Easement on Land Located on Baum Road, in the Princess Anne District Alternatives: The City Council may approve or deny the proposed exchange. Recommendations: Adoption of the Ordinance approving the proposed exchange. Attachments: Ordinance; plat showing areas of proposed exchange. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A DEED OF RELEASE AND EXCHANGE PERTAINING TO AN AGRICULTURAL LANDS PRESERVATION EASEMENT ON LAND LOCATED ON BAUM ROAD, IN THE PRINCESS ANNE DISTRICT WHEREAS, on August 6,~ 1997, the City of Virginia Beach (hereinafter "the City") and John A. Baum, Wesley L. Baum, Marshall P. Baum, Glenn Clark Baum, Jean Baum Brown and Charlotte Baum Ives (hereinafter the "Sellers") entered into Installment Purchase Agreement Number 1997-11, whereby the City acquired an Agricultural Lands Preservation Easemen~ (hereinafter "Preservation Easement") upon certain property owned by the Sellers; and WHEREAS, as part of the aforesaid transaction, the Sellers reserved for future development two future building sites, each having an area of 3.0 acres, more or less, such that the Preservation Easement does not encumber the said reserved sites; and WHEREAS, Edward Evans and Stacey E. Rowland, the successors in title to the Sellers, desire to exchange an area of land not encumbered by the Preservation Easement for an approximately equal area of land which is to be encumbered by the Preservation Easement, as shown on the attached "Preliminary Subdivision Plat of the ROWLAND AND EVANS FARM (BAUM ROAD);" and WHEREAS, pursuant to Section 11 of the Agricultural Lands Preservation Ordinance ("hereinafter "Ordinance"), a landowner may petition the City Council for the extinguishment of a Preservation Easement in exchange for the conveyance to the city of a Preservation Easement on a different portion of the landowner's property, under certain conditions set forth in the 33 Ordinance; and 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 WHEREAS, the Ordinance provides that the City Council shall approve such an exchange if it makes certain findings enumerated in the Ordinance; and WHEREAS, the City Council does hereby make such findings, to-wit: (1) the acquisition of the proposed Preservation Easement in lieu of the existing Preservation Easement does not adversely affect the City's interests in accomplishing the purposes of the Ordinance; (2) the proposed Preservation Easement area meets all of the eligibility requirements set forth in Section 7 of the Ordinance; (3) the land to be encumbered by the proposed Preservation Easement is of at least equal fair market value, is of greater value as permanent open space, and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land as the property on which the existing Preservation Easement is located; and (4) the consideration for the acquisition of the new Preservation Easement consists solely of the extinguishment of the existing Preservation Easement. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH: That subject to the determination of the City Attorney that there are no defects in title to the property to be placed under the Preservation Easement or other restrictions or encumbrances thereon which may, in the opinion of the City Attorney, adversely affect the City's interests, the City Manager be, and hereby is, authorized and directed to execute a Deed of Release and Exchange pursuant to which the City releases the existing Preservation Easement on a portion of the property, as 2 65 66 67 68 69 shown on the aforesaid "Preliminary Subdivision Plat," and acquires, in exchange therefor, land equal in area to be placed under the Preservation Easement, as shown on such Plat. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2002. CA-8470 wmm\ordres \evans &rowlandordin. wpd May 9, 2002 R-1 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: / CITY OF VIRGINIA BEACH AGENDA ITEM' TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Encroachment Request - Construct and maintain a wharf and bulkhead in the City's 100' drainage easement at the rear of 2401 Brasileno Drive. Applicant - Robert J. Weinberg and Lauren L. Weinberg, husband and wife MEETING DATE: May 28, 2002 Background: Mr. and Mrs. Robert J. Weinberg have requested permission to encroach into the City's 100' drainage easement at the rear of 2401 Brasileno Drive. The purpose of said encroachment is to allow a wharf and bulkhead Considerations: City staff has reviewed the request for the purposed encroachment and has recommended approval of same, subject to certain conditions outlined in the agreement. The Department of Public Works supports the utilization of "hardened slope stabilization" methods including bulkheading, grouted rip-rap and rip-rap with filter cloth to minimize and prevent soil loss along bank slopes associated with open drainage ditch, canal and lake systems. These methods are successful in areas with soil types classified as highly erodible, specifically during major rainfall events which create high velocities and wave action along bank slopes due to high winds. There are encroachments of same/similar nature throughout this 100' drainage easement in the Lagomar subdivision of the city. Public Information: Advertisement of City Council. Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. Recommendations: agreement. Approve the request subject to the terms and conditions of the Attachments: Ordinance, Location Map, Agreement, and Plat Recommended Action: Approval of the ordinance. Submitting DepartmenUAgency: Public Works 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF A 100' DRAINAGE EASEMENT BY ROBERT J. WEINBERG AND LAUREN L. WEINBERG, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Robert J. Weinberg and Lauren L. Weinberg desire to construct and maintain a wharf and bulkhead into the City's 100' drainage easement located at the rear of 2401 Brasileno Drive. WHEREAS, City Council is authorized pursuant to ~ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachments upon the City's 100' easement subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in ~ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended Robert J. Weinberg and Lauren L. Weinberg their heirs, assigns and successors in title is authorized to construct and maintain a temporary encroachment for a wharf and bulkhead in the City's 100' drainage easement as shown on the map entitled: "PROPOSED PIER, BULKHEAD, IN A CANAL OF LAGOMAR VIRGINIA BEACH, VA. APPLICANT: ROBERT J. WEINBERG," a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Robert J. Weinberg and Lauren L. Weinberg, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. 34 35 36 37 38 39 BE IT FURTHER ORDAINED, that this Ordinance-shall not be in effect until such time as Robert J. Weinberg and Lauren L. Weinberg and the ~ity Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2002. 40 41 42 43 CA-# gsalmons/rweinberg/ord. R-1 PREPARED: 04.012.02 AS TO CONTENTS SIGNA~ DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY cITY :~TO~¥ 2 LOCATION MAP SITE SCALE: 1" - 1,600' // · ee / / eee / -----../ LOCATION SHOWING MAP ENCROACHMENT REQUESTED BY ~'ROBERT AND LAUREN WEINBERG INTO CITY EASEMENT;'. ~ c~ 2401 BRASILENO DRIVE SCALE: 1" = / / / / 100' MJ.S. BRASILENO GAILDGN PREPARED BY P/W ENG. DRAFT. MARCH 20, 2002 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION8 58.1-811(a)(3) AND 58.1-811(cX4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 THIS AGREEMENT, made this day of ~L~ v , 20E)_3:~ by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and ROBERT J. WEINBERG AND LAUREN L. WEINBERG, husband and wife, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "230" as shown on that certain subdivision map emitled "SUBDIVISION OF LAGOMAR SECTION 6, PHASE 3, PART B NOVEMBER 29, 1993" as recorded in MB 238, Page 36-39, in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and being further designated and described as 2401 Brasileno Drive, Virginia Beach, Virginia 23456; and That, WHEREAS, it is proposed by the Grantee to construct and maintain a wharf and bulkhead, "Temporary Encroachmem", in the City of Virginia Beach; and WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City 10ft drainage easemem at the rear of 2401 Brasileno Drive, "The Temporary Encroachment Area"; and the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 2424-02-4405 NOW, THEREFORE, for a$d in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "PROPOSED PIER, BULKHEAD, IN A CANAL OF LAGOMAR VIRGINIA BEACH, VA. APPLI CANT: ROBERT J. WEINBERG," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed t~om The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, fi.om and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. 2 It is further expressly unders[ood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit fi-om the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post sureties, in accordance with their Engineer's cost estimate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (130) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. 3 It is further expressly understpod and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the stun of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Robert J. Weinberg and Lauren L. Weinberg, the said Grantee has caused this Agreement to be executed by their signature and seal duly affixed. Further, that the City of Virglnia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH (SEAL) ATTEST: By City Manager/Authorized Designee of the City Manager City Clerk 4 Robert J. ~efnberg ~/L~uren L(~einberg STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instnm~em was acknowledged before me this day of ,20 , by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instnmaem was acknowledged before me this day of~ 20.__, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public 5 STATE OF ~sa2x~cx_. CITY/CO,~,~ · ~ to-wit: The foregoing instrument was acknowledged before me this ,20Q~ by Robert J. Weinberg and Lauren L. Weinberg. day of My Commission Expires: Notary Public APPROVED AS TO LEGAL SUFFICIENCY - CITY XTTO"~ APPROVED AS TO CONTENT ESTATE AGENT 6 ~.~ :~ .... ~ · ~ ~,~,,~ ~ ~~/~ ~ ,-,~ I~ LIN.FT. VICINITY PROPOSED 'JHARF ,. 8'~IDE X 16'LONG ~ , ,, R-1420 L-I~.JZ. ~ I ~~/ / 'X /~' Exhibit"A" BRA~ILEN0 DRIVE 50'RW ~0I ~ ~"-~0' LOT LAT.N ~6 45'09" OF ~A~OMA~ S~CT.6 P~.~ ~ON.W 75 59'06' ~P[N 2424-~2-~405 PART , APPL leANT: PU~Pose: SMOR~ SYAe~ZAT~ON ROa~T ~..~me~R~ PROPOSED PIER,~UL~HEAD, DATUM: N~D ~ ~ 0.~ ~ VIRGialA aEACM,VA.2~q~6 A CANAL LAGOMAR AGENT: VIRGINIA BEACH, VA. KEN THOMP$O;~ ARPL I CANT: ROBERT J.~IE [ NBERG CMESAPEAIE,YA. 2~ SHEET 1 OF 2 TYPICAL WOOD SHEET PILE BULKHEAD 2~x~0' T&G SHEET PILE 50% PENETRATION 2'x~O' CAFSOARO W/2 20D NAILS a 12'oc WALES, 2-2'X8' OR q'xB' 5/B°~ THRU BOLTS B EA.PILE OR )6'OC PILES, iF NOTED, B'~ BUTT 50% PEKETRATION WEEPS HOLES, rE NOTED, 2'~ @ ~6'oc. #3 STONE TIE RODS, ~/q'~ OGEE WASHERS g 5'~"' +- DC DEAD ~AN, 10'J X 72'LG DR 56'SO.2xlO' 2-LYRS EW BURIED 2q'MIN FILTER CLOTH ON ALL EXPOSED NEW SHEET 100% RIVER SAND F{LL p~TERL~LSPECIFICATIONS TOP BLICO MAILT FENCE, INSTALL & IN~AIN UNTIL GRASS IS STABLISHED DENUDED AREAS BY CONSTRUCTION~.~ C?IST.L!~ITS /OR BACKFILL TO BE GRADED TO- ~ 20'~AX ~..'"SLOPE~ q"TOPSOIL, SEEDED / 16 - ANCHOR SYSTEN ~"= O.O0 TYPICAL SECTIO'J THRU BULKHEAD PROP.BLKD TYPICAL PIER CONSTRUCTION OECK[NGo2'X6"; 1/q°OPEN JO]N1S 2-16o NAILS ~ EA JOIST JOIST, Z'XB' g 24'(HAX) TOE NAIL EACH JOIST STR]NGERS,DBL ~xB# BOLTED 5/8'6 W/PLT WASHERS PILES, ~'(MIN) BUTT DIAM. ~0~ PENETRATION a HUD LINE STEPS AS REOD. ~_.)E~:+B.O' FILE FUTURE DAVID/PWC EL.+~.0' TOP EL*+~-0'+' O_rro~ SECTION THRU WHARF 1/8'=1'0' APPLICANT: ROBERT J.¥EINBERG Z40! BRASlLENO DRIVE VlRGIdiA BEACH,yA.25q~ AGENT: '. KEH THONPSO~ 5705 mosu. DRIVE CHESAPEAKE,VA.2)SZ! PROPOSED PIER,6ULKHEADo IN A CANAL OF LAGO~AR VIRGINIA BEACH~VA. APPLICANT: ROBERT J.WEINBERG SHEET 2 OF 2 2401 BRASILENO DRWE Back property line East end of property looking west Property line in the rear and adjacent property owners pier Adjacent property owners pier CITY OF VIRGINIA BEACH AGENDA ITEM' TO: FROM' ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Encroachment Request - Construct and maintain a wood dock in the City's fight-of-way at the rear of 2064 Tazewell Road in the Lynnhaven Promenade Applicant - Howard N. Weinberg and Kathleen A. Weinberg MEETING DATE: May 28, 2002 Background: Mr. and Mrs. Weinberg desire to construct and maintain a wood dock in the City's right-of-way at the rear of 2064 Tazewell Road in the Lynnhaven Promenade. Considerations: City staff has reviewed the request for the proposed encroachment and has recommended approval of same, subject to certain conditions outlined in the agreement. There are encroachments of same/similar nature throughout Ocean Park subdivision on Crab Creek. Public Information: Advertisement of City Council Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. Recommendations: agreement. Approve the request subject to the terms and conditions of the Attachments: Ordinance, Location Map, Agreement, and Plat Recommended Action: Approval of the ordinance Submitting Department/Agency: Public Works~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF THE RIGHT-OF-WAY AT THE REAR OF 2064 TAZEWELL ROAD BY HOWARD N. WEINBERG AND KATHLEEN A. WEINBERG, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Howard N. Weinberg and Kathleen A. Weinberg, desire to construct and maintain a wood dock into the City's rights-of-way located at the rear of 2064 Tazewell Road. WHEREAS, City Council is authorized pursuant to §§ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachments upon the City's right-of-way subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended Howard N. Weinberg and Kathleen A. Weinberg their heirs, assigns and successors in title are authorized to construct and maintain a temporary encroachment for a wood dock in the City's. right-of-way as shown on the map entitled: "SITE PLAN HOWARD WEINBERG 2064 TAZEWELL ROAD VIRGINIA BEACH, VA," a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Howard N. Weinberg and Kathleen A. Weinberg, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. 34 35 36 37 38 39 BE IT FURTHER ORDAINED, that this Ordinance. shall not be in effect until such time as Howard N. Weinberg and Kathleen A. Weinberg and the ~ity Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2002. 40 41 42 CA-% gsalmons/weinberg/ord. R-1 PREPARED: 05.03.02 OVED A~ TO CONTENTS SIGNATURE DE PAR%~4ENT APPROVED AS TO LEC4tL SUFFI~ENC~ A/~TFORM 2 M~RL[N B~Y DF LOCATION MAP CHES~PE~KEBay LESNER Z Z -.~ Z SCALE: 1" -- 1,600' \ \ i l MAP \ SHOWING 2064 TAZEWELL RD. OWNED BY HOWARD AND KATHLEEN WEINBERG SCALE: 1"=100' TAZEWEII DGN MJ.S. PREPARED BY P/W ENG. DRAFT. APRIL 8, 2002 PREPARED BY VIRGINIA BEACH CITY ATlrORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58.1-811 (a)(3) AND 58.1-811(c)(4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 THIS AGREEMENT, made this ~:~l:Lday of ,[.~_ , '[[ 20C~, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and HOWARD N. WEINBERG and KATHLEEN A. WEINBERQ, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "7" as shown in block 4 that certain plat emitled "PLAT SECTION "A" OF OCEAN PARK PORTION OF THE PROPERTY OWNED BY OCEAN PARK CORPORATION" as recorded in MB 5, Pages 69&70, in the Clerk's Office of the Circuit Court of the City of Virginia Beach and being further designated and described as 2064 Tazewell Road, Virginia Beach, Virginia 23455; and That, WHEREAS, it is proposed by the Grantee to construct and maintain a wood dock, "Temporary Encroachment", in the City of Virginia Beach; and WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right-of-way known as Lynnhaven Promenade at the rear of 2064 Tazewell Road, "The Temporary Encroachment Area"; and the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 1489-58-6097 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and ~6r the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "SITE PLAN HOWARD WEINBERG 2064 TAZEWELL ROAD VIRGINIA BEACH, VA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agems and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of 2 any encroachment other than that specified herein and to the lhnited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance ora right of way permit, the Grantee must post sureties, in accordance with their Engineer's cost estimate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any'.manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charg6 the Grantee for the use of The Encroachmem Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreemem, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachmem is allowed to cominue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Howard N. Weinberg and Kathleen A. Weinberg, the said Grantee has caused this Agreement to be executed by their signature and seal duly affixed. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH (SEAL) ATTEST: By City Manager/Authorized Designee of the City Manager City Clerk 4 Howard N. Weinberg Kathleen A. Weinberg STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,20 , by ., CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,20 , by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF [/J CITY~COUNTY I~ t, to-wit: The foregoing instrument was acknowledged before me this 15- /~t ~ {9_ X L. ,20 o'2.-, by Howand N. Weinberg and Kathleen A. Weinberg. day of My Commission Expires: Notary Public .~ ~ APPROVED AS TO APPROVED AS TO CONTENT ESTATE AGENT 6 Exhibit "A" , ADJACENT PROPERTY OWNEB~: :2. Exl.~-r/~6 SITE PLAN HOWARD WEINBERG 2O64 TAT~. LL ROAD VIRGINIA BEACH, VA PURPOSE: NEW DOCK LYNlqIIAVE RIVER AT: OCF.,AN P~RK CITY: VIRGINIA BEACII, VA APPLICANT: HOWARD WEINBERG MEAN LOW WATER I PIER LAYOUT I ~~L LOCATION ! ~Y: ~G~z~' w 2064 Tazewell Road Rear of 2064 TazeweH Road and adjacent property owners pool and pier Looking north, adjacent property owners pier and boat CITY OF VIRGINIA BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Encroachment Request - Construct and maintain a wood dock at the rear of 2084 Tazewell Road Applicant - Philip J. Geib MEETING DATE: May28, 2002 Background: Mr. Geib desires to construct and maintain a wood dock at the rear of 2084 Tazewell Road in Lynnhaven Promenade. Considerations: City staff has reviewed the request for the existing encroachment and has recommended approval of same, subject to certain conditions outlined in the agreement. There are encroachments of same/similar nature in the Lynnhaven Promenade right-of-way of the Ocean Park Subdivision of the city. Public Information: Advertisement of City Council. Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. Recommendations: agreement. Approve the request subject to the terms and conditions of the Attachments: Ordinance, Agreement, Location Map, and Plat Recommended Action: Approval of the ordinance Submitting Department/Agency: Public Works~F 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF THE RIGHT-OF-WAY AT THE REAR OF 2084 TAZEWELL ROAD BY PHILIP J. GEIB, HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Philip J. Geib, desire to construct and maintain a wood dock into the City's rights-of-way located at the rear of 2084 Tazewell Road. WHEREAS, City Council is authorized pursuant to ~ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachments upon the City's right-of-way subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended Philip J. Geib his heirs, assigns and successors in title is authorized to construct and maintain a temporary encroachment for a wood dock in the City's right-of-way as shown on the map entitled: "SITE PLAN GEIB 2084 TAZEWELL RD VA BEACH, VA" a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Philip J. Geib, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. 32 33 34 35 36 BE IT FURTHER ORDAINED, that this Ordinance. shall not be in effect until such time as Philip J. Geib and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2002. 37 38 39 40 CA-# gsalmons/geib/ord. R-1 PREPARED: 04.02.02 ,,OVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFI CIEN~ND~FO~ - /'~IT~ ATTORNEY ~_~- 2 PREPARED BY VIRGINIA BEACH CITY ATYORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 5 8.1-811 (a)(3) AND 58.1-811(c)(4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 THIS AGREEMENT, made this ['~ day of ~ ,2002, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and PHILIP J. GEIB HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of the southern 37 feet of that certain lot, tract, or parcel of land designated and described as "2" in block 4 as shown on that certain plat entitled "PLAT SECTION "A" OF OCEAN PARK PORTION OF THE PROPERTY OWNED BY OCEAN PARK CORPORATION" as recorded in MB - 5, Pages 69 & 70 and being further designated and described as 2084 Tazewell Road, Virginia Beach, Virginia 23455; and That, WHEREAS, it is proposed by the Grantee to construct and maintain a wood dock, "Temporary Encroachmem", in the City of Virginia Beach; and WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of the existing City's Lynnhaven Promenade right-of-way in the rear of 2084 Tazewell Road, "The Temporary Encroachment Area"; and the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 1489-58-6324 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and fOr the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordanCe with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "SITE PLAN GEIB 2084 TAZEWELL RD VA BEACH, VA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify'and hold harmless the City, ks agents and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of 2 any encroachment other than that specified herein and to the limited extent specified herein, nor and constructiOn of any encroachment by anyone other than the to permit the maintenance Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post sureties, in accordance with their Engineer's cost estimate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee~ and collect the cost in any'manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if'it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Philip J. Geib, the said Grantee has caused this Agreement to be executed by his signature and seal duly at~ed. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto af~ed and attested by its City Clerk. CITY OF VIRGINIA BEACH (SEAL) ATTEST: By City Manager/Authorized Designee of the City iManager City Clerk 4 Philip J. Geib STATE OF VIRGINIA "" CITY OF VIRGINIA BEACH, to-wit: i '. The foregoing instrument was acknowledged before me this day of ,2o , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrumem was acknowledged before me this day of~ ,20__, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF OF The foregoing instrument was acknowledged before me this 2002, by Philip J. Geib. day of My Commission Expires: APPROVED AS TO _~ TTORNEY APPROVED AS TO CONTENT AL ESTATE AGENT 6 CHESAPEA~ I~AY SCALE 1'-1600' LOCATION MAP f ~_.3 LOCATION MAP SHOWING 2084 TAZEWELL ROAD OWNED BY PHILIP I. GEIB SCALE: 1" -- 100' PREPARED BY P,,&V ENG. CADD BUREAU 4--9-02 EXHIBIT "A" .PURPOSE: NEY/ PLER. DATUM- MEAN LQ~ ~A_TF_R. ADJACENT PRQPEP-,.."[¥ Q',Nb,I.ERS 2 l .-:-r, 3 ---OEtB 208'z[ TAZE~/~-EE RD' V'A BEACH, VA IN: OCEAN PARK AT: VA BEACH, VA A. PPL~. A.'EION. BY:__ :~hd~0 Z. . DA',E: 4-26-01 *7.5 *~.5 _' ~ - -- - - +1.4 ._L +0.7 I tI +8.5 ~-'" ' *0.8 -'~1.0 +0'3 *0.5 0 1.0 0.6 LI +3.1 100' +4.8 +5.3 +5.4 +6.7 ~;E: NEW PIER DATUM: MEAN LOW WATER ADJACENT PROPERTY OWNERS 1 ~X,~ ~.. t ~,~' 2 SITE PLAN GEIB 208,4. TAZEWELL RD VA BEACH, VA IN: OCEAN PARK AT: VA BEACH, VA APPLICATION BY: e~. t ce---'b .~J tslo-z- DATE; 2084 Tazewell Road 2 e e View from adjacent property looking south on Crab Creek Applicants property is just beyond the pier where fence is located along back property line Adjacent property owners docks / Applicants property between those two docks Fence is the back lot line of applicant (bottom right of picture) Looking north on Crab Creek Looking north on Crab Creek CITY OF VIRGINIA BEACH AGENDA ITEM' TO: FROM: ITEM: MEETING DATE: The Honorable Mayor and Members of Council James K. Spore, City Manager Encroachment Request - Construct and maintain two - 1 1/4" communication cables enclosed in a 2" steel casing pipe Applicant- Charles Barker Automotive, Inc., Charles G. Barker, Jr., and Susan L. Barker May 28, 2002 Background: Charles Barker Automotive, Inc. and Mr. and Mrs Barker desire to construct and maintain two - 1 1/4" communication cables enclosed in a 2" steel casing pipe in the existing City right-of-ways known as South Kentucky Avenue, North Kentucky Avenue, and Southern Boulevard linking Charles Barker Lexus of Virginia Beach New Car Sales with Charles Barker Lexus of Virginia Beach Maintenance Facility. Considerations: City staff has reviewed the request for the proposed encroachment and has recommended approval of the same, subjected to certain conditions outlined in the agreement. Public Information: Advertisement of City Council. Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. Recommendations: agreement. Approve the request subject to the terms and conditions of the Attachments: Ordinance, Location Map, Agreement, and Plat Recommended Action: Approval of the ordinance Submitting Department/Agency: Public Works~::>~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF THE RIGHT-OF-WAY OF SOUTH KENTUCKY AVENUE, NORTH KENTUCKY AVENUE, AND SOUTHERN BOULEVARD BY CHARLES BARKER AUTOMOTIVE, INC., CHARLES G. BARKER, JR., AND SUSAN L. BARKER THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Charles Barker Automotive, Inc., Charles G. Barker, Jr., and Susan L. Barker, desire to construct and maintain two - 1 1/4" communication cables enclosed in a 2" steel casing pipe into the City's rights-of-way located at South Kentucky Avenue, North Kentucky Avenue and Southern Boulevard. WHEREAS, City Council is authorized pursuant to ~ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachments upon the City's right-of-way subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in §~ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended Charles Barker Automotive, Inc., Charles G. Barker, Jr., and Susan L. Barker their heirs, assigns and successors in title are authorized to construct and maintain a temporary encroachment for two - 1 1/4" communication cables enclosed in a 2" steel casing pipe in the City's right-of-way as shown on the map entitled: "PLAN SHOWING PROPOSED ENCROACHMENT INTO NORFOLK SOUTHERN CORP. RIGHT-OF- WAY, AND SOUTH KENTUCKY AVENUE, NORTH KENTUCKY AVENUE, AND SOUTHERN BOULEVARD RIGHT-OF-WAYS FOR CHARLES BARKER LEXUS OF VIRGINIA BEACH VIRGINIA BEACH, VIRGINIA SCALE 1"=30' APRIL 1, 2002 JOHN E. SIRINE AND ASSOCIATES, LTD. SURVEYORS.ENGINEERS-PLANNERS 4317 BONNEY ROAD VIRGINIA BEACH, VIRGINIA TELEPHONE: (757)486-4910 FAX: (757)486- 4670," a copy of which is on file in the Department of Public Works 36 37 38 39 40 41 42 43 44 45 46 47 48 49 5O 51 and to which reference is made for a more particulam.description; and BE IT F~RTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Charles Barker Automotive, Inc. Charles G. Barker, Jr., and Susan L. Barker, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as Charles Barker Automotive, Inc., Charles G. Barker, Jr., Susan L. Barker and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2002. 52 53 54 55 CA-% gsalmons/barker/ord. R-1 PREPARED: 05.09.02 D AS TO CONTENTS C, DEPARTMENT 2 L~ M L ~V I ~ 262 - PROP. I COMMUNI~TION 50~HE~ BLVD. oLINES 0 ~~ 0 0 PROPER~ OWNED BY 't ' ~~ BARKER .DGN M.J.S. PREPARED BY P/W ENG. C ADD DEPT. 26-APR-Z002 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58.1-811(a)(3) AND 58.1-81 I(eX4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", CHARLES BARKER AUTOMOTIVE, INC., a Virginia Corporation, and CHARLES G. BARKEIL JR. AND SUSAN L. BARKER THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee, Charles G. Barker and Susan L. Barker are the owner of that certain lot, tract, or parcel of land designated and described as "PARCEL 'A' 106,674 S.F. OR 2.45 ACRES" as shown on that certain plat entitled "RESUBDIVISION OF PROPERTY OWNED BY RARE PROPERTIES, INC. KEMPSVILLE BOROUGH, VIRGINIA BEACH, VIRGINIA MARCH 16, 1989 MILLER-STEPHENSON & ASSOCIATES, P.C. ENGINEERS, SURVEYORS & PLANNERS 5033 ROUSE DRIVE VIRGINIA BEACH, VIRGINIA 23462 (804-490-9264)," as recorded in M.B. 196, at page 33 in the Clerks Office of the Circuit Court of the City of Virginia Beach, Virginia and being further designated and described as 3909 Virginia Beach Boulevard, Virginia Beach, Virginia 23452; and That, WHEREAS, it is proposed by the Grantee, Charles G. Barker and Susan L. Barker, to construct and maintain two 1 1/4" communication cables enclosed in a 2" steel casing pipe, "Temporary Encroachment", in the City of Virginia Beach; and GPIN 1487-24-1210 ~ WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right of way known as South Kentucky Avenue, North Kentucky Avenue, and Southern Boulevard, "The Temporary Encroachment Area"; and the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for. the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachmem will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shOwn on that certain plat entitled: "PLAN SHOWING PROPOSED ENCROACHMENT INTO NORFOLK SOUTHERN CORP. RIGHT-OF-WAY, AND SOUTH KENTUCKY AVENUE, NORTH KENTUCKY AVENUE, AND SOUTHERN BOULEVARD RIGHT-OF-WAYS FOR CHARLES BARKER LEXUS OF VIRGINIA BEACH VIRGINIA BEACH, VIRGINIA SCALE: 1 "-~30' APRIL 1,2002," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachmem Area by the Grantee; and that the Grantee will bear all-costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachmem. It is further expressly understood and agreed that nothing herein comained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachmem by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in The Encroachmem Area. It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Cemer/Planning Departmem prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post sureties, in accordance with their Engineer's cost estimate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the stun of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. 4 By execution of this instrumem, Charles G. Barker, President of Charles Barker Automotive, Inc., acknowledges the plans to construct and maintain two 1 1/4" communication cables enclosed in a 2" steel casing pipe, for said encroachment. IN WITNESS WHEREOF, the said Charles Barker Automotive, Inc., has caused this Agreemem to be executed in its corporate name and on its behalf by its president, and its corporate seal to be hereto affixed and duly attested by its corporate secretary with due authority by its board of directors; and the said Grantee has caused this Agreement to be executed by their signature and seal duly affixed Further, that the City of Virginia Beach has caused this Agreemem to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested CITY OF VIRGINIA BEACH (SE U0 ATTEST: By City Manager/Authorized Designee of the City Manager City Clerk CHARLES BARKER-AUTOMOTIVE, INC. Ch~-'les-Cc:~arker, President Sherry Reynolds, Secretary STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,2002, by DESIGNEE OF THE CITY MANAGER. ., CITY MANAGER/AUTHORIZED Notary Public My Commission Expires: 6 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instmmem was acknowledged before me this ,2002, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. day of My Commission Expires: Notary Public STATE OF ~ A CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of ,2002, by Charles G. Barker, Presidem, on behalf of Charles G. Barker Automotive, Inc.. My Commission Expires: 7 Notary Public STATE OF ~ CITY/COUNTY OF qa. i~t'0.C~'~ , to-wit: ~he foregoing instrument was acknowledged before me this day of ,2002, by cCta~ ~M c~ , Sherry Reynolds, Secretary, on behalf of Charles G. Barker Automotive, Inc.. My Commission Expires: Notary Public STATE OF Vb~ CITY/COUNTY OF ~J0,. CtCtC~ , to-wit: The foregoing instrument was acknowledged before me this ,2002, by Charles G. Barker, Jr. and Susan L. Barker. day of Notary Public My Commission Expires: I>/3~/0_3 APPROVED AS TO LEGAL SUFFICIENCY _~ ATTORNEy$'4~.C APPROVED AS TO CONTENT Cb4~I'Y REAL ESTATE AGENT 8 Exhibit "A" PARCEL A (M.B. 192, P. 7) (g~IPa '1487-14-0338 LI.I PARCEL 'A' (M.B 196, P. 33) Gl)IN 1487-24-1210 I I I I I _~._~ OF VIrgINIA BEACH NEW ~ STA. '2.~00 UllLITY ~111.i A f' I:IL~'L l Pll~: .% SOUTHERN BOULEVARD (50' ~T.B.U. (M.B. la5, P. sO IN POLE ELEV.- 15.12 I I I I NORFOLK SOUTHERN CORP. (66' RAILWAY R/II0 NOW OR FOEMERLY O. BROOKS POLLOCK, JR. (D.B. 1674. P. 8g)(M.B. 41. P. 9) Gl'IN 1487-15-5867 ARLES BARKER LEXUS i / or I/IRGINIA BEACH / MNNI'ENANCE FAOUI'7 / I i i J.O. 71,554 177'-PROPOSED COMMUNICATION LINES PARCEL A (M.B. 207. P. O) GPIN 1487-13-5861 0 PLAN SHOWlNG PARCEL A- 1 (M.a. 262. P. 86) GPIN 1487-13-9817 NO'lES: 1. METIIOD or INSTALLATION t~LL BE HORIZON11RL DIRECTIONAL DRILLING. 2. CA~ING PIPE I,~ 2' STEEL A.$.T.M. A-~3. SCH. ~0, BLACK PIPE. GRADE B. NO COATING. THE WALL 1HIC:KNESS IS 0.218 INCHES AND JOINTS ARE TO BE THREAD AND COUPLeiG. IHE LENGTI. I IS 262 rLr[T. `3. 1HE COMMUNICATION UNES ARE: ONE(l) 12 STRAND MULTI MODE Irl~R O~tiC CABLE ONE(I) ,,e,e,e,e,e,e,e,e,~) PAIR COPPER CONMUNICATIONS CABLE - LOW VOI. TAG[. (BOl14 CABLES ENCASED Itl A LINEAR LOW D[N~ITY POL'Y~"TI4'YI.E~ JACKET) 4. THE CABLE MARKER ~IGNS ARE TO READ AS fOLLOWS: CABLE MARKER OI~IER: CHARLES BARKER LEXUS OIr laRGINIA BEACH ,3909 VIRGINIA BEACH BOULEVARD ~RGINIA BEACH. V~RGINIA 23452 BurnED I1[M: TWO (2") INCH CO~OUI1 ~aTH CO~MUNICAIION$ CABLES BUI~IFr. D DEPTH: FIVE [$') FEET - SOUTHERN R.O.W, NINE (g') FEET - NORTHERN R.O.W. FMERC~NCY 1ELEPHORE NO. [757) 48~-3500 PROPOSED ENCROACHMENT INTO NORFOLK SOUTHERN CORP. RICd-IT-OF-WAY. AND SOUTH KENTUCKY AVENUE, NORTH KENTUCKY AVENUE. AND SOUTHERN BOULEVARD RIGHT-OF-WAYS FOR CHARLES BARKER LEXUS OF VIRGINIA BEACH VIRGINIA BEACH. VIRGINIA SCALE: I"--30' APRIL l, 2002 dOHN Ir SlRINE AND ASSOCIA1[S, LTD. SURVEYORS, ENGINEERS. PLANNERS 4317 BONNEY ROAD VIRGINIA BEACH. VIRCINIA T%LEPHONE: (757) 486-4910 FAX: (757) 486-4~[;1[~ FEET Bo GRAPHIC SCALE P.S. ,~56, P. 26-: CHARLES BARKER AUTOMOTIVE, INC. NORTH AND SOUTH KENTUCKY AVENUE Standing at South Kentucky Avenue looking towards Southern Boulevard and North Kentucky Avenue Looking east at Charles Barker Lexus where the encroachment will begin Standing at North Kentucky Avenue looking towards Southern Boulevard and South Kentucky Avenue Looking west at the construction site where the encroachment will end Lo RESOLUTIONS 1. Resolution're plan of financing for Phase I of the Town Center project with the Development Authority dated 1 June 2002: a° Support Agreement (draft dated 20 May 2002) Agreement of Trust (draft dated 20 May 2002) First Supplemental Agreement of Trust (draft dated 20 May 2002) Bond Purchase Agreement (draft dated 22 May 2002) Resolution re participation of Chesapeake Bay Alcohol Safety Action Program (CBASAP) in the Virginia Retirement System. CITY OF VIRGINIA BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Resolution Approving the Plan of Financing with the Va. Beach Development Authority for the Town Center Project, Phase I MEETING DATE: May 28, 2002 Background: City Council through several ordinances and resolutions has approved the Town Center Project and has requested that the Va. Beach Development Authority (VBDA) undertake for Phase I the acquisition of the parking garage located in the Town Center District, the acquisition of certain land for a public plaza located in the Town Center District, and other project costs such as legal expenses and construction management. Considerations: On May 24, 2002 the VBDA approved a Resolution that provided for a Plan of Financing for the stated purposes above. The Plan authorized the issuance of VBDA Public Facility Revenue Bonds in the total principal amount not to exceed $25,000,000. This amount includes all financing costs and an allowance for issue discount, if necessary. None of the bond proceeds will be used to pay for the office tower or other private portions of the project. The revenue bonds will be secured by a pledge of revenues derived by the Authority from the City pursuant to a Support Agreement. City Council has established a Tax Increment Financing (TIF) District in which it expects to collect revenues sufficient to pay the debt service on the VBDA Revenue Bonds. In addition the Special Service District tax rate will be increased if the TIF District revenues are insufficient to pay debt service. However, none of these revenues are pledged to the payment of the bonds and the obligation of the City to make payments under the Support Agreement is subject to annual appropriation. The attached Resolution requests VBDA to issue its Public Facility Revenue Bonds to finance the parking garage, the land acquisition for the public plaza and the costs associated with the issuance of the bonds. It also authorizes the City Manager to execute the necessary documents (i.e. Agreement of Trust, First Supplemental Agreement of Trust, Support Agreement, Bond Purchase Agreement, Preliminary Official Statement and Continuing Disclosure Agreement) to complete the transaction. On May 24~ VBDA approved UBS PaineWebber as the underwriter for the Bonds as recommended by City staff who undertook a request for proposal process for underwriter selection. Tentatively, PaineWebber will price the Bonds either the week of June 3~ or June 10th and will present their proposal to the Authority for approval at a special meeting of the Authority. The City's Financial Advisors will follow the pricing and make a recommendation to the City and Authority. After today's Council action no further vote of the City Council will be necessary for the issuance of these Bonds. The final terms of the bond sale will be provided to City Council. Public Information: Public Information has been handled through the normal Council Agenda process. Alternatives: There are no alternative funding sources at this time. This request follows Council's direction. Recommendations: The enclosed resolution is recommended for City Council approval. Attachments: Resolution Approving the Plan of Financing Agreement of Trust First Supplemental Agreement of Trust Support Agreement Bond Purchase Agreement Preliminary Official Statement (POS) Continuing Disclosure Agreement (Appendix D of POS) Recommended Action: Approval of Resolution Submitting Dep_artment/Agencaf: r~rx3.~M. -- RESOLUTION APPROVING A PLAN OF FINANCING FOR PHASE I OF THE TOWN CENTER PROJECT WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, APPROVING CERTAIN DOCUMENTS PREPARED IN CONNECTION WITH SUCH FINANCING AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE SAME WHEREAS, the City of Virginia Beach, Virginia (the "City"), has zoned a portion of the City located in the Pembroke area of the City as B-3 Central Business District to form the center for financial, commercial, professional and cultural development in a manner that complements the City's B-3A Pembroke Central Business Core District and the policies identified in the City's Comprehensive Plan; and WHEREAS, the City has zoned a portion of the property located within the B-3 Central Business District B-3A Pembroke Central Business Core District to optimize development potential for a mixed-use, pedestrian-oriented activity center with mid- to high-rise structures that contain numerous types of uses, including business, retail, residential, cultural, educational and other public and private uses, and publicly accessible community open space areas, generally reflective of the concepts identified in the City's Comprehensive Plan and the Pembroke Central -Business District Master Plan; and WHEREAS, the City has requested the City of Virginia Beach Development Authority (the "Authority"), at the request of and with the support of the City, to undertake a program involving the development of infrastructure and the construction of public facilities and other municipal improvements utilizing the structure of an economic development park in the B-3A Pembroke Central Business Core District, to facilitate the development of a central business district in the City and thus promote commerce and the prosperity of the citizens of Virginia Beach; and WHEREAS, as a part of the undertaking of such a program, the Council of the City (the "City Council") has by Ordinance No. 99-2567B (the "TIF Ordinance") created and designated a "development project area" (as defined in Section 58.1-3245 of the Code of Virginia of 1950, as amended) in the Pembroke area of the City and known as the "Central Business District - South" (the "District"); and WHEREAS, in furtherance of the purposes of the program and the T[F Ordinance, the City has requested the Authority to undertake the acquisition of (a) a parking garage located in the District, and (b) land for a public plaza and any improvements thereon (collectively, the "2002 Project"), and the Authority has determined to issue its public facility revenue bonds and to use the proceeds thereof to finance costs incun'ed in connection with the 2002 Project for the benefit of the City; and WHEREAS, the Authority proposes to issue its Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A (the "Series 2002A Bonds"), and its Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B (the "Series 2002B Bonds" and, together with the Series 2002A Bonds, the "Bonds"), in the maximum aggregate principal amount not to exceed $25,000,000 to finance the 2002 Project and to pay the costs of issuing the Bonds; and WHEREAS, the City Administration has recommended that UBS PaineWebber Inc. be approved as the underwriter (the "Underwriter") for the Bonds; and WHEREAS, there have been presented to this meeting drafts of the following documents (the "Documents"), proposed in connection with the undertaking of the 2002 Project and the issuance and sale of the Bonds: (a) Agreement of Trust draft dated May 20, 2002 as supplemented by a First Supplemental Agreement of Trust draft dated May 20, 2002, including the form the Bonds (collectively, the "Trust Agreement"), each between the Authority and a trustee to be named (the "Trustee"), pursuant to which the Bonds are to be issued and which is to be acknowledged and consented to by the City; Co) Support Agreement draft dated May 20, 2002, between the Authority and the City pursuant to which the City will make annual payments to the Authority in mounts sufficient to pay the principal of and interest on the Bonds; (c) Bond Purchase Agreement draft dated May 22, 2002, between the Authority, the Underwriter and the City; (d) Preliminary Official Statement draft dated May 22, 2002, of the Authority relating to the public offering of the Bonds (the "Preliminary Official Statement"); and (e) Continuing Disclosure Agreement draft dated May 22, 2002, pursuant to which the City agrees to undertake certain continuing disclosure obligations with respect to the Series 2002A Bonds and the Series 2002B Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The following plan for financing the 2002 Project is hereby approved. The Authority will issue the Bonds in a maximum aggregate principal amount not to exceed $25,000,000. The Authority will use the proceeds of the Bonds to finance the costs of the 2002 Project and the costs of issuing the Bonds. Pursuant to the Support Agreement, the City will make Annual Payments and Additional Payments (as each is defined in the Support Agreement) to the Authority in mounts sufficient to amortize the Bonds and to pay the fees or expenses of the Authority and the Trustee. The obligation of the Authority to pay principal of and premium, if any, and interest on the Bonds will be limited to annual payments and additional payments received from the City. The Bonds will be secured by an assignment of the Annual Payments and certain Additional Payments due under the Support Agreement, all for the benefit of the holders of the Bonds. The obligation of the City to make Annual Payments and Additional Payments will be subject to the City Council making annual appropriations in sufficient amounts for such purposes. The plan of financing for the 2002 Project shall contain such additional requirements and provisions as may be approved by the City. 2. The City Council, while recognizing that it is not empowered to make any binding commitment to make appropriations beyond the current fiscal year, hereby states its intent to make annual appropriations in future fiscal years in amounts sufficient to make all payments due under the Support Agreement and hereby recommends that future City Councils do likewise during the term of the Support Agreement. 3. The City Manager is hereby authorized and directed to execute the Documents, which shall be in substantially the forms submitted to this meeting, which are hereby approved, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager, his execution to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 4. In making completions to the Support Agreement, the City Manager, in collaboration with Government Finance Associates, Inc. and Govemment Finance Group, the City's financial advisors (the "Financial Advisors"), shall provide for Annual Payments in amounts equivalent to the payments on the Series 2002A Bonds and the Series 2002B Bonds, which shall be sold to the Underwriter on terms as shall be satisfactory to the City Manager; provided that the Annual Payments shall be equivalent to (a) the Series 2002A Bonds maturing in installments ending not later than in 2022; having a mae or "Canadian" interest cost not exceeding 7.0% (taking into account any original issue discount); being subject to optional redemption at a premium not to exceed 2% of their principal amount; and being sold to the Underwriter at a price not less than 98% of the aggregate principal amount thereof (without taking into account any original issue discount) and (b) the Series 2002B Bonds maturing in installments ending not later than in 2016; having a mae or "Canadian" interest cost not exceeding 8.0% (taking into account any original issue discount); being subject to optional redemption at a premium not to exceed 2% of their principal amount; and being sold to the Underwriter at a price not less than 98% of the aggregate principal amount thereof (without taking into account any original issue discount). The City Manager is also authorized to approve the principal amount of the Series 2002A Bonds, which shall be the tax-exempt portion of the Bonds, and the principal amount of the Series 2002B Bonds, which shall be the taxable portion of the Bonds as the City Manager shall determine to be in the best interest of the City. The City 2 Manager is further authorized to approve (x) a lesser principal amount fro' 'the Series 2002A Bonds and the Series 2002B Bonds, and (y) a maturity schedule, including serial maturities and term maturities for the Series 2002A Bonds and the Series 2002B Bonds as the City Manager shall determine to be in the best interest of the City. Following the sale of the Series 2002A Bonds and the Series 2002B Bonds, the City Manager shall evidence his approval of the final terms and purchase price of the Series 2002A Bonds and the Series 2002B Bonds by executing the Bond Purchase Agreement. The actions of the City Manager in approving the terms of the Series 2002A Bonds and the Series 2002B Bonds shall be conclusive, and no further action shall be necessary on the part of the City Council. 5. The Preliminary Official Statement in the form presented to this meeting is approved with respect to the information contained therein pertaining to the City. The Underwriter is authorized to distribute to prospective purchasers of the Series 2002A Bonds and the Series 2002B Bonds the Preliminary Official Statement in form deemed to be "near final," within the meaning of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"), with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager. Such distribution shall constitute conclusive evidence that the City has deemed the Preliminary Official Statement to be final as of its date within the -meaning of the Rule, with respect to the information therein pertaining to the City. The City Manager is authorized and directed to approve such completions, omissions, insertions and other changes to the Preliminary Official Statement that are necessary to reflect the terms of the sale of the Series 2002A Bonds and the Series 2002B Bonds, determined as set forth in paragraph 5, and the details thereof and that are appropriate to complete it as an official statement in final form (the "Official Statement") and distribution thereof by the Underwriter shall constitute conclusive evidence that the City has deemed the Official Statement final as of its date within the meaning of the Rule. 6. The City covenants that it shall not take or omit to take any action the taking or omission of which shall cause the Series 2002A Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations thereunder, or otherwise cause interest on the Series 2002A Bonds to be includable in the gross income for Federal income tax purposes of the registered owners thereof under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at any time to rebate to the United States of America any part of the earnings derived from the investment of the gross proceeds of the Series 2002A Bonds. The City shall pay fi.om its legally available general funds any amount required to be rebated to the United States of America pursuant to the Code. 7. The City Manager is authorized to cooperate with the Authority regarding obtaining a municipal bond insurance policy to guarantee the payment of principal of and interest on the Bonds if the City Manager, in collaboration with the Authority and the Financial Advisors, determines that selling the Bonds insured by such a policy would be in the best interests of the City. 8. The City Council hereby approves of the selection of UBS PaineWebber Inc. as the Underwriter for the Bonds. 9. Any authorization herein to execute a document shall include authorization to deliver it to the other parties thereto and to record such document where appropriate. 10. All other acts of the City Manager, the Director of Finance and other officers of the City that are in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds and the undertaking of the 2002 Project are hereby approved and ratified. 11. This Resolution shall take effect immediately. 3 Adopted by the Council of the City of Virginia Beach, Virginia,-on,the ,2002. day of CA-8496 R-2 APPROVED AS TO CONTENT: Finance Department APPROVED AS TO LEGAL SUFFICIENCY: 4 SUPPORT AGREEMENT between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and CITY OF VIRGINIA BEACH, VIRGINIA Dated as of June 1, 2002 NOTE: THIS SUPPORT AGREEMENT HAS BEEN ASSIGNED TO, AND IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE BANK OF NEW YORK, AS TRUSTEE UNDER AN AGREEMENT OF TRUST DATED AS OF JUNE 1, 2002, WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT 5 PENN PLAZA, 16TM FLOOR, NEW YORK, NEW YORK 10001. TABLE OF CONTENTS " ~' Page Parties ................................ : .............................................................................................................. 1 Recitals ............................................................................................................................................. 1 Granting Clauses .............................................................................................................................. 1 ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1. Section 1.2. Definitions ................................................................................................................ 2 Rules of Construction .............................................................................................. 3 ARTICLE II REPRESENTATIONS Section 2.1. · Section 2.2. Representations by Authority .................................................................................. 4 Representations by City ........................................................................................... 4 ARTICLE HI AGREEMENT TO ISSUE BONDS Section 3.1. Section 3.2. Section 3.3. Section 3.4. Agreement to Issue Bonds ....................................................................................... 6 Agreement to Issue Bonds to Finance Additional Projects ..................................... 6 Limitation of Authority's Liability .......................................................................... 6 Compliance with Agreement of Trust ...................................................................... 6 ARTICLE IV PAYMENT OBLIGATIONS Section 4.1. Section 4.2. Section 4.3. Section 4.4. Amounts Payable ..................................................................................................... 7 Payments Assigned .................................................................................................. 7 Obligation Unconditional ......................................................................................... 7 Appropriations of Annual Payments and Additional Payments .............................. 7 ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1. Prepayment and Redemption ................................................................................... 9 ARTICLE VI PARTICULAR COVENANTS Section 6.1. Section 6.2. Section 6.3. Section 6.4. Section 6.5. Limitation of Liability of Members, Commissioners, etc. of Authority and City. 10 Use of Proceeds ...................................................................................................... 10 Private Activity Covenants .................................................................................... 10 Preservation of Tax-Exempt Status of Interest ...................................................... 10 Maintenance of Existence of Authority ................................................................. 11 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Section 7.2. Section 7.3. Section 7.4. Section 7.5. Events of Default ................................................................................................... 12 Remedies ................................................................................................................ 12 Reinstatement after Event of Default ..................................................................... 12 No Remedy Exclusive ............................................................................................ 13 No Additional Waiver Implied by One Waiver ..................................................... 13 -i- Section 7.6. Attorneys' Fees and Other Expenses .......................................... 22..~.'. .................... 13 ARTICLE VIII [RESERVED] ARTICLE IX AGREEMENT OF TRUST; AMENDMENTS; ASSIGNMENT Section 9.1. Section 9.2. Section 9.3. Agreement of Trust; Covenants ............................................................................. 15 Amendments .......................................................................................................... 15 Assignment ............................................................................................................ 15 ARTICLE X ARBITRAGE REBATE FUND Section 10.1. .Section 10.2. Section 10.3. Section 10.4. Section 10.5. Arbitrage Rebate Fund ........................................................................................... 16 Rebate Requirement ............................................................................................... 16 Payment of Rebate Amount ................................................................................... 16 Reports by Trustee ................................................................................................. 17 Disposition of Balance in Series 2002A Arbitrage Rebate Fund .......................... 17 ARTICLE XI MISCELLANEOUS Section 11.1. Section 11.2. Section 11.3. Section 11.4. Section 11.5. Section 11.6. Section 11.7. Section 11.8. Notices ................................................................................................................... 18 Sevembility ............................................................................................................ 18 Amounts Remaining Under Agreement of Trust ................................................... 18 Limited Liability of City ........................................................................................ 18 Successors and Assigns .......................................................................................... 18 Counterparts ........................................................................................................... 18 Entire Agreement ................................................................................................... 18 Governing Law ...................................................................................................... 18 Signatures ....................................................................................................................................... 19 Receipt ........................................................................................................................................... 20 Exhibit A o Schedule of Payments .............................................................................................. A-1 -ii- THIS SUPPORT AGREEMENT dated as of the 1st day of June, 2002;by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "City"), provides: WITNESSETH: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Act authorizes the Authority to acquire, improve, maintain, equip, own, lease and dispose of"Authority facilities," as defined in the Act, to finance or refinance and lease facilities for use by, among others, a city, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, the City desires to undertake a program involving the development of -infrastructure and the construction of public facilities and other municipal improvements in the southern part of the Pembroke area of the City, which will facilitate the development of a central business district in the City, and thus promote commerce and the prosperity of the citizens of Virginia Beach; and WHEREAS, as a part of the undertaking of such a program, the Council of the City (the "City Council") has by Ordinance No. 99-2567B (the "TIF Ordinance") created and designated a "development program area" (as defined in Section 58.1-3245 of the Virginia Code (as hereinafter defined) in the Pembroke area of the City and known as the "Central Business District - South" (the "District"); and WHEREAS, in creating the District, City Council authorized the creation of a special fund entitled "Central Business District - South Tax Increment Financing Fund" (the "TIF Fund") into which City Council has directed "Tax Increment Revenues" (as defined in the TIF Ordinance) to be deposited and used to pay for the construction or acquisition of infrastructure, public facilities and other improvements in the District that the City determines to undertake from time to time (the "Projects"); and WHEREAS, [recital regarding service district - to come]; and WHEREAS, in furtherance of the purposes of the Act and the TIF Ordinance, the City has requested the Authority to undertake one or more Projects, and the Authority has determined to issue from time to time pursuant to the terms of an Agreement of Trust dated as of June 1, 2002 (the "Master Agreement of Trust"), between the Authority and The Bank of New York, as trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of June 1, 2002, between the Authority and the Trustee (the "First Supplemental Agreement of Trust," and together with the Master Agreement of Trust, the "Agreement of Trust"), its public facility revenue bonds and to use the proceeds thereof to finance costs incurred in connection with the Projects for the benefit of the City; and WHEREAS, such public facility revenue bonds will be secured by a pledge of the revenues and receipts received by the Authority from payments made by the City pursuant to this Support Agreement, with such payments anticipated to be derived from, among other sources, amounts in the TIF Fund and fi'om the proceeds of the service district taxes; and WHEREAS, all acts, conditions and things required by law to happen, exist and be performed precedent to and in connection with the execution of and entering into this Support Agreement have happened, exist and have been performed in regular and due time and in form and manner as required by law, and the parties hereto are now duly empowered to execute and enter into this Support Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other valuable consideration, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1. Definitions. Unless otherwise defined in this Support Agreement, all words used herein shall have the meanings assigned to such terms in the Master Agreement of Trust. The following words as used in this Support Agreement shall have the following meanings unless a different meaning clearly appears from the context: "Act" shall mean Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. "Account' shall mean any of the various Accounts created within a Fund under this Support Agreement. "Additional Payment(s)" shall mean such payment or payments made by the City pursuant to Section 4.1 Co) and (c) and Section 10.3. "Agreement of Trust" shall mean the Master Agreement of Trust and the First Supplemental Agreement of Trust. "Annual Budget" shall mean the budget by that name referred to in Section 4.4. "Annual Payment(s)" shall mean the payments made by the City under this Support Agreement in accordance with the schedule attached as Exhibit A hereto, which such payments correspond in amount to the payments of principal and interest due on all Outstanding Bonds, and which payments include payments pursuant to agreements with providers of credit enhancement or liquidity support with respect to such Bonds, to reimburse such providers for debt service payments made, and to pay credit enhancement or liquidity support fees with respect to such Bonds, scheduled to come due within a specified Fiscal Year. "Basic Agreements" shall mean the Agreement of Trust and this Support Agreement. "Development Agreement" shall mean the Development Agreement dated March 6, 2000, by and between Town Center Associates, L.L.C., a Virginia limited liability company, and the Authority, as amended. "Event of Default" shall mean the events enumerated in Section 7.1. "First Supplemental Agreement of Trust" shall mean the First Supplemental Agreement of Trust dated as of June 1, 2002, between the Authority and the Trustee supplementing the Master Agreement of Trust. "Fiscal Year" shall mean the twelve-month period beginning July 1 of one year and ending on June 30 of the following year, or such other fiscal year of twelve months as may be selected by the City. "Master Agreement of Trust" shall mean the Agreement of Trust dated as of June 1, 2002, between the Authority and the Trustee. "PIPG" shall have meaning given such term in the Development Agreement. "Project" or "Projects" shall mean, individually or collectively, the Series 2002 Project and any other project undertaken by the Authority, with the City's consent, from time to time and identified in a Supplemental Support Agreement, including without limitation, the financing or refinancing of the acquisition, construction, improvement or equipping of infi~astructure, public facilities and other improvements and facilities permitted to be undertaken pursuant to the provisions of the Act, including any extensions, additions, replacements, equipment and appurtenances to or for the benefit of such public facilities. "Public Plaza Land" shall have the meaning given such term in the Development Agreement. 2 "Series 2002 Bonds" shall mean, collectively, the Tax-Exempt Serieg'2002A Bonds and the Taxable Series 2002B Bonds. 10.1. "Series 2002 Project" shall mean the acquisition of the PIPG and the Public Plaza Land. "Series 2002A Arbitrage Rebate Fund" shall mean the fund established in Section "Supplemental Support Agreement" shall mean any Supplemental Support Agreement supplementing, amending or modifying the provisions of this Support Agreement entered into by the Authority and the City pursuant to Article X of the Master Agreement of Trust. "Support Agreement" shall mean this Support Agreement, as such Support Agreement may be supplemented, amended or modified by one or more Supplemental Support Agreements. "Tax-Exempt Series 2002A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A, authorized to be issued pursuant to the First Supplemental Agreement of Trust. "Taxable Series 2002B Bonds" shall mean the Authority's $ Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B, authorized to be issued pursuant to the First Supplemental Agreement of Trust. Section 1.2. Rules of Construction. The following rules shall apply to the construction of this Support Agreement unless the context otherwise requires: versa. (a) Words importing the singular number shall include the plural number and vice (b) Words importing the redemption or calling for redemption of Bonds shall not be deemed to refer to or connote the payment of Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Support Agreement. (d) The headings herein and Table of Contents to this Support Agreement herein are solely for convenience of reference and shall not constitute a part of this Support Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Bonds are references to payment of principal of and premium, if any, and interest on the Bonds. 3 ARTICLE II REPRESENTATIONS Section 2.1. Representations by Authority. The Authority makes the following representations: (a) The Authority is a political subdivision of the Commonwealth of Virginia duly created under the Act; (b) Pursuant to the Act, the Authority has full power and authority to enter into the Basic Agreements and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered such Basic Agreements; (c) The execution, delivery and compliance by the Authority with the terms and conditions of the Basic Agreements will not conflict with or constitute or result in a default under or violation of, (1) any existing law, role or regulation applicable to the Authority, or (2) any .mast agreement, mortgage, deed of mast, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or other restriction of any kind to which the Authority or any of its assets is subject; (d) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the Authority with the terms and conditions of the Basic Agreements, except that no representation is made as to the applicability of' any Federal or state securities laws; and (e) There is no litigation at law or in equity or any proceeding before any governmental agency involving the Authority pending or, to the knowledge of the Authority, threatened with respect to (1) the creation and existence of the Authority, (2) its authority to execute and deliver the Basic Agreements, (3) the validity or enforceability of the Basic Agreements or the Authority's performance of its obligations thereunder, (4) the title of any officer of the Authority executing the Basic Agreements, or (5) the ability of the Authority to issue and sell its bonds. Section 2.2. Representations by City. The City makes the following representations: (a) The City is a political subdivision of the Commonwealth of Virginia; (b) The City has full power and authority to enter into the Basic Agreements to which it is a party and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered such Basic Agreements; (c) The City is not in default in the payment of the principal of or interest on any of its indebtedness for borrowed money and is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in an event of default thereunder; (d) The City is not in default under or in violation of, and the execution, delivery and compliance by the City with the terms and conditions of the Basic Agreements to which it is a party will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the City or (2) any mast agreement, mortgage, deed of mast, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or restriction of any kind to which the City or any of its assets is subject, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in such a default or violation; 4 (e) No further approval, consent or withholding of objection 6n 'fhe part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the City with the terms and conditions of the Basic Agreements to which it is/t party; and (f) There is no litigation at law or in equity or any proceeding before any governmental agency involving the City pending or, to the knowledge of the City, threatened with respect to (1) the authority of the City to execute and deliver the Basic Agreements to which it is a party, (2) the validity or enforceability of such Basic Agreements or the City's performance of its obligations thereunder, (3) the title of any officer of the City executing such Basic Agreements, or (4) the ability of the City to undertake the Series 2002 Project. ARTICLE HI AGREEMENT TO ISSUE BONDS Section 3.1. Agreement to Issue Bonds. The Authority hereby agrees, simultaneously with the execution and delivery hereof, to proceed with the issuance and sale of the Series 2002 Bonds, bearing interest, maturing and having the other terms and provisions set forth in the First Supplemental Agreement of Trust. The proceeds of the Series 2002 Bonds will be used to finance the costs of the Series 2002 Project. Subject to the limitation of Section 4.4, the City agrees to make all Annual Payments and Additional Payments when and as the same shall become due and payable in mounts sufficient to pay the principal of and premium, if any, and interest on the Series 2002 Bonds. Section 3.2. Agreement to Issue Bonds to Finance Additional Projects. In order to finance the Costs of Projects for the City in addition to the Series 2002 Project, the Authority agrees that it shall, fi:om time to time, issue additional Series of Bonds for such purposes. Such additional Series of Bonds shall be issued, from time to time under the .terms of the Agreement of Trust, solely to finance Projects approved by the City. The obligation of the Authority to issue additional Series of Bonds shall be conditioned upon compliance with the provisions of Section 303 of the Master Agreement of Trust. Section 3.3. Limitation of Authority's Liability. Anything contained in this Support Agreement to the contrary notwithstanding, any obligation the Authority may incur in connection with the issuance of a Series of Bonds, including the Series 2002 Bonds, for the payment of money shall not be deemed to constitute a debt or general obligation of the Authority within any constitutional or statutory limitations, but shall be payable solely from the revenues and receipts derived by it pursuant to this Support Agreement and from other moneys and security specifically pledged pursuant to the terms of the Agreement of Trust. Section 3.4. Compliance with Agreement of Trust. If the City is not in default under this Support Agreement, the Authority, at the request of the City, shall take (a), if the Bonds are then redeemable under the Agreement of Trust, all steps that may be necessary to effect redemption thereunder and (b) any other action required by the Agreement of Trust. By its execution of this Support Agreement, the City acknowledges its approval of all the terms and conditions set forth in the Agreement of Trust. 6 ARTICLE IV -' ~ PAYMENT OBLIGATIONS Section 4.1. Amounts Payable. (a) Subject to the limitation of Section 4.4, the City shall pay to the Authority or its assignee the Annual Payments specified in Exhibit A, as such Exhibit A may be amended from time to time to reflect the issuance of additional Bonds under the Agreement of Trust, on or before the due dates set forth in Exhibit A. The Annual Payments shall be payable without notice or demand at the principal corporate trust office of the Trustee. The City shall receive a credit against its obligation to make the next succeeding Annual Payment due under this Support Agreement in an amount equal to any amounts on deposit in the Bond Fund and any interest income derived from the investment thereof held by the Trustee in the Bond Fund, provided that such amounts have not been applied previously as a credit with respect to any Annual Payment and will be available to make the corresponding payments on the Bonds then Outstanding. (b) Subject to the limitation of Section 4.4 and subject to the terms of a more specific agreement as to compensation entered into by the City and the Trustee, the City agrees to make -Additional Payments to pay to the Trustee until payment in full of all Bonds then Outstanding its reasonable fees for services rendered and for expenses reasonably incurred by the Trustee under the Agreement of Trust, and for any cost or expense necessary to cancel and discharge the Agreement of Trust upon payment of all Bonds then Outstanding. (c) Subject to the limitation of Section 4.4, the City agrees to make Additional Payments to pay (1) the Authority's annual administrative fee payable on August 1 of each year in the amount equal to 1/8 of 1% of the principal amount of all Bonds then Outstanding, (2) any expenses incurred by the Authority in connection with its obligations under this Support Agreement and (3) all other amounts which the City agrees to pay under the terms of this Support Agreement, but not including Annual Payments. Section 4.2. Payments Assigned. The Authority and the City acknowledge and agree that all Annual Payments and Additional Payments (except the right of the Authority to the payment of fees, costs and expenses and the right to receive notices as provided in this Support Agreement and in the Agreement of Trust) are assigned by the Agreement of Trust to the Trustee. The City consents to such assignment and agrees to pay to the Trustee all amounts payable by the City that are so assigned. Section 4.3. Obligation Unconditional. Except as otherwise provided in this Support Agreement, including the limitation in Section 4.4, the obligations of the City to make all Annual Payments and to observe all other covenants, conditions and agreements under the Basic Agreements shall be absolute and unconditional, irrespective of any right of setoff, recoupment or counterclaim the City may otherwise have against the Authority, and the City shall not suspend or discontinue any such Annual Payment or fail to observe and perform any of its covenants, conditions and agreements under the Basic Agreements. Section 4.4. Appropriations of Annual Payments and Additional Payments. While recognizing that it is not empowered to make any binding commitment to make Annual Payments and Additional Payments beyond the current Fiscal Year, the City Council in authorizing the execution of this Support Agreement has stated its intent to make annual appropriations sufficient to make the Annual Payments and Additional Payments. Notwithstanding anything in this Support Agreement to the contrary, the City's obligations to pay the cost of performing its obligations under this Support Agreement and the Agreement of Trust, including its obligations to pay all Annual Payments and Additional Payments, shall be subject to and dependent upon appropriations being made from time to time by the City Council for such purpose; provided, however, that the City Manager or other officer charged with the responsibility for preparing the City's Annual Budget shall include in the budget for each Fiscal Year as a single appropriation the amount of all Annual Payments and estimated Additional Payments coming due during such Fiscal Year. Thro'ugtiout the term of this Support Agreement, the City Manager or other officer charged with the responsibility for preparing the City's Annual Budget shall deliver to the Trustee and the Authority within 10 days after the adoption of the A2,a_nual Budget for each Fiscal Year, but not later than 10 days after the beginning of each Fiscal Year, a certificate stating whether an amount equal to the Annual Payments and estimated Additional Payments which will come due during such Fiscal Year has been appropriated by the City Council in such budget. If any adopted Annual Budget does not include an appropriation of funds sufficient to pay both Annual Payments and estimated Additional Payments coming due for the relevant Fiscal Year, the City Council shall take a roll call vote immediately after adoption of such Annual Budget acknowledging the impact of its failure to appropriate such funds. If, by 15 days after the beginning of the Fiscal Year, the City Council has not appropriated funds for the payment of both Annual Payments and estimated Additional Payments coming due for the then current Fiscal Year, the City Manager or other officer charged with the responsibility for preparing the City's Annual Budget shall give written notice to the City Council of the consequences of such failure to appropriate and request the City Council to consider a supplemental appropriation for such purposes. 8 ARTICLE V "" PREPAYMENT AND REDEMPTION Section 5.1. Prepayment and Redemption. The City shall have the option to prepay any Annual Payments at the times and in the mounts as necessary to enable the Authority to exercise its option to cause the related Series of Bonds to be redeemed as set forth in such Bonds. Such prepayments of Annual Payments shall be made at the times and in the mounts as necessary to accomplish the optional redemption of the related Series of Bonds as set forth in such Bonds. Upon the exercise of such option, the City shall also pay as Additional Payments, the amounts necessary to pay the premium, if any, due on such Bonds on the date or dates of their redemption. The City shall direct the Authority to send to the Trustee notice of any redemption of such Series at least 15 days prior to the latest date that notice of redemption may be given pursuant to Section 402 of the Master Agreement of Trust, such notice to the Trustee to specify the redemption date, the principal amount of such Series to be redeemed, the premium, if any, and the section of the Agreement of Trust pursuant to which such redemption is to be made. 9 ARTICLE VI PARTICULAR COVENANTS Section 6.1. Limitation of Liability of Members, Commissioners, etc. of Authority and City. No covenant, agreement or obligation contained in this Support Agreement shall be deemed to bca covenant, agreement or obligation of any present or future member, officer, commissioner, employee or agent of the Authority in his individual capacity, and neither the members of the Authority nor any officer thereof executing any Series of Bonds shall be liable personally on such Bonds or bc subject to any personal liability or accountability by reason of the issuance thereof. No member, commissioner, officer, employee or agent of the Authority shall incur any personal liability with respect to any other action taken by him pursuant to this Support Agreement or the Act or any of thc transactions contemplated thereby provided that he acts in good faith. No covenant, agreement or obligation contained herein shall be deemed to be a covenant, agreement or obligation of any present or future council member, officer, employee or agent of -the City in his individual capacity, and no council member, officer, employee or agent of the City shall incur any personal liability with respect to any Series of Bonds or action taken by him pursuant to this Support Agreement, provided that such council member, officer, employee or agent acts in good faith. Section 6.2. Use of Proceeds. The City shall not (a) take any action or use the proceeds of any Bonds (including failure to spend the same with due diligence) or take any other action, which would cause any Bonds (the interest on which was excludable fi.om gross income for Federal income tax purposes at the time of their issuance) to be "arbitrage bonds" within the meaning of Section 148 of the Code, or (b) barring unforeseen circumstances, approve the use of the proceeds from the sale of any Bonds (the interest on which was excludable fi.om gross income for Federal income tax purposes at the time of their issuance) otherwise than in accordance with the Authority's "non-arbitrage" certificate given immediately prior to the issuance of such Bonds. Section 6.3. Private Activity Covenants. The City covenants not to permit the proceeds of any Bonds (the interest on which was excludable fi.om gross income for Federal income tax purposes at the time of their issuance) to be used in any manner that would result in (a) 10% or more of such proceeds or the facilities financed with such proceeds being used in a trade or business carded on by any person other than a governmental unit, as provided in Section 141(b) of the Code, provided that no more than 5% of such proceeds may be used in a trade or business unrelated or disproportionate to the City's use of the Project financed by such Bonds, (b) 5% or more of such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water), within the meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(c) of the Code; provided, however, that if the City receives an opinion of Bond Counsel that any such covenants need not be complied with to prevent the interest on such Bonds from being includable in the gross income for Federal income tax purposes under existing law, the City need not comply with such covenants. Section 6.4. Preservation of Tax-Exempt Status of Interest. The City shall not use any Project, or any portion thereof, for any use that would adversely affect the exclusion of interest fi.om gross income for Federal income tax purposes on any Bonds the interest on which was excludable from gross income at the time of their issuance. Without limiting the generality of the foregoing, the City covenants to either (i) take actions to prevent any such use that would cause such Bonds to be "private activity bonds," (ii) redeem any Bond whose tax status would be adversely affected by such use prior to commencement of the proposed use or (iii) take remedial action under the Code which would allow such use to be undertaken without an adverse effect on the tax status of Bonds the interest on which was excludable from gross income at the time of their issuance. 10 Section 6.5. Maintenance of Existence of Authority. Except for the assignment of its rights under this Support Agreement to the Trustee pursuant to the Agreemef~t of Trust, the Authority agrees that it will not assign, transfer or convey its interest in this Support Agreement or any of the revenues to be derived therefrom. The Authority further agrees that, until the Bonds have been paid in full, the Authority will not (a) dissolve or otherwise dispose of all or substantially all of its assets, (b) consolidate with or merge into any authority, corporation, association or other body, (c) permit any other authority, corporation, association or other body to consolidate with or merge into it, (d) act jointly with any other authority, corporation, association or other body (other than the City and the Trustee) with respect to the transactions contemplated by this Support Agreement and the Agreement of Trust, or (e) take any action or refrain from taking any action which would (i) permit any of the foregoing to be required by operation of law or (ii) which would permit it, or require it by operation of law, to avoid its obligations under this Support Agreement or the Agreement of Trust or any other agreement contemplated hereby; provided, however, that nothing contained in this Section shall prevent the consolidation of the Authority with, or the merger of the Authority into, or the transfer of the interest of the Authority in this Support Agreement as an entirety to, any public corporation whose property and income are not subject to taxation and which has the corporate authority to carry out the transactions contemplated by this Support Agreement and the -Agreement of Trust, but only on the condition that (A) reasonable prior notice of such consolidation, merger or transfer is given to the City and the Trustee, and (B) upon any such consolidation, merger or transfer, the obligation of the Authority to make due and punctual payment of the principal of and redemption premium, if any, and interest on the Bonds according to their tenor and to perform and observe all of the agreements and conditions of this Support Agreement and the Agreement of Trust shall be expressly assumed in writing by the corporation resulting from such consolidation or surviving such merger or to which the interest of the Authority in this Support Agreement shall be transferred as an entirety. 11 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Events of Default. (a) Each of the following events shall be an Event of Default: (1) Default in the due and punctual payment of an Annual Payment when the same becomes due and payable and continuation of such failure for a period of five days; or (2) Failure of the City to pay when due any other payment due under this Support Agreement, other than payments (except any payment of any redemption premium due on Bonds) under Sections 4. l(b) and (c), or to observe and perform any covenant, condition or agreement on its part to be observed or performed, which failure shall continue for a period of 30 days after notice is given, or in the case of any such default that cannot with due diligence be cured within such 30 day period but can be cured within the succeeding 60 days, failure of the City to proceed promptly to cure the same and thereafter prosecute the curing of such default with due diligence. (b) The provisions of the foregoing subparagraph (a)(2) are subject to the limitation that if by reason of force majeure the City is unable in whole or in part to perform any of its covenants, conditions or agreements hereunder, the City shall not be deemed in default during the continuance of such inability. The term "force majeure" as used herein shall include without limitation acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the government of the United States of America or the Commonwealth of Virginia or any political subdivision thereof or any of their departments, agencies or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; earthquakes; fires; hurricanes; tomadoes; storms; floods; washouts; droughts; restraint of government and people; or civil disturbances. The City shall remedy with all reasonable dispatch the cause or causes preventing the City from carrying out its covenants, conditions and agreements, provided that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the City, and the City shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of any opposing party when such course is in the judgment of the City not in its best interests. (c) Notwithstanding anything contained in this Section to the contrary, (1) failure by the City to pay when due any payment required to be made under this Support Agreement or (2) failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Support Agreement, either of which results from failure of the City to appropriate moneys for such purposes, as described in Section 4.4, shall not constitute an Event of Default. Upon any such failure to appropriate, the provisions of Article VIII shall be applicable. Section 7.2. Remedies. Whenever any Event of Default shall have happened and is continuing, the Authority may take whatever action at law or in equity, other than to declare the entire unpaid principal balance of Annual Payments to be immediately due and payable, may appear necessary or desirable to collect the Annual Payments and Additional Payments then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the City under this Support Agreement. Any amounts received by the Authority pursuant to the foregoing provisions shall be applied first to costs, then to any unpaid interest and then to repayment of principal, and upon payment in full of all amounts due such excess shall be deposited in the Bond Fund and credited to the next Annual Payment to the extent such Payments have not been paid in full. This provision shall survive termination of this Support Agreement. Section 7.3. Reinstatement after Event of Default. Notwithstanding the exercise by the Authority of any remedy granted by Section 7.2, if all overdue Annual Payments, together with any interest thereon, and all Additional Payments shall have been made, then the City's default under this Support Agreement shall be waived 12 without further action by the Authority. Upon such payment and waivei., this Support Agreement shall be fully reinstated and all Annual Payments will be due and payable in accordance with the previously determined schedule. Section 7.4. No Remedy Exclusive. No remedy conferred by this Support Agreement upon or reserved to the Authority is intended to be exclusive of any other available remedy or remedies, but every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof or acquiescence therein, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 7.5. No Additional Waiver Implied by One Waiver. Failure by the Authority at any time to require performance by the City of any provision hereof shall in no way affect the Authofity's fight hereunder to enforce the same, nor shall any waiver by the Authority of any breach of any provision hereof be held to be a waiver of any succeeding breach of any such provision, or as a waiver of the provision itself. Section 7.6. Attorneys' Fees and Other Expenses. Subject to the limitation in Section 4.4, the City shall on demand pay to the Authority and the Trustee the reasonable fees of attorneys and other reasonable expenses incurred by either of them in the collection of appropriated, but unpaid, Annual Payments or Additional Payments, or the enforcement of any other obligation of the City, or its agents, upon an Event of Default. 13 ARTICLE VIII [RESERVED] 14 ARTICLE IX "" AGREEMENT OF TRUST; AMENDMENTS; ASSIGNMENT Section 9.1. Agreement of Trust; Covenants. (a) Contemporaneously with the execution of this Support Agreement, the Authority has entered into the Agreement of Trust with the Trustee. The City shall not be obligated to take any notice of any sale, assignment, reassignment, pledge, mortgage, transfer or other disposition of any interest in this Support Agreement by the Authority, unless such sale, assignment, reassignment, pledge, mortgage, transfer or other disposition is undertaken in accordance with the Agreement of Trust, and the City shall have received a duplicate original counterpart of the document by which the assignment, reassignment, pledge, mortgage, transfer or other disposition is made, disclosing the name and address of the person or entity receiving such interest; provided, however, that if such assignment, reassignment, pledge, mortgage, transfer or other disposition is made to a bank or trust company as trustee or paying agent or escrow agent for the Authority's bonds, it shall thereafter be sufficient that a copy of the trust instrument or agency agreement shall have been deposited with the City until the City shall have been advised that such trust instrument or agency agreement is no longer in effect. CO) Subject to Section 4.4, the City covenants to take whatever action may be necessary for the Authority to comply with the Authority's covenants under the Agreement of Trust including, without limitation, to supply all information required to be stated on Internal Revenue Service Forms 8038-G and 8038-T, or any successors to such forms. (c) The City agrees, for the benefit of the holders of the Bonds, to do and perform all acts and things contemplated in the Agreement of Trust to be done or performed by it. The Authority agrees that it shall not execute or permit any amendment or supplement to the Agreement of Trust which affects any fight, power or authority of the City under this Support Agreement or requires a revision of this Support Agreement without the prior written consent of the City. Section 9.2. Amendments. This Support Agreement shall not be supplemented, amended or modified prior to the payment of all Outstanding Bonds, without the consent of the Trustee, given in accordance with Article X of the Master Agreement of Trust. Section 9.3. Assignment. Simultaneously with the execution of this Support Agreement, the Authority has entered into the Master Agreement of Trust by which the Authority has assigned all of its rights in and to this Support Agreement (except its rights to receive payment of its fees and expenses, to receive notices and to give consents) to the Trustee for the benefit of the holders of the Bonds. The City (a) consents to such assignment, Co) agrees to execute and deliver such further acknowledgments, agreements and other instruments as may be reasonably requested by the Authority or the Trustee to effect such assignment, (c) agrees to make all payments due to the Authority under this Support Agreement directly to the Trustee (except the Authority's rights to receive payment of its fees and expenses, to receive notices and to give consents), subject to Section 4.4, and (d) agrees to comply fully with the terms of such assignment so long as such assignment is not inconsistent with the provisions hereof. All references in this Support Agreement to the Authority shall include the Trustee for the benefit of the Bondholders and their successors and assigns, whether or not specific reference is otherwise made to the Trustee, unless the context requires otherwise. 15 ARTICLE X ARBITRAGE REBATE FUND Section 10.1. Arbitrage Rebate Fund. There is hereby established the City of Virginia Beach, Virginia, Series 2002A Public Facility Revenue Bond Arbitrage Rebate Fund to be held by the City. Subject to the limitation in Section 4.4, the City shall deposit moneys in the Series 2002A Arbitrage Rebate Fund from time to time for payment of the rebate obligations due under the Code with respect to the Tax-Exempt Series 2002A Bonds (the "Rebate Amount"). The City may establish separate accounts in the Series 2002A Arbitrage Rebate Fund for such payments. Section 10.2. Rebate Requirement The City covenants that (i)all actions with respect to the Tax-Exempt Series 2002A Bonds required by Section 148(0 of the Code shall be taken, (ii) it shall at its sole expense make the rebate determinations required under the Code with respect to the Tax-Exempt Series 2002A Bonds and promptly notify the Trustee and the Authority of the same, together with supporting -calculations, and deposit in the Series 2002A Arbitrage Rebate Fund such amounts as are shown to be due by such calculations, and (iii)it shall within forty-five (45) days after the final payment, whether upon redemption in whole or at maturity, of the Tax-Exempt Series 2002A Bonds, file with the Trustee, and, at the request of the Authority, with the Authority, a statement signed by the City to the effect that the City is then in compliance with its covenants contained in clauses (i) and (ii) of this section, together with supporting calculations; provided, however, that if the City shall furnish an opinion of Bond Counsel to the Trustee to the effect that no further action by the City is required for such compliance with respect to the Tax-Exempt Series 2002A Bonds, the City shall not thereafter be required to deliver any such statements or calculations. Notwithstanding the foregoing, the City shall take such steps and provide such information to the Authority as may be required by the Authority for it to meet any requirements (relating to rebate or otherwise) required by the Code, the Internal Revenue Service, or any other Federal or state government agency. Section 10.3. Payment of Rebate Amount (a) Not later than 30 days after each fifth anniversary of the date of issuance of the Tax-Exempt Series 2002A Bonds, the City shall deliver to the Trustee and, at the request of the Authority, to the Authority, a certificate (a "Rebate Amount Certificate") prepared or approved at the expense of the City by independent certified public accountants of recognized standing, setting forth the "Rebate Amount" determined to be due to the United States of America as of such ilfth anniversary date under the Treasury Regulations with respect to the Tax-Exempt Series 2002A Bonds and the computation thereof, and the City shall pay to the United States of America on behalf of the Authority an amount equal to not less than 90% of the Rebate Amount set forth in such Rebate Amount Certificate. (b) Not later than 45 days after payment of the Tax-Exempt Series 2002A Bonds, the City shall deliver to the Trustee, and, at the request of the Authority, to the Authority, a Rebate Amount Certificate setting forth the Rebate Amount due to the United States of America upon payment of the Tax-Exempt Series 2002A Bonds, and the City shall pay to the United States of America on behalf of the Authority the amount, if any, by which 100% of the Rebate Amount set forth in such Rebate Amount Certificate exceeds the aggregate of all payments theretofore made pursuant to subsection (a). (c) The Authority covenants that, if so requested by the City, it shall execute any form required to be signed by an issuer of tax-exempt bonds in connection with the payment of any Rebate Amount (including Internal Revenue Service Form 8038-T) based on information supplied to the Authority by the City. The City shall supply all information required to be stated on such form and shall prepare such form. Except for the execution and delivery of such form upon timely presentation by the City, the Authority shall have no responsibility for such form or the information stated thereon. (d) The Trustee and the Authority shall be fully protected in acting on any Rebate Amount determination made by the City at any time pursuant to this Section or contained in any 16 Rebate Amount Certificate and shall not be liable or responsible in any mann~'r t6 any person for so acting, notwithstanding any error in any such determination. Section 10.4. Reports by Trustee. The Trustee shall provide the City within 10 days after each and within 10 days after the final payment of the Tax-Exempt Series 2002A Bonds with such reports and information with respect to earnings of amounts held under the First Supplemental Agreement of Trust as may be requested by the City in order to comply with the provisions of this Article. Section 10.5. Disposition of Balance in Series 2002A Arbitrage Rebate Fund. After each payment required in Section 10.3 is made and any additional amount necessary to pay the full rebate obligation is retained, the remaining amount in the Series 2002A Arbitrage Rebate Fund shall be retained by the City and used for any lawful purpose. 17 ARTICLE XI MISCELLANEOUS Section 11.1. 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: City Manager), Co) if to the Authority, at One Columbus Center, Suite 300, Virginia Beach, Virginia 23462 (Attention: Chairman) and (c) if to the Trustee, 5 Penn Plaza, 16th Floor, New York, New York 10001 (Attention: Corporate Trust Department). The City, the Authority and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed. Section 11.2. Severability. If any provision of this Support Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. Section 11.3. Amounts Remaining Under Agreement of Trust. Any amount with respect to the Bonds remaining in any fund or account created under the Agreement of Trust shall, after payment of all amounts due from the City pursuant to the Basic Agreements, belong to and be paid to the City. Section 11.4. Limited Liability of City. Notwithstanding any provision of the Basic Agreements to the contrary, the obligations of the City under the Basic Agreements are not general obligations of the City, but are limited obligations payable solely fi.om payments of Annual Payments and Additional Payments. No officer, official, employee or agent of the City shall be personally liable on the City's obligations hereunder. The Authority shall not be liable under any circumstances for the actions of the City, as agent for the Authority, or for any actions of the City under the Basic Agreements. The Authority shall not be liable under any circumstances for the actions of the Trustee under the Basic Agreements. Section 11.5. Successors and Assigns. This Support Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 11.6. Counterparts. This Support Agreement may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute but one and the same insmanent. Section 11.7. Entire Agreement. 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 11.8. Governing Law. This Support Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. 18 IN WITNESS WHEREOF, the parties have caused this Support Agreement to be duly executed and effective as of the 1 st day of June, 2002, by their duly authorized representatives. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By: Chairman CITY OF VIRGINIA BEACH, VIRGINIA By: Its: Seen and agreed to: THE BANK OF NEW YORK, as Trustee By Its 19 RECEIPT Receipt of the fore, going original counterpart of the Support Agreement dated as of June 1, 2002, between the City of Virginia Beach Development Authority and the City of Virginia Beach, Virginia, is hereby acknowledged. THE BANK OF NEW YORK, as Trustee By. Its 20 EXHIBIT A SCHEDULE OF PAYMENTS Tax-Exempt Tax-Exempt Taxable Taxable Series 2002A Series 2002A Series 2002B Series 2002B Bonds Bonds Bonds Bonds Total Due Date Principal Interest Principal Interest Payment 22764.000246 RICHMOND 822839v4 A-1 AGREEMENT OF TRUST between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and THE BANK OF NEW YORK, as Trustee Dated as of June 1, 2002 Relating to City of Virginia Beach Development Authority Public Facility Revenue Bonds TABLE OF CONTENTS Parties ............................................................................................................................................. 1 Recitals ............................................................................................................................................. 1 Granting Clause ............................................................................................................................... 1 ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 101. Definitions ............................................................................................................... 3 Section 102. Rules of Construction ............................................................................................. 5 ARTICLE II EXECUTION, AUTHENTICATION, REGISTRATION AND FORM OF BONDS Section 201. 'Section 202. Section 203. Section 204. Section 205. Section 206. Section 207. Section 208. Section 209. Form and Details of Bonds ..................................................................................... 6 Execution of Bonds ................................................................................................. 6 Authentication of Bonds ......................................................................................... 6 Registration and Transfer of Bonds; Persons Treated as Owners ........................... 6 Exchange of Bonds; Charges for Exchange of Bonds ............................................ 7 Temporary Bonds .................................................................................................... 7 Mutilated, Lost or Destroyed Bonds ....................................................................... 7 Cancellation and Disposition of Bonds ................................................................... 7 Non-Presentment of Bonds ..................................................................................... 7 ARTICLE III ISSUANCE OF BONDS Section 301. Section 302. Section 303. Purposes of Bonds ................................................................................................... 9 Parity of Bonds ....................................................................................................... 9 Conditions for Issuing Bonds .................................................................................. 9 ARTICLE IV REDEMPTION OF BONDS Section 401. Section 402. Section 403. Redemption Provisions to be Fixed by Supplemental Agreements of Trust ........ 12 Notice of Redemption ........................................................................................... 12 Bonds Payable on Redemption Date; Interest Ceases to Accrue .......................... 12 ARTICLE V PROJECT FUND Section 501. Section 502. Section 503. Section 504. Creation of Project Fund; Deposit of Bond Proceeds ........................................... 14 Cost of a Project .................................................................................................... 14 Payments from Project Fund ................................................................................. 14 Disposition of Balance in Project Fund ................................................................ 14 ARTICLE VI FUNDS AND ACCOUNTS Section 601. Section 602. Section 603. Section 604. Section 605. Creation of Funds and Accounts ........................................................................... 15 Bond Fund ............................................................................................................. 15 Other Funds and Accounts .................................................................................... 16 Pledge of Certain Funds and Accounts ................................................................. 16 Disposition of Balances in Funds after Payment of Bonds ................................... 16 ARTICLE VII "~ SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS Section 701. Section 702. Section 703. Section 704. Section 705. Section 706. Section 707. Security for Deposits ............................................................................................. 17 Investment of Moneys ........................................................................................... 17 Investment of Surplus Moneys ............................................................................. 17 Valuation of Investments ...................................................................................... 17 Investments Through Trustee's Bond Department ............................................... 17 Investments by Trustee ......................................................................................... 18 Investments in Bonds by Trustee .......................................................................... 18 ARTICLE VIII PARTICULAR COVENANTS Section 801. Section 802. Section 803. -Section 804. Section 805. Section 806. Payment of Bonds; Limited Obligations ............................................................... 19 Authority Covenants, Representations and Warranties ........................................ 19 Notice of Non-Payment; Reserve Deficit; Non-Appropriation ............................ 21 No Obligation to Bondholders for Annual Payment ............................................ 21 Trustee Covenants ................................................................................................. 21 Further Assurances ................................................................................................ 21 ARTICLE IX DEFAULTS AND REMEDIES Section 901. Section 902. Section 903. Section 904. Section 905. Section 906. Section 907. Section 908. Section 909. Events of Default .................................................................................................. 22 Remedies; Rights of Bondholders ........................................................................ 22 Right of Bondholders to Direct Proceedings ........................................................ 22 Application of Moneys ......................................................................................... 22 Remedies Vested in Trustee .................................................................................. 23 Limitation on Suits ................................................................................................ 24 Termination of Proceedings .................................................................................. 24 Waivers of Events of Default ................................................................................ 24 Unconditional Right to Receive Principal, Premium and Interest ........................ 24 ARTICLE X SUPPLEMENTAL AGREEMENTS OF TRUST; AMENDMENTS TO SUPPORT AGREEMENT Section Section Section Section Section Section Section Section 1001. 1002. 1003. 1004. 1005. 1006. 1007. 1008. Supplemental Agreements Not Requiring Consent of Bondholders .................... 26 Supplemental Agreements Requiring Consent of Bondholders ...........................26 Amendments to Support Agreement Not Requiring Consent of Bondholders .......................................................................................................... 27 Amendments to Support Agreement Requiring Consent of Bondholders ............ 27 Limitation on Amendments .................................................................................. 28 Amendment by Unanimous Consent .................................................................... 28 Opinion of Counsel Required ............................................................................... 28 Consent of the City ............................................................................................... 28 ARTICLE XI THE TRUSTEE Section Section Section Section Section Section Section 1101. 1102. 1103. 1104. 1105. 1106. 1107. Acceptance of Trusts and Obligations .................................................................. 29 Fees, Charges and Expenses of Trustee ................................................................ 30 Intervention by Trustee ......................................................................................... 30 Merger or Consolidation of Trustee ...................................................................... 31 Resignation by Trustee ......................................................................................... 31 Removal of Trustee ............................................................................................... 31 Appointment of Successor Trustee by Bondholders; Temporary Trustee ............ 31 ii Section 1108. Section 1109. Section 1110. Concerning any Successor Trustee. "" 31 Trustee Protected in Relying on Agreements, Etc ................................................ 32 Successor Trustee as Paying Agent, Registrar and Custodian of Funds ............... 32 ARTICLE XlI DISCHARGE OF AGREEMENT Section 1201. Discharge of Liens and Pledges; Bonds No Longer Deemed to Be Outstanding Hereunder ......................................................................................... 33 ARTICLE XIII MISCELLANEOUS Section 1301. Section 1302. Section 1303. Section 1304. _Section 1305. Section 1306. Section 1307. Section 1308. Consents, etc., of Bondholders ............................................................................. 35 Limitation of Rights .............................................................................................. 35 Limitation of Liability of Authority, Etc .............................................................. 35 Severability ........................................................................................................... 35 Notices .................................................................................................................. 35 Successors and Assigns ......................................................................................... 35 Applicable Law ..................................................................................................... 36 Counterparts .......................................................................................................... 36 Signatures ....................................................................................................................................... 37 111 THIS AGREEMENT OF TRUST dated as of the 1st day of June,' 2002, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and THE BANK OF NEW YORK, a New York banking corporation, having a corporate trust office in New York, New York, as trustee (in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Act authorizes the Authority to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance and lease facilities for use by, among others, a city, to issue its revenue bonds, notes and other obligations fi.om time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, the City of Virginia Beach, Virginia (the "City") desires to undertake a program involving the development of infrastructure and the construction of public facilities and other municipal improvements in the southern part of the Pembroke area of the City, which will facilitate the development of a central business district in the City, and thus promote commerce and the prosperity of the citizens of Virginia Beach; and WHEREAS, as a part of the undertaking of such a program, the Council of the City (the "City Council") has by Ordinance No. 99-2567B (the "TIF Ordinance") created and designated a "development program area" (as defined in Section 58.1-3245 of the Virginia Code (as hereinafter defined) in the Pembroke area of the City and known as the "Central Business District - South" (the "District"); and WHEREAS, in creating the District, City Council authorized the creation of a special fund entitled "Central Business District - South Tax Increment Financing Fund" (the "TIF Fund") into which City Council has directed "Tax Increment Revenues" (as defined in the TIF Ordinance) to be deposited and used to pay for the construction or acquisition of infrastructure, public facilities and other improvements in the District that the City determines to undertake from time to time (the "Projects"); and WHEREAS, [recital regarding service district - to come]; and WltEREAS, in furtherance of the purposes of the Act and the TIF Ordinance, the City has requested the Authority to undertake one or more Projects, and the Authority has determined to issue from time to time, its public facility revenue bonds and to use the proceeds thereof to finance costs incurred in connection with the Projects for the benefit of the City; and WHEREAS, such public facility revenue bonds will be secured by a pledge of the revenues and receipts received by the Authority fi'om payments made by the City pursuant to the Support Agreement (as hereinafter defined), with such payments anticipated to be derived from, among other sources, amounts in the TIF Fund and fi.om the service district taxes; and WHEREAS, simultaneously with entering into this Agreement, the Authority and the City will enter into a Support Agreement dated as of the date hereof (the "Support Agreement") pursuant to which the Authority has agreed to issue such bonds and the City has agreed to make annual payments, subject to the annual appropriation by the City Council, of sufficient moneys to pay principal of and premium, if any, and interest on such bonds; and WHEREAS, the parties are entering into this Agreement to set forth (a) the conditions for the issuance of such bonds, (b) the rights of the holders of such bonds and (c) the appointment of a trustee for such holders; and WHEREAS, all acts, conditions and things required by law to happen, exist and be performed precedent to and in connection with the execution of and entering into this Agreement have happened, exist and have been performed in regular and due time and in foim and manner as required by law, and the parties hereto are now duly empowered to execute and enter into this Agreement; NOW, THEREFORE, THIS AGREEMENT FURTHER WITNESSETH: That, as security for payment of the principal of and premium, if any, and interest on the Bonds (as hereinafter defined) and for the moneys that may be advanced by the Trustee pursuant hereto, the Authority does hereby pledge and assign to the Trustee without recourse and grant a security interest to the Trustee in, the following described property: A. All fight, title and interest of the Authority in and to the Support Agreement (except for the right of the Authority to receive notices under the Support Agreement and the payment of fees and expenses pursuant to Section 4.1(c) thereof), and the Annual Payments (as hereinafter defined) made by the City pursuant thereto, and all other revenues and receipts derived by the Authority from any of the foregoing and the security therefor. B. The funds, including moneys and investments therein, held by the Trustee pursuant to the terms of this Agreement. C. All other property of any kind mortgaged, pledged or hypothecated at any time as and for additional security hereunder by the Authority or by anyone on its behalf or with its written consent in favor of the Trustee, which is hereby authorized to receive all such property at any time and to hold and apply it subject to the terms hereof. TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended to be, to the Trustee and its assigns forever. IN TRUST, however, for the equal and proportionate benefit and security of the holders from time to time of the Bonds issued under and secured by this Agreement, without privilege, priority or distinction as to the lien or otherwise of any of the Bonds over any of the others except as on the terms and conditions hereinafter stated, except that any Series of Bonds may have other security pledged only to the payment of such Series of Bonds as set forth in the Supplemental Agreement of Trust (as hereinafter defined) related to such Series of Bonds. The Authority hereby covenants and agrees with the Trustee and with the respective holders, from time to time, of the Bonds as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 101. Definitions. The following words as used in this Agreement, the Support Agreement, and the First Supplemental Agreement of Trust shall have the following meanings unless a different meaning clearly appears from the context: "Act" shall mean Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. "Account" shall mean any of the various Accounts created within a Fund under this Agreement. "Additional Payments" shall mean such payments made by the City pursuant to Sections 4.1(b) and (c) and 10.4 of the Support Agreement. "Agreement" shall mean this Agreement of Trust, as supplemented, amended or modified by one or more Supplemental Agreements of Trust. "Annual Payments" shall have the meaning given such term in the Support Agreement, which payment shall be made by the City pursuant to Section 4. l(a) of the Support Agreement. "Authorized Authority Representative" shall mean any officer of the Authority. "Authorized City Representative" shall mean such person or persons as may be designated to act on behalf of the City by a certificate executed by the City Manager and on file with the Trustee. "Bond" or "Bonds" shall mean any bonds, notes or other obligations, including any notes or other obligations issued in anticipation of bonds, notes, or other obligations as the same shall be issued from time to time pursuant to Article IlL "Bond Counsel" shall mean an attorney or firm of attomeys nationally recognized on the subject of municipal bonds and reasonably acceptable by the Trustee. "Bond Fund" shall mean the Bond Fund established in Section 601. "Bond Payment Date" shall mean the date on which any payment of principal of (whether at maturity or mandatory sinking fund redemption) or interest on the Bonds is scheduled to become due and payable. "Bondholder" or "holder" shall mean the registered owner of any Bonds. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by law to close in the city in which the Trustee has its principal corporate trust office. "City Council" shall mean the Council of the City of Virginia Beach, Virginia, as the governing body of the City. "Code" shall mean the Internal Revenue Code of 1986, as amended, including applicable regulations, rulings and revenue procedures promulgated or applicable thereunder. "Commonwealth" shall mean the Commonwealth of Virginia. "Cost" or "Cost of a Project" shall mean the Cost of a Project as set forth in Section 502. "City" shall mean the City of Virginia Beach, a political subdivision of the Commonwealth of Virginia. 3 "Event of Default" shall mean any of the events enumerated in Sectioii 901. "Fiscal Year" shall mean the twelve-month period beginning on July 1 of one year and ending on June 30 of the following year, or such other fiscal year of twelve months as may be selected by the City. "Fitch" shall mean Fitch Ratings, New York, New York, or its successors. "Fund" shall mean the Bond Fund, Project Fund or any other fund established under this Agreement. "Government Certificates" shall mean certificates representing proportionate ownership of Government Obligations, which Government Obligations are held by a bank or trust company organized under the laws of the United States of America or any of its states in the capacity of custodian of such certificates. "Government Obligations" shall mean (a) bonds, notes and other direct obligations of the United States of America, (b) securities unconditionally guaranteed as to the timely payment of principal, if applicable, and interest by the United States of America or (c) bonds, notes and .other obligations issued or guaranteed as to the timely payment of principal and interest by the Rural Utilities Service (certificates of beneficial ownership), Federal Housing Administration (debentures), General Services Administration (participation certificates), U.S. Maritime Administration (guaranteed Title XI financing), U.S. Department of Housing and Urban Development (project notes and local authority bonds), provided such obligations arc backed by the full faith and credit of the United States of America. Stripped securities are permitted only if stripped by the agency itself. Government Obligations may bc held directly by the Trustee or in the form of securities of any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, provided that the portfolio of such investment company or investment trust is limited to Government Obligations. "Interest Account" shall mean the Interest Account in the Bond Fund established in Section 601. "Moody's" shall mean Moody's Investors Service, New York, New York, or its Successors. "Opinion of Counsel" shall mean an opinion of any attorney or firm of attorneys reasonably acceptable to the Trustee, who may bc counsel for the Authority, the City or the Trustee but who shall not be a full time employee of the Authority, the City or the Trustee. "Outstanding" shall mean, when used as descriptive of Bonds, that such Bonds have been authorized, issued, authenticated and delivered under this Agreement and have not been canceled or surrendered to the Trustee for cancellation, deemed to have been paid as provided in Article XII, have had other Bonds issued in exchange therefor or had their principal become due and moneys sufficient for their payment deposited with the Trustee as provided in Section 209. In determining whether holders of a requisite aggregate principal amount of the Outstanding Bonds have concurred in any request, demand, authorization, direction, notice, consent or waiver under this Agreement, words referring to or connoting "principal of" or "principal amount of" Outstanding Bonds shall be deemed also to be references to, to connote and to include the accreted value of Bonds of any Series as of the immediately preceding interest compounding date for such Bonds. Bonds that are owned by the City shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. "Premium Account" shall mean the Premium Account in the Bond Fund established in Section 601. "Principal Account" shall mean the Principal Account in the Bond Fund established in Section 601. "Project" shall mean the Project as that term is defined in the Support Agreement. "Project Fund" shall mean the Project Fund established in Section 501. 4 "Rating Agency" or "Rating Agencies" shall mean Fitch, Moody's'or Standard & Poor's, or any of them, and their successors. The Authority may appoint any nationally recognized securities rating organization in addition to or as a replacement for Fitch, Moody's or Standard & Poor's. "Series" or "Series of Bonds" shall mean a separate series of Bonds issued under this Agreement and a Supplemental Agreement of Trust. "Standard & Poor's" shall mean Standard & Poor's Rating Services, a Division of McGraw-Hill Companies, Inc., New York, New York, or its successors. "Supplemental Agreement of Trust" shall mean any Supplemental Agreement of Trust supplementing, amending or modifying the provisions of this Agreement entered into by the Authority and the Trustee pursuant to Article X. "Supplemental Support Agreement" shall mean any Supplemental Support Agreement supplementing, amending or modifying the provisions of the Support Agreement entered into by the Authority and the City pursuant to Article X. "Support Agreement" shall mean the Support Agreement dated as of ,2002, 'between the Authority and the City, as such Agreement may be supplemented, amended or modified by one or more Supplemental Support Agreements. "Term Bonds" shall mean any Bonds stated to mature on a specified date and required to be redeemed in part prior to maturity according to a sinking fund schedule. "Trustee" shall mean The Bank of New York, New York, New York, or its successors serving as such hereunder. "Virginia Code" shall mean the Code of Virginia of 1950, as amended. Section 102. Rules of Construction. Unless the context clearly indicates to the contrary, the following rules shall apply to the construction of this Agreement: (a) versa. Words importing the singular number shall include the plural number and vice (b) Words importing the redemption or calling for redemption of Bonds shall not be deemed to refer to or connote the payment of Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Agreement. (d) The headings herein and Table of Contents to this Agreement are solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to the payment of Bonds are references to payment of principal of and premium, if any, and interest on Bonds. ARTICLE II "~' EXECUTION, AUTHENTICATION, REGISTRATION AND FORM OF BONDS Section 201. Form and Details of Bonds. Unless otherwise provided in the applicable Supplemental Agreement of Trust, the Bonds shall be designated "Public Facility Revenue Bonds," shall bear an appropriate series designation, shall be issuable only as registered Bonds without coupons, in denominations of $5,000 and multiples thereof, and shall be appropriately numbered. The form, details and terms of each Series of Bonds and such other matters as the Authority may deem appropriate shall be set forth in the applicable Supplemental Agreement of Trust for such Series of Bonds. Principal, premium, if any, and interest shall be payable in lawful money of the United States of America. Section 202. Execution of Bonds. Unless otherwise provided in the applicable Supplemental Agreement of Trust, the Bonds shall be signed by the manual or facsimile signature of the Chairman or Vice-Chairman of the Authority and its seal shall be affixed thereto or a facsimile thereof printed thereon and attested .by the manual or facsimile signature of its Secretary or Assistant Secretary. In case any officer whose signature or a facsimile of whose signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery. Any Bond may bear the facsimile signature of or may be signed by such persons as at the actual time of the execution thereof shall be the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers. Section 203. Authentication of Bonds. Unless otherwise provided in the applicable Supplemental Agreement of Trust, the Bonds shall bear a certificate of authentication and shall not be valid until the Trustee shall have executed the certificate of authentication and inserted the date of authentication thereon. The Trustee shall authenticate each Bond with the signature of an authorized officer or employee, but it shall not be necessary for the same person to authenticate all of the Bonds or all of the Bonds of any Series. Only such authenticated Bonds shall be entitled to any right or benefit under this Agreement, and such certificate on any Bond issued hereunder shall be conclusive evidence that the Bond has been duly issued and is secured by the provisions hereof. Section 204. Registration and Transfer of Bonds; Persons Treated as Owners. (a) All Bonds issued under this Agreement shall be negotiable, subject to the provisions for registration and registration of transfer thereof contained herein or in the Bonds. Co) The Trustee shall maintain registration books with respect to each Series of Bonds at the offices of the Trustee and shall provide for the registration and registration of transfer of any Bond of such Series under such reasonable regulations as the Trustee may prescribe. The Trustee shall maintain books for purposes of exchanging and registering Bonds in accordance with the provisions hereof. (c) Each Bond of a Series shall be registered or registered for transfer only upon the registration books maintained by the Trustee, by the Bondholder thereof in person or by his attorney or legal representative duly authorized in writing, upon presentation and surrender thereof together with a written instrument of transfer satisfactory to the Trustee duly executed by the registered Bondholder or his duly authorized attorney or legal representative. Upon surrender for registration of transfer of any such Bond, the Authority shall cause to be executed and the Trustee shall authenticate and deliver, in the name of the transferee, one or more new Bonds of the same Series, interest rate, maturity, principal amount and date as the surrendered Bond, as fully registered Bonds only. (d) Unless otherwise provided in the applicable Supplemental Agreement of Trust, the Trustee shall treat the registered holder 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 holder on the registration books, except that interest payments shall be made to the person shown as holder on the fifteenth day of the month preceding each interest payment date. Section 205. Exchange of Bonds; Charges for Exchange of Bonds;' Bonds, upon presentation and surrender thereof to the Trustee together with written instructions satisfactory to the Trustee, duly executed by the registered Bondholder or his attorney or legal representative duly authorized in writing, may be exchanged for an equal aggregate principal amount of fully registered Bonds of the same Series and tenor. Any exchange of Bonds shall be at the expense of the Authority, 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. Section 206. Temporary Bonds. Prior to the preparation of Bonds in definitive form, the Authority may issue temporary Bonds in such denominations as the Authority may determine, but otherwise in substantially the same form set forth in the applicable Supplemental Agreement of Trust, with appropriate variations, omissions and insertions. The Authority shall promptly prepare, execute and deliver to the Trustee before the first interest payment date Bonds in definitive form and thereupon, upon surrender of Bonds in temporary form, the Trustee shall authenticate and deliver in exchange .therefor Bonds in definitive form of the same maturity having an equal aggregate principal amount. Until exchanged for Bonds in definitive form, Bonds in temporary form shall be entitled to the lien and benefit of this Agreement. Section 207. Mutilated, Lost or Destroyed Bonds. If any Bond has been mutilated, lost or destroyed, the Authority shall cause to be executed, and the Trustee shall authenticate and deliver, a new Bond of like date, number and tenor in exchange and substitution for, and upon the cancellation of, such mutilated Bond or in lieu of and in substitution for such lost or destroyed Bond; provided, however, that the Authority and the Trustee shall so execute, authenticate and deliver only if the holder has paid the reasonable expenses and charges of the Authority and the Trustee in connection therewith and, in the case of a lost or destroyed Bond, (a) has filed with the Authority and the Trustee evidence satisfactory to them that such Bond was lost or destroyed and of his ownership thereof and Co) has furnished to the Authority and the Trustee indemnity satisfactory to them. If any such Bond has matured, instead of issuing a new Bond the Trustee may pay the same without surrender thereof. Section 208. Cancellation and Disposition of Bonds. All Bonds that have been surrendered for transfer or exchange pursuant to Sections 204 and 205, paid (whether at maturity, by sinking fund redemption, call for redemption or otherwise), purchased pursuant to Section 602, or delivered by the Authority to the Trustee for cancellation shall not be reissued, and the Trustee shall, unless otherwise directed by the Authority, cremate, shred or otherwise dispose of such Bonds. The Trustee shall deliver to the Authority a certificate of any such cremation, shredding or other disposition. Section 209. Non-Presentment of Bonds. (a) If any Bond is not presented for payment when the principal thereof becomes due (whether at maturity, by sinking fund redemption, call for redemption or otherwise), all liability of the Authority to the holder thereof for the payment of such Bond shall be completely discharged if moneys sufficient to pay such Bond and the interest due thereon shall be held by the Trustee for the benefit of such holder, and thereupon it shall be the duty of the Trustee to hold such moneys, subject to subsection Co) below, without liability for interest thereon, for the benefit of such holder, who shall thereafter be restricted exclusively to such moneys for any claim of whatever nature on his part under this Agreement or on, or with respect to, such Bond. Co) Notwithstanding anything in this Agreement to the contrary, any cash, Government Obligations or, if permitted by the laws of the Commonwealth, Government Certificates deposited with the Trustee for the payment of the principal of and premium, if any, and interest on any Series of Bonds remaining unclaimed for more than one year after the principal of all such Series of Bonds has become due and payable shall be paid to the Authority and shall be held by the Authority in a separate account for four years and thereafter in the general fund of the Authority. After such moneys have been paid to the Authority, the holders of such Bonds shall be entitled to look only to the Authority, and all liability of the Trustee with respect to such mounts shall cease. 8 ARTICLE III - ISSUANCE OF BONDS Section 301. Purposes of Bonds. Bonds may be issued (a) to finance or refinance the Cost of a Project, (b) to refund any Bonds or (c) for a combination of such purposes. Section 302. Parity of Bonds. Each Series of Bonds shall be issued pursuant to a Supplemental Agreement of Trust and shall be equally and ratably secured under this Agreement, without preference, priority or distinction; provided, however, that (i) any Series of Bonds may have other security pledged to its payment, (ii) moneys in any account or subaccount of the Bond Fund relating to a particular Series of Bonds shall secure only such Bonds, and (iii) moneys in any account or subaccount of the Project Fund relating to a particular Series of Bonds shall secure only such Bonds. In connection with the issuance of each Series of Bonds, the Trustee may create additional accounts and subaccounts within any Fund or Account established by this Agreement. Nothing herein shall be construed, however, as (a) requiring that any Bonds bear interest at the same rate or in the same manner as any other Bonds, have the same, or an earlier or later, maturity, or be subject to mandatory, optional or extraordinary redemption prior to maturity on the same basis as any other Bonds, (b) prohibiting the Authority from entering into financial arrangements designed to assure that moneys will be available for the payment of certain Bonds at their maturity or (c) prohibiting the Authority fi'om pledging moneys or assets of the Authority other than those pledged herein for the benefit of certain Bonds. Section 303. Conditions for Issuing Bonds. Before the issuance and authentication of any Series of Bonds by the Trustee, there shall be filed with the Trustee the following: (a) In the case of the initial Series of Bonds issued under this Agreement only: (1) An original executed counterpart of this Agreement; (2) A certified copy of a resolution of the Authority's Commissioners authorizing the execution and delivery of this Agreement and authorizing the issuance, sale and delivery of the Bonds; (3) An Opinion or Opinions of Counsel to the Authority, subject to customary exceptions and qualifications, substantially to the effect that this Agreement has been duly authorized, executed and delivered to the Trustee and is binding on the Authority; and (4) A certified copy of a resolution of the City Council acknowledging and consenting to the execution and delivery of this Agreement. (b) An original executed counterpart of a Supplemental Agreement of Trust which (1) shall include: (A) provisions authorizing the issuance, fixing the principal amount and setting forth the details of such Bonds, including their date, the interest rate or rates and the manner in which the Bonds are to bear and pay interest, the principal and interest payment dates of the Bonds, the purposes for which such Bonds are being issued, the manner of numbering such Bonds, the Series designation, the denominations, the maturity dates and principal maturities, the principal amounts required to be redeemed pursuant to any mandatory redemption provisions or the manner for determining such principal amounts, any provisions for optional or extraordinary redemption before maturity, and whether the interest on such Bonds shall be excluded from gross income for Federal income tax purposes or subject to Federal income taxation; and (B) provisions for the application of the proceeds of such Bonds; and (2) may include: (A) provisions for credit facilities and for other funds and accounts to be established with respect to such Bonds; (B) provisions necessary or expedient for the issuance of Bonds beating interest at a variable rate or other manner of beating interest, including remarketing provisions, liquidity facility provisions and provisions for establishing the variable rate and converting to a fixed rate; (C) provisions for entering into interest rate swaps, guarantees or other arrangemehts to limit interest rate risks; and (D) such other provisions as the Authority may deem appropriate. (c) A certified copy of a resolution or resolutions of the Authority's Commissioners authorizing the execution and delivery of a Supplemental Agreement of Trust and the Support Agreement or, in the case of a Series of Bonds other than the initial Series, an amendment to the Support Agreement, the issuance, sale, award, execution and delivery of such Bonds and, in the case of a Series of Bonds issued to refund any Bonds, calling for redemption or payment of the Bonds to be refunded, fixing any redemption date and authorizing any required notice of redemption in accordance with the provisions of this Agreement. (d) A certificate signed by the Chairman or Vice Chairman of the Authority and dated the date of suer issuance, to the effect that: (1) Either (A) upon and immediately following such issuance, no Event of Default has occurred which has not been cured or waived, and no event or condition exists which, with the giving of notice or lapse of time or both, would become an Event of Default or (B) if any such event or condition is happening or existing, specifying such event or condition, stating that the Authority will act with due diligence to correct such event or condition after the issuance of such Bonds, and describing in reasonable detail the actions to be taken by the Authority toward such correction; and (2) All required approvals, limitations, conditions and provisions precedent to the issuance of such Series of Bonds have been obtained, observed, met and satisfied. (e) An Opinion or Opinions of Counsel, subject to customary exceptions and qualifications, substantially to the effect that the Supplemental Agreement of Trust for such Series of Bonds and the Support Agreement or, in the case of a Series of Bonds other than the initial Series, an amendment to the Support Agreement, have been duly authorized, executed and delivered, are binding on the Authority and comply in all respects with the requirements of this Agreement and the Support Agreement, as applicable. (f) An opinion of Bond Counsel, subject to customary exceptions and qualifications, substantially to the effect that the issuance of such Bonds has been duly authorized, that such Bonds are valid and binding limited obligations of the Authority, and that the interest on such Bonds is excludable from gross income for purposes of Federal income taxation or, if such interest is not excludable, that the issuance and the intended use of the proceeds of such Bonds will have no adverse effect on the tax-exempt status of the interest on any other Bonds the interest on which was excludable from gross income when issued. (g) If any Bonds are issued to refund any other Bonds, the following: (1) Irrevocable instructions from the Authority, at the direction of the City, to redeem or pay at maturity all Bonds to be refunded; and (2) A written determination by an independent certified public accountant or other evidence satisfactory to the Trustee that the proceeds (excluding accrued interest) of such refunding Bonds, together with any other moneys deposited with the Trustee for such purpose and the investment income to be earned on moneys held for the payment or redemption of the Bonds to be refunded, will be sufficient (without reinvestment) to pay either (A) the principal of and the premium, if any, on the Bonds to be refunded and the interest which will accrue on such Bonds to the respective redemption or maturity dates or (B) the principal and interest on the refunding Bonds to a date certain, at which time such proceeds, moneys and earnings will be sufficient to pay the principal of and the premium, if any, on the Bonds to be refunded and the interest which will accrue on such Bonds to the respective redemption or maturity dates. (h) A request and authorization signed by the Chairman or Vice Chairman of the Authority to the Trustee to authenticate and deliver such Bonds to the purchaser upon payment to the Trustee for the account of the Authority of a specified sum plus accrued interest to the date of delivery. (i) (1) In the case of the initial Series of Bonds, an original executed counterpart of the Support Agreement, assigned by the Authority to the Trustee, or (2) in the case of a Series of 10 Bonds other than the initial Series, an original executed counterpart of a Supplemental Support Agreement that shall (A) make such necessary modifications to Exhibit A to the Support Agreement to provide for Annual Payments in amounts sufficient to pay principal of and interest on all Bonds then Outstanding plus such additional Series of Bonds, (B) describe the Project being financed by such additional Series of Bonds and (C) make such other modifications as shall be necessary and convenient for the issuance of such additional Series of Bonds. (j) A certified copy of a resolution of the City Council acknowledging and consenting to the execution and delivery of any Supplemental Agreement of Trust entered into in connection with the issuance of any Series of Bonds and authorizing the execution and delivery of the Support Agreement or, in the case of a Series of Bonds other than the initial Series, a Supplemental Support Agreement, in connection with the issuance of such Series of Bonds. (k) An Opinion or Opinions of Counsel, subject to customary exceptions and qualifications, substantially to the effect that the Support Agreement or, in the case of a Series of Bonds other than the initial Series, a Supplemental Support Agreement, has been duly executed and is binding on the City. Except for the requirements of subsection (d) of this Section (which may be waived by -the purchasers of such Bonds by an instrument or concurrent instruments in writing signed by such purchasers), none of the requirements in this Section may be waived without the consent of the holders of not less than a majority in aggregate principal amount of the Outstanding Bonds. 11 ARTICLE IV "" REDEMPTION OF BONDS Section 401. Redemption Provisions to be Fixed by Supplemental Agreements of Trust. The Bonds of any Series shall be subject to mandatory, extraordinary or optional redemption prior to maturity on such dates and under such conditions as may be provided in the Supplemental Agreement of Trust authorizing the issuance of such Series of Bonds. The Bonds of any Series to be called for redemption shall be selected as provided in the applicable Supplemental Agreement of Trust. The Trustee shall treat each Bond of a denomination greater than the minimum denomination authorized in the applicable Supplemental Agreement of Trust as representing the number of separate Bonds of such minimum denomination as can be obtained by dividing the Bond's actual principal amount by such minimum denomination. Section 402. Notice of Redemption. Unless otherwise provided in the applicable Supplemental Agreement of Trust, the .Trustee, upon being satisfied as to the payment of its expenses, shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, (a) by facsimile, registered or certified mail or overnight express delivery, to the holder of each Bond to be redeemed at his address as it appears on the registration books kept by the Trustee, (b) by facsimile, registered or certified mail or overnight express delivery, to all organizations registered with the Securities and Exchange Commission as securities depositories and (c) to each nationally recognized municipal securities information repository designated as such by the Securities and Exchange Commission. In preparing and delivering such notice, the Trustee shall take into account, to the extent applicable, the prevailing tax-exempt securities industry standards and any regulatory statement of any federal or state administrative body having jurisdiction over the Authority or the tax-exempt securities industry, including Release No. 34-23856 of the Securities and Exchange Commission or any subsequent amending or superseding release. Failure to give any notice specified in (a) above, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Bond with respect to which no such failure or defect has occurred. Failure to give any notice specified in (b) or (c) above, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Bonds with respect to which the notice specified in (a) above is correctly given. Any notice mailed or provided herein shall conclusively be presumed to have been given whether or not actually received by any Bondholder. In the case of an optional redemption under any Supplemental Agreement of Trust, the notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later than the redemption date or (2) the Authority, as directed by the City, retains the right to rescind such notice on or prior to the scheduled redemption date (in either case, a "Conditional Redemption"), and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded as described herein. Any Conditional Redemption may be rescinded at any time prior to the redemption date if the Authority delivers a written direction to the Trustee directing the Trustee to rescind the redemption notice. The Trustee shall give prompt notice of such rescission to the affected Bondholders. Any Bonds subject to Conditional Redemption where redemption has been rescinded shall remain Outstanding, and the rescission shall not constitute an Event of Default. Further, in the case of a Conditional Redemption, the failure of the Authority to make funds available on or before the redemption date shall not constitute an Event of Default, and the Trustee shall give immediate notice to all organizations registered with the Securities and Exchange Commission as securities depositories or the affected Bondholders that the redemption did not occur and that the Bonds called for redemption and not so paid remain outstanding. Section 403. Bonds Payable on Redemption Date; Interest Ceases to Accrue. On or before the date fixed for redemption, moneys shall be deposited with the Trustee to pay the principal of and premium, if any, and interest accrued to the redemption date on the Bonds called for redemption. Upon the happening of the conditions of this Section, the Bonds or portions thereof thus called for redemption shall cease to bear interest fi:om and after the 12 redemption date, shall no longer be entitled to the benefits provided by this ~gre'ement and shall not be deemed to be Outstanding under the provisions of this Agreement. 13 ARTICLE V "'~ PROJECT FUND Section 501. Creation of Project Fund; Deposit of Bond Proceeds. There is hereby established the Public Facility Revenue Bond Town Center Project Fund. Proceeds of each Series of Bonds shall be deposited in the Project Fund as provided in the Supplemental Agreement of Trust under which each such Series of Bonds is issued. If so directed in a Supplemental Agreement of Trust, there shall be maintained within the Project Fund special accounts as may be provided in such Supplemental Agreement of Trust. Deposits shall be made to the credit of the Project Fund and any special accounts as provided in such Supplemental Agreement of Trust. All earnings on moneys in each Account and subaccount shall be credited to such Account and subaccount. The Trustee shall hold the moneys in the Project Fund in trust to be used only to pay the Cost of a Project and as provided in Section 504. Section 502. Cost of a Project. The Cost of a Project shall include the cost of construction, the cost of acquisition of all lands, structures, rights-of-way, franchises, easements and other property rights and interests, the cost of demolishing, removing or relocating any buildings or structures on lands acquired, including the cost of acquiring any lands to which such buildings or structures may be moved or relocated, the cost of all labor, materials, machinery and equipment, financing charges and interest on any Series of Bonds prior to and during construction and for up to one year after completion of construction, cost of engineering, financial and legal services, plans, specifications, studies, surveys, estimates of cost and of revenues, and other expenses necessary or incident to determining the feasibility or practicability of constructing a Project, administrative expenses, provisions for working capital, reserves for interest and for extensions, additions and improvements, such other expenses as may be necessary or incidental to the construction of a Project, the financing of such construction, and the placing of a Project in operation, and all other costs as are permitted by the Act. Any obligation or expense incurred by the City for studies, surveys, borings, preparation of plans and specifications or other work or materials in connection with the construction of a Project may be regarded as a part of such Cost and reimbursed to the City out of the proceeds of the Bonds issued to fmance a Project. Section 503. Payments from Project Fund. The Trustee shall use moneys in the Project Fund to pay the Cost of a Project. Before any payment shall be made from the Project Fund, the Trustee shall have been presented with a requisition stating (1) the name of the person, firm or corporation to whom such payment is to be made, (2) the amount to be paid, (3) the purpose in reasonable detail for which such payment is to be made and (4) if applicable, from which Account such payment is to be made. A requisition may represent reimbursement of the Authority or the City for the Cost of a Project initially paid by the Authority or the City or may represent payment to the Authority or the City of moneys to be paid in mm by the Authority or the City to third parties for the Cost of a Project. Upon receipt of each such invoice, the Trustee shall make payment from the Project Fund in accordance with such invoice. Section 504. Disposition of Balance in Project Fund. When the Trustee shall have received a certificate, signed by an Authorized City Representative, stating either that all items of the Cost of a Project have been paid or what items of the Cost of a Project have not been paid and for the payment of which moneys should be reserved in the Project Fund, the balance of any moneys remaining in the Project Fund in excess of the amount to be reserved for payment of unpaid items of the Cost of a Project shall be used to pay (a) principal of and interest on the Series of Bonds that provided such proceeds or to purchase Bonds on the open market to the extent approved by Bond Counsel or (b) all or any portion of the Cost of any other Project designated by the City and approved by Bond Counsel. 14 ARTICLE VI FUNDS AND ACCOUNTS Section 601. Creation of Funds and Accounts. There is hereby established with the Trustee a Bond Fund, in which there are established an Interest Account, a Principal Account and a Premium Account, and a separate subaccount in each such Account with respect to each Series of Bonds issued hereunder. Section 602. Bond Fund. Installments of all Annual Payments received by the Trustee fi.om the City, together with any other amounts transferred fi.om the Project Fund pursuant to the provisions of the Support Agreement or this Agreement, shall be deposited in the Bond Fund. The Trustee shall deposit each installment (a) to the subaccount established for each Series of Bonds in the Interest Account an amount equal to the interest due and payable on the next Bond Payment Date for such Bonds, and Co) to the subaccount established for each Series of Bonds in the Principal Account an amount equal to the principal due and payable on the next Bond Payment Date for -such Bonds, whether at maturity or mandatory sinking fund redemption. The Trustee shall deposit in the subaccount established for each Series of Bonds in the Premium Account any moneys received by the Trustee from the City to pay any premium due in connection with redeeming such Bonds pursuant to any optional or extraordinary redemption exercised by the Authority, at the direction of the City. The Trustee shall use such moneys to pay the applicable premium due on such Bonds in accordance with the redemption provisions for such Bonds. Notwithstanding anything in this Agreement to the contrary, at any time the Trustee is required to make transfers pursuant to subsections (a) and Co) in the preceding paragraph, and there are insufficient moneys to make all required transfers pursuant to such subsections, the Trustee shall make the transfers ratably fi.om the moneys available. The Trustee shall withdraw fi.om the respective subaccounts within the Interest Account and the Principal Account, on each Bond Payment Date, amounts equal to the amounts of interest and principal, if any, due with respect to the Bonds on such Bond Payment Date, and shall cause the same to be applied to the payment of interest and principal, respectively, if any, due on such Bond Payment Date. In the event there are insufficient moneys in the Interest Account or the Principal Account on any Bond Payment Date to pay interest and principal, if any, due on such Bond Payment Date, the Trustee shall transfer any excess amounts on deposit in the Interest Account or the Principal Account, as applicable, to the other Account in which there are insufficient moneys. Any moneys in the Bond Fund mmsferred fi.om the Project Fund pursuant to Section 504 of this Agreement shall be credited against the next Annual Payment required to be paid by the City and shall be used, together with other available amounts, to pay interest and principal, if any, due on the next Bond Payment Date or Dates. The Trustee shall provide for redemption of any Term Bonds in accordance with the schedules set forth in the Supplemental Agreement of Trust for such Bonds; provided, however, that on or before the 70th day next preceding any such sinking fund payment date, the Authority may: (x) deliver to the Trustee for cancellation Term Bonds required to be redeemed on such sinking fund payment date in any aggregate principal amount desired; or (y) instruct the Trustee to apply a credit against the Authority's next sinking fund redemption obligation for any such Term Bonds that previously have been redeemed (other than through the operation of the sinking fund) and canceled but not theretofore applied as a credit against any sinking fund redemption obligation. Upon the occurrence of any of the events described in subsections (x) or (y) of this Section, the Trustee shall credit against the Authority's sinking fund redemption obligation on the next sinking fund payment date the amount of such Term Bonds so delivered or previously redeemed. Any principal amount of such Term Bonds in excess of the principal amount required to be redeemed on such sinking fund payment date shall be similarly credited in such order as 15 may be determined by the Authority against future payments to the Principal A~count and shall similarly reduce the principal amount of the Term Bonds of the applicable Series to be redeemed on the next sinking fund payment date. In the event the amount on deposit in the Interest Account on any Bond Payment Date shall exceed the amount required to pay interest on the Bonds on such Bond Payment Date, the Trustee shall retain such excess in the Interest Account or transfer such excess to the Principal Account to be credited against subsequent required deposits thereto. In the event the amount on deposit in the Principal Account on any Bond Payment Date shall exceed the amount required on such date to pay Bonds at maturity or to redeem Term Bonds pursuant to mandatory sinking fund requirements, the Trustee shall such excess in the Principal Account or transfer such excess to the Interest Account to be credited against subsequent required deposits thereto. Section 603. Other Funds and Accounts. The Authority may establish in each Supplemental Agreement of Trust such other Funds and Accounts within Funds as the Authority may determine to be desirable. Section 604. Pledge of Certain Funds and Accounts. Moneys in the Bond Fund and the Project Fund shall be trust funds and are hereby pledged and (except as provided in the next sentence hereof) equally and ratably to the payment of the principal of and interest on all Bonds, subject only to the right of the Authority to make application thereof, or to direct the Trustee to make application thereof, to other purposes as provided herein. The lien and trust hereby created are for the benefit of the Bondholders and for their additional security until all the Bonds have been paid; provided, however, moneys in any account or subaccount of the Bond Fund relating to a particular Series of Bonds shall secure only such Bonds; and moneys in any account or subaccount of the Project Fund relating to a particular Series of Bonds shall secure only such Bonds. Section 605. Disposition of Balances in Funds after Payment of Bonds. After the principal of and premium, if any, and interest on all of the Bonds, any amounts required to be paid pursuant to the terms of this Agreement, any Supplemental Agreement of Trust or the Support Agreement, and all expenses and charges herein required have been paid or provision therefor has been made, the Trustee shall pay to the City any balance remaining in any Fund then held by it. 16 ARTICLE VII SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS Section 701. Security for Deposits. All moneys held in the Funds and Accounts created by this Agreement that are on deposit with any bank shall be continuously secured in the manner required by the Virginia Security for Public Deposits Act (Chapter 23, Title 2.1 of the Virginia Code) or any successor provision of law. Section 702. Investment of Moneys. Any moneys held in the Funds and Accounts shall be invested and reinvested by the Trustee, as directed by an Authorized City Representative, in Investment Obligations, subject to the limitations stated herein. The term "Investment Obligations" shall mean any of the obligations or securities that are at the time legal investments for public funds under the Investment of Public Funds Act (Chapter 18, Title 2.1 of the Virginia Code) or any successor provisions of law applicable to such investments. Moneys held in the following Funds and Accounts shall be invested in obligations described in this Section of the following maturities: (1) Project Fund - not later than the dates on which such moneys will be needed to pay Costs of a Project; and (2) Bond Fund - not later than the dates on which such moneys will be needed to pay principal of or interest on the applicable Series of Bonds. For purposes of this Section, investments shall be considered as maturing on the date on which they are redeemable without penalty at the option of the holder or the date on which the City or the Trustee may require their repurchase pursuant to a repurchase agreement. Whenever a payment or transfer of moneys between Funds or Accounts is permitted or required, such payment or transfer may be made in whole or in part by transfer of one or more investment obligations at a value determined in accordance with Section 704, provided that the Investment Obligations transferred are permitted investments for the Fund or Account receiving such Investment Obligations. Unless otherwise provided in this Agreement, earnings on Investment Obligations shall accrue to the Fund or Account in which such Investment Obligations are on deposit, or, at the written direction of an Authorized City Representative, shall be transferred to and deposited in the Project Fund. Section 703. Investment of Surplus Moneys. The City and the Trustee shall provide for the investment of all moneys in any Fund or Account held by it not immediately necessary for the purposes of such Fund or Account so that all idle moneys may be invested for the benefit of the Bondholders. Section 704. Valuation of Investments. In computing the amount in any Fund or Account created by this Agreement, obligations purchased as an investment of moneys therein shall be valued at cost or fair market value thereof, whichever is lower, plus accrued interest. Such valuations for each such Fund or Account shall be made by the party holding each such Fund or Account at least annually not later than the end of each Fiscal Year and at such other times as an Authorized City Representative may direct. Section 705. Investments Through Trustee's Bond Department. The Trustee may make investments permitted by Section 702 through its own bond department or the bond department of any affiliate. 17 Section 706. Investments by Trustee. The Trustee shall not be liable for any losses resulting from investments made by it pursuant to the provisions of Section 702. Section 707. Investments in Bonds by Trustee. The bank or mast company acting as Trustee and its directors, officers, employees or agents may in good faith buy, sell, own, hold and deal in the Bonds and may join in any action which any Bondholder may be entitled to take with like effect as if such bank or trust company were not the Trustee. To the extent permitted by law, such bank or trust company may also receive tenders and purchase in good faith Bonds from itself, including any department, affiliate or subsidiary, with like effect as if it were not the Trustee. 18 ARTICLE VIII " PARTICULAR COVENANTS Section 801. Payment of Bonds; Limited Obligations. The Authority shall promptly pay or cause to be paid when due the principal of (whether at maturity, call for redemption or otherwise) and premium, if any, and interest on the Bonds at the places, on the dates and in the manner provided herein and in the Bonds according to the tree intent and meaning thereof; provided, however, that such obligations are not general obligations of the Authority but are limited obligations payable solely from the revenues and receipts derived from the City under the Support Agreement, except to the extent payable from the proceeds of Bonds, the income, if any, derived from the investment thereof, certain reserves and income from investments pursuant to this Agreement, revenues and receipts and other amounts derived from any other security pledged pursuant to a Supplemental Agreement of Trust, which revenues and other moneys are hereby specifically pledged to such purposes in the manner and to the extent provided herein. The Bonds, the premium, if any, and the interest thereon shall not be deemed to create or constitute an indebtedness or a pledge of the faith and credit of the Commonwealth or of any City, city, town or other political subdivision thereof, including the Authority and the -City. Section 802. Authority Covenants, Representations and Warranties. (a) The Authority represents and warrants to the Trustee that each representation made by the Authority in Section 2.1 of the Support Agreement is tree and correct as of the date of delivery of this Agreement. Each such representation and warranty is incorporated herein by reference as if fully set forth herein and shall inure to and be for the benefit of the Trustee. (b) The Authority covenants to faithfully observe and perform all of its covenants, conditions and agreements contained in this Agreement and to promptly pay the principal of and premium, if any, and interest on the Bonds at the places, on the dates, and in the manner specified in this Agreement and the Bonds; provided, however, that such obligations are limited obligations of the Authority, payable solely from the revenues and receipts derived from the City under the Support Agreement, except to the extent payable from the proceeds of Bonds, the income, if any, derived from the investment thereof, certain reserves and income from investments pursuant to this Agreement, revenues and receipts and other amounts derived from any other security pledged pursuant to a Supplemental Agreement of Trust, which revenues and other moneys are hereby specifically pledged to such purposes in the manner and to the extent provided herein. The Bonds, the premium, if any, and the interest thereon shall not be deemed to constitute a debt or pledge of the full faith and credit of the Commonwealth of Virginia or any political subdivision thereof, including the Authority and the City. Neither the Commonwealth of Virginia nor any political subdivision, thereof, including the Authority and the City, shall be obligated to pay the principal of or premium, if any, or interest on the Bonds or other costs incident thereto except from the revenues and receipts pledged and assigned therefor, and neither the faith and credit nor the taxing power of the Commonwealth of Virginia or any political subdivision thereof, including the Authority and the City, is pledged to the payment of the principal of or premium, if any, or interest on the Bonds or other costs incident thereto. The Authority has no taxing power. (c) The Authority agrees that all payments under the Support Agreement shall inure to the benefit of the Bondholders. The Authority further covenants that it shall not make or consent to any change or modification of the Support Agreement that would reduce the Annual Payments, fees or charges of the City thereunder, extend the time for payment of Annual Payments provided therein, nor permit any change that would reduce the required payments under the Support Agreement to the Authority available for payment of the Bonds, except as herein and in the Support Agreement provided. (d) The Authority covenants that it shall not suffer, permit or take any action or fail to take any action that may result in the termination or cancellation of the Support Agreement by the City. The Authority also covenants that it shall fulfill its obligations and shall use its best efforts to assure that the City performs its duties and obligations under the Support Agreement, and that it shall not agree to any abatement, reduction, abrogation, waiver, diminution or other modification of the obligation of the City to make any Annual Payments and to meet any of its 19 obligations under the Support Agreement, except as provided in this Agreement:- The Authority further covenants that it shall promptly notify the Trustee of any actual or alleged event of default under the Support Agreement of which it has notice and shall notify the Trustee upon or before the proposed effective date of any proposed termination or cancellation of the Support Agreement. (e) The Authority covenants that the Trustee, subject to the provisions of the Support Agreement and this Agreement reserving certain fights to the Authority and respecting actions by the Trustee in its name or in the name of the Authority, may enforce for and on behalf of the Bondholders all fights of the Authority and all obligations of the City under and pursuant to the Support Agreement providing for the delivery and receipt of Annual Payments whether or not the Authority is in default under this Agreement. (f) The Authority covenants to execute, acknowledge and deliver any indentures supplemental hereto and other acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, conveying, pledging and assigning to the Trustee of all the rights and funds assigned by this Agreement to secure the payment of the principal of and premium, if any, and interest on the Bonds. The Authority covenants to fully cooperate with the Trustee and the Bondholders in protecting the rights and security of the Bondholders. (g) The Authority shall not (a) take any action or use the proceeds of any Bonds (including failure to spend the same with due diligence) or take any other action, which would cause any Bonds (the interest on which was excludable from gross income for Federal income tax purposes at the time of their issuance) to be "arbitrage bonds" within the meaning of Section 148 of the Code, or (b) barring unforeseen circumstances, approve the use of the proceeds from the sale of any Bonds (the interest on which was excludable from gross income for Federal income tax purposes at the time of their issuance) otherwise than in accordance with the Authority's "non-arbitrage" certificate given immediately prior to the issuance of such Bonds. (h) The Authority covenants not to permit the proceeds of any Bonds (the interest on which was excludable from gross income for Federal income tax purposes at the time of their issuance) to be used in any manner that would result in (a) 10% or more of such proceeds or the facilities financed with such proceeds being used in a trade or business carded on by any person other than a governmental unit, as provided in Section 141(b) of the Code, provided that no more than 5% of such proceeds may be used in a trade or business unrelated or disproportionate to the Authority's use of the Project financed by such Bonds, (b) 5% or more of such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water), within the meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(e) of the Code; provided, however, that if the Authority receives an opinion of Bond Counsel that any such covenants need not be complied with to prevent the interest on such Bonds from being includable in the gross income for Federal income tax purposes under existing law, the Authority need not comply with such covenants. (i) The Authority shall not use any Project, or any portion thereof, for any use that would adversely affect the exclusion of interest from gross income for Federal income tax purposes on any Bonds the interest on which was excludable fi:om gross income at the time of their issuance. Without limiting the generality of the foregoing, the Authority covenants to either (i) take actions to prevent any such use that would cause such Bonds to be "private activity bonds," (ii) redeem any Bond whose tax status would be adversely affected by such use prior to commencement of the proposed use or (iii) take remedial action under the Code which would allow such use to be undertaken without an adverse effect on the tax status of Bonds the interest on which was excludable from gross income at the time of their issuance. (j) The Authority shall maintain, preserve and keep all Projects, or cause the Projects to be maintained, preserved and kept, in good condition. The Authority shall not abandon any Project, shall pay all of the expenses of maintenance of all Projects and any and all taxes, assessments and utility charges payable with respect to any Projects. (k) As long as any Bonds are Outstanding, the Authority shall continuously maintain at its sole cost and expense insurance on all Projects covering public liability, fire and lightning, with broad form extended coverage insurance covering damage by windstorm, explosion, aircraft, smoke, sprinkler leakage, vandalism, malicious mischief and such other risks as are 20 customarily insured against by reasonable and prudent government bodies ot' lake size for such facilities as may be required fi.om time to time, in such mounts at a minimum equal to the outstanding mount of Bonds then Outstanding with customary deductibles and shall name the Trustee as an additional'loss payee on such insurance, as its respective interests appear. Notwithstanding the preceding provisions of this paragraph, the Authority may self-insure as to any or all of such coverage and such self-insurance will satisfy the requirements of this paragraph. If the Authority self-insures, the Authority shall cause to be filed annually with the Trustee a certificate of its risk manager or insurance consultant as to the adequacy of reserves for such self-insurance. Section 803. Notice of Non-Payment; Reserve Deficit; Non-Appropriation. In the event of (a) a delinquency in the payment of any Annual Payment when due pursuant to the Support Agreement or (b) the receipt of a notice of non-appropriation fi.om the City by the date established in the Support Agreement for receipt of such notice, the Trustee shall, within 10 days following the date upon which such delinquent Annual Payment was due, such deficit was determined, or such notice was received, as applicable, immediately give notice thereof to the City. The failure to give such notice shall not affect the obligation, of the City to pay any such Annual Payment. Section 804. No Obligation to Bondholders for Annual Payment. The Authority shall have no obligation or liability to the Trustee or the Bondholders with respect to the payment of the Annual Payment by the City when due or with respect to the performance by the City of any other covenant made by it in the Support Agreement. Section 805. Trustee Covenants. The Trustee covenants to deposit, invest and apply amounts received under this Agreement, including the Annual Payment, in accordance with the provisions hereof. Section 806. Further Assurances. The parties hereto shall make, execute and deliver any and all such further documents, instrmnents and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the Trustee and the Bondholders of their fights and benefits provided in this Agreement and the Support Agreement. 21 ARTICLE IX "" DEFAULTS AND REMEDIES Section 901. Events of Default. Each of the following events shall be an Event of Default: (a) Default in the due and punctual payment of the principal of or premium, if any, on any Bond (whether at maturity, call for redemption or otherwise); (b) Default in the due and punctual payment of the interest on any Bond; (c) An "Event of Default" under the Support Agreement; and (d) Failure of the Authority to observe and perform any of its other covenants, conditions or agreements under this Agreement or in the Bonds for a period of 30 days after written notice either from the Trustee or holders of not less than 25% in aggregate principal mount of Bonds then Outstanding (unless the Trustee should agree in writing to an extension of such time prior to its expiration), specifying such failure and requesting that it be remedied, or in ~the case of any such default that cannot with due diligence be cured within such 30-day period, failure of the Authority to proceed promptly to cure the same and thereafter prosecute the curing of such default with due diligence. Section 902. Remedies; Rights of Bondholders. Upon the occurrence and continuation of an Event of Default, the Trustee may (and if requested by the holders of not less than 25% in aggregate principal amount of Bonds then Outstanding and if indemnified in accordance with prevailing industry standards shall) proceed to protect and enforce their rights by mandamus or other suit, action or proceeding at law or in equity, including an action for specific performance of any covenant or agreement herein contained; provided, however, that the Trustee shall have no right or authority to declare the entire unpaid principal of Bonds then due and payable. No remedy conferred by this Agreement upon or reserved to the Trustee or Bondholders is intended to be exclusive of any other remedy, but each such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or Bondholders hereunder or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such default or Event of Default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any default or Event of Default hereunder by the Trustee or Bondholders shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies consequent thereon. Section 903. Right of Bondholders to Direct Proceedings. Anything in this Agreement to the contrary notwithstanding, the holders of a majority in aggregate principal amount of Bonds then Outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Agreement or any other proceedings hereunder; provided, however, that such direction shall not be otherwise than in accordance with the provisions of law and of this Agreement. Section 904. Application of Moneys. All moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article shall, after payment of the cost and expenses of the proceedings resulting in the collection of such moneys, the expenses, liabilities and advances incurred or 22 made by the Trustee and its fees and the expenses of the Authority in'¢m-ying out this Agreement, be deposited in the Bond Fund and applied as follows and for no other purpose: (a) applied: Unless the principal of all the Bonds shall have become due, all moneys shall be First - To the payment to the persons entitled thereto of all installments of interest then due on the Bonds, in the order of the maturity of the installments of such interest and, if the mount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or preference except as to any difference in the respective rates of interest specified in the Bonds; and Second - To the payment to the persons entitled thereto of the unpaid principal of and premium, if any, on any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of this Agreement), in the order of their due dates, with interest on such Bonds at the respective rates specified therein from the respective dates upon which they become due and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then first to the payment of such interest, ratably, according to the amount of such interest due on such date, and then to the payment of such principal and premium, if any, ratably, according to the amount of such principal due on such date, to the persons entitled thereto, without any discrimination or preference except as to any difference in the respective rates of interest specified in the Bonds. (b) If the principal of all the Bonds shall have become due, all such moneys shall be applied to the payment of the principal and interest then due and unpaid on the Bonds, including, to the extent permitted by law, interest on overdue installments of interest, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any bond over any other bond, ratably, according to the amounts due respectively for principal and interest, to the persons entitled thereto, without any discrimination or preference except as to any difference in the respective rates of interest specified in the Bonds. Whenever moneys are to be applied pursuant to the provisions of this Section, such moneys shall be applied at such times and from time to time as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such moneys, it shall fix the date (which shall be a Bond Payment Date unless it shall deem another date more suitable) on which such application is to be made and on such date interest on the amounts of principal to be paid and on such dates shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date. Whenever the principal of and premium, if any, and interest on all Bonds have been paid under the provisions of this Section, all payments required by the terms of any Supplemental Agreement of Trust have been paid and all expenses and charges of the Trustee have been paid, any balance remaining in the several Funds created by this Agreement shall be paid to the City as provided in Section 605. Section 905. Remedies Vested in Trustee. All rights of action (including the right to file proof of claims) under this Agreement or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceeding relating thereto and any such suit or proceeding instituted by the Trustee may be brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any Bondholder, and any recovery of judgment shall be for the equal benefit of the holders of all Bonds then Outstanding. 23 Section 906. Limitation on Suits. Except to enforce the fights given under Section 902, no Bondholder shall have any fight to institute any action, suit or proceeding at law or in equity for the enforcement of this Agreement or for the execution of any trust thereof or any other remedy hereunder, unless (a) a default has occurred and is continuing of which the Trustee has been notified as provided in Section 1101(h), or of which by such Section it is deemed to have notice, CO) such default has become an Event of Default and the holders of 25% in aggregate principal mount of Bonds then Outstanding have made written request to the Trustee and offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, (c) such requesting Bondholders have offered to the Trustee indemnity as provided in Section ll01(k), (d) the Trustee has thereafter failed or refused to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding in its, his or their own name or names, (e) no direction inconsistent with such written request has been given to the Trustee by the holders of a majority in aggregate principal amount of Bonds then Outstanding and (f) notice of such action, suit or proceeding is given to the Trustee; it being understood and intended that no one or more holders of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice this Agreement by its or their action or to enfome any rights hereunder except in the manner herein provided, and that all proceedings at -law or in equity shall be instituted and maintained in the manner herein provided and for the equal benefit of the holders of all Bonds then Outstanding. The notification, request and offer of indemnity set forth above, at the option of the Trustee, shall be conditions precedent to the execution of the powers and trusts of this Agreement and to any action or cause of action for the enforcement of this Agreement or for any other remedy hereunder. Section 907. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Agreement and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in every such case the Authority, the City and the Trustee shall be restored to their former positions and rights hereunder, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. Section 908. Waivers of Events of Default. The Trustee may in its discretion waive any Event of Default hereunder or any action taken pursuant to any Event of Default, and shall do so on the request of the holders of (a) a majority in aggregate principal amount of Bonds then Outstanding in respect of which default in the payment of principal and/or premium, if any, and/or interest exists or Co) a majority in aggregate principal amount of Bonds then Outstanding in the case of any other default; provided, however, that there shall not be waived without the consent of the holders of all Bonds then Outstanding (A) any Event of Default in the payment of the principal of any Outstanding Bonds (whether at maturity or by sinking fund redemption) or (B) any default in the payment when due of the interest on any such Bonds unless, prior to such waiver or rescission, (1) there shall have been paid or provided for all arrears of interest with interest, to the extent permitted by law, at the rate borne by the Bonds on overdue installments of interest, all arrears of principal and premium, if any, and all expenses of the Trustee in connection with such default and (2) in case of any such waiver or rescission or in the case of any discontinuance, abandonment or adverse determination of any proceeding taken by the Trustee on account of any such default, the City, the Trustee and the Bondholders shall be restored to their former positions and rights hereunder respectively; and No such waiver or rescission shall extend to any subsequent or other default or impair any right consequent thereon. Section 909. Unconditional Right to Receive Principal, Premium and Interest. Nothing in this Agreement shall, however, affect or impair the right of the Trustee or any Bondholder to enforce, by action at law, payment of the principal of or premium, if any, or interest on any Bond at and after the maturity thereof, or on the date fixed for redemption, or the 24 obligation of the Authority to pay the principal of and premium, if any, and-interest on each of the Bonds issued hereunder to the respective holders thereof at the time and place, from the source and in the manner herein and in the Bonds expressed. 25 ARTICLE X "~' SUPPLEMENTAL AGREEMENTS OF TRUST; AMENDMENTS TO SUPPORT AGREEMENT Section 1001. Supplemental Agreements Not Requiring Consent of Bondholders. The Authority and the Trustee may, without the consent of, or notice to, any of the Bondholders, enter into Supplemental Agreements of Trust as shall not be inconsistent with the intent of the terms and provisions hereof for any one or more of the following purposes: (a) To cure any ambiguity, formal defect or omission in this Agreement or a Supplemental Agreement of Trust; (b) To grant to or confer upon the Bondholders any additional rights, remedies, powers or authority that may lawfully be granted to or conferred on the Bondholders; (c) To modify, amend or supplement this Agreement in such manner as required to permit the qualification hereof and thereof under the Trust Indenture Act of 1939, as amended, or _ any similar Federal statute hereafter in effect or any state securities (Blue Sky) law, and, if they so determine, to add to this Agreement such other terms, conditions and provisions as may be required by said Trust Indenture Act of 1939, as amended, or similar Federal statute or state securities law; (d) To add to the covenants and agreements of the Authority in this Agreement other covenants and agreements to be observed by the Authority; (e) To modify, amend or supplement this Agreement in such manner as required to permit the Authority to comply with the provisions of the Code relating to the rebate to the United States of America of earnings derived from the investment of the proceeds of Bonds, provided that such modification, amendment or supplement does not materially adversely affect the holders of all Bonds then Outstanding; (f) To modify, amend or supplement this Agreement in such manner as may be required by a Rating Agency to maintain its rating on the Bonds, provided that such modification, amendment or supplement does not materially adversely affect the holders of all Bonds then Outstanding; (g) To authorize the issuance of and to secure one or more Series of Bonds pursuant to Article III; and (h) To modify, amend or supplement this Agreement in any manner that the Trustee concludes is not materially adverse to the holders of all Bonds then Outstanding. Section 1002. Supplemental Agreements Requiring Consent of Bondholders. Exclusive of Supplemental Agreements of Trust authorized by Section 1001 and subject to the terms and provisions contained in this Section, the holders of not less than a majority in aggregate principal amount of Bonds then Outstanding shall have the right from time to time, notwithstanding anything in this Agreement to the contrary, to consent to the execution by the Authority and the Trustee of such other agreements or agreements supplemental hereto as shall be deemed necessary or desirable by the Authority for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Agreement and any Supplemental Agreements of Trust; provided, however, that if, in the opinion of the Trustee, any agreement supplemental hereto, modifying, altering, amending, adding to or recinding any of the terms or provisions shall affect only one Series of Bonds, then only the consent and approval of a majority in aggregate principal amount of Bonds then outstanding of such particular series shall be required for such supplemental agreement, provided, further, that nothing in this Agreement shall permit, or be construed as permitting, (a) an extension of the maturity of the principal of or the interest on any Bond, (b) a privilege or priority of any Bond or Bonds over any other Bond or Bonds, (c) a reduction in the aggregate principal amount of Bonds required for consent to such Supplemental Agreements of Trust, (d) a reduction in the principal amount of or premium, if any, on any Bond or the rate of interest thereon or (e) an extension of time or a reduction in amount of any payment required by any 26 sinking fund that may be applicable to any Bond, without the consent of the holders of all Bonds then Outstanding. If at any time the Authority shall request the Trustee to enter into any such Supplemental Agreement of Trust, the Trustee shall cause notice of the proposed execution of such Supplemental Agreement of Trust to be sent by registered or certified mail to the registered holder of each Bond at his address as it appears on the registration books. Such notice shall briefly set forth the nature of the proposed Supplemental Agreement of Trust and shall state that a copy thereof is on file at the corporate trust office of the Trustee for inspection by all Bondholders. If, within 90 days or such longer period as shall be prescribed by the Authority following the giving of such notice, the holders of not less than a majority in aggregate principal mount of all Bonds then Outstanding, or in the case of (a) through (e) above, the holders of all Bonds then Outstanding, shall have consented to and approved the execution thereof as herein provided, no holder of any Bond shall have any right to object to any of the terms and provisions contained therein, or the operation hereof, or in any manner to question the propriety thereof, or to enjoin or restrain the Trustee or the Authority from executing such Supplemental Agreement of Trust or fi'om taking any action pursuant to the provisions thereof. Upon the execution of any such Supplemental Agreement of Trust as in this Section permitted and provided, this Agreement shall be and be deemed to be modified and amended in accordance therewith. Section 1003. Amendments to Support Agreement Not Requiring Consent of Bondholders. The Authority and the Trustee shall, without the consent of or notice to the Bondholders, consent to any amendment, change or modification of the Support Agreement as may be required: (a) By the provisions of the Support Agreement or this Agreement; (b) For the purpose of curing any ambiguity or formal defect or omission therein; (c) To subject to this Agreement additional revenues, properties or collateral; (d) In connection with the issuance of one or more Series of Bonds pursuant to Article III other than the initial Series an original executed counterpart of a Supplemental Support Agreement that shall (1) make such necessary modifications to Exhibit A to the Support Agreement to provide for Annual Payments in amounts sufficient to pay principal of and interest on all Bonds then Outstanding plus such additional Series of Bonds, (2) describe the Project being financed by such additional Series of Bonds and (3) make such other modifications as shall be necessary and convenient for the issuance of such additional Seres of Bonds; and (e) In connection with any other amendment, change or modification that the Trustee concludes is not materially adverse to the holders of all Bonds then Outstanding, the Authority and the Trustee shall, without the consent of or notice to the Bondholders, consent to any such amendment, change or modification made in connection with any modification or amendment of, or supplement to, this Agreement pursuant to Section 1001(c). Section 1004. Amendments to Support Agreement Requiring Consent of Bondholders. Except for amendments, changes or modifications as provided in Section 1003, neither the Authority nor the Trustee shall consent to any amendment, change or modification of the Support Agreement without the written approval or consent of the holders of a majority in aggregate principal amount of Bonds then Outstanding given and procured as provided in Section 1002. If at any time the Authority and the City shall request the consent of the Trustee to any such proposed amendment, change or modification, the Trustee shall, upon being satisfactorily indemnified with respect to expenses, cause notice of such proposed amendment, change or modification to be given in the same manner as provided by Section 1002 with respect to Supplemental Agreements of Trust. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that a copy of the instrument embodying the same is on file at the principal corporate trust office of the Trustee for inspection by all Bondholders. 27 Section 1005. Limitation on Amendments. No amendment, change or modification may decrease the obligation of the City under the Support Agreement to pay amounts sufficient to pay principal of and premium, if any, and interest on the Bonds as the same become due. Section 1006. Amendment by Unanimous Consent. Notwithstanding any other provision of this Agreement, the Authority and the Trustee may enter into any Supplemental Agreement of Trust and may consent to a Supplemental Support Agreement upon receipt of the consent of the holders of all Bonds then Outstanding. Section 1007. Opinion of Counsel Required. The Trustee shall not enter into a Supplemental Agreement of Trust or consent to a Supplemental Support Agreement unless there shall have been filed with the Trustee and the Authority an Opinion of Counsel that such Supplemental Agreement of Trust or such Supplemental Support Agreement is authorized or permitted by this Agreement and complies with its terms and that on execution it will be valid and binding on the party or parties executing it in accordance with its terms, which Opinion of Counsel, to the extent appropriate, may rely on the Trustee's determination that such amendment, change or modification is described in Section 1001(h) or 1003(e), as if applicable, and an opinion of Bond Counsel stating that such Supplemental Agreement of Trust or Supplemental Support Agreement will not have an adverse affect on the exemption of interest from gross income for Federal income tax purposes on the Bonds, the interest on which was exempt from gross income on the date of their issuance. Section 1008. Consent of the City. Notwithstanding any other provision of this Agreement of Trust, a Supplemental Agreement of Trust or a Supplemental Support Agreement that affects any rights of, or imposes any costs on, the City shall not become effective until the City shall have consented to the execution and delivery of such Supplemental Agreement of Trust or such Supplemental Support Agreement. 28 ARTICLE XI THE TRUSTEE Section 1101. Acceptance of Trusts and Obligations. The Trustee hereby accepts the trusts and obligations imposed upon it by th/s Agreement and agrees to perform such trusts and obligations, but only upon and subject to the following express terms and conditions and no implied covenants or obligations shall be read into this Agreement against the Trustee: (a) The Trustee, prior to the occurrence of an Event of Default and alter the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and as a corporate trustee ordinarily would perform such duties under a corporate indenture. Upon the occurrence and continuation of an Event of Default (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent man ordinarily would exercise and use under the circumstances in the conduct of his own affairs. (b) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees but shall be answerable for the conduct of the same in accordance with the standard specified above, and shall be entitled to act upon the opinion or advice of its counsel concerning all matters of trust hereof and the duties hereunder, any may in all cases pay reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trust hereof. The Trustee may act on an Opinion of Counsel and shall not be responsible tbr any loss or damage resulting from any action or nonaction by it taken or omitted to be taken in good faith and in reliance on such Opinion of Counsel. (c) The Trustee shall not be responsible for any recital herein or in the Bonds (except in respect to the certificate of the Trustee endorsed on the Bonds) or for the recording, re- recording, filing or re-filing of any financing or continuation statement or any other document or instrument, or for the validity of the execution by the Authority of this Agreement or for any supplements thereto or instruments of further assurance, or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, and the Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, conditions or agreements on the part of the Authority or the City under the Support Agreement except as hereinafter set forth. The Trustee shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it in accordance with Section 702. (d) The Trustee shall not be accountable for the use of any Bonds authenticated or delivered hereunder. The bank or trust company acting as Trustee and its directors, officers, employees or agents may in good faith buy, sell, own, hold and deal in the Bonds and may join in any action which any bondholder may be entitled to take with like effect as if such bank or trust company were not the Trustee. To the extent permitted by law, such bank or trust company may also receive tenders and purchase in good faith Bonds from itself, including any department, affiliate or subsidiary, with like effect as if it were not the Trustee. (e) The Trustee shall be protected in acting on any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document reasonably believed by it to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Agreement on the request or authority or consent of any person who at the time or making such request or giving such authority or consent is the holders of any Bond shall be conclusive and binding upon all furore holders of the same Bond and upon Bonds issued in exchange therefor or in place thereof. (f) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely on a certificate signed (1) on behalf of the Authority by its Chairman or Vice-Chairman and attested by its Secretary under its seal, or such other person or persons as may be designated for such purposes by resolution of the Authority, or (2) on behalf of the City, by its City Manager or by such person or persons as may be designated for such purposes by the City Manager or the City Council, as 29 sufficient evidence of the facts therein contained, and prior to the occurrence'of a default of which the Trustee has been notified as provided in subsection (h) of this Section, or of which by said subsection it is deemed to have notice, may also accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may at its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the same. The Trustee may accept a certificate of the City Clerk or of the Secretary of the Authority under its seal to the effect that a resolution in the form therein set forth has been adopted by the City Council or the Authority, as the case may be, as conclusive evidence that such resolution has been duly adopted and is in full force and effect. (g) The permissive right of the Trustee to do things enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful default. (h) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder or under the Support Agreement, except failure by the Authority or the City to cause to be made any of the payments to the Trustee required to be made by Article VI or failure by the City to cause any payments to be made to the Trustee or failure by the Authority or the City to file with the Trustee any document required by this Agreement to be so filed, unless -the Trustee shall be notified of such default by the Authority or the City or by the holders of 25% in aggregate principal amount of Bonds then Outstanding. (i) The Trustee shall not be required to give any bond or surety with respect to the execution of its rights and obligations hereunder. (j) Notwithstanding any other provision of this Agreement, the Trustee shall have the right, but shall not be required, to demand, as a condition of any action by the Trustee in respect of the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Agreement, any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that required by the terms hereof. (k) Before taking any action under this Agreement the Trustee may require that satisfactory indemnity be furnished to it for the reimbursement of all expenses to which it may be put and to protect it against all liability by reason of any action so taken, except liability which is adjudicated to have resulted from its negligence or willful default. (1) All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust in the manner and for the purposes for which they were received but need not be segregated from other moneys except to the extent required by this Agreement or law. The Trustee shall not be under any liability for interest on any moneys received hereunder except such as may be agreed upon. Section 1102. Fees, Charges and Expenses of Trustee. Absent a specific agreement as to the payment of the Trustee's fees, charges and expenses, the Trustee shall be entitled to payment of and reimbursement by the City, as provided in the Support Agreement for reasonable fees for its services and all expenses reasonably incurred by it hereunder, including the reasonable fees and disbursements of its counsel; provided that the trust estate shall not be liable for costs or expenses of the Trustee other than reasonable costs and expenses and shall not be liable for "overhead expenses" except as such expenses may be included as a component of the Trustee's stated annual fees. Upon an Event of Default, but only upon an Event of Default, the Bond Trustee shall have a first lien with right of payment prior to payment on account of principal of, or premium, if any, and interest on any Bond upon the trust estate created by this Agreement for the foregoing fees, charges and expenses incurred by the Trustee. Section 1103. Intervention by Trustee. In any judicial proceeding to which the City is a party and which in the opinion of the Trustee has a substantial beating on the interests of the Bondholders, the Trustee may intervene on behalf of Bondholders and, subject to Section 11010c), shall do so if requested by the holders of 25% in aggregate principal amount of Bonds then Outstanding. 30 Section 1104. Merger or Consolidation of Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting f~om any such conversion, sale, merger, consolidation or transfer to which it is a party shall be and become successor Trustee hereunder and vested with all the trusts, powers, discretion, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any insmnnent or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 1105. Resignation by Trustee. The Trustee may at any time resign from the trusts hereby created by giving 30 days' notice to the Authority, the City, and each holder of Bonds then Outstanding. Such resignation shall take effect upon the appointment of a successor or temporary Trustee by the Bondholders, the Authority or a court of competent jurisdiction. Section 1106. Removal of Trustee. The Trustee may be removed at any time (a) by an instrument or concurrent instruments in writing delivered to the Trustee and the Authority and signed by the holders of a majority in aggregate principal mount of Bonds then Outstanding or (b) by the City by notice in writing given by an Authorized City Representative to the Trustee 60 days before the removal date; provided, however, that the City shall have no right to remove the Trustee during any time when an Event of Default has occurred or is continuing or when an event has occurred and is continuing or condition exists that with the giving of notice or the passage of time, or both, would be an Event of Default. The removed Trustee shall return to the City the amount of the Trustee's annual fee allocable to the portion of the current year remaining after the removal date. Notwithstanding the foregoing, nothing contained in this Agreement shall relieve the Authority of its obligation to pay the Trustee's fees and expenses incurred to the date of such removal. Such removal shall take effect upon the appointment of a successor Trustee or the earlier appointment of a temporary Trustee by the Bondholders, the Authority or a court of competent jurisdiction. Section 1107. Appointment of Successor Trustee by Bondholders; Temporary Trustee. In case the Trustee hereunder shall resign, be removed, be dissolved, be in course of dissolution or liquidation or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers or of a receiver appointed by a court, a successor may be appointed by the holders of a majority in aggregate principal amount of Bonds then Outstanding, by an instrument or concurrent instruments in writing signed by such holders; provided, however, that in case of such vacancy the City, by an instrument signed by an Authorized City Representative, may appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by the Bondholders in the manner provided above; and any such temporary Trustee so appointed by the City shall immediately and without further act be superseded by the Trustee so appointed by such Bondholders. Every such Trustee appointed pursuant to this section shall be, if there be such an institution willing, qualified and able to accept the trust upon reasonable or customary terms, (a) a bank or trust company in the Commonwealth of Virginia, in good standing and having a combined capital, surplus and undivided profits of not less than $50,000,000 or (b) a subsidiary trust company under the Trust Subsidiary Act, Article 3.1, Chapter 2, Title 6.1, of the Virginia Code, or any successor provision of law, whose parent Virginia bank or bank holding company has undertaken to be responsible for the acts of such subsidiary trust company pursuant to the provisions of Section 6.1-32.7(a) of the Trust Subsidiary Act, or any successor provision of law, and whose combined capital, surplus and undivided profits, together with that of its parent Virginia bank or bank holding company, as the case may be, is not less than $50,000,000. Section 1108. Concerning any Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Authority an instrument in writing accepting such appointment 31 hereunder, and thereupon such successor, without any further act, deed of'ci~nveyance, shall become fully vested with all the properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the request of the Authority, execute and deliver an instrument transferring to such successor Trustee all the properties, fights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor. Should any instrument in writing fi-om the Authority be required by any successor Trustee for more fully and certainly vesting in such successor the properties, rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. Section 1109. Trustee Protected in Relying on Agreements, Etc. The resolutions, opinions, certificates and other instruments provided for in this Agreement may be accepted by the Trustee as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for the release of property and the withdrawal of cash hereunder or the taking of any other action by the Trustee as provided hereunder. Section 1110. Successor Trustee as Paying Agent, Registrar and Custodian of Funds. In the event of a change in the office of Trustee, the predecessor Trustee which has resigned or been removed shall cease to be paying agent and registrar for the Bonds and custodian of the funds created hereunder, and the successor Trustee shall become such paying agent and custodian. 32 ARTICLE XII DISCHARGE OF AGREEMENT Section 1201. Discharge of Liens and Pledges; Bonds No Longer Deemed to Be Outstanding Hereunder. The obligations of the Authority under this Agreement and the liens, pledges, charges, masts, covenants and agreements of the Authority herein made or provided for, shall be fully discharged and satisfied as to any Bond and such Bond shall no longer be deemed to be Outstanding hereunder: (a) when such Bond shall have been cancelled, or shall have been surrendered for cancellation and is subject to cancellation; or shall have been purchased by the Authority fi.om moneys in the Bond Fund; Co) as to any Bond not cancelled or so purchased or so surrendered for cancellation and subject to cancellation, when (1) payment of the principal and the applicable premium of such Bond, plus interest on such principal to the due date thereof (whether such due date be by reason of maturity or upon redemption or prepayment or otherwise) shall have been made or caused to be made in accordance with the terms thereof, or (2) payment of the principal and the applicable premium of such Bond, plus interest on such principal to the due date thereof (whether such due date be by reason of maturity or upon redemption or prepayment or otherwise) shall have been provided by irrevocably depositing with the Trustee, in mast, and irrevocably appropriating and setting aside exclusively for such payment (i) moneys sufficient to make such payment or (ii) noncallable Government Obligations maturing as to principal and interest in such mount and at such times as will insure the availability of sufficient moneys to make such payment, or (iii) a combination of both such moneys and noncallable Government Obligations, and (iv) payment of all necessary and proper fees, costs, and expenses of the Trustee satisfactory to the Trustee shall have been made in connection with the Bonds and the administration of this Agreement. For purposes of this Section, Government Obligations shall not include securities of any open-end or closed-end management type investment company or investment mast registered under the Investment Company Act of 1940. (c) Notwithstanding the foregoing, in the case of a Bond which by its terms may be redeemed or otherwise prepaid prior to the stated maturity thereof, and which the Authority elects to redeem or prepay, no deposit under clause (2) of subparagraph (b) above shall constitute such payment, discharge and satisfaction as aforesaid until such Bond shall have been irrevocably called or designated for redemption or prepayment and proper notice of such redemption or prepayment shall have been previously mailed in accordance with Section 402 of this Agreement, or irrevocable provision shall have been made for the giving of such notice; provided that nothing in this Article shall require or be deemed to require the Authority to elect to redeem or prepay any such Bond. (d) In the event the Authority elects to redeem or prepay any such Bond, nothing in this Article shall require or be deemed to require the redemption or prepayment as of any particular date or dates. (e) Notwithstanding any provision of any other Article of this Agreement which may be contrary to the provisions of this Article, all moneys or Government Obligations set aside and held in mast pursuant to the provisions of this Article for the payment of Bonds (including interest and premium, if any, thereof) shall be applied to and used solely for the payment of the particular Bonds (including interest and premium thereof) with respect to which such moneys and Government Obligations have been so set aside in trust. (f) In the event that all of the Bonds secured by this Agreement are paid or deemed paid in accordance with the terms of this Agreement, then the right and interest of the Trustee in and to the trust estate and all covenants, agreements and other obligations of the Authority or the City to the registered holders of the Bonds will cease and be discharged and satisfied. In the event the Bonds of any maturity are paid or deemed to be paid in accordance with the terms of this Agreement, then such Bonds will cease to be entitled to any lien, benefit or security under this Agreement (other than the right to receive payment) and all covenants, agreements and other 33 obligations of the Authority or the City to the registered holders of such Bonds Will cease and be discharged and satisfied. 34 ARTICLE XIII MISCELLANEOUS Section 1301. Consents, etc., of Bondholders. Any consent, request, direction, approval, objection or other instrument (collectively, a "Consent") required by this Agreement to be executed by the Bondholders may be in any number of concurrent writings of similar tenor and may be executed by such Bondholders in person or by agent appointed in writing. Proof of the execution of a Consent or of the writing appointing any such agent shall be sufficient for any of the purposes of this Agreement and shall be conclusive in favor of the Authority with regard to any action taken under the Consent if the fact and date of the execution by any person of any such writing is proved by a certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before him the execution thereof, or by affidavit of any witness to such execution. Section 1302. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Agreement or the Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of the Bonds any legal or equitable right, remedy or claim under or in respect to this Agreement or any covenants, conditions and agreements herein contained since this Agreement and all of the covenants, conditions and agreements hereof are intended to be and is for the sole and exclusive benefit of the parties hereto and the holders of the Bonds as herein provided. Section 1303. Limitation of Liability of Authority, Etc. No covenant, agreement or obligation contained herein shall be deemed to be a covenant, agreement or obligation of any present or future member of the Authority or officer, commissioner, employee or agent of the Authority in his individual capacity, and neither the members of the Authority nor any officer or commissioner of the Authority executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. No member of the Authority or officer, commissioner, employee, agent or advisor of the Authority shall incur any personal liability with respect to any other action taken by him pursuant to this Agreement or the Act, provided such commissioner, officer, employee, agent or advisor acts in good faith. The Authority shall not be liable under any circumstances for the actions or omissions of the City under the Support Agreement. Section 1304. Severability. If any provision of this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this Agreement shall be construed and enforced as if such illegal provision had not been contained herein. Section 1305. 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 Authority, at One Columbus Center, Suite 300, Virginia Beach, Virginia 23462 (Attention: Chairman), Co) if to the City, at Municipal Center, Virginia Beach, Virginia 23456 (Attention: City Manager), or (c) if to the Trustee, at 5 Penn Plaza, 16th Floor, New York, New York 10001 (Attention: Corporate Trust Department). The Authority, the City and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed. Section 1306. Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 35 Section 1307. Applicable Law. -' ~ This Agreement shall be governed by the applicable laws o£ the Commonwealth of Virginia. Section 1308. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and thc same instrument. IN WITNESS WHEREOF, the Authority and the Trustee have cauged' this Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By Chairman THE BANK OF NEW YORK, as Trustee By Its -Acknowledged and Consented To: CITY OF VIRGINIA BEACH, VIRGINIA By:, Its: 22764.000246 RICHMOND 822833v4 37 FIRST SUPPLEMENTAL AGREEMENT OF TRUST between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and THE BANK OF NEW YORK, as Trustee Dated as of June 1, 2002 TABLE OF CONTENTS Panics ............................... : .............................................................................................................. 1 Recitals ............................................................................................................................................. 1 1 Granting Clause ............................................................................................................................... ARTICLE I FIRST SUPPLEMENTAL AGREEMENT Section 1.101. Authorization of First Supplemental Agreement ..................................................... 2 Section 1.102. Definitions ................................................................................................................ 2 Section 1.103. Rules of Construction .............................................................................................. 3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2002 BONDS 'Section 1.201. Authorization of Series 2002 Bonds and Series 2002 Project ................................. 4 Section 1.202. Details of Series 2002 Bonds ................................................................................... 4 Section 1.203. Form of Series 2002 Bonds ...................................................................................... 5 Section 1.204. Securities Depository Provisions ............................................................................. 5 Section 1.205. Delivery of Series 2002 Bonds ................................................................................ 5 ARTICLE III REDEMPTION OF SERIES 2002 BONDS Section 1.301. Redemption Date and Price ..................................................................................... 6 Section 1.302. Selection of Series 2002 Bonds for Redemption ..................................................... 7 Section 1.303. Notice of Redemption .............................................................................................. 7 ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2002 BONDS Section 1.401. Application of Proceeds of Tax-Exempt Series 2002A Bonds ................................ 8 Section 1.402. Application of Proceeds of Taxable Series 2002B Bonds ....................................... 8 ARTICLE V ESTABLISHMENT OF ACCOUNTS Section 1.501. Series 2002A Project Account ................................................................................. 9 Section 1.502. Series 2002B Project Account ................................................................................. 9 ARTICLE VI SECURITY FOR SERIES 2002 BONDS Section 1.601. Security for Series 2002 Bonds .............................................................................. 10 ARTICLE VII MISCELLANEOUS Section 1.701. Limitations on Use of Proceeds ............................................................................. 11 Section 1.702. Limitation of Rights ............................................................................................... 11 Section 1.703. Severability ............................................................................................................ 11 Section 1.704. Successors and Assigns .......................................................................................... 11 Section 1.705. Applicable Law ...................................................................................................... 11 Section 1.706. Counterparts ........................................................................................................... 11 (i) Signatures ....................................................................................................................................... 12 Exhibit A o Form of Tax-Exempt Series 2002A Bond A-1 Exhibit B - Form of Taxable Series 2002B Bond ........................................................................ B-1 (ii) THIS FIRST SUPPLEMENTAL AGREEMENT OF TRUST dated as of the 1st day of June, 2002, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and THE BANK OF NEW YORK, a New York banking corporation, having a corporate trust office in New York, New York, as trustee (in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Authority and the Trustee have entered into an Agreement of Trust dated as of June 1, 2002 (the "Master Agreement of Trust"), pursuant to which the Authority has agreed to issue from time to time public facility revenue bonds or notes and use the proceeds thereof to finance costs incurred in connection with certain Projects (as hereinafter defined) for the benefit of the City of Virginia Beach, Virginia (the "City"); and WHEREAS, within the limitations of and in compliance with the Master Agreement of Trust, the City has requested the Authority to issue two series of public facility revenue bonds to -finance the costs of the Series 2002 Project (as hereinafter defined); and WHEREAS, the Authority has agreed to issue the Series 2002 Bonds (as hereinafter defined) in the aggregate principal amount of $ , secured by a pledge of the revenues and receipts derived from a Support Agreement dated as of June 1, 2002 (the "Support Agreement"), between the Authority and the City, and the City has agreed, subject to the annual appropriation by the Council of the City, to make annual payments that will be sufficient to pay the principal of and premium, if any, and interest on such public facility revenue bonds as the same shall become due; and WHEREAS, the Authority has taken all necessary action to make the Series 2002 Bonds, when authenticated by the Trustee and issued by the Authority, valid and binding limited obligations of the Authority and to constitute this First Supplemental Agreement a valid and binding agreement authorizing and providing for the details of the Series 2002 Bonds; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows: ARTICLE FIRST SUPPLEMENTAL AGREEMENT Section 1.101. Authorization of First Supplemental Agreement. This First Supplemental Agreement is authorized and executed by the Authority and delivered to the Trustee pursuant to and in accordance with Articles III and X of the Master Agreement of Trust. All terms, covenants, conditions and agreements of the Master Agreement of Trust shall apply with full force and effect to the Series 2002 Bonds and to the holders thereof, except as otherwise provided in this First Supplemental Agreement. Section 1.102. Definitions. Except as otherwise defined in this First Supplemental Agreement, words defined in the Master Agreement of Trust are used in this First Supplemental Agreement with the meanings assigned to them in the Master Agreement of Trust. In addition, the following words shall have the following meanings unless a different meaning clearly appears from the context: "Declaration of Likely Taxability" shall mean a written certificate of the Authority satisfactory to the Trustee evidencing that a change in use (as defined in Section 150(a)(3) of the Code) with respect to all or a portion of the Series 2002 Project financed with proceeds of the Tax-Exempt Series 2002A Bonds has occurred or is about to occur and the redemption or payment of all or a portion of the Tax-Exempt Series 2002A Bonds is necessary as a result of such change in use to preserve the exclusion from gross income of interest on the Tax-Exempt Series 2002A Bonds for federal income tax purposes, together with an opinion of Bond Counsel to the effect that such redemption or payment is necessary as a result of such change in use to preserve the exclusion fi.om gross income of interest on the Tax-Exempt Series 2002A Bonds for federal income tax purposes. "Determination of Taxability" shall mean and shall be deemed to have occurred on the first to occur of the following: (a) on that date when the Authority or the City files any statement, supplemental statement or other tax schedule, remm or document which discloses that an Event of Taxability shall have in fact occurred; Co) on that date when the Authority or the City shall be advised in writing by the Commissioner or any District Director of the Internal Revenue Service (or any other government official or agent exercising the same or a substantially similar function from time to time) that, based upon filings of the Authority, or upon any review or audit of the Authority, or upon any other ground whatsoever, an Event of Taxability shall have occurred; or (c) on that date when the Authority or the City shall receive notice in writing fi.om any holder of Tax-Exempt Series 2002A Bonds or former holder of Tax-Exempt Series 2002A Bonds, or from the Trustee, that the Internal Revenue Service (or any other governmental agency exercising the same or a substantially similar function fi.om time to time) has assessed as includable in the gross income of any holder of Tax-Exempt Series 2002A Bonds or former holder of Tax-Exempt Series 2002A Bonds the interest on the Tax-Exempt Series 2002A Bonds due to the occurrence of an Event of Taxability; provided, however, no Determination of Taxability shall occur under (b) or (c) unless the City has been afforded the oppommity, at its expense, to contest any such assessment or unfavorable ruling and, further, no Determination of Taxability shall occur until such contest, if made, has been finally determined. "Event of Taxability" shall mean a change in law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstances (including without limitation, the taking of any action by the Authority or the City, or the failure to take any action by the Authority or the City, or the making by the Authority or the City of any misrepresentation herein or in any certificate required to be given in connection with the issuance, sale or delivery of the Tax-Exempt Series 2002A Bonds) which has the effect of causing the interest paid or payable on all or a portion of the Tax-Exempt Series 2002A Bonds to become includable in any way in the 2 gross income of any holder of the Tax-Exempt Series 2002A Bonds or former 'holder of the Tax- Exempt Series 2002A Bonds for federal income tax purposes. "First Supplemental Agreement" shall mean this First Supplemental Agreement of Trust between the Authority and the Trustee, which supplements and amends the Master Agreement of Trust. "Letter of Representations" shall mean the Blanket Letter of Representations dated ., __., from the Authority to the Securities Depository and any amendments thereto or successor agreements between the Authority and any successor Securities Depository with respect to the Series 2002 Bonds. Notwithstanding any provision of the Master Agreement of Trust, including Article X regarding amendments, the Trustee may enter into any such amendment or successor agreement without the consent of Bondholders. "Project" or "Projects" shall have the meaning set forth in the Support Agreement. "Securities Depository" shall mean The Depository Trust Company, a corporation organized and existing under the laws of the State of New York, and any other securities depository for the Series 2002 Bonds appointed pursuant to Section 1.204, and their successors. "Series 2002 Bonds" shall mean, collectively, the Tax-Exempt Series 2002A Bonds and the Taxable Series 2002B Bonds. "Series 2002 Project" shall mean have the meaning set forth in the Support Agreement. "Series 2002A Project Account" shall mean the Series 2002A Project Account established in Section 1.501 of this First Supplemental Agreement. "Series 2002B Project Account" shall mean the Series 2002A Project Account established in Section 1.502 of this First Supplemental Agreement. "Tax-Exempt Series 2002A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A, authorized to be issued pursuant to this First Supplemental Agreement. "Taxable Series 2002B Bonds" shall mean the Authority's $ Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B, authorized to be issued pursuant to this First Supplemental Agreement. Section 1.103. Rules of Construction. The following rules shall apply to the construction of this First Supplemental Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Series 2002 Bonds shall not be deemed to refer to or connote the payment of Series 2002 Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this First Supplemental Agreement. (d) The headings herein and Table of Contents to this First Supplemental Agreement herein are solely for convenience of reference and shall not constitute a part of this First Supplemental Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Series 2002 Bonds are references to payment of principal of and premium, if any, and interest on the Series 2002 Bonds. ARTICLE II "~ AUTHORIZATION, DETAILS AND FORM OF SERIES 2002 BONDS Section 1.201. Authorization of Series 2002 Bonds and Series 2002 Project. There are hereby authorized to be issued the Tax-Exempt Series 2002A Bonds in an aggregate principal amount of $ and the Taxable Series 2002B Bonds in the aggregate principal amount of $ to (a) finance the Cost of the Series 2002 Project and (b) finance costs incident to issuing the Series 2002 Bonds, in accordance with Article IV hereof. Section 1.202. Details of Series 2002 Bonds. (a) The Tax-Exempt Series 2002A Bonds shall be designated "Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A," shall be dated June 1, 2002, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof, shall be numbered R-1 upward. The Tax-Exempt Series 2002A Bonds shall bear interest at rates, payable semiannually on each February 1 and August 1, beginning February 1, 2003, and shall mature in installments on August 1 in years and amounts, as follows: Year Amount Rate Year Amount Rate (b) The Taxable Series 2002B Bonds shall be designated "Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B," shall be dated June 1, 2002, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof, shall be numbered R-1 upward. The Taxable Series 2002B Bonds shall bear interest at rates, payable semiannually on each February 1 and August 1, beginning February 1, 2003, and shall mature in installments on August 1 in years and amounts, as follows: Year Amount Rate Year Amount Rate (c) Each Series 2002 Bond shall bear interest (a) fi.om its date, if such Series 2002 Bond is authenticated prior to the first interest payment date, or Co) otherwise fi.om the interest payment date that is, or immediately precedes, the date on which such Series 2002 Bond is authenticated; provided, however, that if at the time of authentication of any Series 2002 Bond payment of interest is in default, such Series 2002 Bond shall bear interest fi.om the date to which interest has been paid. Interest shall be calculated on the basis of a 360-day of twelve 30-day months. (d) Principal of and premium, if any, on the Series 2002 Bonds shall be payable to the registered holder(s) upon the surrender of Series 2002 Bonds at the principal corporate trust office of the Trustee. Interest on the Series 2002 Bonds 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 each interest payment date occurs on the registration books kept by the Trustee; provided, however, if the Series 2002 Bonds are registered in the name of a Securities Depository or its nominee as registered holder or at the option of a registered holder(s) of at least $1,000,000 of Series 2002 Bonds, payment shall be made by wire transfer pursuant to the wire instructions received by the Trustee from such registered holder(s). Principal, premium, if any, and interest shall be payable in lawful money of the United States of America. 4 Section 1.203. Form of Series 2002 Bonds. The Tax-Exempt Series 2002A Bonds shall be in substantially the form set forth in Exhibit A, and the Taxable Series 2002 Bonds shall be in substantially the form set forth in Exhibit B, with such appropriate variations, omissions and insertions as are permitted or required by the Master Agreement of Trust and this First Supplemental Agreement. Section 1.204. Securities Depository Provisions. Initially, one certificate for each maturity of each Series of the Series 2002 Bonds will be issued and registered to the Securities Depository, or its nominee. The Authority shall enter into a Letter of Representations relating to a book-entry system to be maintained by the Securities Depository with respect to the Series 2002 Bonds. In the event that (a) the Securities Depository determines not to continue to act as a securities depository for the Series 2002 Bonds by giving notice to the Trustee and the Authority discharging its responsibilities hereunder or (b) the Authority, at the direction of the City, determines (1) that beneficial owners of Series 2002 Bonds shall be able to obtain certificated Series 2002 Bonds or (2) to select a new Securities Depository, then the Trustee shall, at the .direction of the Authority, attempt to locate another qualified securities depository to serve as Securities Depository or authenticate and deliver certificated Series 2002 Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Exhibit A or Exhibit B, as applicable; provided, however, that such form shall provide for interest on the Series 2002 Bonds to be payable (i) from June 1, 2002, if it is authenticated prior to February 1, 2003, or (ii) otherwise from the February 1 or August 1 that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case interest on such Series 2002 Bonds shall be payable fi.om the date to which interest has been paid). In delivering certificated Series 2002 Bonds, the Trustee shall be entitled to rely conclusively on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Series 2002 Bonds will be registrable, transferable and exchangeable as set forth in Sections 204 and 205 of the Master Agreement of Trust. So long as there is a Securities Depository for the Series 2002 Bonds (A) it or its nominee shall be the registered holder(s) of the Series 2002 Bonds, (B) notwithstanding anything to the conUary in this Agreement, determinations of persons entitled to payment of principal, premium, if any, and interest, transfers of ownership and exchanges and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (C) the Authority and the Trustee shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (D) references in this Agreement to registered holder(s) of the Series 2002 Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Series 2002 Bonds and (E) in the event of any inconsistency between the provisions of this Agreement, other than those set forth in this paragraph and the preceding paragraph, and the provisions of the Letter of Representations such provisions of the Letter of Representations shall control. Section 1.205. Delivery of Series 2002 Bonds. The Trustee shall authenticate and deliver the Series 2002 Bonds when there have been filed with or delivered to it all items required by Section 303 of the Master Agreement of Trust. 5 ARTICLE III "" REDEMPTION OF SERIES 2002 BONDS Section 1.301. Redemption Date and Price. The Series 2002 Bonds may not be called for redemption by the Authority except as follows: (a) (i) The Tax-Exempt Series 2002A Bonds maturing on or after August 1, __, may be redeemed by the Authority, at the direction of the City, on or after August 1, , in whole or in part at any time (in increments of $5,000), at the following redemption prices (expressed as a percentage of the principal amount to be redeemed) plus interest accrued to the date fixed for redemption: Period During Which Redeemed (both dates inclusive) Redemption Price (ii) The Tax-Exempt Series 2002A Bonds maturing on August 1, , are required to be redeemed prior to maturity, in part, pursuant to the following sinking fund requirement. The Trustee shall redeem the Tax-Exempt Series 2002A Bonds maturing on August 1, , on August 1 in years and amounts, upon payment of 100% of the principal amount to be redeemed plus interest accrued to the redemption date, as follows: Year Amount The amount of the Tax-Exempt Series 2002A Bonds to be redeemed pursuant to this subsection (a)(ii) may be reduced in accordance with the provisions of Section 602 of the Master Agreement of Trust. Co) (i) The Taxable Series 2002B Bonds maturing on or after August 1, , may be redeemed by the Authority, at the direction of the City, on or after August 1, __, in whole or in part at any time (in increments of $5,000), at the following redemption prices (expressed as a percentage of the principal amount to be redeemed) plus interest accrued to the date fixed for redemption: Period During Which Redeemed (both dates inclusive) Redemption Price (ii) The Taxable Series 2002B Bonds maturing on August 1, , are required to be redeemed prior to maturity, in part, pursuant to the following sinking fund requirement. The Trustee shall redeem the Taxable Series 2002B Bonds maturing on August 1, ., on August 1 in years and amounts, upon payment of 100% of the principal amount to be redeemed plus interest accrued to the redemption date, as follows: Year Amount The amount of the Taxable Series 2002B Bonds to be redeemed pursuant to this subsection (b)(ii) may be reduced in accordance with the provisions of Section 602 of the Master Agreement of Trust. (c) The Tax-Exempt Series 2002A Bonds are required to be redeemed in whole or in part on any date within 90 days after a Determination of Taxability at a redemption price of 100% of the principal amount of the Tax-Exempt Series 2002A Bonds plus accrued interest to the redemption date. (d) The Tax-Exempt Series 2002A Bonds are subject to redemption by the Authority, at the direction of the City, in whole or in part, on any date within 90 days after receipt by the Trustee of a Declaration of Likely Taxability at a redemption price of 100% of the principal amount of the Tax-Exempt Series 2002A Bonds to be redeemed plus accrued interest to the redemption date. Section 1.302. Selection of Series 2002 Bonds for Redemption. If less than all of the Series 2002 Bonds are called for redemption, the Series 2002 Bonds -to be redeemed shall be selected by the Securities Depository 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. The portion of any Series 2002 Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Series 2002 Bonds for redemption, each Series 2002 Bond shall be considered as representing that number of Series 2002 Bonds which is obtained by dividing the principal amount of such Series 2002 Bond by $5,000. If a portion of a Series 2002 Bond shall be called for redemption, a new Series 2002 Bond of the appropriate Series in principal amount equal to the unredeemed portion thereof shall be issued to the registered owner upon the surrender thereof. Section 1.303. Notice of Redemption. Notice of redemption of Series 2002 Bonds shall be given in the manner set forth in Section 402 of the Master Agreement of Trust. 7 ARTICLE IV -'" APPLICATION OF PROCEEDS OF SERIES 2002 BONDS Section 1.401. Application of Proceeds of Tax-Exempt Series 2002A Bonds. The proceeds of the Tax-Exempt Series 2002A Bonds shall be paid to the Trustee and applied as follows: (a) $ , representing accrued interest on the Tax-Exempt Series 2002A Bonds, shall be deposited in the Interest Account in the Bond Fund; and (b) $ shall be deposited in the Series 2002A Project Account in the Project Fund. Section 1.402. Application of Proceeds of Taxable Series 2002B Bonds. (a) $ ., representing accrued interest on the Taxable Series 2002B Bonds, shall be deposited in the Interest Account in the Bond Fund; and (b) $ shall be deposited in the Series 2002B Project Account in the Project Fund. ARTICLE V ~" ESTABLISHMENT OF ACCOUNTS Section 1.501. Series 2002A Project Account. There shall be established within the Project Fund a special account entitled "Series 2002A Project Account." The portion of the proceeds of the Tax-Exempt Series 2002A Bonds specified in Section 1.401(b) shall be deposited in the Series 2002A Project Account. Money in the Series 2002A Project Account shall be used in accordance with the provisions o£ Section 503 of the Master Agreement &Trust, but only for the tax-exempt portion of the Series 2002 Project. Section 1.502. Series 2002B Project Account. There shall be established within the Project Fund a special account entitled "Series 2002B Project Account." The portion of the proceeds of the Taxable Series 2002B Bonds specified in Section 1.402(b) shall be deposited in the Series 2002B Project Account. Money in the Series 2002B Project Account shall be used in accordance with the provisions of Section 503 of the Master Agreement of Trust. ARTICLE VI '- ~' SECURITY FOR SERIES 2002 BONDS Section 1.601. Security for Series 2002 Bonds. The Series 2002 Bonds shall be equally and ratably secured under the Master Agreement of Trust with any other series issued pursuant to Article III of the Master Agreement of Trust, without preference, priority or distinction of any Bonds over any other Bonds, except as provided in the Master Agreement of Trust. 10 ARTICLE VII MISCELLANEOUS Section 1.701. Limitations on Use of Proceeds. The Authority intends that interest on the Tax-Exempt Series 2002A Bonds shall be excluded from gross income for Federal income tax purposes. The Authority covenants with the holders of the Tax-Exempt Series 2002A Bonds not to take any action that would adversely affect, and to take all action within its power necessary to maintain, the exclusion of interest on all Tax-Exempt Series 2002A Bonds from gross income for Federal income taxation purposes. The Authority shall provide prompt written notice to the Trustee of the occurrence of a Determination of Taxability about which the Authority receives notice or has knowledge. Section 1.702. Limitation of Rights. With the exception of fights herein expressly conferred, nothing expressed or mentioned in or to be implied from this First Supplemental Agreement or the Series 2002 Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of Series -2002 Bonds any legal or equitable right, remedy or claim under or in respect to this First Supplemental Agreement or any covenants, conditions and agreements herein contained since this First Supplemental Agreement and all of the covenants, conditions and agreements hereof are intended to be and are for the sole and exclusive benefit of the parties hereto and the holders of Bonds as herein provided. Section 1.703. Severability. If any provision of this First Supplemental Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this First Supplemental Agreement shall be construed and enforced as if such illegal provision had not been contained herein. Section 1.704. Successors and Assigns. This First Supplemental Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 1.705. Applicable Law. This First Supplemental Agreement shall be governed by the applicable laws of the Commonwealth of Virginia. Section 1.706. Counterparts. This First Supplemental Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same insmunent. 11 IN WITNESS WHEREOF, the Authority and the Trustee have' 'c~iused this First Supplemental Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By Chairman THE BANK OF NEW YORK, as Trustee By Its Acknowledged and Consented To: CITY OF VIRGINIA BEACH, VIRGINIA, By: Its: 12 EXHIBIT A Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R-1 UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Public Facility Revenue Bond (Town Center Project Phase I) Series 2002A INTEREST RATE MATURITY DATE DATED DATE CUSIP August 1,200__ June 1 2002 REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of The Bank of New York, New York, New York, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely fi:om such source, interest hereon on each February 1 and August 1, beginning February 1, 2003, at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) fi:om June 1, 2002, if this bond is authenticated prior to February 1, 2003, or Co) otherwise from the February 1 or August 1 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest fi:om the date to which interest has been paid.) Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the 15th day of the month preceding each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. Principal and interest are payable in lawful money of the United States of America. Notwithstanding any other provision hereof, this bond is subject to book-entry form maintained by The Depository Trust Company ("DTC"), and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the Authority's Letter of Representations to DTC. This bond is one of an issue of $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of June 1, 2002, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of June 1, 2002 A-1 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns-'to'the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of June 1, 2002 (the "Support Agreement"), between the Authority and the City of Virginia Beach, Virginia (the "City~'), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $ Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B (the "2002B Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the 2002B Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to finance the acquisition of a parking facility for use by the City and land to be used as a public plaza and costs incurred in issuing the Bonds. Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of -and premium, if any, and interest on the Bonds as the same shall become due in accordance with their terms and the provisions and the terms of the Agreement of Trust. The obligation of the City to make payments under the Support Agreement constitutes a current expense of the City, subject to annual appropriation by the Council of the City. The obligation of the City to make payments under the Support 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 BONDS AND THE PREMIUM, IF ANY, AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURZ PAYMENT THEREOF. THE BONDS AND THE PREMIUM, IF ANY, AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in his individual capacity, and neither the Chairman of the Authority nor any officer thereof executing .this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or before August 1, , will not be subject to optional redemption before their respective maturity dates. The Bonds maturing on or after August 1, , may be redeemed prior to their respective maturities on or after August 1, , at the option of the Authority, at the direction of the City, in whole or in part at any time a the following redemption prices (expressed as a percentage of the principal amount, or portion thereof, of Bonds to be redeemed), together with the interest accrued to the date fixed for redemption: A-2 Redemption Period (both dates inclusive) Redemption Price The Bonds maturing on August 1, ~, are required to be redeemed prior to maturity, in part, pursuant to the following sinking fund requirement. The Trustee shall redeem the Bonds maturing on August 1, , on August 1 in years and mounts, upon payment of 100% of the principal amount to be redeemed plus interest accrued to the redemption date, as follows: Year Amount The amount of the Bonds to be redeemed may be reduced in accordance with the provisions of Section 602 of the Agreement of Trust. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or ovemight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the fight to rescind such notice on or prior to the scheduled redemption date, and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the principal corporate trust office of the Trustee, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized A-3 denominations, of the same series, form and maturity, bearing interest at-the' same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the 'rrustee may charge the person requesting such exchange the mount 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 owner, except that interest payments shall be made to the person shown as holder on the fifteenth day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has .caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated June 1, 2002. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) Attest: By Chairman A-4 CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Tax-Exempt Series 2002A Bonds mentioned Agreement of Trust. THE BANK OF NEW YORK, as Trustee described in the within By. Authorized Officer A-5 ASSIGNMENT FOR VALUE REGEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, _with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. A-6 "" EXHIBITB Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R-1 UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Taxable Public Facility Revenue Bond (Town Center Project Phase I) Series 2002B INTEREST RATE MATURITY DATE DATED DATE CUSIP August 1,200__ June 1, 2002 REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of The Bank of New York, New York, New York, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon on each February 1 and August 1, beginning February 1, 2003, at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from June 1, 2002, if this bond is authenticated prior to February 1, 2003, or Co) otherwise from the February 1 or August 1 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid.) Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the 15th day of the month preceding each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. Principal and interest are payable in lawful money of the United States of America. Notwithstanding any other provision hereof, this bond is subject to book-entry form maintained by The Depository Trust Company ("DTC"), and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the Authority's Letter of Representations to DTC. This bond is one of an issue of $ Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of June 1, 2002, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of June 1, 2002 B-1 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns' to' 'the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of June 1, 2002 (the "Support Agreement"), between the Authority and the City of Virginia Beach, Virginia (the "City'S), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A (the "2002A Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the 2002A Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to finance the acquisition of a parking facility for use by the City and land to be used as a public plaza and costs incurred in issuing the Bonds. Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of -and premium, if any, and interest on the Bonds as the same shall become due in accordance with their terms and the provisions and the terms of the Agreement of Trust. The obligation of the City to make payments under the Support Agreement constitutes a ctm'ent expense of the City, subject to annual appropriation by the Council of the City. The obligation of the City to make payments under the Support 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 BONDS AND THE PREMIUM, IF ANY, AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND THE PREMIUM, IF ANY, AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in his individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or before August 1, , will not be subject to optional redemption before their respective maturity dates. The Bonds maturing on or after August 1, , may be redeemed prior to their respective maturities on or after August 1, , at the option of the Authority, at the direction of the City, in whole or in part at any time a the following redemption prices (expressed as a percentage of the principal amount, or portion thereof, of Bonds to be redeemed), together with the interest accrued to the date fixed for redemption: B-2 Redemption Period (both dates inclusive) Redemption Price The Bonds maturing on August 1, , are required to be redeemed prior to maturity, in part, pursuant to the following sinking fund requirement. The Trustee shall redeem the Bonds maturing on August 1, , on August 1 in years and mounts, upon payment of 100% of the principal mount to be redeemed plus interest accrued to the redemption date, as follows: Year Amount The amount of the Bonds to be redeemed may be reduced in accordance with the provisions of Section 602 of the Agreement of Trust. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the principal corporate trust office of the Trustee, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized B-3 denominations, of the same series, form and maturity, bearing interest at'the' same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, 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 owner, except that interest payments shall be made to the person shown as holder on the fifteenth day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has . caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated June 1, 2002. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) Attest: By Chairman Secretary B-4 CERTIFICATE OF AUTHENTICATION "~ Date Authenticated: This Bond is one of the Taxable Series 2002B Bonds described in the within mentioned Agreement of Trust. THE BANK OF NEW YORK, as Trustee By Authorized Officer B-5 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all fights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner NOTICE: The signature above must correspond with the name of the registered owner as it appears on the fi.om of this bond in every particular, without alteration or enlargement or any change whatsoever. B-6 -2"a Draft: 5/22/02 BOND PURCHASE AGREEMENT City of Virginia Beach Development Authority $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B June __, 2002 City of Virginia Beach Development Authority One Columbus Center, Suite 300 Virginia Beach, Virginia 23462 Attention: Chairman City of Virginia Beach, Virginia Municipal Center Virginia Beach, Virginia 23456 'Attention: City Manager Ladies and Gentlemen: This is to confirm the agreement among (a) the CITY OF VIRGINIA BEACH, VIRGINIA (the "City"), Co) the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (the "Authority"), and (c) UBS PAINEWEBBER INC. (the "Underwriter") concerning the sale by the Authority and the purchase by the Underwriter of $ in aggregate principal amount of the Authority's Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A (the "Tax-Exempt Series 2002A Bonds") and $ in aggregate principal amount of the Authority's Taxable Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002B (the "Taxable Series 2002B Bonds" and, together with the Tax-Exempt Series 2002A Bonds, the "Series 2002 Bonds"). The Series 2002 Bonds are dated June 1, 2002, mature on the dates and in the amounts and bear interest at the rates as set forth on Exhibit A attached hereto. The offer is made subject to acceptance by the City and the Authority prior to 3:00 P.M., Virginia Beach, Virginia time, on the date hereof. If the offer is not so accepted, it is subject to withdrawal by the Underwriter upon notice to the City and the Authority at any time prior to acceptance. 1. Purpose of Financing, Security and Authorization. The purpose of the issuance of the Series 2002 Bonds is to finance the acquisition and development of an approximately 1,338 space parking facility and the acquisition of land for a public plaza (together, the "Project") and to pay certain costs of the issuance of the Series 2002 Bonds. The Series 2002 Bonds will be issued under and secured by an Agreement of Trust dated as of June 1, 2002 (the "Master Agreement of Trust") between the Authority and The Bank of New York, as trustee (the "Trustee") and a First Supplemental Agreement of Trust dated as of June 1, 2002 (the "First Supplemental Agreement of Trust") between the Authority and the Trustee. Together, the Master Agreement of Trust and the First Supplemental Agreement of Trust are referred to herein as the "Agreement of Trust." Pursuant to a Support Agreement dated as of June 1, 2002 (the "Support Agreement") between the Authority and the City, the Authority will agree to undertake the Project and the City will agree, subject to annual appropriation by the City Council of the City (thc "City Council"), to make Annual Payments and Additional Payments, as defined therein. The Authority and the City expect that the Annual Payments will 'be in amounts sufficient to pay the principal of and interest on the Series 2002 Bonds, when due. The Series 2002 Bonds, the Agreement of Trust and the Support Agreement will be in the forms previously supplied to you, with such subsequent amendments as shall be approved by you and us. 2. Representations and Warranties of Authority. The Authority makes the following representations and warranties, all of which shall survive the delivery of the Series 2002 Bonds: (a) The Authority is a duly organized and validly-~eX'isting political subdivision of the Commonwealth of Virginia vested with the rights and powers conferred upon it by Chapter 643 of the Acts of Assembly of 1964, as amended (the "Act"). (b) The Authority has the power (i) to enter into this Bond Purchase Agreement, the Agreement of Trust and the Support Agreement (collectively with the Official Statement, as hereinafter defined, the "Authority Documents") and the transactions contemplated thereby, (ii) to perform its obligations thereunder, (iii) to issue the Series 2002 Bonds for the purpose of financing the Project, (iv) to secure the Series 2002 Bonds as provided in the Authority Documents, (v) to undertake the Project, which is an "authority facility" authorized to be financed under the Act, on behalf of the City, (vi) to accept payments by the City under the Support Agreement and to assign to the Trustee all of the Authority's rights under the Support Agreement, except for the right of the Authority to receive notices under the Support Agreement and the payment of its fees and expenses. The Authority has taken or will take all action required by the Act in connection therewith. (c) The Authority (1) has duly authorized the execution and delivery of the Authority Documents, (2) has duly authorized the sale and delivery of the Series 2002 Bonds, and (3) has taken or will take all action necessary or appropriate to carry out the issuance, sale -and delivery of the Series 2002 Bonds to the Underwriter. (d) To the knowledge of the Authority, the Authority is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred that would adversely affect the Authority's power or authority to issue the Series 2002 Bonds, to execute and deliver the Authority Documents and to perform the obligations thereunder, and no event has occurred and is continuing under the provisions of any such instrument that with the lapse of time or the giving of notice, or both, would constitute such an event of default thereunder. (e) The execution and delivery of the Authority Documents and the performance by the Authority of its obligations thereunder are within the corporate powers of the Authority and will not conflict with or constitute a breach or result in a violation of (1) the Act, [or] the ordinance creating the Authority, [or the Authority's bylaws], (2) any federal or Virginia constitutional or statutory provision, (3) any current order, rule, regulation, decree or ordinance of any court, government or governmental authority having jurisdiction over the Authority or its property or (4) any agreement or other instrument to which the Authority is a party or by which it is bound. (f) All authorizations, consents, approvals, findings and certificates of governmental bodies or agencies required to be obtained by the Authority in connection with (i) the acquisition, development or operation of the Project, (ii) the execution and delivery by the Authority of the Authority Documents and the issuance of the Series 2002 Bonds, and (iii) the performance by the Authority of its obligations under the Authority Documents and the Series 2002 Bonds have been obtained and are in full force and effect; provided, that no representation is made with respect to (X) compliance with any applicable blue sky or securities laws of any state, (Y) consents, filings, approvals, etc., required in connection with the tax-exempt status of the interest on the Tax-Exempt Series 2002A Bonds, or (Z) consents for the acquisition, development or operation of the Project not yet required to be obtained. The Authority will obtain when needed all other consents required for the acquisition, development or operation of the Project and has no reason to believe that all required or necessary consents cannot be promptly obtained when needed. (g) There is no litigation, inquiry or investigation of any kind before or by any judicial court or governmental agency pending or, to the knowledge of the Authority, threatened against the Authority with respect to (i) its organization or existence, (ii) its authority to execute and deliver the Authority Documents or the Series 2002 Bonds or to perform its obligations thereunder, (iii) the validity or enforceability of the Series 2002 Bonds or any of the Authority Documents, (iv) the title of the officers executing the Authority Documents or the Series 2002 Bonds, or (v) any authority or proceedings relating to the authority of such officers to execute and deliver the Authority Documents or the Series 2002 Bonds on behalf of the Authority, and no such authority or proceedings have been repealed, revoked, rescinded or amended. -2- (h) When authenticated by the Trustee and delivered to and' ~aid for by the Underwriter in accordance with the terms of the Agreement of Trust and this Bond Purchase Agreement, the Series 2002 Bonds will (i) have been duly authorized, executed and issued, (ii) constitute legal, valid and binding limited obligations of the Authority enforceable in accordance with their terms except as limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and usual equity principles, and (iii) be secured by the Agreement of Trust. 3. Representations and Warranties of the Cit~. The City makes the following representations and warranties, all of which shall survive the delivery of the Series 2002 Bonds: (a) The City is political subdivision of the Commonwealth of Virginia. (b) The City has authorized the execution and delivery of this Bond Purchase Agreement and the Support Agreement (collectively with the Official Statement, the "City Documents"). The City has approved the form of the Official Statement and the terms of the Agreement of Trust. The City will take all action necessary or appropriate to cooperate in the issuance, sale and delivery of the Series 2002 Bonds by the Authority to the Underwriter. (c) The execution and delivery of the City Documents, the performance by the .City of its obligations thereunder and the approval of the Official Statement and the Agreement of Trust are within the powers of the City and will not conflict with or constitute a breach or result in a violation of(l) the Charter of the City, Chapter 147 of the Acts of Assembly of 1962, as amended (the "Charter"), (2) any federal or Virginia constitutional or statutory provision, (3) any agreement or instrument to which the City is a party or by which it is bound, or (4) any current order, rule, regulation, decree or ordinance of any court, government or governmental authority having jurisdiction over the City or its property. (d) The City has obtained all consents, approvals, authorizations and orders of governmental or regulatory authorities that are required to be obtained by the City as a condition precedent to the issuance of the Series 2002 Bonds, the execution and delivery of the City Documents, or the performance by the City of its obligations thereunder. (e) There is no litigation at law or in equity or any proceeding before any governmental agency pending or, to the knowledge of the City, threatened, in which any liability of the City is not adequately covered by insurance, or in which any judgment or order would have a material adverse effect on the business (financial or otherwise) or assets of the City or affect its existence or authority to do business, the acquisition and development of the Project, the validity of any of the City Documents or the performance by the City of its obligations thereunder. (f) The City is not a party to any contract or agreement or subject to any Charter or other restriction not disclosed in the Official Statement, the performance of or compliance with which may have a material adverse effect on the financial condition or operations of the City. (g) The City is not in default in the payment of the principal of or interest on any of its indebtedness for borrowed money or under any instrument under or subject to which any indebtedness has been incurred. No event has occurred and is continuing that, with the lapse of time or the giving of notice or both, would constitute an event of default under any such instrument. (h) The City has not failed to comply, in all material respects, with any undertakings previously made in a written contract or agreement meant to ensure compliance with Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"). (i) The City has duly created the TIF District and the special service district, as described in the section of the Official Statement entitled "THE TOWN CENTER AND THE PROJECT," and has taken all actions required to enable the City to assess, levy and collect real estate taxes and special taxes, at the appropriate times, as described in such section. 4. Issuance~ Sale and Purchase of Bonds~ Closinu: Good Faith Deposit. On the basis of the representations and warranties contained herein and the other agreements referred to herein and subject to the terms and conditions set forth herein, the Authority agrees to issue and -3- sell and the Underwriter agrees to purchase the Series 2002A Bonds at the 'purchase prices indicated on Exhibit A. The Underwriter shall purchase the Series 2002 Bonds in immediately available funds, in the mount of the purchase prices thereof payable to the order of the Trustee. Having approved the terms of such issuance and sale, the Authority hereby sells the Series 2002 Bonds to the Underwriter, subject to the terms of this Bond Purchase Agreement. The delivery and sale of the Seres 2002 Bonds (the "Closing") will be at such place in [Virginia Beach], Virginia, as the Underwriter may designate, at 10:00 a.m., Eastern Time, on Thursday, June __, 2002, or at such other time or such other place or on such other date as the City and the Underwriter may agree upon (the "Closing Date"). The Series 2002 Bonds shall be delivered in book-entry form to the Depository Trust Company, as securities depository for the Series 2002 Bonds. The Underwriter has delivered to you, and you acknowledge receipt of, a corporate check in the amount of $ [2%] payable to the order of the Authority (the "Good Faith Deposit"). The Authority agrees that it will, as security for the faithful performance by the Underwriter of its obligations under this Bond Purchase Agreement, hold the check uncashed -until disposed of as follows: (a) Upon the Closing, the check will be returned to the Underwriter; Co) If the Authority fails to deliver the Series 2002 Bonds at the Closing, or if the Authority is unable on or before the Closing to satisfy the conditions to the obligations of the Underwriter contained in this Bond Purchase Agreement, or if the obligations of the Underwriter are terminated for any reason permitted by this Bond Purchase Agreement, the check will be promptly returned to the Underwriter; or (c) If the Underwriter fails (other than for a reason permitted in this Bond Purchase Agreement) to accept and pay for the Series 2002 Bonds upon their tender by the Authority as provided in this Bond Purchase Agreement, the check will be retained and cashed by the Authority as and for full liquidated damages for such failure and for any and all defaults on the part of the Underwriter, and the delivery of the check will constitute satisfaction and will result in full release and discharge of all claims and damages for the failure and for any and all defaults. 5. Official Statement~ Offering by the Underwriter. (a) Concurrently with the acceptance hereof or promptly thereatter, the Authority shall deliver to the Underwriter two copies of the Official Statement dated June ._, 2002, in substantially the form of the Authority's Preliminary Official Statement dated May 29, 2002 (the "Preliminary Official Statement"), marked to include such changes as shall have been accepted by the Underwriter and are necessary or desirable to reflect the terms of this Bond Purchase Agreement and to complete the document as an Official Statement in final form, executed and approved on behalf of the Authority and the City (together with any amendments or supplements thereto, the "Official Statement"). Co) The Authority represents and warrants that the information with respect to the Authority contained in the sections of the Preliminary Official Statement and the Official Statement entitled "THE AUTHORITY" and, to the extent applicable to the Authority, "LITIGATION - The Authority" is true and correct and does not contain any untrue statement of a material fact and does not omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The Authority ratifies the use by the Underwriter of the Preliminary Official Statement and authorizes and consents to the use by the Underwriter of the Official Statement in the offering and sale of the Series 2002 Bonds. (c) The City represents and wan'ants that the information contained in the Preliminary Official Statement and the Official Statement (including Appendices A, B, and D but excluding the sections "THE AUTHORITY," "UNDERWRITING," "LEGALITY OF THE SERIES 2002 BONDS FOR INVESTMENT," "TAX EXEMPTION," and "LITIGATION - The Authority") is true and correct and does not contain any untrue -4- statement of a material fact and does not 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. The City ratifies the use of the Preliminary Official Statement and authorizes and consents to the use by the'Underwriter of the Official Statement in the offering and sale of the Series 2002 Bonds. (d) The Underwriter agrees that it will offer the Series 2002 Bonds only pursuant to the Official Statement and only in states where the offer and sale of the Series 2002 Bonds are legal, either as exempt securities, as exempt transactions or as a result of due registration of the Series 2002 Bonds for sale in any such state. The Underwriter agrees to make a public offering of the Series 2002 Bonds at the initial offering prices or yields set forth in the Official Statement and in Exhibit A hereto, but reserves the right to change such prices or yields as it may deem necessary or desirable in connection with the offering and sale of the Series 2002 Bonds and to sell the Series 2002 Bonds to dealers (including dealer banks and dealers depositing Series 2002 Bonds into investment trusts) and others at prices lower than the public offering prices. The Underwriter also reserves the right to overallot or effect transactions that stabilize or maintain the market price of the Series 2002 Bonds at a level above that which might otherwise prevail in the open market and to discontinue such stabilizing, if commenced, at any time. The Underwriter shall provide such certificates with respect to the offering and sale prices -of the Series 2002 Bonds as shall be reasonably required by Hunton & Williams ("Bond Counsel") in connection with the issuance of the Series 2002 Bonds. (e) The Authority and the City shall take all actions and provide all information reasonably requested by the Underwriter necessary or desirable to register the Series 2002 Bonds under, or comply with, any state Blue Sky laws; provided, that neither the Authority nor the City shall be required to execute a general consent to service of process in connection with qualification of the Series 2002 Bonds for sale in any jurisdiction. (f) The Authority and the City, at the City's expense, shall take all actions and provide all information reasonably requested by the Underwriter to ensure that the Official Statement at all times during the initial offering and distribution of the Series 2002 Bonds does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under they were made, not misleading. If between the date of this Bond Purchase Agreement and the date 25 days after the "end of the underwriting period" as such expression is used in the Rule 15c2-12, any event shall occur that might or would cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Authority and the City shall promptly notify the Underwriter, and, if in the reasonable opinion of the Underwriter, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Authority and the City, at the City's expense, shall supplement or amend the Official Statement in a form and in a manner approved by the Underwriter, which approval shall not be unreasonably withheld. (g) The Authority represents and warrants that (i) it deemed the Preliminary Official Statement final as of its date except for information permitted to be omitted under paragraph (b)(1) of the Rule, and (ii) the Official Statement constitutes, as of the date hereof, a final official statement within the meaning of paragraph (e)(3) of the Rule. As promptly as possible and in any case within seven business days of the date of this Bond Purchase Agreement, the Authority shall deliver to the Underwriter (at such address as specified by the Underwriter), at the City's expense and direction, printed copies of the final Official Statement in sufficient quantity to permit compliance by the Underwriter with paragraph (b)(4) of the Rule. (h) The City represents and warrants that (i) it deemed the Preliminary Official Statement final as of its date except for information permitted to be omitted under paragraph (b)(1) of the Rule and (ii) the Official Statement constitutes, as of the date hereof, a final official statement within the meaning of paragraph (e)(3) of the Rule. As promptly as possible and in any case within seven business days of the date of this Bond Purchase Agreement, the City shall provide for delivery to the Underwriter (at such address as specified by the Underwriter) printed copies of the final Official Statement in sufficient quantity to permit compliance by the Underwriter with paragraph (b)(4) of the Rule. -5- (i) The Authority and the City shall, at the expense of 'tho City, take all additional steps reasonably requested by the Underwriter or its counsel to enable compliance by the Underwriter with the Rule and with the rules of the Municipal Securities Rulemaking Board in connection with the issulmce, sale and delivery of the Series 2002 Bonds. (j) The representations and warranties set forth in this Bond Purchase Agreement shall survive the Closing and shall remain operative and in full force and effect regardless of (1) any investigation made by or on behalf of the Underwriter and (2) payment for the Series 2002 Bonds. 6. Continuine Disclosure. In order to permit compliance by the Underwriter with the Rule, the City has agreed in a Continuing Disclosure Agreement dated as of June 1, 2002 (the "Continuing Disclosure Agreement") to provide while the Series 2002 Bonds are outstanding: (a) not later than 180 days after the end of each of its fiscal years, certain financial information and operating data, including audited financial statements for the preceding fiscal year, as described in the Continuing Disclosure Agreement and sufficient to permit the Underwriter to comply with Section (b)(5)(i) of the Rule, (b) timely notice of the failure of the City to provide the required financial information and operating data and (c) timely notice of the occurrence of certain material events with respect to the Series 2002 Bonds. Such annual financial information and -material event notices shall be provided to each nationally recognized municipal securities information repository, the appropriate state information depository, if any is hereafter created, or the Municipal Securities Rulemaking Board, as required under the Rule. 7. Conditions. The Underwriter's obligations hereunder are subject to: (a) The accuracy on the Closing Date, as if made as of such date, of all representations and warranties of the Authority and the City contained herein. hereunder. (b) The due performance by the Authority and the City of their obligations (c) There being 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 Preliminary Official Statement and the Closing Date other than as reflected in or contemplated by the Official Statement, and there being on the Closing Date no material transactions or obligations (not in the ordinary course of business) entered into by the Authority and the City subsequent to the date of the Preliminary Official Statement other than as reflected in or contemplated by the Official Statement. (d) Delivery of all documentation required by Section 8. 8. Closing Documentation. There shall be delivered to the Underwriter at Closing the following, all dated the Closing Date unless otherwise approved by the Underwriter and in form and substance reasonably satisfactory to the Underwriter: (a) A certificate executed by appropriate officers of the Authority, confirming the matters as to the Authority referred to in subsections (a), (b) and (c) of Section 7. (b) A certificate executed by appropriate officers of the City, confirming the matters as to the City referred to in subsections (a), (b) and (c) of Section 7. (c) The Official Statement, executed on behalf of the Authority and the City by the respective duly authorized officials or representatives thereof. (d) Original executed copies of the Agreement of Trust, the Support Agreement and the Continuing Disclosure Agreement. (e) 2002B Bonds. Specimens of the Tax-Exempt Series 2002A Bonds and the Taxable Series (f) An opinion of the City Attorney, as counsel for the Authority, substantially in the form attached as Exhibit B hereto. -6- (g) An opinion of the City Attorney, as counsel for the City} ' substantially in the form attached as Exhibit C hereto. (j) Opinions of Bond Counsel (i) in substantially the forms attached as Appendix C to the Preliminary Official Statement with the blanks therein completed consistently with the information herein and in Exhibit A hereto and (ii) in substantially the forms attached as Exhibit D hereto. (i) An opinion of Troutman Sanders LLP, counsel for the Underwriter, in substantially the form attached as Exhibit E hereto. (j) A copy of IRS Form 8038-G completed by the Authority with respect to the Tax-Exempt Series 2002A Bonds. (k) Originals or, where appropriate, specimens of the documents, opinions and other items required by Section 303 of the Master Agreement of Trust for authentication of the Series 2002 Bonds. (1) Evidence that the Series 2002 Bonds have been rated "AA-" by Fitch .Ratings, "Aa3" by Moody's Investors Service and "AA" by Standard & Poor's Ratings Services. (m) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter or Bond Counsel may reasonably request to evidence compliance by the Authority or the City with legal requirements, the troth and accuracy as of the Closing Date of the representations of the Authority or the City herein and in the Official Statement, the ownership of the Project by the Authority and the due performance or satisfaction by the Authority or the City at or prior to the Closing Date of all agreements then to be satisfied by the Authority or the City. 9. Ternfination. The Underwriter may terminate this Bond Purchase Agreement at any time prior to the Closing Date by notice to the other parties hereto if between the date hereof and the Closing Date: (a) The Underwriter is informed by the Authority or the City or their respective agents and counsel, or concludes in the exercise of its reasonable business judgment that one or more of the conditions listed in Section 8 above cannot or will not be met; (b) The Authority or the City shall have sustained a substantial loss by fire, flood, accident or other calamity that, in the reasonable judgment of the Underwriter, shall render it inadvisable to proceed with the sale of the Series 2002 Bonds, whether or not such loss shall have been insured; (c) Legislation shall have been favorably reported by a committee of the United States Congress or enacted by the United States Congress, or a decision by any court of the United States, including the Tax Court, shall have been rendered, or a ruling, regulation or official statement by or on behalf of the Treasury Department of the United States or any branch thereof, including the Internal Revenue Service, or any other governmental agency shall have been made or proposed, with respect to federal or state taxation upon revenues or other income of the general character derived by the Authority or upon interest received on obligations of the general character of the Tax-Exempt Series 2002A Bonds or other action or events shall have transpired that (1) may have the purpose or effect, directly or indirectly, of changing the federal income tax consequences of owning the Tax-Exempt Series 2002A Bonds or (2) in the reasonable opinion of the Underwriter materially affects the ability of the Underwriter to enforce contracts or orders for the sale of the Series 2002 Bonds at the contemplated offering prices; (d) Any legislation, ordinance, rule or regulation shall have been enacted or proposed by any governmental body, department or agency of the Commonwealth of Virginia or any political subdivision thereof, or any decision by any court of competent jurisdiction within the Commonwealth of Virginia shall have been rendered that in the reasonable opinion of the Underwriter materially and adversely affects the market price of the Series 2002 Bonds; (e) Any legislation shall have been enacted or be proposed, any decision by a court of the United States shall have been rendered or any stop order, ruling, regulation or official statement by or on behalf of the Securities and Exchange Commission or other -7- governmental agency shall have been made to the effect that (1) obligati0ns"of the general character of the Series 2002 Bonds or the Agreement of Trust are not exempt fi.om registration, qualification or other requirements of the Securities Act of 1933, as amended ("1933 Act") or the Trust Indenture Act of 1939, as amended, or (2) the Official Statement does not contain adequate information as to the Authority or the City; (f) Any event shall have occurred or condition shall exist that, in the reasonable opinion of the Underwriter, makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement or that is not reflected in the Official Statement but should be reflected therein as of such time in connection with the offering and sale of the Series 2002 Bonds in order to make the statements and information contained therein, in light of the circumstances under which they were made, not misleading in any material respect as of such time including, without limitation, events or conditions relating to the business and affairs of the Authority or the City; (g) In the reasonable opinion of the Underwriter, the market price of the Series 2002 Bonds, or the market price generally of obligations of the general character of the Series 2002 Bonds, has been adversely affected because (1) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange, (2) the New York Stock Exchange, other national securities exchange or any governmental authority shall have imposed as to the Series 2002 Bonds or similar obligations any material restrictions not now in force, or increased materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter, (3) a general banking moratorium shall have been established by federal, New York or Virginia authorities, or any devaluation of the dollar shall have been proposed or effected by any governmental authority of the United States, or (4) war or an outbreak of hostilities or other national or international calamity or crisis shall have occurred or any armed conflict shall have occurred or escalated to such a magnitude as in the reasonable opinion of the Underwriter to have a materially adverse effect on the ability of the Underwriter to enforce contracts or orders for the sale of the Series 2002 Bonds at the contemplated offering prices. 10. Expenses. The City shall cause to be paid from the proceeds of the Series 2002 Bonds or fi'om its own funds the issuance and administrative fees of the Authority, the fees and disbursements of Bond Counsel and counsel to the Authority, the fees of the Trustee and its counsel, accountants and consultants fees, financial advisory fees and the costs of printing the Preliminary Official Statement, the Official Statement and the Series 2002 Bonds. The Underwriter shall pay the cost of qualifying the Series 2002 Bonds for sale in various states chosen by it, all advertising expenses in connection with the public offering of the Series 2002 Bonds, and all other expenses incurred by it with respect to the public offering and distribution of the Series 2002 Bonds, including the fees and disbursements of its counsel. If the Series 2002 Bonds are not sold as provided herein, the Authority and the City agree that (a) the Underwriter shall not be obligated to pay (i) the issuance and administrative fees of the Authority, (ii) the fees and disbursements of Bond Counsel or counsel to the Authority or the City, (iii) the fees of the Trustee and its counsel, (iv) accountants, consultants and financial advisors' fees, and (v) the costs of printing the Preliminary Official Statement and the Official Statement and (b) the City shall not be obligated to pay the items referred to in clause (a)(i) and shall be obligated to pay the fees, disbursements and costs referred to in clauses (a)(ii), (iii), (iv) and (v) for services actually rendered to the date on which this Bond Purchase Agreement is terminated if and to the extent provided in its agreements and understandings with such parties in the event the issuance and sale of the Series 2002 Bonds are not completed. 11. Finders. Each of the Authority, the City and the Underwriter represents and warrants that no finder or other agent has been employed or consulted by it in connection with this transaction. 12. Applicable Law~ Counterparts. This Bond Purchase Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. -8- 13. Notices. All communications hereunder shall be in writing and 'shall be deemed delivered, if delivered in person, or sent by certified mail, return receipt requested or by overnight delivery courier, to the respective parties as follows: (a) To the Underwriter, at UBS PaineWebber Inc., 1285 Avenue of the Americas, 15th Floor, New York, New York 10019 (Attention: Robert A. Kinney); (b) To the City, at Municipal Center, Virginia Beach, Virginia 23456 (Attention: City Manager), with a copy to the City Attorney at Municipal Center, Virginia Beach, Virginia 23456; and (c) To the Authority, at One Columbus Center, Suite 300, Virginia Beach, Virginia 23462 (Attention: Chairman) with a copy to the City Attorney at Municipal Center, Virginia Beach, Virginia 23456. 14. Miscellaneous. This Bond Purchase Agreement is made solely for the benefit of and is binding on each of the parties and their respective successors and assigns. It is the entire agreement of the parties, superseding all prior agreements, and may not be modified except in writing signed by all of the parties hereto. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -9- Very truly yours, UBS PAINEWEBBER INC. By Name: Title: Accepted: CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By Name: Title: [Vice] Chairman CITY OF VIRGINIA BEACH, VIRGINIA By Name: Title: Exhibit A -- Purchase Prices and Terms of Series 2002 Bonds Exhibit B -- Opinion of City Attorney, as counsel to the Authority Exhibit C -- Opinion of City Attorney, as counsel to the City Exhibit D o- Supplemental Opinion of Bond Counsel Exhibit E -- opinion of Troutman Sanders LLP, as counsel to the Underwriter 1051561v2 213107.003 -10- "~' Exhibit A PURCHASE PRICES AND TERMS OF SERIES 2002 BONDS Purchase Price for Tax-Exempt Series 2002A Bonds: $ ., representing the original principal amount of $ ., [plus~minus] net original issue [premium/discount] of $ ., minus Underwriter's discount of $ (approximately % of the par amount of the Tax-Exempt Series 20002A Bonds), plus pre-issuance accrued interest from June 1, 2002 to the Closing Date of $ Purchase Price for Taxable Series 2002B Bonds: $ , representing the original principal amount of $ ., [plus~minus] net original issue [premium/discount] of $ ., minus Under'writer's discount of $ .(approximately % of the par amount of the Taxable Series 2002B Bonds), plus pre-issuance accrued interest from June 1, 2002 to the Closing Date of $ TAX-EXEMPT SERIES 2002A MATURITIES, AMOUNTS, INTEREST RATES, YIELDS (OR PRICES), AND CUSIP NUMBERS $ Public Facility Revenue Bonds (Town Center Project Phase I), Series 2002A Dated: June 1, 2002 Due: August 1, as shown below Plus accrued interest from June 1, 2002 Maturity 2003 20O4 2005 2006 2007 20O8 2009 Principal Interest Price or Principal Interest Amount Rate Yield CUSIP # Maturity Amount Rate $ % 2010 $ 2011 2012 2013 2014 2015 2016 % Term Bonds due August 1, 20__, at ~ CUSIP: Term Bonds due August 1, 20__, at ~ CUSIP: % to yield approximately__ % to yield approximately_ Price or Yield CUSIP # TAXABLE SERIES 2002B MATURITIES, AMOUNTS, INTEREST RATES, YIELDS (OR PRICES), AND CUSIP NUMBERS Taxable Public Facility Revenue Bonds Crown Center Project Phase/), Series 2002B Dated: June 1, 2002 Due: August 1, as shown below Plus accrued interest from June 1, 2002 Maturity 2003 2004 2005 2006 2007 2008 2009 Principal Interest Amount Rate $ % Price or Principal Interest Price or Yield CUSIP # Maturity Amount Rate Yield 2010 $ % 2011 2012 2013 2014 2015 2016 Term Bonds due August 1, 20__, at __ CUSIP: Term Bonds due August 1, 20__, at CUSIP: % to yield approximately % to yield approximately CUSIP # ii [INSERT SUMMARY OF REDEMPTION PROVISIONS] 1051561v2 213107.003 111 Exhibit B [FORM OF OPINION OF CITY ATTORNEY, AS COUNSEL TO THE AUTHORITY] 1051561v2 213107.003 C-1 -' Exhibit C [FORM OF OPINION OF CITY ATTORNEY, AS COUNSEL TO THE CITY] 1051561v2 213107.003 D-1 Exhibit D [FORM OF SUPPLEMENTAL OPINION(S) OF BOND COUNSEL] 1051561v2 213107.003 E-1 '" Exhibit E [FORM OF OPINION OF UNDERWRITER'S COUNSEL] J-1 CITY OF VIRGINIA BEACH AGENDA ITEM' TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager A Resolution Endorsing the Participation of Chesapeake Bay Alcohol Safety Action Program in the Virginia Retirement System MEETING DATE: May 28, 2002 Background: Accomack and Northampton Counties and the Cities of Virginia Beach and Norfolk form the Chesapeake Bay Alcohol Safety Action Program (ASAP), which is the successor to separate programs originally established on the Eastern Shore as Eastern Shore ASAP and on the Southside as Tidewater ASAP. Originally, the employees of the prior programs were participants in the Virginia Retirement System (VRS); several years ago, however, Chesapeake Bay ASAP withdrew from participation in VRS. Recently, however, the Policy Board of Chesapeake Bay ASAP determined that it is in the best interests of Chesapeake Bay ASAP and its employees to reestablish its relationship with, and participation in, VRS. Considerations: The City Council's endorsement of Chesapeake Bay ASAP's employees' participation in VRS is required in order for such participation to become effective. Because Chesapeake Bay ASAP totally funds itself with fees mandated by statute to be paid by program participants, the participation of its employees in VRS will have no financial impact upon member jurisdictions, including Virginia Beach. Public Information: The Resolution is to be advertised as an ordinary agenda item, inasmuch as noi special advertising or other form of public notice is required. Alternatives: While the City Council is not required to adopt the Resolution, not doing so will prevent the employees of Chesapeake Bay ASAP from participating in the Virginia Retirement System. Recommendations: Adoption of Resolution. Attachments: Recommended Action: Adoption of Resolution · ,~n~_.~y: Submitting Department/A~g( City Manag~}(_ , ~-O~$¢~. lk~Users\WMacali\W P\ORDRES\chesbay asaparf.wpd 1 2 3 4 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 A RESOLUTION ENDORSING THE PARTICIPATION OF C~ESAPEAKE BAY ALCOHOL SAFETY ACTION PROGRAM IN THE VIRGINIA RETIREMENT SYSTEM WHEREAS, in the interest of highway safety, the Commonwealth of Virginia has provided by statute for programs for the probation, education and rehabilitation of persons charged with driving motor vehicles under the influence of alcoholic beverages and other self-administered drugs, such programs being collectively .known as Virginia Alcohol Safety Action Program (VASAP); and WHEREAS, the Counties of Accomack and Northampton and the Cities of Virginia Beach and Norfolk form the multi-jurisdictional Chesapeake Bay Alcohol Safety Action Program, which is the successor to separate programs originally established on the Eastern Shore as Eastern Shore ASAP and on the Southside as Tidewater ASAP; and WHEREAS, on July 12, 1993 the predecessor programs were combined, by the State Commission on VASAP, to form the current combined program; and WHEREAS, the member jurisdictions have previously enacted a joint resolution establishing an independent policy board to govern Chesapeake Bay ASAP as required by law; and WHEREAS, all of the employees of the prior programs which combined to become Chesapeake Bay ASAP were participants in VSRS, the predecessor to the Virginia Retirement System (VRS); and WHEREAS, a number of years ago, Chesapeake Bay ASAP withdrew from participation in VRS (then known as VSRS), and its employees since that time have been participants in a non- governmental retirement savings plan; and 29 WHEREAS, the Policy Board of Chesapeake Bay ASAP has 30 determined that it is in the best interests of Chesapeake Bay ASAP 31 and its employees to reestablish its relationship with, and 32 participation in, VRS; and 33 WHEREAS, VRS is the recognized retirement benefit vehicle 34 for all employees of the City of Virginia Beach; and WHEREAS, because Chesapeake Bay ASAP is totally self- 36 .sufficient and funds itself with fees mandated by statute to be 37 paid by program participants, the participation of its employees in 38 VRS will have no financial impact upon member jurisdictions; 39 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 40 VIRGINIA BEACH: 41 That the City of Virginia Beach hereby endorses the 42 participation of Chesapeake Bay ASAP employees in the VRS system, 43 and this endorsement shall be deemed incorporated into and a part 44 of the joint resolution for Chesapeake Bay ASAP previously enacted 45 by the four participating jurisdictions. 46 47 Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2002. CA-8491 wmm/ordres/Chesbayasapres.wpd May 16, 2002 R-1 APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's 0ffic~ 2 PLANNING Application of ROBERT F. THOUROT for the enlargement ora non-con_forming use to reconstruct the existing duplex and add a second story to the rear unit at 2254 Maple Street, containing 7,500 square feet. (DISTRICT 4 - BAYSIDE) Application of SUNKIST C. FARRELLI for the enlargement of a non-conforming use to renovate the existing duplex into a single family home at 305 26th Street, containing 2,450 square feet. (DISTRICT 6 - BEACH) o Application of DOMINION CHRISTIAN CENTER for a Conditional Use Permit re a church on the north side of Lynnhaven Parkway, east of Round Hill Road (2159 Lynnhaven Parkway), containing 1.68 acres. (CENTERVILLE - DISTRICT 1) Applications of CHECKERED FLAG MOTOR CAR CO., for Conditional Use Permits: re automobile rentals at the southeast comer of Virginia Beach Boulevard and Clearfield Avenue (5225 Virginia Beach Boulevard), containing 9.92 acres. (KEMPSVILLE - DISTRICT 2) bo re off-site employee parking and automobile storage on the east side of N. Lynnhaven Road, north of Mustang Trail (216 N. Lynnhaven Road), containing 1.15 acres. (BEACH - DISTRICT 6) o Application of ATLANTIC ENTERPRISES, INC., for a Conditional Use Permit re a commercial parking lot at the southwest comer of Atlantic Avenue and 30th Street (2906 Atlantic Avenue), containing 36,120 square feet. (BEACH - DISTRICT 6) o Application of 7-ELEVEN, INC., for a Conditional Use Permit re fuel sales in conjunction with a convenience store at the southwest comer of Laskin Road and Village Drive, containing 1.085 acres. (BEACH - DISTRICT 6) Application of THIRTY-SEVEN-01 ASSOCIATES, L.L.C., for a Conditional Use Permit re Drive-Thru Window (Bank) on lots 4 & 5, block 87, Virginia Beach Development Co. (3701 Pacific Avenue), containing 15,120 square feet. BEACH - DISTRICT 6) Application of VOICE STREAM for the modification of conditions approved February 10, 1998, on the application for a communication tower at 409 First Colonial Road.. (BEACH - DISTRICT 6) Application of VIRGINIA BEACH S.P.C.A., for a Conditional Use Permit re an animal shelter on Parcel A-l, Bow River, (3040 Holland Road), containing 2.65 acres. (PRINCESS ANNE - DISTRICT 7) J Scale Robert F. Thourot Gpin 1590-51-1003 ZONING HISTORY Rezoning by City of Virginia Beach (R-D2 Residential Duplex District to R-S4 Residential Suburban District) Approved 10-11-65 Rezoning (B-2 Business to R-7.5 Residential) Approved 11-22-94 Conditional Use Permit (gas station) Withdrawn 4-8-85 CITY OF VIRGINIA BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Robert F. Thourot, Enlargement of a Non-Conforming Use MEETING DATE: May 28, 2002 Background: A Resolution authorizing the enlargement of a nonconforming use on certain property located at 2254 Maple Street (GPIN #1590-51-1003). Said parcel contains 6,630 square feet. DISTRICT 4 - BAYSIDE. Consideration: The applicant proposes to add a second story to the back unit of the duplex. The additional area is approximately 1000 square feet. This is slightly larger than the floor beneath it and will overhang slightly on each side. The actual footprint of the building will not change. The existing duplex is a one story brick and frame structure approximately 1,900 square feet. The structure is divided so that equal sized units are located at the front and back of the building but are slightly offset. Part of the proposed expansion is a second story deck to be added to the back of the building. The deck is shown to extend approximately nine feet from the rear property line. It is staff's position that the deck should not be included as it effectively expands the footprint and encroaches into the 20 foot rear yard setback required for conforming structures in this zoning district. Without the deck, the structure meets al! setbacks for the R-7.5 Residential District. Recommendations: The applicant is requesting to enlarge only one of the units. Without the proposed addition of the second story deck, the expansion should not overpower the site or have a detrimental effect on the neighborhood. In addition to providing more living space for one of the units, the enlargement and renovations will provide an aesthetic improvement. The applicant has also submitted a petition signed by four neighbors on Maple Street who support his request. Pursuant to Section 105(e) of the City Zoning Ordinance, a nonconforming structure may be Attachments: Staff Report Resolution Recommended Action: Staff recommends approval with ~,tions. Submitting De~~ment/A~enc, y,.: Planning Department ~ City Manag~)(.. ,-~ 0y~' Thourot - Non-Conforming Use Page 2 enlarged only if the .City Council finds that the proposed structure, as enlarged, will be "equally appropriate or more appropriate to the district than is the existing nonconformity." It is staff's position that this proposed enlargement is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non-conforming use. The request, therefore, is recommended for approval, subject to the recommended conditions below. The second story addition shall be in substantial accordance with the submitted elevation plans entitled "RENOVATIONS + ADDITION AT 2254 STREET, VIRGINIA BEACH, VA. FOR ROBERT AND LORRAINE THOUROT," dated January 17, 2002. Said plan is on file in the City of Virginia Beach Planning Department. However, the second story deck shown on the plans is not approved and shall not be permitted. 2. The total width of the driveway shall not exceed 36 feet at the right-of-way. The width may be continuous or divided into two sections. 1 2 3 4 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING DUPLEX DWELLING ON PROPERTY LOCATED AT 2254 MAPLE STREET, IN THE DISTRICT OF BAYSIDE 5 6 7 8 9 10 1i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 WHEREAS, Robert F. Thourot, (hereinafter the "Applicant") has made application to the City Council for authorization to enlarge a duplex dwelling situated on a certain lot or parcel of land having the address of 2254 Maple Street, in the R-7.5 Residential District; and WHEREAS, the said duplex dwelling is a nonconforming use, in that duplexes are not allowed in the R-7.5 Residential Zoning District; and WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the enlargement of a nonconforming structure is unlawful in the absence of a resolution of the City Council authorizing such action upon a finding that the proposed structure, as enlarged, will be equally appropriate or more appropriate to the zoning district than is the existing structure; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby finds that the proposed structure, as enlarged, will be equally appropriate to the district as is the existing structure. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the proposed enlargement of the Applicant's duplex dwelling is hereby authorized, upon the following conditions: 1. The second story addition shall be in substantial accordance with the submitted elevation plans entitled ~RENOVATIONS + ADDITION AT 2254 STREET, VIRGINIA BEACH, VA. FOR ROBERT AND LORRAINE THOUROT," dated January 17, 2002. Said plan is on file in the City of Virginia Beach Planning Department. However, the second story deck shown on the plans is not approved and shall not be permitted. 35 36 37 2. The total width of the driveway shall'not exceed 36 feet at the right-of-way. The width may be continuous or divided into two sections. 38 39 the Adopted by the Council of the City of Virginia Beach on day of , 2002. 40 41 42 43 CA-8490 bkw/work/nonconthourot.wpd R-1 May 16, 2002 44 45 46 APPROVED AS TO CONTENT: Planning 47 48 49 50 APPROVED AS TO LEGAL SUFFICIENCY: D~5~r~eht of Law ROBERT F. THOUROT May 28, 2002 General Information: REQUEST: ADDRESS: Enlargement of a Nonconforming Use 2254 Maple Street Map I-2 Robert F. Thourot Crpin 1590-51-1003 GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 1590-51-1003 4 - BAYSI DE 6,630 square feet Ashby Moss The applicant proposes to add a second story to the back unit of the duplex. The additional area is approximately 1000 square feet. This is slightly larger than the floor beneath it and will overhang slightly on each side. The actual footprint of the building will not change. Major Issues: Ensuring that the proposed addition and alteration to the nonconforming duplex structure is no more detrimental to the surrounding neighborhood and is as appropriate to the district as the existing structure. Non-Conforming Use ROBERT F. THE~UROT May 28, 2002 Page 1 Land Use, Zoning, and Site Characteristics: Existing Land Use and Zoning This property is developed with a residential duplex structure. The site is zoned R-7.5 Residential District. Surrounding Land Use and Zoning Cape Story by the Sea is a predominately single family residential neighborhood with duplexes scattered throughout. The subject site and all surrounding properties are zoned R-7.5 Residential District with Shore Drive Overlay. Zoninq History The Cape Story by the Sea and Cape Henry Shores neighborhoods were rezoned on October 11, 1965 from R-D2 Residence Duplex District to R-S4 Residence Suburban District. That rezoning request was brought forward by some of the residents of these neighborhoods concerned with the construction of duplexes on the relatively small lots (6,900 square feet) typical in these areas. When this change of zoning was approved, the existing duplexes became nonconforming. The subject site is one of these nonconforming duplexes. Although not pictured on the attached Zoning History map, at least two other similar requests to enlarge nonconforming duplexes have been approved in these neighborhoods. The property at 2221 Oak Street was approved in 1993; the other, located at 2214 Bayberry Street, was approved April 14, 1998. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of less than 65dB Ldn surrounding NAS Oceana. Natural Resource and Physical Characteristics The property is currently developed with a one-story duplex structure with concrete and gravel parking areas in front and a shed in the rear yard. Public Facilities and Services Water and Sewer Water: Sewer: There is a six-inch water main in Maple Street fronting the property. This duplex site has two existing 5/8-inch meters that may be used. There is an eight-inch sanitary sewer main in Maple Street fronting the property. The site is already connected to City sewer. Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 2 Transportation "'~ Master Transp.ortation Plan (MTP) / Capital Improvement Program (ClP): Shore Drive in the vicinity of this application is a major four lane urban arterial. The MTP designates this roadway as a 150 foot divided right-of-way with a bikeway. No improvements are scheduled for this portion of Shore Drive in the current adopted CIP. Maple Street is a two lane local street and is not designated on the MTP. Traffic Calculations: Street Name Present Present Capacity Generated Traffic Volume Shore Drive 10,808 17,300 ADT (Level of ADT~ Service "C"/ Existing: 12 ADT Maple Street Not Proposed: no change available 6,200 ADT Average Daily Trips Public Safety Police: Fire and Rescue: Adequate. No further comments. Adequate. Building permits must be obtained for all construction related to this project. All fire protection requirements will be ascertained during the building permit review process, A Certificate of Occupancy must be obtained prior to occupancy. Comprehensive Plan The Comprehensive Plan Map designates this area as Medium and High Density Suburban Residential, with residential uses above 3.5 dwelling units per acre. The Comprehensive Plan and Shore Drive Corridor Plan recognize this corridor as a resort gateway community. Both plans also recognize the diversity of residential uses that exist in this area, most of which resulted from the diverse needs and desires of the community. The proposed improvements are consistent with the community design and aesthetic goals established in this area of the Shore Drive Overlay District. Summary of Proposal · The existing duplex is a one story brick and frame structure approximately 1,900 square feet. The structure is divided so that equal sized units are located at the front and back of the building but are slightly offset. The applicant proposes to add a second story to the back unit of the duplex. The additional area is approximately 1000 square feet. This is slightly larger than the floor beneath it and will overhang slightly on each side. The actual footprint of the building will not change. Part of the proposed expansion is a second story deck to be added to the back of the building. The deck is shown to extend approximately nine feet from the rear property line. It is staff's position that the deck should not be included as it effectively expands the footprint and encroaches into the 20 foot rear yard setback required for conforming structures in this zoning district. Without the deck, the Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 3 structure meets all setbacks for the R-7.5 Residential District. "'~ The existing parking areas will be expanded to accommodate parking for four vehicles. The Traffic Engineering Division of Public Works notes that in accordance with Public Works standards for driveways of duplexes, the driveway apron for the parking area must not exceed 36 feet in width in the public right-of-way. Evaluation of Request This request to enlarge an existing duplex dwelling is acceptable. Cape Story by the Sea is predominately a single-family residential neighborhood with duplexes scattered throughout. The duplex units add variety and do not appear to detract from the neighborhood. The applicant is requesting to enlarge only one of the units. Without the proposed addition of the second story deck, the expansion should not overpower the site or have a detrimental effect on the neighborhood. In addition to providing more living space for one of the units, the enlargement and renovations will provide an aesthetic improvement. The applicant has also submitted a petition signed by four neighbors on Maple Street who support his request. Pursuant to Section 105(e) of the City Zoning Ordinance, a nonconforming structure may be enlarged only if the City Council finds that the proposed structure, as enlarged, will be "equally appropriate or more appropriate to the distdct than is the existing nonconformity." It is staff's position that this proposed enlargement is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non- conforming use. The request, therefore, is recommended for approval, subject to the recommended conditions below. Conditions The second story addition shall be in substantial accordance with the submitted elevation plans entitled "RENOVATIONS + ADDITION AT 2254 STREET, VIRGINIA BEACH, VA. FOR ROBERT AND LORRAINE THOUROT," dated January 17, 2002. Said plan is on file in the City of Virginia Beach Planning Department. However, the second story deck shown on the plans is not approved and shall not be permitted. The total width of the driveway shall not exceed 36 feet at the right-of-way. The width may be continuous or divided into two sections. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this application may require revision during detailed site plan review to meet ali applicable Cit~/ Codes. Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 4 LOCATION OF FLOOD ZONE LINE AS SCALED FROM FJ.R.M. PANEl_ PLAT NO. t · OWNERS UNKNOWN ~ ~z p ' ,. ~ ~""~, s ~,s-o6'~o" ~ ~ T.~,.--.fl '~ -~ /eo:*oo. ,..". "- ", IT _~""-/'~ I ,6.Z I :~ 4.' SHED /1 PAD .,~ o4: BR.~C~ ti 308 z >lq 5O9 1 STORY ~- s,o" FENCE BRICK & FRAME RESIDENCE # 225~. 8' 0.1' 6' ~00~ 120.00' 60.00' PIN(F) N 15'06'30" W PIPE(F) MAPLE STREET (50' R/W) 311 ~NCE Site Plan Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 5 ! I I Proposed Building Elevations Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 6 Proposed Building Elevations Non-Conforming Use ROBERT F, THOUROT May 28, 2002 Page 7 I I I Proposed Building Elevations Non-Conforming Use ROBERT F. THOUROT May 28, 2002 Page 8 Rendering of Proposed Building Design Non-Conforming Use~.~~'"~~ ROBERT F. THOUROT May 28, 2002 Page 9 Farrelli- Non-Conforming Use Page 2 ~C CITY OF VIRGINIA.BEACH AGENDA ITEM TO: FROM: ITEM: The Honorable Mayor and Members of Council James K. Spore, City Manager Sunkist C. Farrelli, Enlargement of a Non-Conforming Use MEETING DATE: May 28, 2002 Background: A Resolution authorizing the expansion of a nonconforming use on property located at 305 26th Street (GPIN #2428-00-5543). Said parcel contains 2450 square feet. DISTRICT 6 - BEACH. Consideration: The applicant has requested a deferral of this item in order to discuss with the staff several outstanding issues. Recommendations: Staff recommends an indefinite deferral of this request. Attachments: Location Map Recommended Action: Staff recommends indefinite deferra~t Submitting Department/Ag~enc,.~a~,~..ng Department I City Manager~/~/'~ [(,._ May 14, 2001 change during th9 course of last year that requires a specific location for theSe.signs. COUNCIL LADY EURE: recourse. Okay. Well it clearly was not there and I hate to defer it, but I don't see any other FORMAL SESSION COUNCILMAN JONES: Item Number 3 for a deferral for two weeks, Application of Dominion Christian Center for a Conditional Use Permit for a church. 2 COUNCILMAN JONES: May 14, 2001 INFORMAL SESSION Item Number 3, Dominion Christian Center. COUNCIL LADY EURE: There is no sign on the property. I went by there yesterday and circled it three times. Mr. Shut%lesworth called me. I didn't get to return his call, but there no sign on the property. So, I would like to see it deferred until the sign is put up. Maybe two weeks. COUNCIL LADY EURE: Defer for two weeks. COUNCILMAN JONES: Okay. COUNCIL LADY EURE: I think the public needs to have notice. COUNCILMAN JONES: Ail right. Have you notified the Applicant of that or has anybody? COUNCIL LADY EURE: I called Planning yesterday and advised him to notify the Applicant and he called me and I didn't have an opportunity to return the call. He did say that they had a sign up. At one time it was taken down and they had put it back up, but it was not there when I went by, no notice whatsoever. COUNCILMAN JONES: Steve. STEPHEN WHITE: I talked to Pastor Shuttlesworth this morning. He is aware of the problem. He knew the sign had been taken down and he is okay with a deferral until the 28th if that is the desire of the Council. COUNCIL LADY EURE: Stephen -- if I might, Madam Mayor -- maybe we might suggest that he put -- can he put it in the window and inside the building or something? STEPHEN WHITE: No. By the Code -- you adopted a Code Virginia Beach City Council May 14, 2002 5:00 p.m. CITY COUNCIL: Meyera E. Oberndorf, Mayor W.D. Sessoms, Jr., Vice Mayor Linwood O. Branch, III Margaret L. Eure William W. Harrison, Jr. Barbara M. Henley Louis R. Jones Robert C. Mandigo Reba S. McClanan Nancy K. Parker Rosemary Wilson At Large At Large District 6 - Beach District 1 - Centerville District 5 - Lynnhaven District 7 - Princess Anne District 4 - Bayside District 2 - Kempsville District 3 - Rose Hall At Large At Large CITY MANAGER: CITY ATTORNEY: CITY CLERK: STENOGRAPHIC REPORTER: James K. Spore Leslie L. Lilley Ruth Hodges Smith, M/4C Dawne Franklin Meads VERBATIM Informal Discussion of the Application of Dominion CHristian Center Mao E-10 ~ ,~o ~o~ .~o sc~e Dominion Christian ~ Center Gpin 1475-65-2426 ZONING HISTORY Change of Zoning (R-5 Residential District to B-2 Community Business District) - Granted 10-8-84 Conditional Use Permit (motor vehicle repair) - Granted 7-11-83 Conditional Use Permit (motor vehicle repair) - Granted 8-15-81 Change of Zoning (R-8 Residential District to PD-H2) - Withdrawn 7-9-84 Change of Zoning (R-5 Residential District to R-6 Residential District) - Granted 7-9-84 CITY OF VIRGINIA.BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Dominion Christian Center, Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Dominion Christian Center for a Conditional Use Permit for a church on the north side of Lynnhaven Parkway, east of Round Hill Road (GPIN #1475-65- 2426). Said parcel is located at 2159 Lynnhaven Parkway and contains 1.68 acres. DISTRICT 1 - CENTERVlLLE. This item was deferred at the May 14 City Council meeting due to the lack of the proper public notice being posted on the property. Considerations: The applicant is requesting a conditional use permit to utilize 10,000 square feet of an existing vacant building to operate a church with administrative offices and counseling services as well as a radio and television studio with production facilities. The Planning Commission placed this item on the consent agenda because the request is in keeping with the intent of the Comprehensive Plan, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion unanimously by a recorded vote of 11-0 to approve this request subject to the following conditions: 1. Foundation landscaping shall be installed in planters along at least fifty (50) percent of the frontage of the building that faces Lynnhaven Parkway. 2. The existing chain link fence on the site shall be removed prior to occupancy. 3. The parking lot shall be re-striped to clearly delineate all parking spaces. Attachments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Department ~~ Submitting Department/Agency: Planning ~ City Manage[~ ~/~0 ~) LV~ Araceli Diaz & Victoria Gumapas Page 2 A Certificate of Occupancy as a place of assembly shall be obtained from the Building Official prior to occupancy. All fire detection and life safety requirements shall be installed prior to occupancy. DOMINION CHRIST AN CENTER/ 16 General Information: REQUEST: ADDRESS: April 10, 2002 Conditional Use Permit to operate a church within an existing, vacant building 2159 Lynnhaven Parkway Dominion Christian Center GPIN: ELECTION DISTRICT: SITE SIZE: 1475-65-2426 #1 - CENTERVILLE 1.68 acres Gpin 1475-65-2426 Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER/# 16 Page I STAFF PLANNER: PURPOSE: Carolyn A.K. Smith The applicant is proposing to utilize 10,000 square feet of an existing, vacant building to operate a church with administrative offices and counseling services as well as a radio and television studio with production facilities. Major Issues: · Degree to which the proposal iscompatible to the surrounding area. Land Use, Zoning, and Site Characteristics: Existinq Land Use and Zoning The 1.68 acre site has a 15,200 square foot building with two existing businesses in it - a dance studio and a pet clinic. Ten thousand square feet of the building are currently vacant. The site is zoned B-2 Community Business District. Surrounding Land Use and Zoning North: South: East: West: · Single family dwellings / R-10 Residential District · Single family dwellings, Parks & Recreation maintenance yard / R-10 Residential District · Single family dwellings / R-10 Residential District · Single family dwellings / R-10 Residential District Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER / # 16 Page 2 .,Z, oninq History The site was granted a Change of Zoning from R-5 Residential DistriCi to B-2 Community Business District in October 1984. Air Installation Corn atible Use Zone AICUZ The site is in an AICUZ area of less than 65 dB Ldn surrounding NAS Oceana. Natural Resource and Ph sical Characteristics The site is totally impervious as it is already developed with pavement and building. Public Facilities and Services Water and Sewer Water: Sewer: There is a sixteen (16) inch water main in Lynnhaven Parkway fronting the property. This site has an existing one (1) inch water meter connection that may be utilized. There is a ten (10) inch sanitary sewer main in Lynnhaven Parkway fronting the property. This site is connected to City water. Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): Lynnhaven Parkway in this vicinity is a four-lane divided roadway. The MTP shows this roadway as a 100 foot wide right-of-way with a bikeway. There are no current CIP projects for this portion of Lynnhaven Parkway. Traffic Calculations: Street Name Lynnhaven Parkway Average Daily Trips Generated ~ Existing Land Use '- 429 Proposed Land Use 3_ 90 weekday 360 weekend 2 as defined by 10,000 square feet of retail 3 as defined by church use of 10,000 square feet Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER / # 16 Page 3 Public Safety Police: Fire and Rescue: Adequate - no further comments. A Certificate of Occupancy must be obtained from the Building Official's office prior to occupancy as a place of assembly. All fire detection and life safety requirements must be installed prior to occupancy. The building, as currently constructed, may not provide adequate mean of egress for a place of assembly. The use of this portion of the building may require tenant separation for mixed uses. Comprehensive Plan The Comprehensive Plan identifies this site for retail, service, office and any other uses that are compatible with commercial centers serving surrounding neighborhoods and communities. In addition, page 52 of the Plan recommends '~,Vhere desired by the community, support proposals for new or re-adaptive development carefully integrate residential, commercial, employment and other acceptable uses for the purpose of achieving a complementary, well-organized, efficient and attractive arrangement of land uses." Summary of Proposal Proposal The applicant is proposing to utilize 10,000 square feet of an existing, vacant building to operate a 75-seat sanctuary, a radio and television studio and production facility, and administrative offices. Site Desiqn The existing building is approximately 15,200 square feet. The applicant will occupy the westernmost, large unit. The unit has been allotted by the property owner 50 parking spaces during business hours (Monday through Friday) and 82 spaces after business hours and on Saturdays and Sundays. The site plan indicates there are 81 parking spaces and 2 loading spaces on Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER/# 16 Page 4 the site. · There are two ingress/egress points off of Lynnhaven Parkway. · There is a fenced in area on the western portion of the building. Staff has recommended a condition that requires the removal of the existing unsightly chain link fence that enclosed a former outdoor garden center. · An existing stormwater management facility is located along the eastern property line. ,,Vehicular and Pedestrian Access · Interior vehicular circulation appears to be adequate. There are two (2) ingress/egress points off of Lynnhaven Parkway. · There is an existing four (4) foot wide pedestrian sidewalk fronting the property along Lynnhaven Parkway. Architectural Desi,qn · The existing flat roof building is primarily beige in color with a mauve exterior finishing insulation system (EIFS) accent stripe along the canopy that extends beyond the building, covering the entrance into the proposed church. The base of the foundation is constructed of beige split face block and transitions into beige EIFS. Beige columns, also constructed of block support the veranda. Landscape and Open Space Desi,qn · There is no interior parking lot landscaping or foundation landscaping in front of the building. · Staff has recommended a condition that foundation landscaping in planters be installed in front of the proposed church facility. Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER / # 16 Page 5 Evaluation of Request The proposal for a church is acceptable at this location. The request is in keeping with the intent of the Comprehensive Plan, provided that adequate parking is available. Parking does not appear to be an issue on this site. It is staff's opinion that this church along with the proposed radio and television production facilities is compatible with the existing commercial uses on the property. The conditional use permit is recommended for approval, subject to the following conditions. Conditions 1. Foundation landscaping shall be installed in planters along at least fifty (50) percent of the frontage of the building that faces Lynnhaven Parkway. 2. The existing chain link fence on the site shall be removed prior to occupancy. 3. The parking lot shall be re-striped to clearly delineate all parking spaces. 4. A Certificate of Occupancy as a place of assembly shall be obtained from the Building Official prior to occupancy. All fire detection and life safety requirements shall be installed prior to occupancy. NOTE: Furiher conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER / # 16 Page 6 )AO13~] /? Existing Site Layout Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER/# 16 Page 7 Planning Commission Agenda April 10, 2002 DOMINION CHRISTIAN CENTER / # 16 Page 8 Item #16 Dominion Christian Center Conditional Use Permit for a Church on the north side Of Lynnhaven ParKway, east of Round Hill Road 2159 Lynnhaven Parkway District 1 Centerville April 10, 2002 CONSENT AGENDA Dorothy Wood: Item #16 is Dominion Christian Center. Rev. Shuttlesworth: No, I'm representing the center. Are you objecting sir? Dorothy Wood: Okay, I'm sorry. Dominion Christian Center. It's a Conditional Use Permit for a church on the north side of Lynnhaven Parkway, east of Round Hill Road. It's at 2159 Lynnhaven Parkway and it's the Centerville District and there are four conditions. Reverend Shuttlesworth: Yes, the conditions are acceptable to me but of course I am leasing the facility so I was looking for a definition of term on the foundation landscaping. And Caroline Smith approached me and told me that could be faxed over. have no problem with it so I accept these terms myself. John Baum: What is his name? Dorothy Wood: What is your name? Reverend Shuttlesworth: Reverend Shuttlesworth. Terry Shuttlesworth. Dorothy Wood: Thank you. Is there any objection to the Dominion Christian Center at 2159 Lynnhaven Parkway? Thank you. Reverend Shuttlesworth: Thank you. Dorothy Wood: Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle'- Second. Item #16 Dominion Christian Center Page 2 Ronald Ripley: Seconded by Charlie Salle'. Discussion? made. Seconded. We are ready to vote. AYE 11 NAY 0 ABS 0 ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER AYE RIPLEY AYE SALLE' AYE STRANGE AYE VAKOS AYE WOOD AYE Ronald Ripley: By a vote of 11-0, motion passes. Anybody else? Motion been ABSENT 0 DISCLOSURE STATEMENT . ~..-"'~ . ,..~t.~, /1~')t .~ .f~tl~'//, .~..;, :fDiC1''' AIl Current ~erty Owners: PROPERTY OWNER DISCLOSURE property owner is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) I/v,C, ,;~/.' *'~ ' /~',~,~ ,P/~,--, -~.,.,~ , property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list embers or partners in the organization below: (Attach list if necessary) heck here if the property owner is NOT a corporation, partnership, firm, or other unincorporated rganization. applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE applicant is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all )ers or partners in the organization below: (Attach list if necessary) ~eck here if the applicant is NOT a corporation, partnership, firm, or FIFICATION: I certify that the i~i,~ anJ~Orated organization. Rev. 9/15/9,9 CITY OF VIRGINIA. BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Checkered Flag Motor Car Company, Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Checkered Flag Motor Car Co., for a Conditional Use Permit for automobile rentals at the southeast corner of Virginia Beach Boulevard and Clearfield Avenue (GPI N #1467-66-6400; #1467-66-3578; #1467-66-2543; #1467-66-3453). Said parcel is located at 5225 Virginia Beach Boulevard and contains 9.92 acres. DISTRICT 2 - KEMPSVILLE. Considerations: The applicant is requesting a conditional use permit for motor vehicle rentals. The Planning Commission placed this item on the consent agenda because there is a definite trend in this area for commercial, institutional and office uses, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion by a recorded vote of 10 for the motion with 1 abstention to approve this request subject to the following conditions: In addition to the conditions below, all conditions set forth in the Conditional Use Permit approved by the City of Virginia Beach City Council on October 23, 2001, shall remain in effect. The proposed building elevation shall substantially conform to the submitted drawing entitled, "Front Elevation, Checkered Flag Toyota, Virginia Beach, Virginia," dated February 15, 2002, prepared by Lyall Design Architects. All signage shall be in compliance for standards set forth in the City of Virginia Beach Zoning Ordinance. 3. The entire parking lot must be striped in accordance with City Code requirements and the Americans with Disabilities Act regulations. All parking spaces and display areas Attachments: Staff Review Planning Commission Minutes Disclosu re Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency. j, Planning Department 0v~.~ City Manager: ~ ~ x(~ ~ Checkered Flag- Virginia Beach Boulevard Page 2 must be clearly delineated on the final site plan. 4. No vehicles for sale or rent shall be parked within any portion of the public rights-of- way. CHECKERED FLAG MOTOR CARI COMPANY / # 18 April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for motor vehicle rentals 5225 Virginia Beach Boulevard Map D-~ ~ ~ .... s~ Checkered Motor Car Co. GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: Crpin: See Application 1467-66-6400; 1467-66-3578; 1467-66-2543; 1467-66-3453 #2 - KEMPSVILLE 9.92 acres Carolyn A.K. Smith To utilize 650 square feet of the proposed 41,348 square foot auto dealership building for car rentals. The applicant will be renting these vehicles to both customers and the general public. There will be approximately 120 vehicles in the fleet. The vehicles for rent include leisure cars, sports cars, pick up trucks and sport utility vehicles. Major Issues: · Degree to which the request is compatible with surrounding uses. Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page I Land Use, Zoning, and Site Characteristicsi Existing Land Use and Zoninq The almost 10-acre side is currently zoned conditional B-2 Community Business District. A portion of the site will be redeveloped with a 41,000 square foot car sales building and additional parking. Surroundinq Land Use and Zoninq North: South: East: West: Virginia Beach Boulevard, retail establishments / B-2 Community Business District · Single-family dwellings / R-7.5 Residential District · Office / B-2 Community Business District Mixed retail, office / B-2 Community Business District · Clearfield Avenue, single-family dwellings, church annex, retail establishments / R-7.5 Residential District, B-2 Community Business District Zoning History In October 2001, City Council approved a request to rezone four (4) residentially zoned parcels to B-2 for the automobile sales facility expansion. A conditional use permit was also granted for these lots for automobile sales and repair facility. It appears that the original Conditional Use Permit for the existing auto facility was granted on May 23, 1988. Since that time, several expansions have prompted additional use permit requests as well as a request for a change of zoning for annexed parcels. A change of zoning was approved by City Council on December 6, 1994 and incorporated the property with frontage along Virginia Beach Boulevard, just north of the sites currently under consideration. Most recently, the existing car sales and service business was granted a Conditional Use Permit for an addition to the service building, the construction of a car wash building and a parking lot. These improvements have not been constructed. As such, the conditions attached to that CUP were not implemented. The church and school across Clearfield Avenue has had numerous requests for expansions. The church has purchased most of the property on the west side of Clearfield Avenue. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of less than 65dB Ldn surrounding NAS Oceana. Natural Resource and Physical Characteristics These parcels are located within the Chesapeake Bay watershed. natural resources are present. No exceptional Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 2 Public Facilities and Services Water and Sewer Water: Sewer: There is a 20-inch water main in Virginia Beach Boulevard on the north side of the median. There is a 16-inch water main in Virginia Beach Boulevard fronting the property. There is an 8-inch water main in Clearfield Avenue on the northwest side of the property. The site has existing water meters that may be utilized. There is a 10-inch sanitary sewer main in Virginia Beach Boulevard fronting the property. There is a 6-inch force main in Virginia Beach Boulevard fronting the property. There is a 10-inch sanitary sewer main in Clearfield Avenue on the northwest side of the property. This site is already connected to City sewer. Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): Virginia Beach Boulevard in the vicinity of this project is currently an eight lane divided urban arterial. This facility is currently a 150-foot wide right-of-way, as designated in the Master Transportation Plan. No further improvements are scheduled for this portion of Virginia Beach Boulevard in the current adopted Capital Improvement Program. Traffic Calculations: Street Name Present Present Generated Traffic Volume Capacity Virginia Beach Boulevard 42,000 34,940- Existing Land Use 2_ 1,750 ADT ADT ~ 64,260 ADT ~ Proposed Land Use 3_ 1,750 ' ~ ....... n.~.',,. ~'.;~ ADT ge y ps as defined by a 46,500 square foot car sales building as defined by a 46,500 square foot car sales building with 650 square feet of auto rental - no impact expected Public Safety Police: Adequate - no further comments. Fire and Rescue: Adequate - no further comments. Comprehensive Plan The Comprehensive Plan recommends use of these parcels for suburban residential/Iow density at densities that are compatible with single-family use in accordance with other Plan policies. Any expansion of commercial uses in this area should be done in harmony with the concept of providing an attractive, safe, and well-maintained physical environment. Development proposals must make adequate provisions to ensure the highest degree of site and building design quality, increased Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 3 parking lot and building foundation landscaping, adequate visual sbre~ning against residential uses, attractive and safe stormwater management systems, and adequate and safe internal and external circulation patterns for vehicles and pedestrians. Summary of Proposal Proposal The applicant is requesting a Conditional Use Permit to operate a motor vehicle rental business at this site. The applicant will be renting these vehicles to both customers and the general public. Thero will be approximately 120 vehicles in the fleet. The vehicles for rent include leisure cars, sports cars, pick up trucks and sport utility vehicles. Site Desiqn The site plan depicts a proposed 41,348 square foot building with approximately 182 additional parking spaces overall and a small addition on an existing building situated at the northeast corner of the property. · The motor vehicle rental operation will occupy 650 square feet of the dealership building. · The new, 25-foot high structure is proposed approximately 190 feet from Virginia Beach Boulevard. · The site plan depicts four additional structures on the property, a stormwater management pond and numerous existing parking spaces. · Vehicular access is currently occurring at three points along Virginia Beach Boulevard. Two additional access points are proposed off of Clearfield Avenue. Vehicular and Pedestrian Access Traffic Engineering staff indicates that the existing entrance on Clearfield Avenue closest to Virginia Beach Boulevard must be shifted to the north to better align it with the main drive aisle. This will facilitate easier access an on site vehicular circulation. · Pedestrian access appears to be adequate. Architectural Desiqn The submitted elevation for the 41,000 square foot building depicts an exterior primarily constructed of prefinished metal panels, light gray in color, with a red metal accent band located approximately half way up the facade. The 280 foot wide building will have a flat roof with two skylights located above the service area, approximately in the middle of the structure. The car sales entrance/showroom extends out approximately 60 feet from the building's fa~:ade. The exterior material will consist of either white metal panels or white exterior insulating finish system (EIFS). Aluminum storefront with insulated Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 4 glazing will enclose this area. The sales center will be located on the eastern side of the building. The automobile'parts and car rental area, located at the western side of the building, will also utilize the white metal panels or the EIFS with aluminum storefront with insulated glazing; however, no projection is proposed. Red, internally illuminated signage and black, non-illuminated channel letters are depicted above the sales center and the parts center. The middle of the building will be dedicated to service and 'lube' bays. Three full glass overhead doors are proposed. Two skylights are depicted on the roof in this portion of the structure. Landscape and Open Space Desiqn Category IV screening is required along the property lines that are adjacent to residentially zoned parcels. Category IV is a 15 foot wide buffer minimum consisting of a mix of evergreen trees and shrubs. This required landscaping was depicted on the site plan submitted for the conditional rezoning and use permit request in 2001; however, additional detail will be necessary at final site plan submittal. Parking lot landscaping will be required within the proposed parking lot expansion that is planned in the rear of both the existing and proposed buildings. This landscaping requirement was also depicted on the former site plan; however, additional detail will be necessary at final site plan submittal. Foundation landscaping is not depicted but it must be installed along at least fifty percent of any fa;ade facing a public street. This requirement will be reviewed when the plan is submitted to the Development Services Center for site plan review. Evaluation of Request The proposed request is acceptable and is recommended for approval. While this application is close to residentially zoned property, the church located on the west side of Clearfield Avenue has purchased much of the property fronting that side of the street. Other investors have purchased many of the homes on the east side of the street. The southern end of Clearfield Avenue is anchored by office and commercial uses and the northern end is anchored by the Virginia Beach Boulevard commercial corridor. In light of these facts, there appears to be a definite trend in this area from residential to commercial, institutional, and office uses. The applicant will be renting vehicles to both customers and the general public. There will be approximately 120 vehicles in the fleet. The vehicles for rent include leisure cars, sports cars, pick up trucks and sport utility vehicles. Conditions In addition to the conditions below, all conditions set forth in the Conditional Use Permit approved by the City of Virginia Beach City Council on October 23, 2001 shall remain in effect. ' Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 5 o The proposed building elevation shall substantially conform to the submitted drawing entitled, "Front Elevation, Checkered Flag Toyota, Virginia Beach, Virginia," dated February 15, 2002, prepared by Lyall Design Architects. All signage shall be in compliance for ~tandards set forth in the City of Virginia Beach Zoning Ordinance. The entire parking lot must be striped in accordance with City Code requirements and the Americans with Disabilities Act regulations. All parking spaces and display areas must be clearly delineated on the final site plan. No vehicles for sale or rent shall be parked within any portion of the public rights-of- way. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 6 ~ti Utllt!fU Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 7 Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY ! # 18 Page 8 Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 18 Page 9 Item #18 Checkered Flag Motor Car Co. Conditional Use Permit for automobile rentals at the Southeast comer of. Virginia Beach Boulevard and Clearfield Avenue 5225 Virginia Beach Boulevard District 2 Kempsville April 10, 2002 CONSENT AGENDA Dorothy Wood: Number 18 is Checkered Flag Motor Car Company. It's a Conditional Use Permit for automobile rentals in the southeast comer of Virginia Beach Boulevard and Clearfield Avenue. That is in Kempsville District. And there are four conditions. Morris Fine: My name is Morris Fine. I represent Checkered Flag. The conditions are acceptable Ms. Wood. Dorothy Wood: Thank you Mr. Fine. Morris Fine: Thank you. Dorothy Wood: Is there any objection to Number 18, Checkered Flag Motor Company for a Conditional Use Permit, 5225 Virginia Beach Boulevard? Hearing none. Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22- 25. Robert Miller: Yeah and I need to abstain on numbers 10, 18, 21, 23, 24, & 25. My firm is working on those projects. Ronald Ripley: Anybody else? Motion been made. Seconded and the abstention so noted. We are ready to vote. AYE ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER RIPLEY AYE SALLE' AYE 10 NAY 0 ABS 1 ABSENT ABS Item #18 Checkered Flag Motor Car Co. Page 2 STRANGE AYE VAKOS AYE WOOD ' AYE Ronald Ripley: By a vote of 10-0 with the abstention so noted, motion passes. APPLICATION PAGE 4 OF 4 CONDITIONAL USE PERMIT CITY OF VIRGINIA BEACH DISCLOSURE STATEMENT Applicant's Name: List All Current Property Owners: Checkered Flag Motor Car Co. Edward B. Snyder - Trustee Jean M. Snyder - Trustee Snyder Family Trustee PROPERTY OWNER DISCLOSURE Ifthe property ownerisa CORPORATION, listallofficersofthe Corporation below: Snyder Family Trust Edward B. Snyder - Trustee (Attach list if necessary) Jean M. Snyder - Trustee If the property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) N/A Check here if the property owner is NOT a corporation, partnership, firm, or other unincorporated organization. If the applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE If the applicant is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary') Snyder Family Trust Edward B. Snyder - Trustee Jean M. Snyder - Trustee If the applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) N/A Check here if the applicant is NOT a corporation, partnership, firm, or other unincorporated organization. CERTIFICATION: I certify that the information contained herein is true and accurate. Signature Edward B. Snyder Print Name Rev. 9/15/98 Conditional Use Permit (motor vehicle rental) - Granted 2-24-98 Conditional Use Permit (motor vehicle sales) - Granted 5-28-91 o Conditional Use Permit (school expansion) - Granted 8-26-97 Conditional Use Permit (church expansion) - Granted 9-24-96 Conditional Use Permii (church expansion)- Granted 3-14-95 Conditional Use Permit (church expansion) - Granted 8-11-92 Conditional Use Permit (church expansion) - Granted 5-14-91 7. Conditional Use Permit (motor vehicle sales) - Granted 3-14-95 8. Change of Zoning (A-12 Apartment District to B-2 Community Business District) - Granted 2-22-94 9. Conditional Use Permit (motor vehicle sales & service) -Granted 12-14-93 10. Conditional Use Permit (motor vehicle sales) - Granted 10-13-92 Checkered Flag Motor Car Co. Gpin See Application ZONING HISTORY Change of Zoning (A-12 Apartment District to O-2 Office District) - Granted 2-27-01 Change of Zoning (R-7.5 Residential District to Conditional B-2 Community Business District) - Granted 10-23-01 Conditional Use Permit (motor vehicle sales) - Granted 10-23-01 Conditional Use Permit (motor vehicle sales)- Granted 10-10-00 Conditional Use Permit (motor vehicle sales & repair) - Granted 12-6-94 Change of Zoning (R-7.5 Residential District to B-2 Community Business District) - Granted 12-6-94 Conditional Use Permit (parking & storage) - Granted 5-25-93 Conditional Use Permit (motor vehicle sales & repair) - Granted 5-23-88 Conditional Use Permit (communication tower)- Granted 2-1-00 Conditional Use Permit (communication tower) - Granted 6-9-98 Conditional Use Permit (communication tower) - Granted 1-14-97 · M~a~ 1-I-7 Checkered~ Gpin 1497-44-1992 ZONING HISTORY 1. Conditional Use Permit (auto repair)- Granted 3/12/87 Conditional Use Permit (auto sales) - Granted 10/30/89 Conditional Use Permit (sales and repair expansion) - Granted 9/28/93 Conditional Use Permit (sales expansion) - Granted 7/1/97 2. Conditional Use Permit (church addition) - Granted 6/23/98 3. Conditional Use Permit ( auto storage) - Granted 4/11/95 CITY OF VIRGINIA.BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Checkered Flag Motor Car Company, Conditional use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Checkered Flag Motor Car Company for a Conditional Use Permit for off-site employee parking and automobile storage on the east side of N. Lynnhaven Road, north of Mustang Trail. Said parcel is located at 216 N. Lynnhaven Road and contains 1.15 acres. DISTRICT 6 - BEACH. Considerations: The applicant is requesting a conditional use permit for automobile storage and off-site parking for the employees of the business. The Planning Commission placed this item on the consent agenda because the requested use should not be obtrusive to the existing neighborhood, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion by a recorded vote of 10 for the motion with 1 abstention to approve this request subject to the following conditions: The site shall be developed substantially in accordance with the site plan dated January 15, 2002 prepared by MSA Inc. exhibited to City Council and on file in the Department of Planning. 2. The bulk storage area shall be paved with asphalt. Parking lot light poles shall not exceed 14 feet in height and the number of lights shall be the minimum necessary to illuminate the parking area. Lights shall be shielded to direct light and glare onto the premises and focused away from adjoining properties. Attachments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning CommissiOn recommends approval. Submitting Department/Agency: Planning Department City Manager: ~w¢,~/(,_ . ~ly~ Checkered Flag Motor Car Company Page 2 -' '~ 4. The roadway entrance radii shall meet the minimum 15 foot radii required by Public Works Star~dards. 5. All on-site vehicle storage shall be restricted to the bulk storage area. 6. No outside storage of parts or equipment shall be permitted. 7. There shall be no vehicle display. No balloons, banners, or pennants shall be displayed from light poles or vehicles. No vehicles shall be parked within any portion of the public right-of-way or within the vehicular entrances to the property. 8. The freestanding sign shown on the site plan shall be a monument style sign. 9. No outside paging system will be allowed. April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for automobile storage and off-site employee parking 216 North Lynnhaven Road M~tp H-7 GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: Gpin 1497-44-1992 1497-44-1992 6 - BEACH 1.15 acres Barbara Duke The existing building on the site will be demolished to construct an employee parking lot, a fenced auto storage lot and a future one story building on this site. The improved site will be a part of and ancillary to the main Checkered Flag BMW sales establishment fronting on Virginia Beach Boulevard, approximately 650 feet north of the subject site. Major Issues: · Degree to which the proposed use is compatible with surrounding uses Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page I Land Use, Zoning, and Site Characteristics: Existinq Land Use and Zoninq There is an existing residential structure on the site and the site is zoned B-2 Community Business District. Surroundinq Land Use and Zoning North: South: East: West: · Office complex / B-2 Community Business District · Beach Ford auto dealership / B-2 Community Business District · Beach Ford auto dealership / B-2 Community Business District · Single Family homes / R-10 Residential District across North Lynnhaven Road Zonin,q History There have been several conditional use permit requests for motor vehicles sales, service and storage to the north, east and south of this property as shown on the zoning history map. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of 70 to 75dB Ldn surrounding NAS Oceana. Natural Resource and Physical Characteristics There is an existing residential structure with a lawn on the site. There are some mature trees on the site that will be removed with the proposed construction. Public Facilities and Services Water and Sewer Water: Sewer: There is a 6 inch City water line in North Lynnhaven Road. The site has an existing water meter that may be used. There is an 8 inch City sewer line in North Lynnhaven Road. The site is connected to City sewer. Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): North Lynnhaven Road in the vicinity of this application is currently a two (2) lane undivided minor urban arterial. It is designated on the Master Transportation Plan as a 70 foot wide undivided roadway. The right of way width along the frontage of Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 2 this site is sufficient. There are currently no projects in the Capital Improvement Program to improve this facility. Traffic Calculations: Stree( Name Present Present Generated Traffic Volume Capacity 7,300-13,100 Existing Land Use z _ 61 North Lynnhaven Road 13,000 ADT (Service ADT (1999) Level C-E) Proposed Land Use 3_ 150 Average Daily Trips 2 as defined by specialty retail 3 as defined by new car sales Public Safety Police: Adequate - no further comments. Fire and Rescue: Adequate - no further comments. Comprehensive Plan The Comprehensive Plan policies for this portion of the Little Neck Planning area generally support commercial uses that are not disruptive or do not negatively impact on the adjoining area. The policies also support commercial proposals that promote economic vitality. Summary of Proposal Proposal The site is on the east side of North Lynnhaven Road and is surrounded by commercial uses. The use bordering the site to the east and south is similar to what is proposed for the subject site, that is auto parking and storage. The existing Checkered Flag BMW auto sales business is located on Virginia Beach Boulevard and is approximately 650 feet north of the subject site. There is a single family home (zoned B-2 Commercial Business District), Yorktown Avenue and then an office complex separating the main business on Virginia Beach Boulevard and the subject site. Site Design The submitted site plan depicts 53 spaces for employee parking. A 20,000 square foot bulk storage area for new vehicles is located east of the employee parking lot, in the rear of the site. An area designated for a future 4,000 square foot one story building is shown within the bulk storage area. Vehicular and Pedestrian Access There is currently one substandard entrance on North Lynnhaven Road for this site. The applicant is proposing to close the existing entrance and to relocate the entrance to the northern corner of the site. The new entrance must meet all Public Works standards and will be used as the sole access point to the parking area and storage area. Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 3 The bulk storage area will have a 25 foot wide gated en.tran, ce at the rear of the parking lot. Pedestrian access in this area is an important factor for this application because the applicant is proposing an off-site employee parking lot. The current sidewalk system that will connect this site to the main site on Virginia Beach Boulevard is adequate. The sidewalk system existing north of this site on North Lynnhaven Road starts in front of the office complex. The sidewalk continues along the frontage of the office complex and then turns eastward and runs along the south side of Yorktown Avenue. Sidewalk on the northern side of Yorktown Avenue begins at the back of the Checkered Flag site and continues to Virginia Beach Boulevard. The applicant is proposing to make an on-site sidewalk connection to this exiting sidewalk system. There is no sidewalk existing on either side of North Lynnhaven Road south of the site for a distance of approximately 500 feet. Architectural Desiqn No architectural elevations were submitted for the proposed future building. The applicant has stated that the building will be one story. The building will be located in the northeast section of the site, within the fenced bulk storage yard. Therefore, the building will not be highly visible from North Lynnhaven Road. Landscape and Open Space Desi,qn · The applicant has provided street frontage and interior parking lot landscaping in accordance with the site plan ordinance. Existing pine trees located along the front of the site will be retained and incorporated into the street frontage plantings. · An eight foot high security fence and an evergreen screen of wax myrtles is provided around the bulk storage area at the rear of the site in accordance with zoning ordinance requirements. Evaluation of Request The request to expand auto storage and service on this site and to provide employee parking is acceptable. The site is currently zoned B-2 Community Business District and similar uses exist to the east and south of the site. The applicant will be improving the entrance and sidewalk system at the front of this site so employees can safely walk from the parking lot to the main business fronting on Virginia Beach Boulevard, a distance of approximately 650 feet. This use should not be obtrusive to the existing neighborhood on the west side of Lynnhaven Road as long as site lighting and landscaping are installed as proposed. This request for a conditional use permit is recommended for approval subject to the following conditions. Conditions The site shall be developed substantially in accordance with the site plan dated January 15, 2002 prepared by MSA Inc. exhibited to City Council and on file in the Department of Planning. 2. The bulk storage area shall be paved with asphalt. Planning Commission Agenda ~i ~,~ April10,2002 ~ '"'~ CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 4 o Parking lot light poles shall not exceed 14 feet in height and the number of lights shall be the minimum necessary to illuminate the parking area. Lights shall be shielded to direct light and glare onto the premises and focu'se'd away from adjoining properties. The roadway/entrance radii shall meet the minimum 15 foot radii required by Public Works Standards. All on-site vehicle storage shall be restricted to the bulk storage area. No outside storage of parts or equipment shall be permitted. There shall be no vehicle display. No balloons, banners, or pennants shall be displayed from light poles or vehicles. No vehicles shall be parked within any portion of the public right-of-way or within the vehicular entrances to the property. The freestanding sign shown on the site plan shall be a monument style sign. No outside paging system will be allowed. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 5 / / / / ! / I / / Planning Commission Agenda April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 6 Planning Commission Agenda ~~.~ April 10, 2002 CHECKERED FLAG MOTOR CAR COMPANY/# 21 Page 7 Item//21 Checkered Flag Conditional Use Permit for an off-site employee parking and automobile storage on the east side of N. Lynnhaven Road, north of Mustang Trail 216 North Lynnhaven Road District 6 Beach April 10, 2002 CONSENT AGENDA Dorothy Wood: Item #21 is Checkered Flag. It's a Conditional Use Permit for off-site employee parking and automobile storage on the east side of Lynnhaven Road, north of Mustang Trail. And that is 216 N. Lynnhaven Road in the Beach District. Mr. Fine? Morris Fine: Morals Fine for Checkered Flag. And I understand that they added an additional condition. In all of the conditions including the additional one are acceptable. Dorothy Wood: The additional one was no outside paging system will be allowed. Morris Fine: Right. Right. Dorothy Wood: Thank you Mr. Fine. Is there any objection to Checkered Flag having off-site employee parking on N. Lynnhaven, north of Mustang Trail in the Beach District. Hearing none. Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle': Second. Ronald Ripley: Seconded by Charlie Salle'. Discussion? Robert Miller: Yeah and I need to abstain on numbers 10, 18, 21, 23, 24, & 25. My f'mn is working on those projects. Ronald Ripley: Anybody else? Motion been made. Seconded and the abstention so noted. We are ready to vote. AYE 10 NAY 0 ABS 1 ABSENT 0 ATKINSON AYE BAUM AYE CRABTREE AYE Item//21 Checkered Flag Page 2 DIN HORSLEY MILLER RIPLEY SALLE' STRANGE VAKOS WOOD Ronald Ripley: AYE AYE AYE AYE AYE AYE AYE ABS By a vote of 10-0 with the abstention so noted, motion passes. Applicant's Name: Checkered Flag Motor Car Company List All Current Property Owners: Edward B. Jean M. SnYder - Trustee Snyder - Trustee Snyder Family Trustee PROPERTY OWNER DISCLOSURE If the property owner is a CORPORATION, list all officers of thc Corporation below: (Attach list if necessary) Snyder Family Trust Edward B. Snyder - Trustee Jmmn M. Snyder - Trustee If the property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) N/A Check here if the property owner is NOT a corporation, partnership, firm, or other unincorporated organization. f the applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE f the applicant is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) Snyder Family Trust Edward B. Snyder - Trustee Jean M. Snyder - Trustee the applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all ~embers or partners in the organization below: (Attach list if necessary) N/A Check here if the applicant is NOT a corporation, partnership, firm, or other unincorporated organization. '.ERTIFICATION: I certify that the information contained herein is true and accurate. Signature Edward B. Snyder Print Name Rev. 9/15/98 Atlanttc Gtdn 2428-01-6618 ZONING HISTORY 1. Conditional Use Permit (Commercial Parking Lot) -Approved 3-22-01 2. Conditional Use Permit (Mini-Golf) - Approved 4-11-88 3. Conditional Use Permit (Parking Lot) -Approved 3-28-88 CITY OF VIRGINIA. BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Atlantic Enterprises, Inc., Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon application of Atlantic Enterprises, Inc., for a Conditional Use Permit for a commercial parking lot at the southwest corner of Atlantic Avenue and 30TM Street (GPIN #2428-01-6618). Said parcel is located at 2906 Atlantic Avenue and contains 36, 120 square feet. DISTRICT 6 - BEACH. Considerations: The applicant is requesting a conditional use permit for the continuation of the use of an existing commercial parking lot. The applicant, however, requests the elimination of a standard condition placing a time limit on the use. This request, to eliminate the operating time limit of one (1) year, is not acceptable due to the uncertainty of the proposed Laskin Road Gateway Project, which is still in the design phase. Although the applicant has made some improvements to the parking lot, it does not meet the "exceptional design quality" that the Oceanfront Resort Area Concept Plan recommends. The Planning Commission placed this item on the consent agenda because staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion by a recorded vote of 10 for the motion with 1 abstention to approve this request subject to the following conditions: 1. The conditional use permit for a commercial parking lot is approved for a period of two (2) years, with an administrative review every two (2) years thereafter. 2. The hours of operation shall be from 8:00 a.m. to 12:00 a.m., seven (7) days per week. 3. An attendant shall be on duty at all times during the hours of operation. Attachments: Staff Review Planning Commission Minutes Disclosu re Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department ~.~.~, City Manager: ~~,v,~ ~.~ 6,¢~~ Atlantic Enterprises, Inc. Page 2 Street frontage landscaping and interior coverage landscaping shall be installed in accordance with the Site Plan Ordinance, Section 5A, by the end of 2002 or the lot shall comply with the provisions of the amended Section 23-58 should those amendments be adopted by the City Council in 2002. A building permit shall be secured for the "attendant's building" within thirty (30) days of City Council approval of this conditional use permit. The building shall be located a minimum of fifty (50) feet east of the western right-of-way of Atlantic Avenue, in order to provide for sufficient on-site stacking. The building shall be so situated so as to be on the driver's side of the vehicles entering the parking lot. Parking lot lighting shall be installed within sixty (60) days of City Council approval of this use permit. The light levels should be an average of 3.6 lumens, as recommended by the Illuminating Engineering Society of North America for parking lots. ATLANTIC ENTERPRISES, INC./# 8 April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for a Commercial Parking Lot 2906 Atlantic Avenue, Southwest corner of Atlantic Avenue and 30th Street ~'"p ~'-~ Atlantic Inc Gpin 2428-01-6618 GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 2428-01-6618 # 6 - BEACH 36,120 Square Feet Faith Christie To obtain a Conditional Use Permit for a Commercial Parking Lot (with no time limit attached). Major Issues: The site is in the Laskin Road Corridor area and provides many visitors to the Oceanfront with their first impression of the resort area. It is important that development in the area be consistent with the land use, transportation, and design principles set out in the Comprehensive Plan - Oceanfront Resort Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page I Area Concept Plan. Development in the area should be'0f'~xceptional design quality that complements and enhances the resort area. Land Use, Zoning, and Site Characteristics: Existinq Land Use and Zonin,q The site is developed with a paved parking lot, attendants' building, and perimeter landscaping. The site is zoned RT-2 Resort Tourist District. Surroundinq Land Use and Zoning No~h: South: East: West: · 30th Street · Across 30th Street, Resort Related Retail Uses / RT-2 Resort Tourist District · An Alley · Across the Alley, Resort Related Retail Uses and a Hotel/RT-2 Resort Tourist District · Atlantic Avenue · Across Atlantic Avenue The Oceanfront Inn / RT-1 Resort tourist District · Pacific Avenue · Across Pacific Avenue Resort Related Retail Uses / RT-3 Resort Tourist District Zonin,q History The Plantation Motel occupied the site until 1999. The hotel was demolished and the lot was used as parking for the Oceanfront Inn guests and employees. The applicant applied for and received in March 2001, a conditional use permit for a commercial parking lot on the site. The following conditions are attached to the conditional use permit: 1. The conditional use permit for a commercial parking lot is approved for a maximum period of one (1) year. 2. Hours of operation shall be from 8:00 a.m. to 12:00 a.m., seven (7) days per week. 3. An attendant shall be on duty at all times during hours of operation. 4. All points of vehicular access will be secured by a chain or gate during the hours that the parking lot is closed. 5. A lot attendant station shall be located a minimum of fifty (50) feet east of the western right-of-way of Atlantic Avenue, to provide for on-site stacking and shall be situated so as to be on the drivers side of vehicles entering the parking lot. 6. Perimeter landscaping shall be installed along the northern, western and eastern property lines, except for depicted points of vehicular access. Planning Commission Agenda April10,2002 ATLANTIC ENTERPRISES, INC./#8 Page 2 The parking lot shall be designed substantially as depicted '6n the site plan filed by the applicant and all site area not occupied by parking sPaces or drive aisles shall have a vegetative cover or other decorative treatment approved by the Plannfng Director or his designee. The applicant obtained a building permit December 10, 2001, to pave the parking lot. The building permit was conditioned with the following items: · Curb and gutter deferred (pending resolution of the 30th Street gateway project); · No entrance from Pacific Avenue; · Paving/Landscaping Required. There have been no inspections performed for the permit. The permit request did not include the attendant's station located on the site, nor has a separate building permit for that structure been obtained. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of 65 to 70dB Ldn surrounding NAS Oceana. The United States Navy has reviewed the request and finds the use acceptable. Natural Resource and Physical Characteristics The site is almost entirely impervious, occupied by a parking lot and an attendant's building. There is a five (5) foot landscape strip along Atlantic Avenue, Pacific Avenue, and the 20-foot Alley, and a fifteen (15) foot landscape strip along 30th Street. The landscape area is composed of shrubs and a split rail fence. Public Facilities and Services Water and Sewer Water: Sewer: There is a sixteen (16) inch water main in Atlantic Avenue on the east side of the site. A twelve (12) inch water main exists in Pacific Avenue fronting the west side of the site. There is an eight (8) inch water main in 30th Street on the north side of the site. The proposed use does not require water service. There is a twenty-four (24) inch sanitary sewer main in Atlantic Avenue on the east side of the site. A twenty-one (21) inch sanitary sewer main exists in Pacific Avenue on the west side of the site. There is a twenty-four (24) inch sanitary sewer main in 30th Street on the north side of the site. The proposed use does not require sewer service. .Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): The site is in the area of the Laskin Road Gateway Capital Improvement Project (2- 076) (see page from CIP, attached at end of report). A ten (10) foot right-of- reservation is required along the entire frontage of 30th Street to accommodate the ultimate roadway. A ten (10) foot by ten (10) foot triangular wedge reservation is required at the corner of 30th Street and Pacific Avenue for the Laskin Road Gateway Project. There will be no entrances permitted on Pacific Avenue in order to limit traffic conflict points and to accommodate the CIP project. Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. /# 8 Page 3 Traffic Calculations: Street Name Present Present Generated Traffic Volume Capacity Existing Land Use z. 420 11,000 ADT ~ Atlantic Avenue (5,000*) 13,100 ADT ~ Proposed Land Use 3_ no change Average Daily Trips - 11,000 = Tourist season / 5,000 = off season as defined by parking lot as defined by no change Public Safety Police: Adequate lighting should be installed in the parking lot. The lighting should provide even illumination throughout the site and its design should be similar to what is provided on similar parking lots in the area. Recommended light levels should be an average of 3.6 lumens, as recommended by the Illuminating Engineering Society of North America. Fire and Rescue: There are no fire department concerns at this time. Comprehensive Plan The Comprehensive Plan Map designates this area of the city as Resort Area, planned for resort uses including lodging, retail, entertainment, recreational, cultural, and other compatible uses. The general land use, transportation, and aesthetic provisions identified in the Oceanfront Resort Area Concept Plan apply to all development and redevelopment within this area of the city. The Oceanfront Resort Area Concept Plan (ORACP) recommends improvements to accomplish the following three objectives for this corridor: · Laskin Road must be able to move high volumes of traffic destined for the resort area; · Laskin Road and 30th Street rights-of-way must afford safe, pleasant, and convenient pedestrian access between Baltic Avenue and the Boardwalk; · All improvements along this corridor must exhibit exceptional design quality (page B.15). Consistent with the recommendations of the Comprehensive Plan, development in the area should complement and enhance the resort area, and further the goals of a more pedestrian-oriented environment. Summary of Proposal Proposal The site is at the corner of Atlantic Avenue, 30th Street, and Pacific Avenue. The Plantation Hotel occupied the site until 1999 at which time it was demolished. The site was then used as parking for the guests and employees of the Oceanfront Inn. The applicant obtained a conditional use permit in March 2001 to operate a commercial parking lot on the site. The conditions attached to the use permit are previously stated in the Zoning History section Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. ! # 8 Page 4 of this report. The applicant is seeking to have the one (1)'~ear operating time limit removed as a condition of the use permit. The subrbitted site plan for the previously approved conditional use permit depicted eighty-three (83) parking spaces, five (5) foot landscape buffers along Atlantic Avenue, Pacific Avenue, and the twenty (20) foot alley, and a fifteen (15) landscape buffer along 30th Street. Interior islands to accommodate interior coverage landscaping were depicted in the parking lot. Entrances to the site were shown on both Atlantic Avenue and Pacific Avenue. In December 2001, the applicant obtained a building permit to pave the parking lot. The building permit had several conditions attached including installation of the required landscaping. The site plan submitted with the building permit was delineated to identify the location of the landscaping that was to be installed. To date the interior coverage landscaping has not been installed. Site Design The submitted site plan depicts eighty-three (83) parking spaces, landscaping buffers along the right-of-ways, interior landscape islands, and entrances from Atlantic Avenue and Pacific Avenue. The site, however, has been developed differently than the submitted plan. The site has been paved. Shrubs and a split rail fence delineate the site. An attendant's booth has been placed on the site. Vehicular and Pedestrian Access · Vehicular access is shown from both Atlantic Avenue and Pacific Avenue. Access will not be permitted from Pacific Avenue. · There are public sidewalks along all the right-of-ways. Architectural Desi,qn · A building for the parking lot attendant exists on the site. The applicant will be required to obtain a building permit for the structure. Landscape and Open Space Desi,qn Five (5) foot landscape buffers are shown along Atlantic Avenue, Pacific Avenue and the 20-foot Alley, a fifteen (15) foot buffer is shown along 30th Street. The buffers are composed of shrubs and a split rail fence. There has been some confusion regarding the landscaping issues with this site. Under Section 23-58 of the City Code, the landscaping that is currently installed is acceptable for a temporary commercial parking lot. Since this site is also used as off-site parking for another hotel, however, the provisions of the Site Plan Ordinance, Section 5A, apply to the site. Therefore all the of the landscape requirements in Section 5A pertaining to parking lots ap--~ly to the site. Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page 5 Evaluation of Request The request for a conditional use permit to operate a commercial parking lot is acceptable subject to the conditions listed below. However, the request to eliminate the operating time limit of one (1) year on the conditional use permit is not acceptable due to the uncertainty of the proposed Laskin Road Gateway Project, as the project is still in the design phase. Although the applicant has made some improvements to the parking lot, it does not meet the "exceptional design quality" that the Oceanfront Resort Area Concept Plan recommends. Staff notes that there has been some confusion regarding the landscaping issues with this site. Under Section 23-58 of the City Code, the landscaping that is currently installed is acceptable for a temporary commercial parking lot. Since this site is to be used as a commercial parking lot the provisions of the Site Plan Ordinance, Section 5A, also apply to the site. Therefore all the of the standard landscape requirements in Section 5A pertaining to parking lots apply to the site. Staff recommends approval of the conditional use permit request for a commercial parking lot subject to the following conditions. Conditions q The conditional use permit for a commercial parking lot is approved for a period of two (2) years, with an administrative review every two (2) years thereafter. The hours of operation shall be from 8:00 a.m. to 12:00 a.m., seven (7) days per week. An attendant shall be on duty at all times during the hours of operation. Street frontage landscaping and interior coverage landscaping shall be installed in accordance with the Site Plan Ordinance, Section 5A, by the end of 2002. A building permit shall be secured for the attendants building within thirty (30) days of City Council approval of this conditional use permit. The building shall be located a minimum of fifty (50) feet east of the western right-of-way of Atlantic Avenue, in order to provide for sufficient on-site stacking. The building shall be so situated so as to be on the driver's side of the vehicles entering the parking lot. Parking lot lighting shall be installed within sixty (60) days of City Council approval of this use permit. The light levels should be an average of 3.6 lumens, as recommended by the Illuminating Engineering Society of North America for parking lots. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page 6 City of Virginia Beach, Virginia Fiscal Yea~s 2001-02 through 200&-07 Capital Improvement Pro ram Project # and Title: 2-076 Laskin Road Gateway cIP section: Roa~w-a~.. s r~uslnessAma: Quall~ Ph~'slcal Environment PMoM~: T~al Total gu~g~ Una ~r~Mated Su~ ue~ Y~m F~ure P~gramm~ Ap~l~lons Year1 Y~r2 Y~r3 Year4 Year5 Y~r6 Funding FUnMS To Date FY 2~1~2 FY 2~2-03 ~ ~03~4 ~ ~5 ~ ~6 FY 2~ Requl~e~ 15.~7.~0 ?.755,9~ 2.083.&53 ~3.~2 5,3~.~3 0 This ~e~ is ~ m~m ~ ~thm~lane ~w~ a bik~y~m~ pmpo~ 3~1~S~ s~it~ A~a~c A~enue, a di~nce ~ a~immely 0.3 mile. The pmje~s flint ~ ~11 be a ~ns~on ~d~ ana~is (lin~ ~ Phase II byVDOT)~r ~bil~, aesth~cs, ~i~, e~ ~eetscape ~a~e~. This pmje~ll ~ide ~ape enhancements ~ include u~e~u~i~ the exi~ng a~al ~li~es. The existi~ ~d was des~n~ ce~' 22,800 ~hieles perday, but ~ 29,~ ~cles par day in lggg. It has a ~e~d ~ume ~ 47,000 vehides ~r day by ~e ~ar 2038. This ~11 ~ple~ ~ im~e~ ~ ~a~ n R~d ~ R~ ~niel ~the m~ ama. W~ this pmje~, ~e mad ~11 ~o~ ~ ~ as de~o~e~ along ~is ~r ~nues and ~11 make ac~ss ~ ~e o~aff~ d~lt. This pmje~ a p~m on ~ Q~'s MaWr Tmns~on Plan, as well as the R~bnel Trans~ Plan. The ~e~ appea~ in ~e ~ 1992-~ CIP,was d~ in ~e ~ 1~ tip ~ all~i~ ~ So~s~n Pa~ay and GreenbeE, a~as mi~u~ in ~e ~ lgg~Qg CIP. Basis ~r E~mate ~ 2~01-~ ~ 2002-03 ~ 200~ ~ 20~ ~ 20~ -- ~ 2006~7 O 0 ~ 0 0 0 Deagn 0~0-11~ ~0,~ -~ ~ ~,. .g,'~ ~ ~0m ~es ~9~T~ 1 :~ .... ~ ~ T ' ' F " ~ ''- ;.~ ~ =.,. ~:!.;: . ~~~~ ~ 1 ~ ~r ~s 2 296 ~ 36 Roadways Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page 7 PACIFIC AV~ '1.2 ATLAS'nc AVE. G~4~P[.~C $CAL~ Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page 8 Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. / # 8 Page 9 Planning Commission Agenda April 10, 2002 ATLANTIC ENTERPRISES, INC. ! # 8 Page 10 Item #8 Atlantic Enterprises Conditional Use Permit for a commercial parking lot south west comer of Atlantic Avenue and 30th Street 2906 Atlantic Aventle District 6 Beach April 10, 2002 CONSENT AGENDA Dorothy Wood: We'll go to Item #8, Atlantic Enterprises. It's a Conditional Use Permit for a commercial parking lot on the southwest comer of Atlantic Avenue and 30th Street. That is in District 6, Beach District and there six conditions. Mr. Nutter? R.J. Nutter: Thank you. Thank you Ms. Wood. Mr. Chairman and Members of the Commission for the record, my name is R.J. Nutter. I'm an attorney representing the applicant. The conditions at this point are acceptable. I would like to add that in speaking with staff earlier today, between now and the early session that condition number six, we believe that the lighting that we are currently proposing will comply with this condition. And as a result we're going to confirm that between now and Council but they indicated that to us, so in that case these conditions are acceptable. Dorothy Wood: Thank you. R.J. Nutter: Thank you. Dorothy Wood: Again, that is Atlantic Enterprises on Atlantic Avenue and 30th Street. Is there any objection to this consent item? Being none. Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle': Second. Ronald Ripley: Seconded by Charlie Salle'. Discussion? Robert Vakos: I need to abstain on Item #8. Those are my relatives are of the applicant. Ronald Ripley: Okay. Anybody else? Motion been made. Seconded and the abstentions so noted. We are ready to vote. Item #8 Atlantic Enterprises Page 2 AYE 10 NAY 0 ABS 1 ABSENT 0 ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER AYE RIPLEY AYE SALLE' AYE STRANGE AYE VAKOS WOOD AYE ABS Ronald Ripley: By a vote of 10-0 with the abstention so noted, motion passes. 7-Eleven Gpin: see Application ZONING HISTORY 1. Conditional Use Permit (motor vehicle sales) - Granted 5-9-00 2. Change of Zoning (R-10 Residential District to Conditional B-2 Community Business District) - Granted 2-23-99 3. Conditional Use Permit (motor vehicle sales) - Granted 5-12-98 Conditional Use Permit (motor vehicle sales & service) - Granted 6-27-95 4. Conditional Use Permit (motor vehicle sales) - Granted 8-26-97 5. Street Closure - Granted 10-29-96 6. Change of Zoning (R-10 Residential District to Conditional B-2 Community Business District) - Granted 9-12-95 7. Conditional Use Permit (motor vehicle sales) - Granted 11-26-91 8. Subdivision Variance - Denied 12-11-89 Subdivision Variance - Granted1-25-88 9. Change of Zoning (A-18 Apartment District to B-2 Community Business District) - Withdrawn 7-11-88 10. Conditional Use Permit (bulk storage) -Granted 2-8-88 11 .Conditional Use Permit (motor vehicle sales) -Granted 12-14-87 12. Change of Zoning (B-2 Community Business District to A-2 Apartment District) - Granted 12-15-86 Conditional Use Permit (amusement park) - Denied 12-14-83 13. Conditional Use Permit (mini warehouse) - Granted 8-8-83 14. Conditional Use Permit (motor vehicle repair) - Granted 3-14-83 CITY OF VIRGINIA. BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: 7-Eleven, Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of 7-Eleven, Inc., for a Conditional Use Permit for fuel sales in conjunction with a convenience store on certain property located at the southwest corner of Laskin Road and Village Drive (GPIN #2407-57-8930; #2407-57-9974). Said parcel contains 1.085 acres. DISTRICT 6 - BEACH. Considerations: The applicant is requesting a conditional use permit for six (6) fuel pumps in conjunction with a convenience store. The subject site, located at the corner of Laskin Road and Village Drive, is an area undergoing considerable redevelopment. In addition, the City will, in the near future, be making significant public investment within this corridor consistent with plans for Laskin Road. In light of this, staff has worked with the applicant to achieve a site layout, building materials and landscaping all significantly upgraded above what is typical. Staff recognizes that while this site is not subject to the provisions regarding outparcels contained in the Design Guidelines for Retail Establishments (as this is not a shopping center outparcel), several conditions below are specifically recommended to mimic some of those requirements to ensure the highest quality development possible. The Planning Commission placed this item on the consent agenda because the site layout, building materials and landscaping are significantly upgraded, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion unanimously by a recorded vote of 1 1-0 to approve this request subject to the following conditions: The site layout and landscape elements shall be in substantial conformance with the site plan submitted and entitled, "7- Eleven, Preliminary Site Plan, Laskin Road and Village Drive," prepared by URS, dated March 15, 2002, which has been exhibited to the City Attachments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting DepartmentJA~lenc~ Planning Department ~ City Manager~~_~ \~_, ~) ~ 7-Eleven Page 2 Council and is on file in the Planning Department, with the addition of Category I landscaping behind the building, along the facade. This Category I landscaping can be either in addition to or in lieu of the broadleaf evergreen screening shrubs depicted in the rear of the structure on the submitted plans. The building elevations shall be in substantial conformance with the drawings submitted and entitled, "7- Eleven Convenience Store with Fuel Station, Laskin Road and Village Drive," prepared by URS, dated July 2, 2001, which have been exhibited to the City Council and are on file in the Planning Department. The trash enclosure shall be screened with a solid brick wall to match the building and shall include evergreen shrubs having good screening capabilities, no less than three (3) feet in height at the time of planting, spaced in accordance with the City's Landscaping, Screening and Buffering Specifications and Standards, and maintained at all times in good condition at a minimum height not lower than the wall. Said enclosure shall not be visible from Laskin Road. All rooftop equipment, such as heating, ventilation, and air conditioning units shall be concealed from typical street level view. All ground level building mechanical equipment shall be screened in accordance with Section 245 (e) of the Zoning Ordinance. No signage in excess of a total of four (4) square feet of the entire glass area of the exterior wall nor any neon signs or accents shall be permitted in or on the windows and/or doors of the convenience store. Signage shall be limited to traffic control signs, one monument style sign with a brick base to match that of the proposed convenience store building, a sign above the entrance door as depicted on the submitted elevations, a sign on the rear of the building (western facade) as depicted on the submitted elevation, Iogos and striping on the fuel canopy as depicted on the submitted elevations, and the signage permitted as described in condition number 5 above. No spandrel signage under the canopy is permitted. Sidewalks shall be installed along public rights-of-way, in accordance with the Department of Public Works Engineering Specifications and Standards and shall be depicted on the final site plan. Internal pedestrian walkways shall be installed from each right-of-way to the entrance of the store as described in Section 246 (4) and shall be depicted on the final site plan. 9. No outdoor vending machines shall be allowed. 10. No merchandise shall be displayed or stored outside of the building. 11. A lighting plan shall be submitted for approval during final site plan review. 7-ELEVEN / # 17 April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for fuel pumps in conjunction with a convenience store. Southwest corner of Laskin Road and Village Drive. GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 2407-57-8930, 2407-57-9974 #6 - BEACH 1.085 acres Carolyn A.K. Smith To operate a convenience store with six fuel pump dispensers. Major Issues: · Degree to which the application is consistent with the City's vision for high quality development within the Laskin Road corridor. · Degree to which the proposed use is compatible with surrounding land uses. Land Use, Zoning, and Site Characteristics: Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page I Existinq Land Use and Zoninq The site is currentl~ vacant, consisting of the pavement and building foundation from previous uses, now demolished. Surroundinq Land Use and Zoning North: South: East: West: · Laskin Road, restaurant, retail uses, car dealership / B-2 Community Business District · Vacant property / B-2 Community Business District · Village Drive, restaurant, offices / B-2 Community Business District · car repair, car wash, car dealership / B-2 Community Business District Zonin,q History Zoning activity in the surrounding area has primarily consisted of change of zoning and conditional use permits related to motor vehicle sales and repair. Air Installation Compatible Use Zone (AICUZ) 'The site is in an AICUZ area greater than 75 dB Ldn surrounding NAS Oceana. Natural Resource and Physical Characteristics The parcel is located within the Chesapeake Bay watershed. The site is currently vacant; however, it had been developed prior to this request. There are remnants of a demolished foundation on the site. There are no significant natural resources on the property. Public Facilities and Services Water and Sewer Water: Sewer: There is a 36 inch water main in the north side of Laskin Road on the north side of the median. There is a 36 inch water main in. Laskin Road fronting the property. There is an 8 inch water main in Village Drive fronting the east side of the property. This site must connect to City water. There is a 24 inch HRSD force main in the north side of Laskin Road on the north side of the median. There is a 10 inch sanitary sewer main in Laskin Road fronting the property. There is a 12 inch sanitary sewer main in Village Drive fronting the east side of the property. This site must connect to City sewer. Planning Commission Agenda ~,'~'~.~ April 10, 2002 7-ELEVEN / # 17 Page2 Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): Laskin Road, in the vicinity of this proposal, is a four (4) lane, major arterial roadway. There are plans to upgrade the roadway to an eight (8) lane facility. According to the CIP, this portion of the project is scheduled to begin in 2009. Public Works has City of Vb'ginia Beach, Virginia Fiscal Years 2001-(12 through 200~,07 Capital Improvement Program Project ~ and Title: 2-2S4 Laskin Road - Phase III CIP section: RoaO~,ays Busings Area: Qualr[~ P h~/slcal EnYIron~ent PROH~: Total Total gudget Una ~ed Su~ ue~ ~m P~gramm~ &p~o~l~lons Year I ~r 2 Y~r 3 Year 4 Year 5 Y~r 6 Funding Funds To Date FY2~1~2 ~ FY2~03 ~ ~0.3~ ~ ~5 ~ ~6 FY2~ Re~ul~ma~ 223,~0 15,610 o, ~ 11~ 11~ 60~ 2t .90~ 1 (~OT ~0~I~-V~). This p=je~ is~r~n~=n ~ an e~hHa~ di~d~ hig~y~ a ~ke ~ ~m ~ic Road The exi~i~ ~d ~s des~n~ ~ ~ 22.~00 ~hicles par day, b~ ~ 29,~ ~es per day in 1999. ~e~d ,~ume d 47.000 vehicles ~r day by ~e ~er 2D18. The ~ ~ffic volu~ e=eeds ~ pm~ ~ur la ~pad~, and ~e ae~im m~s ~e h=a~us s~u~om. Wi~ ~ ~on ~ ~in Road ~e I a~ ~in Road Phase II, ~OT ~11 be imp=~ng ~e en~m Laskin ~ ~rf=m 1-264 ~ ~t of Hdl~ Road. This pmje~ is on MasterTmns~ Plan. as ~11 as ~e ~gi~al Tmns~n Ran. This p=je~ fi~t a~a~d in the FY 19g~ CIP as a p=po~ V~T ~. ~ pmje~ ~s dele~ ~ and mi~u~ ~e ~ 2OD,D1 CIP. Funding and a~uli~ ~c~on am ~cu~y imludad in~ 200Q~1 Vi~inia Tmns~ Oavebpment PI~; ~e ~a~ cons~c~an a~uia ~ is de~e~ u ~n ~equam u~an p~mm ~nding. S~edules and ~em upd~ annually ba~ on ~e ~a Tmmpo~on De~o~e~ Plan. Basis ~r Es~male ~ 2001-~ ~ 2~2-03 ~ 2003~ ~ 20~-~ ~ 20~-~ ~ 2006-~ N~-~icable 0 0 0 0 0 S~ Ughm ~94~0 1~,~ ~-~ ~ ~ ~ ~s=~ 0~0-12~0 500.~ Fmdhq Souse Am~ ~Y~ 33.~ Fiscal Year 2001-02 35 Roadways Planning Commission Agenda ~,~. ~~ April 10, 2002 7-ELEVEN / # 17 Page 3 indicated that additional property must be set aside to accomm0d~te the final alignment of the upgraded Laskin Road. The applicant is aware of this requirement. Village Drive is a four (4) lane, minor collector street. There are no plans to improve Village Drive at'this time. Traffic Calculations: Street Name Present Present Generated Traffic Volume Capacity Laskin Road 27,882 ADT ~ 27,300 ADT = Proposed Land Use 2_ 6,511 ADT / Village Drive N/A t 13,100 ADT ~ I erage :y Trips 2 as defined by 6 fuel dispensers (12 pumps) and convenience store. Public Safety Police: Fire and Rescue: Police coverage is adequate - A lighting plan must be submitted during final site plan review. Posters and advertisements must not cover more than fifteen (15) percent of the windows. In addition, a broad leaf shrub proposed within the landscape strips along Laskin Road and Village Drive should not grow above three (3) feet in height. Police coverage of the parcel is adequate. Adequate - no further comments. Comprehensive Plan The Comprehensive Plan identifies this site as suitable for retail, service, office, and other compatible uses within commercial centers serving surrounding neighborhoods and communities. The subject site, located at the corner of Laskin Road and Village Drive, is an area undergoing considerable redevelopment. Summary of Proposal Proposal · The applicant is proposing to construct a 3,043 square foot convenience store with six (6) fuel dispensers and a canopy. Site Design The entrance into the convenience store is oriented towards Village Drive. The 3,043 square foot building is proposed adjacent to the westem property line. The side of the building will face Laskin Road. Six (6) fuel dispensers are proposed under a canopy (40 feet by 90 feet). The fuel canopy will be to the east of the building and has been placed on the site so that the shorter side of the canopy will face Laskin Road. The canopy is placed approximately 60 feet from the proposed reservation line along Laskin Road. The building is approximately 82 feet from the line. Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page 4 The site plan depicts 27 parking spaces. This exceeds ~he~minimum of 15 required by the City Zoning Ordinance. The majority of the spaces are shown in the front and on the sides of the building. No parking is proposed along Laskin Road. The applicant's engineer has indicated that the stormwater will be directed onto Parcel B and will be treated in a shared facility probably located near the western property line. The Concept Plan depicts a large restaurant on Parcel B. It is anticipated that the building's architecture and construction materials will be similar to those of the 7-Eleven convenience store. Vehicular and Pedestrian Access · Two (2) ingress/egress points are proposed - one off of Village Drive and one off of Laskin Road. · Two (2) connections are depicted to Parcel B on the southern portion of the property. Pedestrian access appears to be adequate; however, it is recommended that pedestrian walkways be installed from the right-of-ways to the store's entrance. Architectural Desiqn The proposed 7-Eleven convenience store is not the standard prototype design. A unique, site-specific design suitable for the higher design quality desired for the Laskin Road Corridor has been provided. The front of the building faces east, towards Village Drive. The side of the building and the shorter side of the fuel canopy will be seen from Laskin Road. The fuel canopy's dimensions are 40 feet by 90 feet. The building's exterior will be reddish brick with brick water table course on all sides of the building. At each of the four (4) corners of the building, architectural elements with a "tower" likeness, topped with composition tile, are proposed. Two-thirds up the facade a light colored smooth face architectural masonry block soldier course is depicted. The front elevation depicts five (5) large, clear glass windows and one (1) set of double doors. The 7~Eleven trademark color stripes are proposed above the windows and doorway. The building will have a flat roof with downspouts on the rear of the building. The top left corner of the rear fagade will display the 7-Eleven logo. Both the rear (west) elevation and the north elevation depict the reddish brick with water table course, the corner architectural elements, and the light colored smooth face architectural masonry block soldier course. Each of these elevations depicts a service door that both the proposed and additional recommended landscaping will screen. Red brick columns support the fuel canopy. The elevation depicts a mansard roof with composition tile roof. The fuel company's logo will be displayed on the left corner of each of the canopy's sides that face a right-of-way. The canopy will not connect to the convenience store in order to reduce the scale and mass of the development. Planning Commission Agenda ~. h~~ April 10, 2002 7-ELEVEN ! # 17 ..... Page 5 Landscape and Open Space Desi.qn "'~ The conc. ept plan depicts four (4) large shade trees along the west property line. Staff is also recommending that Category I (evergreen shrubs such as Pittosporum or wax myrtles) be installed behind the building, along the facade, to aid in the screening of the service door and downspouts that will be somewhat visible from Laskin Road. Expanded streetscape buffers are proposed along both Village Drive and Laskin Road. A 13-foot wide landscape buffer is proposed along Laskin Road and a 21-foot wide landscape buffer is proposed along Village Drive, except for the two (2) 40 foot-wide ingress/egress. Evaluation of Request The request for a conditional use permit is acceptable. The subject site, located at the corner of Laskin Road and Village Drive, is an area undergoing considerable redevelopment. In addition, the City will, in the near future, be making significant public investment within this corridor consistent with the recently adopted plans for Laskin Road. In light of this, the proposed site layout, building materials and landscaping are all significantly upgraded above what is typical. Staff recognizes that while this site is not subject to the provisions regarding outparcels (as this is not a shopping center outparcel) contained in the Design Guidelines for Retail Establishments, several conditions below are specifically recommended to mimic some of those requirements to ensure the highest quality development possible. The request for fuel pumps at this location is acceptable subject to the conditions below. Conditions The site layout and landscape elements shall be in substantial conformance with the site plan submitted and entitled, "7- Eleven, Preliminary Site Plan, Laskin Road and Village Drive," prepared by URS, dated March 15, 2002, which has been exhibited to the City Council and is on file in the Planning Department, with the addition of Category I landscaping behind the building, along the facade. This Category I landscaping can be either in addition to or in lieu of the broadleaf evergreen screening shrubs depicted in the rear of the structure on the submitted plans. The building elevations shall be in substantial conformance with the drawings submitted and entitled, "7- Eleven Convenience Store with Fuel Station, Laskin Road and Village Drive," prepared by URS, dated July 2, 2001, which have been exhibited to the City Council and are on file in the Planning Department. The trash enclosure shall be screened with a solid brick wall to match the building and shall include evergreen shrubs having good screening capabilities, no less than three (3) feet in height at the time of planting, spaced in accordance with the City's Landscaping, Screening and Buffering Specifications and Standards, and maintained at all times in good condition at a minimum height not lower than the wall. Said enclosure shall not be visible from Laskin Road. All rooftop equipment, such as heating, ventilation, and air conditioning units shall be concealed from typical street level view. All ground level building mechanical equipment shall be screened in accordance with Section 245 (e) of the Zoning Ordinance. Planning Commission Agenda April 10, 2002 7-ELEVEN/# 17 Page 6 o No signage in excess of a total of four (4) square feet of the'e~itire glass area of the exterior wall nor any neon signs or accents shall be permitted in or on the windows and/or doors of the convenience store. Signage shall be limited to traffic control signs, one monument style sign with a brick base to match that of the proposed convenience store building, a sign above the entrance door as depicted on the submitted elevations, a sign on the rear of the building (western fa(;ade) as depicted on the submitted elevation, Iogos and striping on the fuel canopy as depicted on the submitted elevations, and the signage permitted as described in condition number 5 above. No spandrel signage under the canopy is permitted. Sidewalks shall be installed along public rights-of-way, in accordance with the Department of Public Works Engineering Specifications and Standards and shall be depicted on the final site plan. Internal pedestrian walkways shall be installed from each right-of-way to the entrance of the store as described in Section 246 (4) and shall be depicted on the final site plan. 9. No outdoor vending machines shall be allowed. 10. No merchandise shall be displayed or stored outside of the building. 11 .A lighting plan shall be submitted for approval during final site plan review. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page 7 Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page 8 Planning Commission Agenda ~.~ ~ April 10, 2002 ~~~-~ 7-ELEVEN / # 17 Page 9 Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page 10 Planning Commission Agenda April 10, 2002 7-ELEVEN / # 17 Page 11 Item #17 7-Eleven, Inc. Conditional Use Permit for fuel sales in conjunction with a Convenience. Store Southwest comer of Laskin Road and Village Drive District 6 Beach April 10, 2002 CONSENT AGENDA Dorothy Wood: Number 17 is a 7-Eleven, Inc. It's a Conditional Use Permit for fuel sales in conjunction with a convenience store on the southwest comer of Laskin Road and Village Drive in the beach borough. Steve Romine: Good afternoon. Steve Romine on behalf of the applicant. Dorothy Wood: Eleven conditions sir. Steve Romine: Those conditions are acceptable. Dorothy Wood: Thank you. Is there any objection to the 7-Eleven for the Conditional Use Permit on Laskin Road and Village Drive with eleven conditions? Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle': Second. Ronald Ripley: Seconded by Charlie Salle'. Discussion? Anybody else? Motion been made. Seconded. We are ready to vote. AYE 11 NAY 0 ABS 0 ABSENT 0 ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER AYE RIPLEY AYE SALLE' AYE STRANGE AYE APPLICATION CONDITIONAL USE PERMIT CITY OF VIRGINIA BEACH DISCLOSURE STATEMENT Applicant's Name: 7-Eleven, Inc. List All Current Property Owners: Estate of James M. Kline PROPERTY OWNER DISCLOSURE If the property owner is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) If the property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) [] Check here if the property owner is NOT a corporation, partnership, firm, or other unincorporated organization. lf the applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE If the applicant is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) See attached Exhibit A If the applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) /appl'i cant ~ [--] Check here if the~r~is NOT a corporation, partnership, firm, or other unincorporated organization. CERTIFICATION: I certify that the information contained herein is true and accurate. Signature Stephen R. Romine, agent for 7-Eleven, Inc. PfintName Rev. 9/15/98 James W. Keyes Masaaki Asakura Rodney A. Brehm Michael J. Gade Gary R. Rose Bryan F. Smith, Jr. Frank Crivello Cynthia L. Davis Joseph R. Eulberg Frank S. Gambina Jeffrey S. Hamill John W. Harris David G. Huey Gary C. Lockhart Phillip K. Morrow David M. Podeschi Frank M. Quinn Stanley W. Reynolds Jeffrey A. Schenck NanCy A. Smith Joseph M. Strong Donald E. Thomas Rick Updyke EXHIBIT A 7-ELEVEN, INC. OFFICERS [Updated June l, 200'1] President and Chief Executive Officer Senior Vice President Senior Vice President, Operations Development Senior Vice President, Merchandising Senior Vice President, Field Operations Senior Vice President, General Counsel, and Secretary Vice President, Northeast Division Vice President, Southwest Division Vice President, Human Resources Vice President, Mid-Pacific Division Vice President. Foods/Non-Foods Merchandising Vice President, Florida Division Vice President, North Pacific Division Vice President, Gasoline Supply Vice President and Chief Information Officer Vice President, Demand Chain Management Vice President, Mid-Atlantic Division Treasurer Vice President, Great Lakes Division Vice President, Field Merchandising Vice President, Chesapeake Division Vice President, Controller and Chief Accounting Officer Vice President, Business Development/E-Commerce 7-ELEVEN, INC. ASSISTANT SECRETARIES [Updated June '!, 2001] Harvey W. Blitz Steve Bonnville Marshall A. Bradley Sid Brockman Kenneth Bruce - Ronald J. Bryant Kerry S. Burson Jed W. Byerly Joe L. Carlton J. Michael Coffman Nancy S. Corral Michael R. Davis Joanne K. DeLorenzo John DeMiguel Cathy S. Emig Assistant Secretary Franchise Specialist, Great Lakes Division Assistant Secretary Franchise Specialist, Southwest Division Assistant Secretary Franchise Specialist, Mid-Pacific Division Assistant Secretary Sales & Marketing Manager, Florida Division Assistant Secretary Franchise Specialist, Northeast Division Assistant Secretary Manager, Corporate insurance Assistant Secretary Market Manager, Mid-Pacific Division Assistant Secretary Sales & Marketing Manager, Mid-Pacific Division Assistant Secretary Senior Category Manager Assistant Secretary Legal Department Assistant Secretary Regional Franchise Specialist, Great Lakes Division Assistant Secretary Vice President and Assistant General Counsel Assistant Secretary Sales & Marketing Manager, Southwest Division Assistant Secretary Market Manager, Mid-Pacific Division Assistant Secretary Director, Staffing Human Resources Department David T. Fenton Gary P. Fullir{gton Rankin L. Gasaway Gary M. Gray Gary L. Griffith James W. Grindell Suzanne Harrison Thomas A. Havens Thomas R. Hennen Janet Henry Edward J. Hen-nan Michael D. Hevron David B. Holland Norman M. Hower Robert M. Jenkins Kyle Johnson Charles A. Kronyak Assistant Secretary Legal Department Assistant Secretary Assistant Manager, Corporate Real Estate Assistant Secretary Legal Department Assistant Secretary Franchise Specialist, Mid-Atlantic Division Assistant ,Secretary Franchise Specialist, Mid-Pacific Division Assistant Secretary Manager, Corporate Construction Assistant .Secretary Senior Tax Agent, Corporate Tax Assistant Secretary. Manager. Corporate Facilities Assistant Secretary Legal Department Assistant Secretary Human Resource Manager, North Pacific Division Assistant Secretary Legal Department Assistant Secretary Senior Tax Agent, Corporate Tax Assistant Secretary Manager, Corporate Real Estate Assistant Secretary Market Manager,. Mid-Pacific Division Assistant Secretary Vice President, International' Assistant Secretary Outside Counsel (Litigation Nlatters Only) Assistant Secretary Beverly R. Lope:, Charlotte Parnphile Otis Peaks Michael D. Petty Craig Pichinino Kevin P. Pullin Cynthia L Riohardson James S. Robertson Arthur E. Rubinett Robert M. Rutledge Lloyd T. Scott Steven R. Seldowitz · Shahid Sheikh Jerry L. Sherman James R. Sleeva Marijan M. Smith Merchandising Manager, Southwest Division Assistant Secretary *' ~ Legal Department Assistant Secretary Franchise Specialist, Northeast Division Assistant Secretary Vice President, Central Division Assistant Secretary Legal Department Assistant Secretary Market Manager. Mid-Pacific Division Assistant Secretary Market Manager, Southwest Division Assistant Se=.retary Market Manpger, Mid-Pacific Division Assistant Secretary Sales & Marketing Manager, North Pacifi~ Division Assistant Secretary Legal Department Assistant Seoretary AV Tax Manager, Corporate Tax Assistant Secretary Loss Prevention Manager, Chesapeake Division Assistant Secretary Legal Department Assistant Secretary Market Manager, Chesapeake Division Assistant Secretary Senior Tax Agent, Corporate Tax Assistant Secretary Sales & Marketing Manager, Chesapeake Division Assistant Secretary Corporate Real Estate ~7238¥1 John D. Steczynski J. Donald Sf:evenson, Jr. Gloria Swims Robed J. Tobiasz Laurie A. Trotta Antonio Varela Joanne Webb-Joyce James K. West Teresa C. VV~iey John W. Wilkie Robert S. Wohlman Assistant Secretary Regional Franchise Specialist, Northeast Division Assistant Secretary Legat Department Assistant Secretary Franchise Specialist, Southwest Division Assistant Secretary Market Manager, Great Lakes Division Assistant Secretary Franchise Specialist, Northeast Division Assistant Secretary Franchise Specialist, Mid-Pacific Division Assistant Secretary National Franchise System Manager .. Assistant Secretary Federal/State Ta~ Manager, Corporate Tax Assistant Secretary _ Sales Tax Manager Assistant Secretary Vice President, Franchising and Corporate Communications Assistant Secretary Franchise Specialist. North Pacific Division -5- TnT~I P ~ Map M-~5 Gpin 2418-94-8362 ZONING HISTORY 1. Conditional Use Permit (Motel) - Approved 12-18-72 Conditional Use Permit (Motel) -Approved 1-25-71 2. Expansion to a Non-Conforming Use - Withdrawn 2-9-99 3. Change to a Non-Conforming Use -Approved 3-12-91 Conditional Use Permit (Tennis, Golf) - Approved 2-12-91 Change to a Non-Conforming Use - Approved 12-18-89 Conditional Use Permit (Tennis, Golf) -Approved 12-18-89 CITY OF VIRGINIA.BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Thirty-Seven-01 Associates, LLC, Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Thirty-Seven-01 Associates, L.L.C., for a Conditional Use Permit for a Drive-Thru Window (Bank) on Lots 4 & 5, Block 87, Virginia Beach Development Co. (GPIN #2418-94-8362). Said parcel is located at 3701 Pacific Avenue and contains 15,120 square feet. DISTRICT 6 - BEACH. Considerations: The applicant requests a conditional use permit to install a drive-thru window and an automatic teller machine (ATM) for a bank. The drive-thru and ATM will be located in the easternmost building and will be accessed from the 20 foot alley to the north. The ex,sting office building is currently under renovation to accommodate the new tenant. Condition 1, recommended below, has already been satisfied. On May 1,2002, the Board of Zoning Appeals granted the applicant a variance to the required parking. The variance was granted subject to a number of conditions including an agreement for off-site parking be executed with the church across Pacific Avenue, the number of spaces leased be enough to accommodate the maximum number of employees on the site at any given time, and the agreement provide for a notice requirement to the Zoning Administrator in the event that the lease terminates, expires or terminates by virtue of default. Recommendations: A motion was passed unanimously by the Planning Commission by a recorded vote of 11-0 to approve this request subject to the following conditions: 1. The applicant shall obtain a variance from the Board of Zoning Appeals for the required parking prior to occupancy of the building. 2. All interior lot lines on the site shall be vacated and a new plat recorded with the Clerk of Circuit Court prior to occupancy of the building. Attachments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. ~ Submitting Department/Agency;_: Planning Department Thirty-Seven-01 Associates Page 2 3. The nonconformir~g freestanding sign shall be removed. A freestanding sign conforming to the City Zoning Ordinance may be installed once the nonconforming sign is removed. THIRTY-SEVEN-01 ASSOCIATES, LLC / #9 April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for a Drive-Thru Window (Bank) 3701 Pacific Avenue Assoc. Crpin 2418-94-8362 GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 2418-94-8362 # 6 - BEACH 15,120 square feet Faith Christie To obtain a Conditional Use Permit for a Drive-Thru Window for a Bank Major Issues: · Compatibility with surrounding uses. · Adequate access to the drive thru facility. · Consistency with the objectives of the Comprehensive Plan and the Oceanfront Resort Area Concept Plan. Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC /#'9 Page I Land Use, Zoning, and Site Characteristics: Existinq Land Use and Zonin,q The site is occupied by an existing office building that is currently under renovation. The site is zoned RT-3 Resort Tourist District. Surroundinq Land Use and Zoninq North: South: East: West: A Parking Lot / RT-3 Resort Tourist District · 37th Street · Across 37th Street are Retail Uses / RT-3 Resort Tourist District · A Bed and Breakfast / RT-2 Resort Tourist District · Pacific Avenue · Across Pacific Avenue is an Office and Parking Area/O-1 and 0-2 Office District Zonin,q History There is little zoning history to report for the site and immediate area. An office building and associated parking have occupied the site since the mid 1970s. Before 1973, the site was zoned M-H Motel-Hotel District and received two (2) conditional use permits for construction of a motel. The site has been zoned RT-3 Resort Tourist District since 1988 with the adoption of the City Zoning Ordinance. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of 70-75dB Ldn surrounding NAS Oceana. The United States Navy has reviewed the request and finds it acceptable. Natural Resource and Physical Characteristics The site is almost entirely impervious, covered with buildings and associated parking areas. Public Facilities and Services Water and Sewer Water: Sewer: There is an eight (8) inch water main in 38th Street fronting the north side of the site. A twelve (12) inch City water main exists in Pacific Avenue fronting the west side of the site. The site has an existing 5/8-inch water meter connection that may be used. There are a twenty one (21) inch and ten (10) inch sanitary sewer mains in Pacific Avenue fronting the west side of the site. An eight (8) inch sanitary sewer main exists in the east portion of the alley on the south east side of the site. The site is connected to City sewer. Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC / # 9 Page 2 Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): Pacific Avenue in the area of this application is a four lane major collector. Thirty- Seventh Street along the front of the site is a two lane local street. The proposed development is not impacted by any current CIP projects. The proposed "Do Not Enter" and "Stop" signs will not be permitted in the public sidewalk or right-of-way. Traffic Calculations: Street Name Present Present Generated Traffic Volume Capacity 17,300 ADT 1 Pacific Avenue 7,884 ADT 1 Service Level "C" Existing Land Use 2. 105 6,200 ADT Proposed Land Use 3. 629 37th Street Not Available Service Level Average Daily Trips as defined by office use as defined by office use and bank drive-thru Public Safety Police: Fire and Rescue: No comments at this time. No concerns from the Fire Department at this time. A certificate of occupancy must be obtained from the Building Code Official prior to occupancy of the building. All fire protection requirements will be required during the building permit process. Fire lanes may be required after construction is complete and a physical evaluation is complete. Comprehensive Plan The Comprehensive Plan Map designates this area of the city as a Resort Area, planned for resort uses including lodging, retail, entertainment, recreational, cultural, and other compatible uses. The general land use, transportation and aesthetic provisions identified in the Oceanfront Resort Area Concept Plan apply to all development and redevelopment. Summary of Proposal Proposal The applicant proposes to install a drive-thru window and an automatic teller machine (ATM) for a bank. The drive-thru and ATM will be located in the eastern building and will be accessed from the 20 foot Alley to the north. The existing office building is currently under renovation to accommodate the new Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC / # 9 Page 3 tenant. ' '" The site is in the resort area at 37th Street and Pacific Avenue. The existing building v~as constructed in the mid 1970s as a real estate office and most recently was occupied by a law firm. To the east of the site is a bed and breakfast. To the south are several retail uses; to the north is an off-site parking lot for a hotel. Site Desiqn The submitted site plan depicts two (2) office buildings that are connected by a second floor-enclosed connector. Sixteen (16) parking spaces and one (1) handicap parking space exist on the site. There is a two-way entrance to the site from 37th Street, and an exit only onto 37th Street. A two-way entrance exists from the 20 foot alley to the north. The drive-thru / ATM lane will access from the 20 foot Alley and exit onto 37th Street. Foundation screening is shown along the western wall of the west building and along the southern wall of the east building. Landscaping is also shown along the parking areas adjacent to both Pacific Avenue and 37th Street. A nonconforming freestanding sign currently exists on the site. Vehicular and Pedestrian Access Access to the site exists on 37th Street and the 20-foot Alley in the rear. There is a two-way access and exit only from 37th Street, and a two-way access from the 20-foot Alley along the rear of the site. Access to the drive-thru / ATM lane will be gained through the existing entrance on the alley.'This may create a traffic problem for customers, as the hotel parking lot to the north and other uses to the east also use the alley for access to their sites. Entering the alley from Pacific Avenue may also create a traffic issue until the customers are familiar with the traffic patterns on the alley. Insufficient parking exists on the site for the proposed use. The applicant will have to obtain a variance from the Board of Zoning Appeals for the deficiency. The applicant is aware of this issue. (The applicant is scheduled to appear before the Board of Zoning Appeals on May 1, 2002 for a parking variance). · City sidewalks exist along Pacific Avenue and 37th Street. There are no internal connecting sidewalks. Architectural Desi.qn The request involves only the alteration of the building to accommodate the drive-thru window and the automatic teller machine; however, the entire building is currently under renovation. The existing building was constructed in the mid 1970s as a real estate office. The current renovation is updating the structure to be more consistent with the overall design goals and image of the oceanfront resort area. Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC ! # 9 Page 4 The proposed renovation depicts a modified oceanfront ~'C~ast Guard Station" building style design. The exterior will have simulated cedar shake siding. The eaves are trimmed in a decorative fish-scale siding. The roof on the "lookout tower" is ['netal seam; the building roofing is asphalt shingle. Landscape and Open Space Desiqn · Foundation landscaping is depicted along the western building wall of the west building, and along the southern building wall of the east building. · Landscaping is shown along the parking areas that are adjacent to both Pacific Avenue and 37th Street. Evaluation of Request The request for a conditional use permit for a drive-thru window for a bank is acceptable subject to the conditions listed below. The requested use is consistent with the general land use, transportation and aesthetic provisions identified in the Comprehensive Plan and the Oceanfront Resort Area Concept Plan. The current structure is being renovated consistent with the design image envisioned for the resort area. Although the traffic pattern related to the drive-through may present a challenge to customers, once the pattern is established, circulation should be adequate. Therefore, staff recommends approval of the conditional use permit request for a bank drive-thru subject to the conditions listed below. Conditions The applicant shall obtain a variance from the Board of Zoning Appeals for the required parking prior to occupancy of the building. (The applicant is scheduled to appear before the Board of Zoning Appeals on May 1, 2002 for a parking variance). All interior lot lines on the site shall be vacated and a new plat recorded with the Clerk of Circuit Court prior to occupancy of the building. The nonconforming freestanding sign shall be removed. A freestanding sign conforming to the City Zoning Ordinance may be installed once the nonconforming sign is removed. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC / # 9 Page 5 Proposed Site Plan Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC / # 9 Page 6 Building Elevation Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC / # 9 Page 7 Planning Commission Agenda April 10, 2002 THIRTY-SEVEN-01 ASSOCIATES, LLC ! # 9 Page 8 Item g9 Thirty-Seven-01 Associates, L.L.C. Conditional Use Permit for a drive-thru window (bank) on Lots 4 &. 5, Block 87, Virginia Beach Development Company 3701 Pacific Avenue District 6 Beach April 10, 2002 REGULAR AGENDA Ronald Ripley: Next item Mr. Miller? Robert Miller: Item gg, which is Thirty-Seven-01 Associates, LLC. John Richardson: Mr. Miller, Commission, my name is John Richardson. I'm a local attorney. I represent the applicant John Mamoudis. Mr. Mamoudis is taking a rather bore bun, unattractive structure and in his fashion recreating it into a very nice building. There was some confusion, I believe between staff and our offices, in regard to the three conditions that had been listed. We are happy with those conditions. They're acceptable, and I believe the reason why it was not on Consent was there was a misunderstanding we objected to one or all of the conditions. We do not but will be happy to answer any questions that the Commission has. Ronald Ripley: Betsy? Betsy Atkinson: I guess the main thing that we were concerned about was the parking. We were actually on site. John Richardson: Yes ma'am. Betsy Atkinson: And I understand you're going to move it the west, but is it still going to have it's wide drive aisle. You really can't pull into a parking space and back out and come out, you almost have to back out, pull in and back out all the way to the end of the street. There's no turn around time in there. John Richardson: The parking here? Betsy Atkinson: No. On the comer. John Richardson: Right down here? Betsy Atkinson: Yes sir. Item 89 Thirty-Seven-01 Associates, L.L.C. Page 2 John Richardson: That parking has been shifted over but it will not be expanded from what you see there. I mean it will be still a tight parking situation as customary down at the Oceanfront. A lady's dress shop is going into the building and we don't think it will be a very intense use. It's a very high end dress shop. The Cage, which is right near there, and they don't get a tremendous amount of traffic for business because of its surroundings. A very nice shop. So we don't think there will be too much of a demand in there. And then we think that the flow will be fine through the back. But yes ma'am, it's tight. Ronald Ripley: Bob Vakos has a question. Robert Vakos: John, the variances that you are going to be asking for, for the Board of Zoning Appeal, is it just for the number of spaces or are you going to ask for variances on the particular spaces - the width of them or the length of them. Because there are certain parking lot guidelines that you have to meet the site plan approval. jOhn Richardson: Yes. Robert Vakos: Are you asking for any variances on the spaces themselves? John Richardson: No sir, just for the number of spaces. Robert Vakos: Just the number of spaces. Okay. Ronald Ripley: Okay. John Richardson: That was now just my indication. Yes sir that's correct. Robert Vakos: And your going to BZA when? John Richardson: We go on - it's in May. Faith Christie: May 1st. John Richardson: It's the first? Thanks Ms. Christie. Robert Vakos: Okay. And I guess I made this point this morning, and I assume that you're aware of it. If you don't meet the Board of Zoning of Appeals approval then basically the Conditional Use Permit is not granted. John Richardson: Yes sir, that's correct. Robert Vakos: Okay. It's kind of a catch 22. John Richardson: The chicken and the egg. Item 4/9 Thirty-Seven-01 Associates, L.L.C. Page 3 Robert Vakos: Yes, I understand that. Okay. Alright. Ronald Ripley: Alright? Mr. Miller has a question too? Robert Miller: John, I'm the one who brought it up. When we drove in on the van trip it just looked awful tight. The buildings look terrific. You guys are doing a great job. Monarch Bank being down there, that's wonderful but it just looked that the parking lot, and I see Bruce sitting and I am sure he is going to tell me everything is okay. John Richardson: I'm not really supposed to do that. Robert Miller: I knew actually what he was going to say when he got here. But really, when we got into the parking lot and looked where the drive thru is, and maybe it's all the optical illusion that my glasses aren't working very well anymore, but that was the reason why we brought up the question. It just felt extremely fight and I know Mr. Mamoudis is very much aware of making sure his clients are taken care of, so do you want to get Bruce to come up and say Bob it's okay and I'll just leave it off. I must leave it alone anyway. John Richardson: And I will also offer to Mr. Miller that Mr. Mamoudis is going to occupy the second level as his corporate offices, so if his downstairs folks are unhappy, he is going to be the first to hear about it. Robert Miller: Okay. John Richardson: Because he will be right there. Mr. Gallup will speak. Bruce Gallup: My name is Bruce Gallup. I'm a local engineer. And, yes Bob, the parking does meet the very minimum requirement, to size, dimension and drive aisle. Robert Miller: I'm going to have to call you on some occasions where I need some help getting one of these because my dimensions aren't working too good. Thank you. Ronald Ripley: Okay. Anybody else have any questions? Bob? Robert Vakos: I'm just ready to make a motion to approve the application with the three conditions. Ronald Ripley: Well, since we're heating this, is there anybody else who wants to speak in support? Robert Vakos: Or against? Ronald Ripley: Or is anybody in opposition to this application? Item g9 Thirty-Seven-01 Associates, L.L.C. Page 4 John Mamoudis: I'll speak in support of it. Ronald Ripley: If you think you need to. John Mamoudis: I'm being facetious. Ronald Ripley: Okay, good. Alright, Bob. Robert Vakos: Again, my motion stands to approve the application with the three conditions that are listed. Eugene Crabtree: I second. Ronald Ripley: We got a motion by Bob Vakos and a second by Gene Crabtree to approve this application. We are ready to vote. AYE 11 NAY 0 ABS 0 ABSENT 0 ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER AYE RIPLEY AYE SALLE' AYE STRANGE AYE VAKOS AYE WOOD AYE Ronald Ripley: By a vote of 11-0, the motion passes. John Richardson: Thank you very much for your time. Ronald Ripley: Thank you. Applicant's Name: List All Current Property Owners: DISCLOSURE STATEMENT lhirty-$even-01 ^$$ociate$, L.L.C. Thirty-Seven-O1.Associates~ L.L.C. PROPERTY OWNER DISCLOSURE If the property owner is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) John Mamoudis - President If the property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) Check here if the property owner is NOT a corporation, parmership, firm, or other unincorporated organization. If the applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE If the applicant is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) If the applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) [~ Check here if the applicant is NOT a corporation, partnership, finn, or other unincorporated organization. CERTIFICATION: I certify that the information conta~erein)s true and accurate. ///, v Signature John Mamoudis Print Name Rev. 9/15/98 STALLINGS AND RICHARDSON, P.C. 2101 Parks Avenue, Suite 801 Virginia Beach, Virginia 23451 (757) 422-4700 (757) 422-3320 Facsimile e-marl address: tarable(~_ ~taHin~andriehardaon.com TO: FAX NO.: FROM: DATE: RE: Faith Chnat~ 426-5667 Tara T. Decker, Paxalegal March 28, 2002 SPCA and THIRTY-SEVEN-01 The members of Thirty-Seven-01 Associates, L.L.C. axe: John T. Mamoudis 50% Warren E. Sachs 50% The officers are. John T. Mamoud~% Presidenrffreasurer Warren E. Sachs, Vice President/Secretary The list of Board Members for the SPCA will follow under separate cover from Sharon Adams. Thanks COUNCILMAN BRANCH: February 10, 1998 Second. COUNCIL LADY P~RIfER: Mr. Sessoms. VICE MAYOR SESSOMS: Yes, ma'am. COUNCIL LADY PARIfER: You might want to note that on Number 1,D, Nextel, which was the additional conditions, Number 6 through 9 are going to be eliminated in this motion. VICE MAYOR SESSOMS: We thank you very much. COUNCIL LADY PARKER: Excuse me. I'm sorry. In Number 6 after the first sentence will be eliminated. It's the first one that has to stay in. If the tower is not being used for accommodating wireless communications for a period of one year, it shall be removed. VICE MAYOR SESSOMS: Thank you very much. Any other comments or questions? We have a motion and a second. I call for the question, please. CITY CLERK: By a vote of 10 to 0 you have authorized the approval on the Runnymede Corporation and an additional deferral for Virginia Beach Marlin Club and approve the items as read by the Vice Mayor with the deletion of a portion of the conditions for Nextel. 3 February 10, 1998 INFORMAL SESSION VICE MAYOR SESSOMS: Nextel, Billy? COUNCILMAN HARRISON: Okay. COUNCIL LADY PARKER: There's a -- and I asked staff to maybe comment on this. Apparently there is a typing error in the conditions that need to be -- I think we have something like nine conditions, and they really need to stop after six. Is that correct, Mrs. Lasley? Okay. Where does it stop, Karen? KAREN LASLEY: I gave you my copy. The first line in Condition Number 6 about the -- if it's not used for one year, it comes down. The rest of that I'm really sorry we didn't catch it sooner, but it shouldn't be in there. COUNCIL LADY PARKER: Okay. So, here she says the conditions -- after the first line in Condition Number 6, the rest should be deleted. VICE MAYOR SESSOMS: Is that okay with you, Billy? COUNCILMAN HARRISON: (Nods head in the affirmative.) KAREN LASLEY: And I will get that to the Clerk. VICE MAYOR SESSOMS: Okay. Good. FORMAL SESSION VICE MAYOR SESSOMS: I will now open a Public Hearing for Planning. The first item will be Planning by Consent. Item Number D, Nextel Communications, Incorporated for .approval. Do I have a motion for the Consent Agenda? COUNCIL LADY STRAYHORN: So moved. - 42 - Item VI-J.d. PUBLIC HEARING ITEM # 43232 (Continued) PLANNING 6. If the tower is not being used for accommodating wireless communication antennas for a period of one (1) year~ it shall be removed. 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 Tenth of February. Nineteen Ht4ndr~¥1 and Nine_tv-Eight. - - ~' Voting: 10-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, HI, William tV. Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf February 10, 1998 - 41 - Item VI-J.d. PUBLIC HEARING ITEM#43232 PLANNING Upon motion by Council Lady Strayhorn, seconded by Councilman Branch, City Council ADOPTED an Ordinance upon Application of NEXTEL COMMUNICATIONS, INC. for a .Conditional U$e Perm#: ORDINANCE UPON APPLICATION OF NEXTEL COMMUNICATIONS, [NC. FOR A CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICA TION MONOPOLE R 02982169 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Nextel Communications, Inc, for a Conditional Use Permit for a wireless communications monopole at the southwest intersection of Norfolk-Virginia Beach Expressway and First Colonial Road. Said parcel is located at 409 First Colonial Road and contains 4.1896 acres. LYNNHAVEN BOROUGH. The following conditions shall be required: The plans submitted with this request shah be revised to identify the tower as a 120-foot tall monopole, with a provision that allows for the mounting of l" in diameter omni-directional antennas, 15feet in height, at the top and extending to maximum height for the overall tower and antennas to 135feet. If flush mounted antennas are used on the top array, the maximum height shall be limited to 120 feet. Additionally, the tower details section of the submitted plans shall be revised to depict the 120-foot tower height, with the provision for the omni antennas mounted on the top. The tower detail shown on the plans shall also be revised to indicate where additional providers' antennas can be accommodated. A maximum separation of l S feet shall be provided between the applicant's antenna arrays and those identified for future co-locators. The location of the proposed tower must be shifted a minimum of 20 feet Westwardly towards the existing tower. In addition to the existing landscaping shown on the submitted plan, the applicant must also install a planting bed lO feet in width, extending from the Southwestern corner of the site Eastward for a distance of 2OO feet, at which point the planting bed must extend Northward for an additional 60feet forming an L-shaped planting area. Prior to construction of the proposed tower, the applicant must install Leyland Cypress within the entire planting bed; plants 6-S feet in height at planting, 20feet on center. 4. Future joint use for primary and secondary tower users must be accommodated on this tower. The proposed tower may not be painted. Lighting of the tower must conform to the standard lighting requirement outlined in FAA guidelines for towers of 135 feet in height or lower. If due to FAA or other state or federal guidelines, painting or modified lighting is required, the applicant may not construct a tower any higher than that which wouM be permitted by the FAA which would not have to be painted or lit by a strobe lighting device. February 10, i998 Virginia Beach City Council February 10, 1998 2:00 p.m. CITY COUNCIL: Meyera E. Oberndorf, Mayor W.-D. Sessoms, Jr., Vice Mayor John A. Baum Linwood O. Branch, III William W. Harrison, Jr. Harold Heischober Barbara M. Henley Louis R. Jones Reba S. McClanan Nancy K. Parker Louisa M. Strayhorn At-Large At-Large Blackwater Borough Virginia Beach Borough Lynnhaven Borough At-Large Pungo Borough Bayside Borough Princess Anne Borough At-Large Kempsville Borough CITY ~h~NAGE R: CITY ATTORNEY: CITY CLERK: STENOGRAPHIC REPORTER: James K. Spore Leslie L. Lilley Ruth Hodges Smith, CMC Dawne Franklin VER~TIM Planning Application of Nextel Communications, Incorporated M~ Voice Stream Gpin 2407-76-7425 ZONING HISTORY 1. Conditional Use Rezoning (R-D2 Conditional Use 2. Conditional Use 3. Conditional Use 4. Conditional Use 5. Conditional Use 6. Conditional Use Conditional Use 7. Conditional Use Conditional Use 8. Conditional Use Permit (wireless communication tower) Approved 2-10-98 Residential to C-L1 Commercial Limited) Approved 1-13-69 Permit (communication tower) Approved 4-11-95 Permit Permit Permit Permit Permit Permit Permit Permit Permit (bulk storage) Approved 7-9-90 (tattoo parlor & body piercing) Denied 11-13-01 (contractors bulk storage yard) Approved 9-8-98 (motor vehicle rentals) Approved 7-13-99 (motor vehicle repairs & truck rentals) Approved 6-13-00 (auto rentals) Denied 12-7-99 (auto sales & repair) Approved 6-25-91 (auto repair) Approved 8-28-89 (auto repair) Approved 8-18-80 CITY OF VIRGINIA.BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Voice Stream, Conditional use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Voice Stream for the modification of conditions placed on the application for a communication tower on February 10, 1998. Property is located at 409 First Colonial Road. DISTRICT 6 - BEACH. Considerations: The applicant is requesting a modification of conditions attached to a February 10, 1998 use permit that allowed the construction of this tower. The modification would allow the addition of a 13.5 foot extension to the existing 118.5 foot tall monopole communication tower. With antennae extending an additional 2.5 feet above the tower, the total height of the structure will be 134.5 feet. The Planning Commission placed this item on the consent agenda because the Iocational criteria for communication towers in Section 232 of the Zoning Ordinance strongly support use of an existing tower or site as the preferred choice for new providers, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion unanimously by a recorded vote of 11-0 to approve this request subject to the following conditions: o MODIFICATION TO FEBRUARY 10, 1998 CUP: The overall height of the communication tower and any antennae shall not exceed 135 feet above ground level. FROM ORIGINAL FEBRUARY 10, 1998 CUP: The location of the proposed tower must be shifted a minimum of 20 feet westwardly towards the existing tower. FROM ORIGINAL FEBRUARY 10, 1998 CUP: In addition to the existing landscaping Attachments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/A~lenc~ Planning Department ~ City Manage~\/._. ,'~ ~-¢Z_ Voice Stream Page 2 shown on the submitted plan, the applicant must also install a planting bed 10 feet in width, extending f-rom the southwestern corner of the site eastward for a distance of 200 feet, at which point the planting bed must extend northward for an additional 60 feet forming an L shaped planting area. Prior to construction of the proposed tower, the applicant must install Leyland Cypress within the entire planting bed; plants 6-8 feet in height at planting, 20 feet on center. FROM ORIGINAL FEBRUARY 10, 1998 CUP: Future joint use for primary and secondary tower users must be accommodated on this tower. FROM ORIGINAL FEBRUARY 10, 1998 CUP: The proposed tower may not be painted. Lighting of the tower must conform to the standard lighting requirement outlined in FAA guidelines for towers of 135 feet in height or lower. If, due to FAA or other state or federal guidelines, painting or modified lighting is required, the applicant may not construct a tower any higher than that which would be permitted by the FAA which would not have to be painted or lit by a strobe lighting device. FROM ORIGINAL FEBRUARY 10, 1998 CUP: If the tower is not being used for accommodating wireless communication antennae for a period of one (1) year, it shall be removed. ADDITION TO FEBRUARY 10, 1998 CUP: Unless a waiver is obtained from the City of Virginia Beach Department of Communications and Information Technology (COMIT), a radio frequency emissions study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any City of Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. ADDITION TO FEBRUARY 10, 1998 CUP: In the event interference with any City emergency communications facilities arises from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop the interference. VOICE STREAM / # 19 April 10, 2002 General Information: REQUEST: ADDRESS: Modification of Conditions placed on Conditional Use Permit for communications tower approved February 10, 1998 409 First Colonial Road Map K-6 Voice Stream Gpin 2407-76-7425 GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 2407-76-7425 6 - BEACH 4.1896 acres Ashby Moss To add a 13.5 foot extension to the existing 118.5 foot tall monopole communication tower. With antennae extending an additional 2.5 feet above the tower, the total height of the structure will be 134.5 feet. Major Issues: Degree to which additional 15 feet in height will increase visibility impacts of existing tower. Consistency of the proposal with the provisions of Section 232 of the City Zoning Ordinance. Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 1 Land Use, Zoning, and Site Characteristics: Existinq Land Use and Zoninq The property is currently developed with a church and two communication towers. The property is zoned B-2 Community Business District. Surroundinq Land Use and Zoninq North: South: East: West: · Interstate 264 · Office complex / B-2 Community Business District · Across First Colonial Road, on and off ramps to Interstate 264 / B-2 Community Business District · Vacant wooded property adjacent to Interstate 264 / B-2 Community Business District Zoninq History The subject property was rezoned from R-D2 Residential to C-L1 Limited Commercial in 1969. The first of two communication towers was approved April 11, 1995. This tower is 125 feet, and is located at the western extreme of the property. The second tower, which is the subject of this modification request, was approved February 10, 1998. This tower is currently 120 feet (measured from top of antennae) and is located approximately 90 feet east of the first tower. The applicant is requesting to modify condition #1, which reads as follows: The plans submitted with this request shall be revised to identify the tower as a 120 foot tall monopole, with a provision that allows for the mounting of 1" in diameter omni-directional antennas, 15 feet in height, at the top and extending to maximum height for the overall tower and antennas to 135 feet. If flush mounted antennas are used on the top array, the maximum height shall be limited to 120 feet. Additionally, the tower details section of the submitted plans shall be revised to depict the 120 foot tower height, with the provision for the omni antennas mounted on the top. The tower detail shown on the plans shall also be revised to indicate where additional providers' antennas can be accommodated. A maximum separation of 15 feet shall be provided between the applicant's antenna arrays and those identified for future co-locators. Part of the reason this condition was adopted was to ensure that the overall height of the tower would not exceed 135 feet. At the time the condition was approved, there was not a clear understanding that the height limitations applied to the antennae as well as the tower. Due to the type of antennae being used by the original applicant (15 foot tall omni-directional whips), the absence of the condition may have resulted in a 135 foot tower with an ultimate height of 150 feet to the top of the antennae. Part.of the intent of this condition was to clarify that the ultimate height of the structure included both the tower and the antennae above it. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of greater than 75dB Ldn and Accident Potential Zone 2 surrounding NAS Oceana. The tower/antennae structure was reviewed and approved with the previous conditional use permit for an ultimate height of 135 feet by officials at Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 2 NAS Oceana. Navy Air Traffic Control officials are once again re~/ie~ing the 135 foot height with the current request. As of the date this report was written, the review was not yet complete, but results will hopefully be available by the date of the Planning Commission hearirl'g. Natural Resource and Physical Characteristics The front of the property is developed with an old brick church with a parking lot behind it. The rear yard of the church is a large grassed area, and the towers are located at the western extreme of the property. Public Facilities and Services Public Safety Police: Fire and Rescue: Adequate - no further comments. Adequate - no further comments. Comprehensive Plan The Comprehensive Plan map designates this site as suitable for a variety of employment uses, including business parks, offices, appropriately located industrial uses, and employment support uses. Site Plan / Conformance with Section 232 · The submitted site plan shows the two tower compounds at the westem extreme of the property. The first tower constructed is 125 feet in height and is located approximately 45 feet from the western property line. The second tower, which is the subject of this modification request, is located approximately 90 feet east of the first tower. The subject tower is currently 120 feet in height (measured from top of antennae). Access to the tower compounds is provided by a 25 foot ingress/egress easement extending west from the church's entrance on First Colonial Road, north along the back of the parking lot, and west again adjacent to Interstate 264 to the tower compounds. · The existing tower and the proposed equipment building meet the setbacks required by the City Zoning Ordinance. A landscape screen of Leyland Cypress and Wax Myrtle is already in place around the perimeter of the compound and is in good condition. An additional landscape screen for both tower compounds was required with condition #3 of the previous conditional use permit. The condition required a row of Leyland Cypress extending 200 feet along the southern property line and then turning north for another 60 feet. The intent of this was to provide further screening of the compounds for the neighboring property to the south and for the church. However, site visits seem to show that part of this landscaping is no longer in place. This condition will be revisited during site plan review. Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 3 T'he applicant has provided a satisfactory structural engineering r'~port and NIER (non-ionizing electromagnetic radiation) report in accordance with ordinance requirements. With Voice Stream as the third primary provider on this tower, the tower will be capable of supporting one additional secondary user, resulting in a total accommodation of three primary users and one secondary user. Evaluation of Request The applicant's request to extend the existing monopole communication tower to 135 feet is acceptable. The Iocational criteria for communication towers in Section 232 of the Zoning Ordinance strongly support use of an existing tower and/or site as the preferred choice for new providers. This application accomplishes both of these collocation goals. However, the only way this tower can meet the needs of the applicant is by increasing its height to 135 feet. The proposed height is by no means excessive for this location and will be virtually indistinguishable from the adjacent 125 foot tower. Although both towers on this property are visible from 1-264, they are not considered obtrusive as there are already several existing towers of similar or greater height along this roadway that were located by Virginia Department of Transportation. Therefore, this request is recommended for approval subject to the conditions listed below. All of the conditions of the previous use permit are listed below; however, condition #1 has been modified, and conditions #7 and #8 are new conditions that have been added. Conditions MODIFICATION TO FEBRUARY 10, 1998 CUP: The overall height of the communication tower and any antennae shall not exceed 135 feet above ground level. The location of the proposed tower must be shifted a minimum of 20 feet westwardly towards the existing tower. In addition to the existing landscaping shown on the submitted plan, the applicant must also install a planting bed 10 feet in width, extending from the southwestern corner of the site eastward for a distance of 200 feet, at which point the planting bed must extend northward for an additional 60 feet forming an L shaped planting area. Prior to construction of the proposed tower, the applicant must install Leyland Cypress within the entire planting bed; plants 6- 8 feet in height at planting, 20 feet on center. Future joint use for primary and secondary tower users must be accommodated on this tower. The proposed tower may not be painted. Lighting of the tower must conform to the standard lighting requirement outlined in FAA guidelines for towers of 135 feet in height or lower. If, due to FAA or other state or federal guidelines, painting or modified lighting is required, the applicant may not construct a tower any higher than that which would be permitted by the FAA which would not have to be painted or lit by a strobe lighting device. Planning Commission Agenda ~, '~i~'~" April10,2002 ~-~ VOICE STREAM /# 19 Page 4 If the tower is not being used for accommodating wireless ~ommunication antennae for a period of one (1) year, it shall be removed. ADDITION TO FEBRUARY 10, 1998 CUP: Unless a waiver is obtained from the City of Virginia Beach Department of Communications and Information Technology (COMIT), a radio frequency emissions study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any City of Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. ADDITION TO FEBRUARY 10, 1998 CUP: In the event interference with any City emergency communications facilities arises from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop the interference. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all applicable City Codes. Conditional use permits must be activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 5 Planning Commission Agenda ° '~ April 10, 2002 VOICE STREAM / # 19 ~":'?.:.~:!,,.-" Page 6 .L Planning Commission Agenda ~'[ April 10, 2002 VOICE STREAM / # 19 ~'~ Page 7 N£XTEL ~ ANTENNAS BI' 01t.,1~1~ t~FLr~ i'0 ,4PI~OI~IATE SHE:ETS FOR ~ Id(X)I~_..ATION 0~ TOW'E~ AND PROPOSED ('m ~OT~) 125' 8tS EOU~a'~eENT UG~T EX~$11~C UNK 13.5 foot Addition for Voice Stream antenna Existing Tower (~) TOWER ELEVATION D~S.11NC FOUNDA110~ BY* 0 4 8 SE. 24 Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 8 (~) cO~L USE OOm, fflLT ASSD,18Ly REaUII~i) FOR PANEL TYPE i ~ PANEL ANTENNA NOTE.; ALL DOWN TILT AND AZiMUTHs TO BE ~RIFIED Bi' RF SITE DATA FOR INFORI~TION. Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page 9 Planning Commission Agenda April 10, 2002 VOICE STREAM / # 19 Page10 Item #19 Voice Stream Wireless Modifications of Conditions placed on application for a communications tower on February 10, 1998 409 First Colonial Road District 6 Beach April 10, 2002 CONSENT AGENDA Dorothy Wood: Number 19, Voice Stream Wireless. Modification of Conditions placed on the application for a communication tower. It's a 409 First Colonial Road in the Beach District. And we have eight conditions. Bill Gambrell: Thank you. Dorothy Wood: Mr. Gambrell? Bill Garnbrell: All the conditions are acceptable. Modified conditions and the two additional conditions that the staff added. Thanks very much. I did want to have an opportunity to speak on Item #10 and say what a good job I think that SPCA is doing. Thanks for your time today. John Baum: Did he give his name? Dorothy Wood: Mr. Gambrell? He gave his name. Number 19 is Voice Stream Wireless at 409 First Colonial Road. Is there any objection to Voice Stream Wireless? Hearing none. Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle" Second. Ronald Ripley: Seconded by Charlie Salle'. Discussion? Anybody else? Motion been made. Seconded. We are ready to vote. AYE 11 NAY 0 ABS 0 ABSENT ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE Item #19 Voice Stream Wireless Page 2 MILLER AYE RIPLEY AYE SALLE' . AYE STRANGE AYE VAKOS AYE WOOD AYE Ronald Ripley: By a vote of 11-0, motion passes. MODIFICATION OF CONDITIONS CITY OF VIRC~INIA BEACH DISCLOSURE STATEMENT "" Lbt Ali Ct~rr~tt PROPFA~y OWNER DISCLOSURE ffthe propea~ owner ia a COI~ORATION, liar all officet~ of the Corporation below: (Attach list if necessary) If the properey owner is a PARTNERSHIP, FI~ Gr other UNINCORPORATED ORGANIZATION, list · ti memben or permes~ in th~ orSaninfion below: (AttacA list ~fne~r,/) ~ Check here ifltse property own~ is NOT a co~0oratia~, parmership, firm, or olber unlncorpoml~d organizati~m. If ~e alviic~nr is n~r tar current owner of tke property, coMIgete tke ,~utle~nt Disclosure section below: APPLICANT DISCLOSURE Iftbe applicant is a CORPORATION, list all th'Ylce~ ofthe Corporation below: (AttacA list ifnecea.mry) If the applicant is · PARTNERSHIP, FIRM, or other UNLNCORPORATED ORGANIZATION, list all n~-mbem or partmna in It~ orpniz~fioa below: Olttach list if nece. zu~) '~ Clgc. k he~ if lhe applicant is NOT a cotparafioll, ~, :Cmn, or other unincotlxyml~cl ~or~mi-ali~m. VoiceStream® Wireless Fact Sheet Established: Headquarters: l~,~nafement: Employees: M~rlcets: Corm'ed FOF~: Technol%,y rlatfor~ 1994 Belkv~, Wuh., USA Joh~ Stantc~, Chairman, Directs, and ~ ~~e ~ SUpk~ ~d~t ~ ~n Gu~, V~ ~ ~d ~r ~ ~de, ~Sve Vice ~id~ 'to ~rovide the best value in nil-digital persoml co--cations services 2,10~ nationwide Voicef:,eum curfmtly often PCS service in Seat'de and Spokane, Wat~; Portland. Ore.; Bebe, Ictaho; Salt Lakn Cit,/. UUI'.; Phrm~x, Ariz.; Denver, Colo.; Honolulu, ltawnii; Alimquerque, N.M~ Iil Peso, Tex~e; De Moines, Iowa; Oklahoma CI~ m~I Tulm, Okl~; Wichita, Ka~, L"ai Cheyertne, Wyo. VotceStzm,_,n has acquired licerMs to provi~Je service tn DB,Gu, Av~tn &nd Sen Antonio, Texas; Cl~u$o, Ill.: C. tn~i, Clevebnd and l~ymn, Ohio; NorfoLk and Ridunond, Va.; $~- Louis, Mo.; Milwaukee, Wt~.; San Frinc~o, Global System for Mobile Communicatiom (GSlvf), the international smiled for clisi~ wireless conunurdcatictr~ OFFICER'S CIgRTItlCATE The unclmigned, aa Vice ?r,sident and Assistant S¢crcta.~' of Voit,Stream OSM IL LLC, ("the Company") does hereby ¢.-rtify that G. A. Eng¢Iland, R,gion',d Corporate Coth'tsel, is authorized to ne$oti~,e and enter into Master Cons,ruction Service Agre~m=nta on behalf of Thc Company az necessary of desirable for the continued operation of r. he Company. Dale: July 5, 2001 VoiccStream OSM I1, LLC David A. Miller, Vic~ President and Assistant Secretary' CITY OF VIRGINIA BEACH AGENDA ITEM TO: The Honorable Mayor and Members of Council FROM: James K. Spore, City Manager ITEM: Virginia Beach S.P.C.A., Conditional Use Permit MEETING DATE May 28, 2002 Background: An Ordinance upon Application of Virginia Beach S.P.C.A. for a Conditional Use Permit for an animal shelter on Parcel A-l, Subdivision of Bow River (GPIN #1495-24-1251). Said parcel is located at 3040 Holland Road and contains 2.65 acres. DISTRICT 7 - PRINCESS ANNE. Considerations: The applicant is requesting a conditional use permit for additions to an existing animal shelter. The Planning Commission placed this item on the consent agenda because the use is in keeping with the recommendations of the Comprehensive Plan for the area, the use has proved to be compatible to the surrounding area since the granting of a use permit in 1986 for the existing facility, staff recommended approval and there was no opposition to the request. Recommendations: The Planning Commission passed a motion by a recorded vote of 10 for the motion with 1 abstention to approve this request subject to the following conditions: The proposed additions and covered dog runs shall substantially conform with the submitted plan titled "SITE PLAN FOR THE S.P.C.A.", which is on file with the City of Virginia Beach Planning Department. The proposed additions and covered dog runs shall substantially conform with the submitted plan titled "Preliminary Drawing A 4.1", prepared by The Design Collaborative Architects. Said plan is on file with the City of Virginia Beach Planning Department. 3. No additional services beyond those provided in the facility on General Booth Boulevard in 1986 shall be permitted. Attach ments: Staff Review Planning Commission Minutes Disclosure Statement Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. . Submitting De rtmentJAgency- Planning Departmen ' ' CityManager~ l~.~,./~,,..-- V' '' Beach S P.c.A. Gpin 14952-24-1251 ZONING HISTOHY [10] °~ 1. Conditional Use Permit (Animal Hospital, Shelter and Kennel) -Approved 12-22-86 2. Flezoning (AG-2 Agricultural to Conditional B-2 Business) and a Conditional Use Permit (Automobile Service Station and Car Wash) - Approved 7-3-01 3. Modification of Conditions - Approved 10-9-01 Rezoning (R-5D Residential to Conditional I-1 Industrial) -Approved 5-9- 00 Rezoning (R-5D Residential to Conditional I-1 Industrial) -Approved 9-14- 99 4. Conditional Use Permit (Communication Antenna) -Approved 2-23-99 5. Rezoning (0-2 Office to Conditional I-1 Industrial) - Approved 2-14-95 Rezoning (AG-1 Agricultural to O-1 Office) - Approved 8-11-75 6. Conditional Use Permit (Communication Tower) -Approved 6-9-98 Rezoning (AG-1 and AG-2 Agricultural to I-1 Industrial) and Conditional Use Permit (Bulk Storage and Building Contractor's Yard) -Approved 12- 5-83 7. Rezoning (AG-2 Agricultural to Conditional I-1 Industrial) and Conditional Use Permit (Building Contractor's Yard) -Approved 1-12-99 8. Modification of Proffers- Approved 2-12-02 Rezoning (AG-1 and AG-2 Agricultural to Conditional I-1 Industrial) and Conditional Use Permit (Building Contractor's Yard) -Approved 1-9-01 Virginia Beach S.P.C.A. Page 2 o All facilities shall be enclosed except the covered dog runs that are to be used as areas for potential pairing of pets and owners. No animals shall be left unattended in those designated areas. VIRGINIA BEACH S.P.C.A./# 10 April 10, 2002 General Information: REQUEST: ADDRESS: Conditional Use Permit for an animal shelter (addition) 3040 Holland Road Map H-lO Beach $.P.C~4. GPIN: ELECTION DISTRICT: SITE SIZE: STAFF PLANNER: PURPOSE: 1495-24-1251-0000 # 7 - PRINCESS ANNE 2.65 acres Gpin 14952-24-1251 I-I £103 ~ Faith Christie To obtain a Conditional Use Permit for additions to an existing animal shelter Major Issues: · Continued compatibility with surrounding uses. Land Use, Zoning, and Site Characteristics: .ExistinQ Land Use and Zoning Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. / # 10 Page 1 The site is occupied by the Virginia Beach S.P.C.A. facility, which is ~pproximately 12,000 square feet, and required parking for the facility. The site is zoned AG-2 Agricultural District. Surroundinq Land Use and Zoning North: South: East: West: · An office and warehouse / Conditional I-1 Light Industrial District and Q-2 Office District · The City of Virginia Beach Public Works - Solid Waste office facility and soccer fields / I-1 Light Industrial · Wooded Parcels / AG-2 and AG-1 Agricultural Districts · Holland Road · Across Holland Road, Single-family Dwellings and Wooded Parcels / AG-2 Agricultural District Zoning History A conditional use permit for an animal hospital, pound, shelter and kennel was approved for the site on December 22, 1986. The following conditions were attached to the approval: 1. Dedication for a variable width right of way 46 feet from the centerline of Holland Road. 2. Ten (10) foot landscape scenic easement in front of property. 3. Said application shall apply to those services presently provided in the facility on General Booth Boulevard with no additional service than exist under the current conditional use. A reconsideration of conditions was heard and approved by City Council on October 26, 1987 due to a request to enlarge the building. The following conditions were attached to the reconsideration: Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A./# 10 Page 2 1. The conditional use permit shall be AMENDED to allow for ~ I~rger facility (11,890 square feet). 2. All facilities shall be enclosed. A conditional use permit for bulk storage was approved for the site in December 1983. Air Installation Compatible Use Zone (AICUZ) The site is in an AICUZ area of 70 to 75dB Ldn and an Aircraft Accident Potential Zone (APZ) 2 surrounding NAS ©ceana. The United States Navy has reviewed the request and finds that the use is acceptable. Natural Resource and Physical Characteristics The Virginia Beach S.P.C.A. building and related parking occupies the front portion of the site. The front portion of the site is well landscaped with mature trees and shrubs. The balance of the site is undeveloped and left in a natural state. Public Facilities and Services Water and Sewer Water: Sewer: There is a sixteen (16) inch City water main in Holland Road fronting the site. The site has an existing one (1) inch water meter. Construction Plans and water meter sizing calculations will be required to determine if an upgrade in meter size may be needed. There is a twelve (12) inch sanitary sewer force main in Holland Road fronting this site. The site is currently connected to City sewer. Transportation Master Transportation Plan (MTP) / Capital Improvement Program (CIP): Holland Road in this area is a two-lane undivided minor urban arterial. A Virginia Department of Transportation project, Holland Road Phase IV, is scheduled to improve the roadway to a four-lane divided facility. Based on the current roadway alignment and right-of-way / utility easement requirements there appears to be no impacts presented by the proposed additions to the building. Traffic Calculations: Street Name Present Present Generated Traffic Volume Capacity 16,979 ADT ~ Holland Road Level of 13,100 ADT ~ Proposed Land Use 2 _ no Service F change from existing generation ge y Trips 2 as defined by animal hospital and shelter Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A./# 10 Page 3 City of Virginia Beach, Virginia Fiscal Years 2001-02 through 2006-07 Capital Improvement Program Project ~ and Title: 2-158 Holland Road - Phase VI (Partial) (VDOTI. CIP Section: Road~,'s EuslneasArea: Quallt~ Ph~'slcal Environment Prlorlt.!: Total Total Bu0get Una ~r(~)rlated Subs~ uent Years Future Programmed Appropriations Year1 Year2 Years Year4 Years Year6 Fun01ng Funds To Date I=Y2001-02 FY2002-O3 FY 2~03~04 FY 2004.0S FY 3005.06 FY 21306-07 Requlrernent 932.L'X30 298,.~J30 $0.000 70,000 25(1.000 '=n0,Ol:X3 63,~J00 0 0 ~OT U000-134-1&q. This p~a~ is f~' ~lru~d~ of a four-lane dividsd I'~,~my ~-n I.a rd~n Raad~Bam Nirnmo Park,~w~y - Ph.~sa ¥. a di~,~nc~ ~ al:pn:~imately 2.8 This project is inciudad in tha ~t~s Ma~tar Tmn~t'~t~rlion Plan and th~ R~onal 'rr,ampom~on ~an. i:rcject will gravy enhance traffic flow and improve access to Dam Neck Road a rd Nimmo Parkway Phase V for the surrourding oornrnunilies. In lg99, this roadway hsd a traffic volun~ of 13,300 va~iclas per day, with a projected 201& ~31ur~e of 36,000 vehicles per day. This project was originally programmed in the FY 1991-92 ClP. It was requested as a VDOT !~roject in FY 1995-g~, and deferred in the FY 1996-97 CIP. Itwas re-established in the FY 1~)7-9& CIP. Schedules and costs are updated anrually based cn the Vi~inia Transpc~t~cn Daveloprnant Plan. ~asls for Estimate FY 2001-Q2 FY 2002-03 FY 2D03-04 FY 2804-05 FY 2~05.-[~ FY 0 0 O 0 0 6921~4 Acfivit7 From - To Amount Design 1 {~8-04/02 1.350,003 Site Acquisilion 04/02-04/04 g15,000 I~vate Utility Adjusl~nenls 10~3-10,'D4 1,120,~30 Construclion 07/04-10/06 10,D88,100 Street Lights 07106-03~07 560,~ * Lsrdsca pir~] 10/06-03/07 250,003 Contingencies 10/98-03/07 400.000 Total Budgetary Cost Esarnate 14,684,0[X3 Total Non-ProGrammed Coats 13,752.000 Tobal Progrerrmed Costs 932,000 Fundin,.q Source Amount :3002 C. J3artar Bonds 70,000 2003 Charter Bonds 2S0,OO0 2{304 Charter Bonds 20n,o00 :2~X:)S C~ertar Bords 63,S00 Pay-As-You-Go Total Progrerrrned Finandng 932,000 Future Funding Requirements 0 Fiscal Year 2001-02 26 Roadways Public Safety Police: Adequate - no further comments. Fire and Rescue: No concerns from the Fire Department pertaining to the expansion. All fire protection requirements will be reviewed during the building permit process. Fire lanes may be required after construction is complete and a physical evaluation is completed. As the square footage increases there may be a requirement to provide greater fire protection if not present in Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. ! # 10 Page 4 the existing structure. Comprehensive Plan The Comprehensive Plan Map designates this area as suitable for suburban employment, which is an area planned for variety of employment uses including business parks, offices, appropriately located industrial and employment support uses. Summary of Proposal Proposal The applicant wishes to obtain a conditional use permit to enlarge the existing S.P.C.A. facility on Holland Road, near the intersection of Dam Neck Road. The applicant proposes several additions, totaling 3,600 square feet, to the existing building and 2,700 square feet of covered dog runs. The conditional use permit granted in December 1986 and reconsidered in October 1987 limited the size of the building to 11,890 square feet and further limited that all the facilities must be enclosed. The applicant states that the proposed dog runs are unique in that the dogs are only in the runs during a "get acquainted" period with a prospective "parent". The dogs will not occupy the runs without supervision. The site is in an area that is experiencing commercial and industrial growth. To the north of the site exists an office / warehouse, to the south is the Holland Road Soccer fields and the City of Virginia Beach Public Works -- Solid Waste offices. Directly south of that complex, several rezoning and conditional use permits for bulk storage and contractors storage yards have been approved. Across Holland Road, on the southwest comer, a rezoning and conditional use permit for an automobile service station was approved, and on the northwest corner a rezoning for a mini-warehouse project was approved. Site Desi,qn The building and parking exist. The building is situated along the northern section of the site with the parking along the southern portion. The request is to add a 3,000 square foot addition and covered dog runs to the rear of the building and a 600 square foot addition to the front of the building. Sufficient parking exists to accommodate the existing building and proposed additions. The site is landscaped with mature trees and shrubs. One entrance to the site exists on Holland Road. Vehicular and Pedestrian Access · There is one access to the site from Holland Road. Architectural Desiqn The existing building is a modified contemporary style. The exterior siding is brick, and the roofing materials are cedar shake. The proposed additions will match the existing building in both design and building materials. The Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. / # 10 Page 5 proposed dog runs ("get acquainted" area) will be fenced ahd covered with a clear acrylic roof. Landscape and Open Space Design · The site is landscaped with mature trees and shrubs. Evaluation of Request The request for a conditional use permit to make additions to the existing S.P.C.A. Animal Shelter is acceptable. The use is in keeping with the Comprehensive Plan recommendations for the area, and is compatible with the United States Navy airfield operations. The proposed additions are in keeping with the existing building and surrounding uses. The applicant has met the following conditions of the previous conditional use permit: 1. Dedication for a variable width right of way 46 feet from the centerline of Holland Road. 2. Ten (10) foot landscape scenic easement in front of property. And the following condition that was attached to the reconsideration of the conditional use permit: 1. The conditional use permit shall be AMENDED to allow for a larger facility (11,890 square feet). Condition 3 of the previous conditional use permit shaft remain in effect, and Condition 2 of the reconsideration of the previous conditional use permit shaft be amended to allow the proposed covered "get acquainted" areas (proposed covered dog runs). Staff recommends approval of the conditional use permit request for additions to the existing building subject to the conditions listed below. Conditions The proposed additions and covered dog runs shall substantially conform with the submitted plan titled "SITE PLAN FOR THE S.P.C.A.", which is on file with the City of Virginia Beach Planning Department. The proposed additions and covered dog runs shall substantially conform with the submitted plan titled "Preliminary Drawing A 4.1", prepared by The'Design Collaborative Architects. Said plan is on file with the City of Virginia Beach Planning Department. Said application shall apply to those services previously provided in the facility on General Booth Boulevard with no additional service than exist under the current conditional use. All facilities shaft be enclosed except the covered dog runs that are to be used as areas for potential pairing of pets and owners. No animals shaft be left unattended in those designated areas. NOTE: Further conditions may be required during the administration of applicable City Ordinances. The site plan submitted with this conditional use permit may require revision during detailed site plan review to meet all a==licable City Codes. Conditional use =ermits must be Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A./# 10 Page 6 activated within 12 months of City Council approval. See Section 220(g) of the City Zoning Ordinance for further information. Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. / # 10 Page 7 Z o Z 0 0 {si Site Plan ~)wing additions) Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A./# 10 Page 8 ................................................. Elevations (showing additions) Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. / # 10 Page 9 Planning Commission Agenda April 10, 2002 VIRGINIA BEACH S.P.C.A. ! # 10 Page 10 Item #10 Virginia Beach S.P.C.A. Conditional Use Permit for an animal shelter on Parcel A-1, Sub-division of Bow River 3040 Holland Road District 7 Princess Anne April 10, 2002 CONSENT AGENDA Dorothy Wood: We'll go to number 10, which is the Virginia Beach SPCA for a Conditional Use Permit for an animal shelter on the subdivision of Bow River. It's located at 3040 Holland Road and contains 2.65 acres. It is in the Princess Anne borough and there are four conditions. Mr. Richardson? John Richardson: Thank you Ms. Wood. My name is John Richardson. I represent the applicant. I'm a local attorney. The conditions are acceptable. I went over with staff the additional condition in which we had saw today and that was fine as well. Thank you. Dorothy Wood: Again, this is the Virginia Beach SPCA at 3040 Holland Road. Is there any objection to this consent item? There being none. Mr. Ripley, I would like to move to approve the 14 items on the consent agenda. Number 1, 7, and 8 with six conditions; number 10 with four conditions, number 14; number 16 with four conditions; number 17 with eleven conditions; number 18 with four conditions; number 19 with eight conditions; number 21 with nine conditions and then number 22-25. Ronald Ripley: So that is the motion by Dot. Do we have a second? Charles Salle': Second. Ronald Ripley: Seconded by Charlie Salle'. Discussion? Robert Miller: Yeah and I need to abstain on numbers 10, 18, 21, 23, 24, & 25. My finn is working on those projects. Ronald Ripley: Anybody else? Motion been made. Seconded and the abstention so noted. We are ready to vote. AYE 10 NAY 0 ABS 1 ABSENT 0 ATKINSON AYE BAUM AYE CRABTREE AYE DIN AYE HORSLEY AYE MILLER ABS Item #10 Virginia Beach S.P.C.A Page 2 RIPLEY AYE SALLE' AYE STRANGE AYE VAKOS AYE WOOD AYE Ronald Ripley: By a vote of 10-0 with the abstention so noted, motion passes. Applicant's Name:, List All Current Property Owners: DISCLOSURE STATEMENT W'r inia L a:'h ,.J PROPERTY OWNER DISCLOSURE If the property owner is a CORPORATION, list all officers of the Corporation below: (Attach list if necessary) If the property owner is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) Check here if the property owner is NOT a corporation, partnership, firm, or other unincorporated organization. If the applicant is not the current owner of the property, complete the Applicant Disclosure section below: APPLICANT DISCLOSURE ' If the applicant is a CORPORATION, list all. officers of the Corporation below: (Attach list if necessary) If the applicant is a PARTNERSHIP, FIRM, or other UNINCORPORATED ORGANIZATION, list all members or partners in the organization below: (Attach list if necessary) [] Check here if the applicant is NOT a corporation, partnership, firm, or other unincorporated organization. CERTIFICATION: I certify that the in~~is true and accurate. Signature Print Name 1-41:~ P.tt,'/04 F-822 VIRGZNZA BEACH SOCIETY FOR THE PREVENTION OIF CRUELTYTO ANIMALS 3040 Holhnd Rosd, Vil~Jnin Bench, VA 234S6 D~velopment: Fax: 42';.5939 Compensated Sharon Quillen Adams Executive Director Hot Compensated ;0Ol.2OO2 Bo~_n OF l)mrcTOU~ nmzd~rO~y l~ocke_J'~F, Judith (President) 41 i 34' Street Virginia Beach, VA :23451 (h) 428-3610 Cb) 428-131! (fax) 422-6S41 Email: judydoclmy(~ael, corn Foshay, Wayne (Vice President) 4700 Crossbomush Road Vi~ginh Bep, r..k VA 23455 (h) 671-7991 Cb) 490-0100 (pa&er) 670.6003 (fax) 490-7678 (truck) 286-3030 E-mail: wefoshaysr(~aol corn gichman, Todd (Tr~surer) 3937 Lombm'd Court Virsinh B~ci% VA 23456 (h) 471-2321 Cb) 624-5213 (p~gcr) 415-2t29 (f~) ~.~]: Home E~i: Barrow, Mary Reid {Secretnry) 209 73~d Street Virsini8 Beacl% VA 23451 (h) 428-8679 (fax) 428-6037 Cc) 47%6699 E-n~-mbanow~vilorlnfi.net Raylor. C. M., Jr. 171 ~ Road V'~#nJa Beach, VA 234S 1 (h) 42B-5440 (12) 340.6161 (fsx) 463-4217 (pq~) 635-0646 ~mail: hondabeachOa~t, com Jobn Burnham 2005 Split Rail Drive Virsinia Beach, Vn 23456 th) 563.0689 (c) 285-5916 F-mail: ~jburahem~mm~.~om Katbleen Carter 441 Goodspeed Road Virginia Bur, h, VA 23451 (h) 422-$317 (fltX) 422-3533 (c} 4394220 atoll-rwckma@yaboo.com Collier, Jerry J. 5701 Prinra. Anne Road ~u'~in~s Beach, VA 23462 (b) 490=0100 (fax) 490-7678 (h) 623.] 86 a Coughlin, Katherine M. ] 304 Preserve Drive Vh'si~a B~...h, VA .~451. (h) 422-4288 (b) 431-4060 (fax) 431-53 31 F.m~ karl 304(~cox.nct 3an Fine 6S 12 Oceanfront Avenue Virginia Beach, VA 23451 (h) 428-6122 ~) 4~-3045 (f~) 4~-3116 Gordon, LJnda & Stuart 2316 Mariniers Mark Way Apt 402 V'~ginia Beach, VA 2345 l (h) 412-4';44 (b) S]8-8o00 (fax) 422-2290 (cell-L) 285.0808 (call-S) 478-4780 Hofferbert, Jane 212 60~ Street Virsinia Beach, VA 2345 ] (h) 425-3857 (b) 437-48]9 Holland, Judy 833 Earl of Chesterfield Lane Virsinia Beach, VA :23454 ~) 481-5998 (f) 481.5908 E,rnail: bho1164579~r~1.co~ Kinney, Donna 1. 142 Sawgrasa Bend Virginia Beach, VA 23451 (h) 425-7285 (b) 852-4600 (pager) 4S6-75Ol E.msiL bnd4bch~picusnet.com Beth Lynk 1808 Carbon Eas~ Virginia Bc~ch, VA 23454 (h) 412-1286 (c) S89..01iS3 F_mnil: fi'omaway(~msn, com Mladick lily D. 1037 Fire Colonial Road Virsinia Bear. h) VA~ 33454 ('h) 428-1757 (hflIx) 428-3959 [w) 481-$151 (wibx) 481-6215 £.rn~: eli _vf~rdadiekeem~. eo~ NsIh, Monroe Jr. 1S 18 E. Bay Shore Drive ¥itSirdo Beach, VA 23451 (h) 428-5229 fl) 428-0446 ]~mail: ol~dbmk _erf~sol_coB Richlrdlofl, John W, (don't call) 2101 Parks Averme, Ste 801 ~u'sinia Besr~L VA 23451 (h) 425-0320 (b) 422-4700 (fax) 422.33:20 Roebm, Edword 1912 Sand~ Cresccm ¥irsinia Befu:h, VA 23454 {h) 481-7128 (b) 481-6115 (0 48t.6~23 Email: eroehmd4{~Jatt.net Sijmund, Maureen T. 3105 Dolphin Road Viratnia Bea~ VA 2345 (h) 481-4056 Email: TIvey(~eoplepc.com Sgehllk, BJrbnt 1513 Atanmn Drive Virsinia BCBCh, VA 23454-1605 (13) 481-6142, (t~x) 481-6142 Stevens, TeJvy 2916 Chc~wood Bend Virginia Bear~ VA 23456 (h) 368-0819 Etrm. il: mpstast~sprinunail.cum 1-41~ H.U4/U4 F-gZZ Wagner, Susan V~rginia Be.~h, VA 234~2' ~w~~uno.com Watson, Polly Taylor 110! Gunsmn Road Virainia 13eanh, VA 23451 {h) 428-4450 (p~.~or) 478-3867 Trlcia Weatherholtz 236! Wilchester Glen Drive V-u'~v. ia Bea~, VA 23456 (h) 427-0426 {w) 424-6?00 Email: bigdogtw~ol, com Wimbish, Allan 504 Su~an Constant Driv~ V~rginia Broach, VA 234~1 (h) 422-2438 (fax) 422-9907 Wolcott, Jane Smith ! 202 Y~ Circle virginia Be. ach, VA 23454 (h) 481-5670 Ahart~ Laura - Auxiliary 2686 Brncston Road V~r~fia Beach. VA 234S6 (h) 563-9391 ~l~l~m~.com APPOINTMENTS: -- ~, CHESAPEAKE BAY ALCOHOL SAFETY ACTION PROGRAM COMMI_YNITY SERVICES BOARD Raymond Kirby - Family Member VIRGINIA BEACH HEALTH SERVICES ADVISORY BOARD O. UNFINISHED BUSINESS NEW BUSINESS ADJOURNMENT