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JUNE 24, 1997 MINUTES"WORLD'S LARGEST RESORT CITY" CITY COUNCIL MAYOR MEYERA E OBE;RNDORF, At VICE MAYOR WILl. JAM D SF_.SSOMS, JR, At-L=,ge JOHN A BAUM, B~,~k~,~t,, LINWOOD 0 BRANCH III V,Rm~" Br..¢h Px~mugh WILLIAM W HARRISON. JR. HAROLD HEI~CHOBER. A! BARBARA M HENI~.Y, Pu,,lo LOUIS R ]ON~. 8.y~, REBA S M¢CLANAN, Pn,~... A..e Bm~u~h NANCY K PARKER, LOUISA M 8TRAYHORN. K~l~lle Bemugh JAMES K SPORE, Oty LESLIE L ULLEY, Oty RUTH HODGES SMITH, CMC I AAE, Cdy CITY COUNCIL AGENDA CITY llALL BUILDING 2,101 COURTHOUSE DRIVE VIRGINIA BEACH. VIRGINIA 23456.9005 (7571 427-4305 June 24, 1997 I. BRZEFINQS - Conference Room - 2530 PM Ae B · C · De HAMPTON ROADS CROSSING Phil Shucet, President, Baker Environmental TRANSAMERICA CORRIDOR Chris Lloyd, Planning Group Manager LIBRARY REFERENDUM OPTIONS Martha J. Sims, Director, Public Libraries GENERAL OBLIGATION BOND SALE - June 11, 1997 - Results Patricia A. Phillips, Director, Finance II. REVIEW OF AGENDA ITEMS III. CITY COUNCIL CONCERNS IV. INFORMAL SESSION - Conference Room - 5500 PM Ae Be Ce CALL TO ORDER - Vice Mayor William D. Sessoms, Jr., Presiding ROLL CALL OF CITY COUNCIL RECESS TO EXECUTIVE SESSION V. FORMAL SESSION - Council Chamber - 6500 PM A® Be C® D~ Ee CALL TO ORDER - Vice Mayor William D. Sessoms, Jr., Presiding INVOCATION5 The Reverend Mark Vender Calvary Presbyterian Church PLEDGE OF ALLEQIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ELECTRONIC ROLL CALL OF CITY COUNCIL CERTIFICATION OF EXECUTIVE SESSION F. MINUTES 1. INFORMAL & FORMAL SESSIONS June 10, 1997 G. AGENDA FOR FORMAL SESSION H· CONSENT AGENDA The Consent dgenda .,iH be determined during the Agenda Review Session and considered in the ordinary course of business by City Council to be enacted by one motion· I · PUBLIC HEARING 1. AGRICULTURAL PRESERVATION PROGRAM (ARP) (Blackwater and Pungo Boroughs) J· ORDINANCES i · Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: a · John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 101.35 Acres Installment Purchase Agreement No. 1997-10 - $128,103.00 (Blackwater Borough) be John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 465.67 Acres Installment Purchase Agreement No. 1997-11 - $721,860.00 (Blackwater Borough) C · Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust - 304.66 Acres Installment Purchase Agreement No. 1997-12 - $587,626.00 (Pungo Borough) de Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust - 47.98 Acres Installment Purchase Agreement No. 1997-13 - $ 67,898.00 (Pungo Borough) e · Ernest Brown - 92.28 Acres Installment Purchase Agreement No. 1997-14 - $175,332.00 (Blackwater Borough) · Ordinance to APPROPRIATE $38,500 from the General Fund Balance for a Grant to the Creeds Volunteer Rescue Squad re purchase of a replacement squad truck· · Ordinance to ACCEPT and APPROPRIATE a $17,860 Federal Grant to the FY 1996-1997 Department of Social Services Operating Budget re the Building a Better Bayside Through Juvenile Delinquency Prevention program; and, increase estimated revenue accordingly. · Ordinance to TRANSFER Personnel and Operating Budget Spending Authority (not to exceed $805,980) from the Virginia Beach Public Schools Reprographics Internal Service Fund to the City's FY 1997-1998 "City/Schools Printing Services Internal Service Fund"; and, transfer four FTE positions to the City pay plan, effective i July 1997. · Ordinance re a Cooperative Agreement between Virginia Beach City Council and the Virginia Beach School Board re FY 1997- 1998 legal services to the Board by the Office of the City Attorney. · Ordinance to authorize the City Manager and the City Attorney acquire public beach easements for the San4bridge Beach Nourishment project, either by agreement or by condemnation. 7. Ordinances to authorize temporary encroachments: a · A portion of the City's 300-foot drainage easement over London Bridge Creek (2580 Potters Road) by Dominion Building Company to construct and maintain a detention pond for stormwater management, including a storm drainage pipe and underground infiltration trench· b · A portion of the City's right-of-way of Indian Plantation Drive by Baymark Construction Corporation re construction and maintenance of an entrance feature, brick wall and columns. C · A portion of the City's right-of-way of Kempsville Road by Community United Methodist Church re construction and maintenance of two (2) church identification signs. · Ordinances to authorize: a. License Refunds~ b. Tax Refunds: $31,271.91. $72,539.22. K. PUBLIC HEARING - PLANNING 6~30 PM PLANNING BY CONSENT - To be determined during the ~4genda Review Session. 1. NO ACTION ITEM - DEFERRED BY PLANNING COMMISSION - 14 May 1997 a · Application of WIDENER HOMES, LTD. for a Change of Zoning District Classification from R-7.5 Sinqle Family District to Conditional A-12 Apartment District (527 North Witchduck Road, containing 2.2 acres (BAYSIDE BOROUGH)· · Ordinance for discontinuance, closure and abandonment in the Petition of LAWRENCE A.. SANCILIO, RACHEL V. SANCILIO, LENA SANCILIO, MAURICE STEINGOLD, LEWIS B. STEINGOLD and SIGNET BANK/VIRGINIA, Trustees under the Will of Israel Steingold, (LYNNHAVEN BOROUGH): Phase i a · Wagner Street - That portion of Wagner labeled "closed ", consisting of 2,599 square feet, bounded on the South by the Northern right-of-way boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction a distance of 51.69 feet as more specifically shown on said plat. be Avenue E - That portion of Avenue E, labeled "closed ", consisting of 1,297 square feet, approximately twenty-five (25) feet in width, bounded on the South by the Northern right-of-wayi boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction an approximate distance of 52 feet as more specifically shown on said plat. Recommendation: FINAL APPROVAL Phase. 2, a · Wagner Street - Ail that portion of Wagner Street not included in Phase 1 above, containing 10,044.31 square feet (10,096 square feet - 51.69 square feet). be Avenue E - Ail that portion of Avenue E not included in Phase 1 above, containing 162.67 square feet (214.67 sq. ft. - 52 sq. ft.) C · First Street - Beginning at the Western Boundary of Avenue E and running in a Westerly direction a distance of 349.78 feet. Recommendat i on: ADDITIONAL 180-D~Y · Application of C & C DEVELOPMENT, L.L.C. for the discontinuance, closure and abandonment of a portion of the East side of Pleasure House Road, beginning 123.17 feet South of Andrew Jackson Lane and continuing 17.37 feet along the Northern property line, variable in width, containing 836 square feet (BAYSIDE BOROUGH). Deferred for Compliance: Recommendat ion: 25 February 1997 FINAL APPROVAL · Ordinance in the Petition of BPP DEVELOPERS, INC., A VIRGINIA CORPORATION, for the discontinuance, closure and abandonment of a portion of Lynnhaven Drive beginning at a point 151.6 feet East of Vista Drive and running in an Easterly direction a distance of 115 feet, variable in width and containing 3239 square feet (LYNNHAVEN BOROUGH). Deferred for Compliance: Additional 180-Day Deferral: 11 June 1996 17 December 1996 Recommendation: ADDITIONAL 180-DAY DEFERRAL 5. Petition of LIFENET, d/b/a LIFENET TRANSPLANT SERVICES, for the discontinuance, closure and abandonment of a portion of Baker Road beginning at the Southwest corner of Baker Road and Ward Court and running 375.65 feet in a Southerly direction, containing 5,294.4 square feet (BAYSIDE BOROUGH) . Recommendation: APPROVAL · Application of STEVENS. CLYMER for a Variance to' Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision meet all requirements of the City Zoning Ordinance on the North side of Winston-Salem Avenue, 105 feet East of Rude· Avenue re resubdivision of three non- conforming lots into two lots on a 9000 square foot parcel (VIRGINIA BEACH BOROUGH). Recommendat ion: DENIAL · Application of JOSEPH OVERHOLT, TRUSTEE OVERHOLT TRUST, for a Conditional Chanqe of Zoninq District Classification from R-10 Residential District to Conditional B-2 Community Business District at the Southwest corner of Lynnhaven Parkway and Salem Road re commercial land use, containing 15 acres (KEMPSVILLE BOROUGH)· Recommendation: APPROVAL · Applications of McGINNIS REALTY ANDDEVELOPMENTCOMPANYon the West side of Princess Anne Road beginning at a point 1060 feet more or less South of Elson Green Avenue, containing 57.94 acres (PRINCESS ANNE BOROUGH): a · Chanqe of Zoninq District Classification from AG-1 and AG-2 Aqricultural Dis~ri~ts to Conditional R-20 Residential District be Conditional Use Permit for an open space promotion development option Staff Recommendation: Planning Commission Recommendat ion: DENIAL APPROVAL · Ordinances to AMEND the Code of the City of Virginia Beach: a. Chapter 21, Sections 2, 33.1, 116, 147, 150, 154, 191, 205, 207, 273, 318 and 371 re motor vehicles. b. Chapter 38, Section 1 re conce&le4 weapons. L. APPOINTMENTS COMMUNITY SERVICES BOARD SOCIAL SERVICES BOARD YOUTH SERVICES COORDINATING COUNCIL M. UNFINISHED BUSINESS N. NEW BUSINESS i · ABSTRACTS OF VOTES - Republican Primary Election 10 June 1997 a. ATTORNEY GENERAL b. COMMISSIONER OF REVENUE O. ADJOURNMENT If you are physically disabled or visually impaired and need assistance 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) * * * * * * * * * 06/19/97cmd AGENDA\ 06- 24 - 97. PLN www. virginia-beach, va. us MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia June 24, 1997 Vice Mayor }Villtam D. Sessoms, Jr called to order the BRIEFINGS in the Counctl Conference Room, City Hall Building, on Tuesday, June 24, 1997, at 2:30 P.M. Council Members Present: John A. Baum, Ltnwood O. Branch, III, Wdliam W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Absent: Mayor Meyera E. Oberndorf [ATTENDING US CONFERENCE OF MAYORS] Nancy K. Parker [MOTHER UNDERGOING SURGERY] -2- CITY MANAGER'S BRIEFING HAMPTON ROADS CROSSING 2:30 P.M. ITEM # 42275 Robert Matthias, ~4ssistant City Manager, advised this informattonal brtefing concerns the Third Crossing, which was authorized in the ISTEA funding in 1991. The Third Crossing has approximately $6- MILLION in Federal funds expended with a 20% match from the State. Mr. Matthias introduced Phil Shucet, President - Baker Environmental. With the utilization of overheads, Mr. Shucet referenced the consequences of not buildtng the Third Crossing: Potential for a 15+ minute delay every hour. No mobility improvement Crossing demands not addressed No VOC reductions No new/improved access to NIT, NNMT, or PMT No connecting link to 4th marine terminal on Craney Island No new/improved access to NBN, Naval Shipyard, Naval Hospital, or Naval Supply Center No ability to connect passenger rail across Hampton Roads. US 460 OPTION Only 7.5% of crossing trips begin or end outside region. Only 1.0% begin and end outside region. Peak tourist season adds 35,000 crossings/day Forms total diversionary pool of $5,000 trips/day US 460 could attract portion of dtverstonarypool ~4s an independent solution, US 460 option only reduces HRBT by 3% Does not meet Purpose and Need of project US 460 being studied as part of TransAmerica Corridor. None of the options of the Third Crossing overload the Oak Grove Connector or the Southeastern Parkway and Greenbelt. CORRIDOR 2015 PR OJECTED AD T No-Build 109,000 Transportation Corridor 1 107, 000 Transportation Corridor 2 105, 000 Transportation Corridor 3 106,000 Transportation Corridor 4 110, 000 Transportation Corridor 5 105,000 Transportation Corridor 6 107,000 Transportation Corridor 7 111,000 Transportation Corridor 8 105, 000 Transportation Corridor 9 10 7, 000 Transportation Corridor 10 106,000 Transportation Corridor 11 11 O, 000 June 24, 1997 -3- CITY MANAGER'S BRIEFING HAMPTON ROADS CROSSING ITEM # 422 75 (Continued) PENINS ULA/S 0 UTHSIDE ACCESSIBILITY 1-64 1-664 CORRIDOR 1-664 CORRIDOR Improve 1-664 on Peninsula CSX Corridor Ports TC1 TC2 TC3 TC4 TC8 TC9 TC5 TC6 TC7 TCI O TCl l Provides New/Direct * * * * * * * * Access to Norfolk International Terminals (~IT) Improves Access to NIT * * * * * * * * * Improves Access to * * * * * * * * * * Newport News Marine Terminal and Newport News Shipbuilding Improves Access to * * * * Portsmouth Marine Terminal Provides New Direct * * * * Access to Craney Island (Possible location of 4th Martne Terminal) Military Provides New Direct * * * * * * * * Access to Naval Base Norfolk (NBN) Improves Access to * * * * * * * * * NBN Improves Access from * * * * NBN to Naval Supply Center, Naval Hospttal and Naval Shipyard Multimodal Component Ability to Accommodate * * * * * * * * * * * HOV Lanes, Busway, and/or Passenger Rail. Planning Cost Estimate $1.5 $1.9 $2.1 $1.6 $2.2 $2.4 $2.6 $2.8 $2.2 $3.2 $3.3 for Construction (in billions). Environmental concerns will become increasingly important as the project moves into the next phase. In terms of natural environment, biological environment, there are no fatal.flaws or "showstoppers "as part of the Hampton Roads study By far, the most dramatic impact is the potential to relocate individuals. The options range from a low of approximately 125 potential relocations to as high as 1500 depending on whether or not the CSX Corridor option is added on the Peninsula. June 24, 1997 -4- CITY MANAGER'S BRIEFING HAMPTON ROADS CROSSING ITEM # 42275 (Continued) Under the CSX Corridor, there is a range from 900 to 1500 homes. In an effort to reduce the potential of 1500 relocations on the Peninsula, the staff reviewed the possibility of elevating the entire facility above the existing CSX Corridor. This wouM increase the cost of the project by $350-MILLION, making the CSX Option approximately a SI-BILLION project. However, because of the potential relocations on the southern tip of Newport News, the best option would be to reduce the relocations to approximately 9OO. Mr. Shucet referenced two scenarios were identified, based on a cost of $2.5-BILLION (the middle range of the option studies). TOLLS AT $1.00 Potential shortfall between $57 and $150-MILLlON/per year depending on State and Federal Funding. TOLLS A T $2. O0 Potential shortfall between $35 and $82-MILLION/per year depending on State and Federal Funding. The Hampton Roads Planning District Commission's analysis indicates shortfall can be covered by a combination of gas tax ($O. 04/galion to $O. 07/gallon) and sales tax (0.25% to 0.5%). On July 2, 1997, a recommendation is supposed to be made to the Hampton Roads Planmng Distrtct Commission and the Hampton Roads Crossing Study Coordinating Committee On July 16, 1997, a recommendation of one single corridor will be made to the Metropolitan Planmng Orgamzation. June 24, 1997 -5- CITY MANAGER'S BRIEFING TRANSAMERICA CORRIDOR 2:50 P.M. ITEM # 42276 Robert Matthias, Assistant City Manager, advised of City Council's interest tn the 460 Corridor. During the ISTEA process, a study of the TRANSAMERICA CORRIDOR was authorized. Originally the language was rather vague with the Corridor ending somewhere in Bowers Hill. Through the Congressional Committee, the language was amended to have the Corridor terminate in Hampton Roads with the thought to terminate at the ocean. A Transamerica Corridor should run from ocean to ocean. Within the next three weeks, the final EIS relative the Southeastern Parkway and Greenbelt will be distributed to City Council. Mr. Matthias introduced Chris Lloyd, Planning Group Manager - Baker Environmental, who is working on a separate study and very supportive of including the Southeastern Parkway and Greenbelt as the eastern terminus. Mr. Lloyd advised at this point the TRANSAMERICA CORRIDOR is a feasibility study. Currently Baker is charged with evaluating a Corridor between Beckley, West Virginia and Virginia Beach. The 1995 NHS Designation Act, which assisted in funding this study, advised the beginning of the Corridor will commence on the Atlantw Coast Baker will not be conducting multi-modal studies (rail, futuristic transportation systems). Baker will be concentrating on vehicular capactty issues (roadway concept). Alternatives will be limited to this roadway facet and will be focusing west to east, from Beckley on 1-64 until Clifton Forge From Clifton Forge, Baker will be anticipating dropping down on US 220 to the Roanoke area and then picla'ng up 460 Corridor all the way to the east coast. Bypasses of certain localities will be evaluated. There is an interchange at 1-81 and US 460-220 at Cloverdale, a potential bypass will be evaluated at this congested area. A potential bypass is also being reviewed at Crewe, Petersburg, Waverly, Wakefield and Windsor. The majority of the remainder of the alignment will stay on its existing location. This began as a nationwide project .4 corridor had been identified between I-70 and 1-40 across the country. This Corridor was topically named 1-66. It did adopt some of the old Route 66 alignment. From this came funding through ISTEA where the 1-66 Corridor was identified as a high priority demonstration project. As a result of this, funding was provided to study the entire Corridor, to determine t. fit was feasible. From this ISTEA legislation funding, a 1994 Coast-to-Coast Feasibility Study was developed. This study investigated four (4) types of transportation facilities (1) upgraded highway Interstate system from coast-to-coast (2) upgraded rail facility (3) super highway and truckway facility with speeds up to 150 miles per hour; and, (4) high speed fixed guideway, monorail, etc. None of these options proved to be feasible. However, there were recommendations that some components of this proposal could be feasible in certain states. West Virginia and Virginia were two of the states who elected to pursue the feasibtlity of the TRANSAMERICA CORRIDOR within their jurisdicttons. Out of the 1995 National Highway System Designation Act came funding to pursue the TRANSAMERICA CORRIDOR. Thts Act referenced the terminus of the Atlanttc Coast, Hampton Roads, City of Lynchburg, Roanoke and Beckley, West Virginia There ts only one corridor which ttes the majority of these together and that is Rt. 460; therefore, efforts are concentrated in that area. Mr. Lloyd identified the Project Tasks: Secondary Data Collection Mapping and Geographic Information Systems (GIS) Regional Interviews Public Outreach Conceptual Alternatives Development Environmental Overview Transportation/Traffic Evaluation Economic Analysis/Financial Feasibility Alternatives Screening Recommendations Project Coordination June 24, 1997 -6- CITY MANAGER'S BRIEFING TRANSAMERICA CORRIDOR ITEM # 42276 (Continued) The project will be coordinated with VDOT and the district representatives throughout the length of the project. The Federal Highway Adminsitration (FHWQA) will also be included in coordination efforts as the project progresses. Mr. Lloyd advised the firm is now in the data collection stage. Interviews of the twenty jurisdictions should be completed within the next thirty days. At that point, information gathered will be integrated into a public information program. A mapping effort will commence and a design concept developed. An alternative analysis will be developed with a series of technical reports relative the traffic, environmental effort and economic development At that point, a final report will be completed. Mr. Lloyd cited the questions at the back of City Council's "handout". All of the communities interviewed are requested to respond to these. Mr. Matthias advised the MPO at its last meeting formally adopted a Resolution requesting VDOT perform a formal Major Investment Study on the 460 Corridor between the terminus at Bowers Hill and 295 close to Petersburg The improvements needed to 1-64 will be in direct competition with Third Crossing Funds. Governor Allen's administration is basically suggesttng tolls are the answer to many of the problems. June 24, 1997 -7- CITY MANAGER'S BRIEFING LIBRARY REFERENDUM OPTIONS ITEM # 42277 3:10 P.M. Martha J. Sims, Director - Public Libraries, introduced the Members of the Library Board, who were in attendance: Betty Bridges Chairperson Mary L. Denny Susan Loughlin Goranson Susan Shaw Hulbert Heather M. Malaby Rhonda G. Mealy Jeffrey A. Sachs Laura H. Tebault Chair Betty Bridges advised on April 29, 1997, a Plan was outlined to City Council for new and modernized library facilities and enhanced services that would create the la'nd of public library system citizens want for the twenty-first century. The condition of the current services and facilities, with aging infrastructure, limited technology and under staffing is mala'ng it increasing difficult to provtde services to the citizens. City Council was requested to consider placing on the November 1997 ballot a Referendum to support this plan of new and modernized facilities and enhanced services at a cost of six to seven cents on the tax rate. Several opttons were offered that would reduce the amount of the tax rate increase, depending on the number of projects and the services included City Council requested the Board consider several planning and fundtng alternatives. Marcy Sims and David Sullivan, Director of Information Technology, explored with the School's Technology Division and Media Center staff the issues raised concerning shared use/purchasing of technology and electronic resources. Marcy Sims has also pursued options and costs regarding public/private partnerships. The School's technology plan is classroom and curriculum based and all school librartes have been or are in the process of being automated using federal and state grant funds. The potential for cost savings in joint purchasing of electronic resources is being pursued. The Board is confident the Public Library's new automated system can link effectively with Schools. Marcy Sims has pursued opttons and costs regarding publicfprivate partnership. These lands of approaches wtH undoubtedly become a more familiar part of the strategy in the future. An opportunity can be created. However, at this moment, those opportunities are not clear enough to include in a planning document such as the one submitted. The Board has assu. med publicly funded construction and ownership will support their Plan. Mrs. Sims advised the Plan was based on eight public dialogue sessions. Mrs. Sims cited the four (4) options: Basic Library Services in an Electronic Environment Constructton Modernization Kempsvtlle Windsor Woods, Great Neck, Pungo/Blackwater, Central Ltbrary, Replacement Baystde, Oceanfront Ser~lces Basic Service/Electronic Environment Personal Assistance/Instruction Impact on Tax Rate 2 3 cents Impact on Tax Rate Utthztng Year End Fund Balances 1 9 cents Capttal Costs $13,530,751 Operational Costs (Ftrst Full Year) $ 3,689,264 June 24, 1997 -8- CITY MANAGER'S BRIEFING LIBRARY REFERENDUM OPTIONS ITEM # 42277 (Continued) CIP Backlog Projects/Extended Hours Constructzon Backlog Pnncess ~4nne, Green Run/Salem Moderntzatton Windsor Woods, Great Neck, Pungo/Blackwater, Central Ltbrary, Kempsvdle Replacement Baystde, Oceanfront Services Basic Servtce/Electrontc Envtronment Personal Asststance/lnstructton Sunday Hours at all locations Impact on Tax Rate 4 $ cents Impact on Tax Rate Uttltztttg Year End Fund Balances 4 1 cents Capttal Costs $21,168,430 Operational Costs (Ftrst Full Year} $ 7,929,193 Pre-School, Youth and Teen Programs/Servwes Constructton Backlog Princess ~4nne, Green Run/Salem Modermzatton Wtndsor Woods, Great Neck, Pungo/Blackwater, Central Library, Kempsvdle Replacement Baystde, Oceanfront Services Bastc Servtce/Electrontc Envtronment Personal ~4sststance/lnstructton Sunday Hours at all locattons Youth Servtces Impact on Tax Rate 4 8 cents Impact on Tax Rate Utthztng Year End Fund Balances 4 3 cents Capital Costs $21,168,430 Operational Costs (Ftrst Full Year) $ 8,467,372 Full Facilities and Services Proposal/Neighborhood ,4ccess Constructton Backlog Pnncess ~4nne, Green Run/Salem Modermzatton Wtndsor Woods, Great Neck, Pungo/Blackwater, Central Ltbrary, Kempsvdle Netghborhood Libraries Bayfront, Centervdle, Cypress Point, Little Neck Replacement Baystde, Oceanfront Services Basic Service/Electronic Environment/Personal ,4sststance/lnstructton Sunday Hours at all locations Youth Services Impact on Tax Rate 6 9 cents Impact on Tax Rate Utthztng Year End Fund Balances 6 5 cents Capttal Costs $32,467,971 Operattonal Costs (Ftrst Full Year) $12,750,341 June 24, 1997 -9- CITY MANAGER'S BRIEFING LIBRARY REFERENDUM OPTIONS ITEM # 42277 (Continued) E. Dean Block, Director - Management Services, presented the scope of two intermediate opttons whtch utilize the Capital Improvement Program as a funding mechanism. CIP Only - Phased Construction Scope/Level of Services: Construction- 5 modernizatton, 2 replacement, 2 CIP backlog (Princess Anne & Green Run) Time Line: FY 97/98 - Initiate design work on two projects FY 98/99 - FY 03/04 - Phased completion of all projects. Cost. Capital- $23.2-MILLION Operations, Maintenance & Staffing - $4 I-MILLION by FY 04/05 Fundtng: Capital - Charter bonds and/or ending balances, if available. Debt ceiling maintained by multi-year phase-in of bonds for construction General fund absorbs debt service Staffing & Operations - 1.8 cents real estate tax increase, July 1999. ClP/Referendum Mix & Expanded Services Scope/Level of Service: Constructton- CIP - 5 modernization projects Referendum - 2 replacement, 2 CIP backlog Services - Basic servtces (Electronic Access & Support) and Sunday servtce, all libraries. Time Line. November 1997 Referendum Eight projects complete and operational in FY 1999/2000. Bayside complete and operational by FY 2000/2001 Cost' Capttal- CIP- $5.97-MILLION Capital - Referendum - $17.2-MILLION Operations, Maintenance & Staffing - $5.1-MILLION by FY 2001/2002. Funding: Capital- CIP- Charter Bonds and/or ending balance. Debt service absorbed by general fund. Capital - Referendum and staffing and operations costs 3.0 cents real estate tax increase, July 1, 1998. June 24, 1997 - 10- CITY M/INA GER 'S BRIEFING LIBRARY REFERENDUM OPTIONS ITEM # 422 77 (Continued) Mrs. Sims advised in order to SCHEDULE a Referendum, City Council must decide, at the latest, during their Session of August 26, 1997. Mr. Block's second proposal dtffers from Marcy's No. 2 option as it involves an earlier time schedule. Mr. Block provided information relative same. June 24, 1997 -11- CITY MANAGER'S BRIEFING GENERAL OBLIGATION BOND SALE ITEM # 42278 3:43 P.M. Patricia A. Phillips, Director - Finance, advised relative the Bond Sale of June 11, 1997, the City received seven bids on its $56.7-MILLION General Obligation Public Improvement Bonds. The low bid was awarded to a syndicate led by First Union, with a true interest cost of 5.0876%. Mrs. Phillips advised Rich Dunford - Finance, managed the majortty of the sale. Mrs. Phillips displayed the chart depicting the Bond Buyer 11 - Bond G.O. Index January 1993 to Present. The index varies from a low of 5.10% in 1993 to a high in the Fall of 1994 at 6.94%. The average of the timeframe was approximately 5. 76%. This bond sale was rated AA by Standard & Poor's and Aa2 by Moody's Investors Service. In its rating review of Virginia Beach, Moody's cited several factors that contribute to the Aa2 rating: Rating Factors Large and Well Performing Economy Favorable Financial Performance Moderate Debt Position Completion of the Lake Gaston Pipeline expected later this year will have a positive impact on City's Growth Prospects. The low bid was only seven basis points higher than bonds sold the day before by Arlington County, a "AAA" rated community (true interest cost of 5.0174%). In addition, it was 11.55 basis points less than received by Fairfax County on May 28, 1997, another "AAA" rated community. The City of Chesapeake is rated Aa3 by Moody's (one rating below Virginia Beach); the City of Norfolk is rated A1 by Moody's (two ratings below Virignia Beach). Other Cities' Ratings City S & P Moody's Virginia Beach AA Aa2 Chesapeake AA Aa3 Norfolk AA A1 Hampton AA- Aa Newport News AA- Aa Portsmouth AA- A Suffolk A A1 June 24, 1997 - 12- AGENDA RE VIEW SESSION 4:00 P.M. ITEM # 42279 Councilman Baum advised he wouM be ABSTAINING: ORDINANCES J. 1 Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the tssuance by the City of its contract obligations: ao John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 101.35 ~4cres Installment Purchase Agreement No. 1997-10 - $128,103.00 (Blackwater Borough) bo John .4, Wesley L., Marshall P and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 465.67 ~4cres Installment Purchase .4greement No. 1997-11 - $721,860.00 (Blackwater Borough) ITEM # 42280 Council Lady McClanan expressed concern relative: J7c Ordinance to authorize temporary encroachment into a portion of the City's right-of-way of Kempsville Road by Community United Methodist Church re construction and maintenance of two (2) church identification signs. Council Lady McClanan requested this item be deferred indefinitely. Church signs should not be attached to Virginia Power Company utility poles. Council Lady Strayhorn believed a compromise might be reached. ITEM # 42281 Vice Mayor Sessoms advised this item was incorrectly placed under PLANNING and should be under Ordinances. K. 9 Ordinances to AMEND the Code of the City of Virginia Beach: a. Chapter 21, Sections 2, 33 1, 116, 147, 150, 154, 191, 205, 207, 273, 318 and 371 re motor vehicles. b. Chapter 38, Section 1 re concealed weapons. Council Lady Henley cited an error in the Comment on page 14 of the Ordinance pertaining to Motor Vehicles. City Attorney Randy Blow advised the comment was incorrect; however, the comment will not be adopted within the Ordinance. June 24, 1997 - 13- AGENDA RE VIEW SESSION ITEM # 42282 The Ctty Attorney advised the Sandbridge Ordinance had been revised and distributed copies: J. 6 Ordinance to authorize the City Manager and the City Attorney acquire public beach easements for the Sandbridge Beach Nourishment project, etther by agreement or by condemnation. ITEM # 42283 BY CONSENSUS, the following items shall compose the ORDINANCE CONSENT AGENDA: ORDINANCES J. 1 Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: a. John A, Wesley L, Marshall P and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 101.35 Acres Installment Purchase Agreement No. 1997-10 - $128,103.00 (Blackwater Borough) John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 465 67 Acres Installment Purchase Agreement No. 1997-11 - $721,860. O0 (Blackwater Borough) Robert R and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust - 304. 66 Acres Installment Purchase Agreement No. 1997-12 - $587,626. O0 (Pungo Borough) Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S Lusk Family Trust - 47.98 Acres Installment Purchase Agreement No. 1997-13- $ 67,898.00 (Pungo Borough) e. Ernest Brown - 92.28 Acres Installment Purchase Agreement No. 1997-14 - $175,332.00 (Blackwater Borough) d. 2 Or&nance to APPROPRIATE $38,500from the General Fund Balance for a Grant to the Creeds Volunteer Rescue Squad re purchase of a replacement squad truck. ,1.3 Ordinance to ACCEPT and APPROPRIATE a $17,860 Federal Grant to the FY 1996-1997 Department of Social Services Operating Budget re the Building a Better Bayside Through Juvenile Delinquency Prevention program; and, increase estimated revenue accordingly. J. 4 Ordinance to TRANSFER Personnel and Operating Budget Spending Authority (not to exceed $805,980)from the Virginia Beach Public Schools Reprographics Internal Service Fund to the Ctty's FY 1997-1998 "City/Schools Printing Services Internal Service Fund"; and, transfer four FTE positions to the City pay plan, effective 1 July 1997. June 24, 1997 - 14- AGENDA RE VIEW SESSION ITEM # 42283 (Continued) ,I. 5 Ordmance re a Cooperative Agreement between Virginia Beach City Council and the Virginia Beach School Board re FY 1997- 1998 legal services to the Board by the Office of the City Attorney. J. 6 Ordinance to authorize the City Manager and the City Attorney acquire public beach easements for the Sandbridge Beach Nourishment project, either by agreement or by condemnation. J. 7 Ordinances to authorize temporary encroachments: a. A portion of the City's 300-foot drainage easement over London Bridge Creek (2580 Potters Road) by Dominion Building Company to construct and maintain a detention pond for stormwater management, including a storm drainage pipe and underground infiltration trench. b. A portion of the City's right-of-way of Indian Plantation Drive by Baymark Construction Corporation re construction and matntenance of an entrance feature, brick wall and columns. A portion of the City's right-of-way of Kempsville Road by Community United Methodist Church re construction and maintenance of two (2) church identification signs. ,1.8 Ordinances to authorize: a. License Refunds: $31,271.91. b. Tax Refunds: $72,$39.22. d. 9 Ordinances to AMEND the Code of the City of Virgima Beach: a. Chapter 21, Sections 2, 33 I, 116, 147, 150, 154, 191, 205, 207, 273, 318 and 371 re motor vehicles. b. Chapter 38, Section 1 re concealed weapons. Item J. 7. c. will be DEFERRED INDEFINITEL YB Y CONSENT. June 24, 1997 - 15- AGENDA RE VIEW SESSION ITEM # 42284 Councilman Harrison inquired if this Street Closure was related to the Contractors Paving Conditional Rezoning application scheduled for the City Council Session of July 8, 1997: K. 5 a. Ordinance for discontinuance, closure and abandonment in the Petition of LAWRENCE A.. SANCILIO, RACHEL E SANCILIO, LENA SANCILIO, MA URICE STEINGOLD, LEWIS B. STEINGOLD and SIGNET BANK/VIRGINIA, Trustees under the Will of Israel Steingold, (LYNNHA VEN BOROUGH): Phase I Wagner Street- That portion of Wagner labeled "closed ", consisting of 2,599 square feet, bounded on the South by the Northern right-of-way boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction a distance of 51.69 feet as more specifically shown on said plat. Avenue E - That portion of Avenue E, labeled "closed ~", consisting of 1,297 square feet, approximately twenty-five (25) feet in width, bounded on the South by the Northern right-of- way boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction an approximate distance of 52 feet as more specifically shown on said plat. Recommendatton: FINAL APPROVAL Phase 2 Wagner Street - All that portion of Wagner Street not included in Phase 1 above, containing 10,044.31 square feet (I0,096 square feet - 51.69 square feet). Avenue E - All that portion of Avenue E not included in Phase I above, containing 162.67 square feet (214.67 sq. fi. - 52 sq. ft) c. First Street - Beginning at the Western Boundary of Avenue E and running in a Westerly chrection a distance of 349. 78 feet. Recommendatton: ADDITIONAL 180-DA Y DEFERRAL Karen Laslie, Planning Co-Ordinator, advised this application is related to Contractors Paving. These applications do not have to be considered together. One of the proffers of the aforementioned application, the portion which is recommended for FINAL APPROVAL, is a buffer along the expressway In order for them to legally proffer that buffer, they must own the property. Therefore the street closure must be finalized to consider the rezoning on July Eighth. June 24, 1997 - 16- AGENDA RE VIEW SESSION ITEM # 42285 Councilman Harrison inquired relative the 180 deferral on December 17, 1996: K. 5 Ordinance in the Petition of BPP DEVELOPERS, INC., A VIRGINIA CORPORA TION, for the discontinuance, closure and abandonment ora portion of Lynnhaven Drive beginmng at a point 151.6feet East of Vista Drive and running tn an Easterly direction a distance of 115 feet, variable in width and containing 3239 square feet (£ YNNHA VEN BOROUGH) Karen Laslie advised all of the conchtions had not been satisfied. The apphcant has sold the condominiums and now all the separate owners and their lenders must sign off on the final plat, which will entail additional time; therefore, they are requesting another deferral. ITEM # 42286 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA: K2 Ordinance for discontinuance, closure and abandonment in the Petition of LA WRENCE A.. SANCILIO, RACHEL V. SANCILIO, LENA SANCILIO, MA URICE STEINGOLD, LEWIS B. STEINGOLD and SIGNET BANK/VIRGINIA, Trustees under the Will of Israel Steingold, (LYNNHAVEN BOROUGH): Phase 1 a. Wagner Street - That portton of Wagner labeled "closed ", consisting of 2,599 square feet, bounded on the South by the Northern right-of-way boundary of the Virginia Beach-Norfolk Expressway and extenchng in a Northerly direction a distance of 51.69feet as more spectfically shown on said plat. bo Avenue E- That portion of Avenue E, labeled "closed~", consisting of 1,297 square feet, approximately twenty-five (25) feet in width, bounded on the South by the Northern right-of- way boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction an approximate distance of 52 feet as more specifically shown on said plat. Phase 2 a. b. co Wagner Street - All that portion of Wagner Street not included in Phase 1 above, containing 10,044.31 square feet (10,096 square feet - 51.69 square feet). Avenue E - All that portion of Avenue E not included in Phase 1 above, containing 162 67 square feet (214.67 sq. fi. - 52 sq. ft.) First Street - Beginning at the Western Boundary of Avenue E and running in a Westerly direction a distance of 349. 78 feet. June 24, 1997 -17- K3 K4 K5 K6 K7 K8 AGENDA RE VIEW SESSION ITEM # 42286 (Continued) Application of C & C DEVELOPMENT, L.L.C. for the discontinuance, closure and abandonment of a portion of the East side of Pleasure House Road, beginning 123 17feet South of Andre~ Jackson Lane and continuing 17 37feet along the Northern property line, variable tn width, containing 836 square feet (BA YSIDE BOROUGH). Ordinance in the Petition of BPP DEVELOPERS, INC., A VIRGINIA CORPORA TION, for the &scontmuance, closure and abandonment ora portion of Lynnhaven Drive beginning at a point 151.6feet East of Vista Drive and running in an Easterly &rection a distance of 115 feet, variable in width and containing 3239 square feet (L YNNHA VEN BOROUGH). Petition of LIFENET, d/b/a LIFENET TRANSPLANT SER VICES, for the discontinuance, closure and abandonment of a portion of Baker Road beginning at the Southwest corner of Baker Road and Ward Court and running 375.65 feet in a Southerly direction, containing 5,294. 4 square feet (BA YSIDE BOROUGH). Application of STEVENS. CL YMER for a Variance to Section 4 4(b) of the Subdivision Ordinance which requires all lots created by sub&vision meet all requirements of the City Zoning Ordinance on the North side of Winston-Salem Avenue, 105 feet East of Rudee Avenue re resub&vision of three non- conforming lots into two lots on a 9000 square foot parcel (VIR GIN rA BEA CH). Application of JOSEPH OVERHOLT, TRUSTEE OVERHOLT TRUST, for a Conditional Change of Zoning Distrtct Classification from R-lO Residential District to Conditional B-2 Community Business District at the Southwest corner of Lynnhaven Parkway and Salem Road re commercial land use, containing 15 acres (KEMPSVILLE BOROUGH). Applications of McGINNIS REAL TY AND DEVELOPMENT COMPANY on the West side of Princess Anne Road beginning at a point 1060 feet more or less South of Elson Green Avenue, containing 57.94 acres (PRINCESS ANNE BOROUGH): Chanyze of Zomng District Classificatton from AG-1 and AG-2 Agricultural Districts to Conditional R-20 Residential District Conditional Use Permit for an open space promotion development option June 24, 1997 - 18- CITY COUNCIL CONCERNS 4:15 P.M. ITEM # 42287 On behalf of the entire City Council, Vice Mayor Sessoms congratulated Councilman Branch on hts marriage to Robin in Bermuda June 17, 1997. ITEM # 42288 Council Lady McClanan inquired if anyone had received any complaints concerning last Tuesday's Amphitheater concert. Councilman Harrison advised he had received complaints relative "Weezer and the Lunar Chicks" which was a warmup Band for the "No Doubt" group. The language was very offensive. The audience shouM be notified if the concert is not suitable for the young people The City Manager will review. ITEM # 42289 Council Lady Henley relayed Councd Lady Parker's comments relative the Ctty Manager's response to Dr. Timothy Jenney, Superintendent of Virginia Beach City Schools. Council Lady Parker was pleased with his response and hoped his letter of June Sixteenth wouM be disseminated to the same list to which Dr. Jenney's letter was forwarded. Councilman Heischober suggested thts letter be published tn The Kaleidoscope. Council Lady Henley suggested pubhcation in The Beach Advisory. The City Manager wtll peruse these suggestions. June 24, 1997 - 19- ITEM # 42290 Vice Mayor William D. Sessoms, Jr. called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Council Conference Room, City Hall Budding, on Tuesday, June 24, 1997, at 4:20 P.M. Council Members Present: John ,4. Baum, Linwood O. Branch, IIL William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan and Vtce Mayor William D. Sessoms, Jr. Council Members ,4bsent: Mayor Meyera E. Oberndorf, Nancy K. Parker and Louisa M. Strayhorn June 24, 1997 - 20 - ITEM # 42291 Vice Mayor William D. Sessoms, Jr., entertained a motion to permit City Council to conduct its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion or consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees pursuant to Section 2.1-344 (A) (1). Appointments - Boards and Commissions: Community Services Board Social Services Board Youth Services Coordtnating Council PUBLICLY-HELD PROPERTY: Dtscussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which couM affect the value of property owned or destrable for ownershtp by such institution pursuant to Section 2.1-344(A)(3). To- Wit: Acquisition/Disposition/Use of Public Property Southeastern Parkway and Greenbelt Lynnhaven Borough 31st Street Sandbridge Public Beach Easements LEGAL MA TTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertainmg to actual or probable litigation, or other specific legal matters requesting the provision of legal advice by counsel pursuant to Section 2.1-344(A)(7) To-Wit: Sandbridge Pubhc Beach Easements Sandbridge Faded Bulkheads Upon motion by Councdman Baum, seconded by Councilman Jones, City Counctl voted to proceed into EXECUTIVE SESSION (4 '25 P.M.) Voting: 8-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louts R. Jones, Reba S. McClanan and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay' None Council Members Absent: Mayor Meyera E. Oberndorf Nancy K. Parker and Louisa M. Strayhorn June 24, 1997 - 21 - FORMAL SESSION VIRGINIA BEA CH CITY CO UNCIL June 24, 1997 6:00 P.M. Vice Mayor William D. Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, June 24, 1997, at 6:00 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D Sessoms, Jr. and Louisa M. Strayhorn Council Members Absent: Mayor Meyera E. Oberndorf William W. Harrison, Jr. {ATTENDING US CONFERENCE OF Nancy K. Parker [MOTHER UNDERGOING SURGER Y] INVOCATION: The Reverend Mark Vender Calvary Presbytertan Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Sessoms, being a Corporate Officer of Central Fidelity Bank, ABSTAINED on Item K 2. a/b (Sancilio) and disclosed there were no other matters on the agenda in which he has a "personal interest", as defined in the Act, either individually or in his capacity as an officer of Central Fidelity Bank. The Vice Mayor regularly makes this Disclosure as he may or may not know of the Bank's interest in any apphcation that may come before City Councd. Vice Mayor Sessoms ' letter of January 1, 1997, is hereby made a part of the record. June 24, 1997 - 22 - Item V-E. CER TIFICA TION OF EXECUTIVE SESSION ITEM # 42292 Upon motion by Counctlman Heischober, seconded by Council Lady Parker, City Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE }FITH THE MOTION TO RECESS. Only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; AND, Only such public bustness matters as were identified in the motion convening the Executtve Session were heard, discussed or considered by Virginia Beach City Council. Voting: 8-0 Counctl Members Vottng Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louts R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorj~, William tK. Harrison, Jr. and Nancy K. Parker June 24, 1997 CERTIFICATION OF EXECUTIVE SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION, pursuant to the affirmative vote recorded in ITEM # 42291 Page No. 20 and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the goveming body that such Executive Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by Virginia Beach City Council. Rtl'th Hodges SC(nith,- CMC/AAE City Clerk June 24, 1997 - 23 - Item V-F. 1. MINUTES ITEM # 42293 Upon motion by Councilman Branch, seconded by Counctlman Baum, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSIONS of June 1 O, 199 7. Voting: 8-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor Wilham D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndor)~, William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 - 24 - Item ADOPT ,4 GENDA FOR FORMAL SESSION ITEM # 42294 BY CONSENSUS, City Councd ADOPTED: AGENDA FOR THE FORMAL SESSION June 24, 1997 - 25 - Item V-I. 1. PUBLIC HEARING ITEM # 42295 Vice Mayor Sessoms DECLARED A PUBLIC HEARING: ,4 GRICUL TURAL PRESER VA TION PR OGRAM (ARP) (Blaclovater and Pungo Boroughs) There being no speakers, Vice Mayor Sessoms CLOSED THE PUBLIC HEARING. June 24, 1997 - 26 - Item V-J. ORDINANCES ITEM # 42296 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council APPROVED BY CONSENT in ONE MOTION Ordinances 1, 2, 3, 4, 5, 6, 7, 8 and 9 Item 7c was DEFERRED INDEFINITEL Y B Y CONSENT. Item K. 9 was MOVED FORWARD under Ordinances, as same was erroneously placed on the Planning Agenda. Voting: 8-0 Council Members Voting Aye: John A. Baum*, Linwood O. Branch, IIL Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan**, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Vottng Nay: None Council Members Absent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker *Councilman Baum DISCLOSED and ABSTAINED (re Item J. 1. a. bO, pursuant to Section 2.1-639.14(E) of the Code of Virginia, he has an ownershtp interest exceeding $10,000 in the properties which are the subject of the transactions. Councilman Baum wished to disclose this interest and declare he was able to participate in the ARP, he would be prohibited from participating m any discusston and vote by City Council regarding inclusion, in the ARP, of any property in which he has a personal interest. Councilman Baum's letter of June 20, 1997, is hereby made a part of the record **Council Lady McClanan voted a VERBAL NAY on Item Jl.a.b.c.d.e. June 24, 1997 City of Virginia Fteach COUNCILMAN JOHN A BAUM 6465 CRAGS CAUSEWAY BLACKWATER BOROUGH June 1 :~", 1997 VIBG~N~A BEACH VIRGINIA(804)42123457-2652 The Honorable Meyera E. Obemdorf, Mayor Members of City Council Municipal Center Virginia Beach, Virginia 23456 Dear Mayor Obemdorf and Members of Council: On the agenda for our June 24th meeting are two ordinances entitled "An Ordinance Authorizing the Acquisition of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Pnncipal Amount of $128,103" and "An Ordinance Authorizing the Acqms~tion of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Principal Amount of $721,860," both of which involve property in which I have an ownership ~nterest exceeding $10,000. In a January 23, 1996 opinion letter, written by the City Attomey and approved by the Commonwealth's Attorney, I was adwsed that the Conflmt of Interests Act does not prohibit me from partimpating ~n the Agricultural Reserve Program ("ARP"). I was further advised, however, that I would be prohibited from participating in any d~scussion and vote by the Council regarding inclusion, in the ARP, of any property in which I have a personal interest. I wanted to take this opportunity to let each of you know, in advance of Tuesday's meeting, that I intend to disclose my personal interest in these transactions in public during the formal session. I also intend to file a written disclosure of my personal interest in these transactions with the City Clerk requesting that a copy of the written disclosure, as well as a copy of this letter, be recorded in the official records of the Council. As a final note, please be advised that I have excused myself, and will continue to excuse myself, from any meetings or discussions of the Council involving the ARP whenever property in which I have a personal interest is the subject of the meeting or discussion. JAB/lcb CC: Very truly yours, ohn A. Baum James K. Spore, City Manager Ruth Hodges Smith, CMC/AAE, City Clerk Leslie L. Lilley, City Attorney City of Virginia Beach COUNCILMAN JOHN A BAUM BLACKWATER BOROUGH 6465 CRAGS CAUSEWAY VIRGINIA BEACH VIRGINIA 23457 (804) 421-2652 June 20, 1997 Mrs. Ruth Hodges Smith, CMC/AAE C~ty Clerk Municipal Center V~rglnia Beach, VA 23456 Re: Disclosure Pursuant to Section 2.1-639.14(E), Code of Virginia Dear Mrs. Smith: Pursuant to Section 2.1-639.14(E) of the State and Local Government Conflict of Interests Act, I hereby make the following d~sclosure: . The transactions for which I am making this written disclosure are City Council's discussion and vote on "An Ordinance Authorizing the Acquisition of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Principal Amount of $128,103" and "An Ordinance Authorizing the Acquisition of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Principal Amount of $721,860," both ofwluch are on City Council's agenda for the June 24, 1997 meeting. . The nature of my "personal interest" in the transactions is that I have an ownership interest exceeding $10,000 in the properties which are the subject of the transactions. . In an opinion from the City Attorney dated January 23, 1996 (attached), I was advised that I would have a "personal ~nterest in a contract" with the City of Virginia Beach to purchase the development rights, under the Agricultural Reserve Program ("ARP"), in property in which I have a personal interest. I was further advised, Mrs. Ruth Hodges Smith, CMC/AAE 2 June 20, 1997 however, that two exceptions to the "prohibited contracts" provisions of the Act would permit me to participate in the Program. And finally, I was advised that, although my participation in the ARP would be permitted, I would be prohibited from participating in any discussion and vote by City Council regarding inclusion, in the ARP, of any property in which I have a personal interest. Accordingly, I respectfully request that you record this declaration, as well as the attached letter from me to the Mayor and Council regarding this same issue, in the official records of City Council. Thank you for your assistance and cooperation in this matter. Very truly yours, ~jo~~ A_.~~ra~~x'''~'~''-'' JAB/lcb Attachments G \USERS~LBABB\WP\WORKXBAUM RMB (2ity of Virginia Beach LESLIE L LILLEY CITY A'FI'ORNEY In Reply Refer To Our File No. OP-340 MUNICIPAL CENTER VIRGINIA Bi:ACH VIRGINIA 23456 9004 (804) 427 4531 FAX (804) 426 5587 TDD (804) 427 4305 January 23, 1996 Councilmember John A. Baum Municipal Center Virginia Beach, Virginia 23456 Re: Request for Conflict of Interests Act Opinion Dear Councilmemher Baum: I am writing in response to your request for an opinion as to whether or not thc Sram and Local Government Conflict of Interests Act precludes you from participating in the City's Agricultural Reserve Program. CONCLUSION From my review of the Conflict of Interests Act (the "Act"), and the facts set forth herein, I am of the opinion that you would have a "personal interest in a contract" with thc City of Virginia Beach to purchase the development rights of your property under the Agricultural Reserve Program. However, I am also of the opinion that, based upon two exceptions to the "prohibited contracts" provisions of the Act (discussed at length herein), you would be permitted to participate in the Program. FAC'I~ PRF_~ENTED By ordinance adopted May 9, 1995, City Council added a new Appendix J to the City Code establishing to the Agricultural Reserve Program ("ARP"). Under the ARP, the City may purchase preservation easements on parcels located south of the Green Line which meet Councilmember $ohn A. Baum -2- January 23, 1996 Re: Request for Conflict of Interests Act Opinion designated eligibility criteria. In determining how much to offer for a preservation easement, the City Manager ascemim the value of the subject property's 'development rights.' This value is defined as the difference between the fair market value of the property without encumbrance by a preservation easement, and its fair market value so encumbered. Their, the City Manager attempts to reach an agreement with the property owner as to the terms and conditions, including price, of the purchase of such a preservation easement. However, final approval of any such purchase, including approval of the purchase price, is vested solely in the City Council. You have advised that your concern, and reason for requesting this opinion, is that you and your brothers and sisters own an undivided one-sixth interest in property located south of the Green Line which meets the eligibility criteria for consideration under the ARP. You have also advised that the value of your interest in the subject property excx. eds $10,000.00. Finally, you have advised that none of your brothers and sisters resides in your household or is dependent upon you for financial support, and that you do not depend upon any of your brothers or sisters for financial support. Please review and verify the accuracy of the facts set forth herein as you may only rely upon this opinion if they are correct and complete. ISSUE PRESENTED Does the Conflict of Interests Act preclude you from participating in the City's Agricultural Reserve Program? DISCUSSION In order to respond to your inquiry, it is necessary to address the issue of whether or not your participation in the Agricultural Reserve Program would violate the "prohibited contracts" provisions of the Act. Aoolicafion of the Act's Defirfifions to the Facts Presented The State and ~ Government Conflict of Interests Act is set forth in §§ 2.1-639.1 et seq. of the Code of Virginia (1950), as amended. For purposes of this opinion, the following definitions, found in § 2.1-639.2 of the Act, must be applied to the particular facts of a given situation. Councilmember lohn A. Baum -3- lanuary 23, 1996 Re: Request for Conflict of Interests Act Opinion A. 'Governmental agency' means each component part of the legislative, executive or judicial branch of state and local government, including each office, deparm~nt, authority, post, commission, committee, and each institution or board created by law to exercise some regulatory or sovereign power or duty as distinguished from purely advisory powers or duties. ~ The Virginia Beach City Council is a governmental agency within the meaning of the Act. B. °O~cer' means any person appointed or elected to any governmental or advisory agency, whether or not he receives any compensation or other emolument of office. Comment: As an elected governmental official, you are an officer as that term is defined in the Act. C. 'Immediate family' means (i) a spouse and (ii) any other person residing in the same household as the officer or employee, who is a dependent of the officer or employee or of whom the officer or employee is a dependent. For purposes of the Act, 'dependent' means a son, daughter, father, mother, brother, sister or other person, whether or not related by blood or marriage, if such person receives from the officer or employee, or provides to the officer or employee, more than one-haft of his financial support. Comment: Under the facts presented, none of your brothers or sisters is a member of your 'immediate family" as that term is defined in the Act. D. 'Personal interest' means a financial benefit or liability which accrues to an officer or employee, or to a member of his immediate family. The interest exists by reason of one of five categories specified therein as: 1) ownership in a business if the ownership interest exee~s 3 % of the total equity of the business; 2) annual income from ownership in real or personal property or a business in excess of $10,000.00; 3) salary from the use of property or paid by a business that exce~s $10,000.00 annually; 4) ownership of real or personal property when the interest exce~s $10,000.00 in value, exclusive of ownership in a business, or salary; and 5) personal liability incurred or assumed on behalf of a business which exce~s 3 % of the asset value of the business. Comment: You have a 'personal interest' in the property you own by virtue of the fact that the value of your interest in said property exce~s $10,000.00. Councilmember John A. Baum -4- January 23, 1996 Re: Request for Conflict of Interests Act Opinion E. 'Contract' means any agreement to which a governmental agency is a party, or any agreement on behalf of a governmental agency which involves the payment of money appropriated by the General Assembly or a political subdivision thereof.' Comment: An agreement between you and the City for the purchase of a preservation easement on your property pursuant to the ARP would constitute a 'contract' as that term is defined in the Act. F. 'Personal Interest in a contract' means a personal interest which an officer or employee has in a contract with a governmental agency, whether due to his being a party to the contract or due to a personal interest in a business which is a party to the contract. Comment: You would have a 'personal interest in a contract' with the City of Virginia Beach involving the City's purchase of a preservation easement in your property due to your being a party to the contract. II. 'Prohibited Contracts' Section 2.1-639.7 of the Act provides, in pertinent part, that '[n]o person elected or appointed as a member of the governing body of a county, city or town shall have a personal interest in (i) any contract with his governing body .... ' Therefore, in the absence of an exception to this provision of the Act, you would be prohibited from entering into an agreement with the City for the purchase of a preservation easement on your property III. Excevtions to 'Prohibited Contracts' Provisions -- Section 2.1-639.9 of the Act provides certain enumerated exceptions to the 'prohibited contracts' provisions of the Act. Specifically, with respect to the facts presented herein, § 2.1-639.9 provides that-- [t]he provisions of §§ 2.1-639.6 through 2.1-639.8 shall not apply to: 1. The sale, lease or exchange of real property between an officer or employee and a governmental agency, provided the officer or employee does not participate in any way as such officer or employee in such sale, lease or exchange, and this fact is set forth as a matter of public record by the governing Councilmember John A. Baum -5- January 23, 1996 Re: Request for Conflict of Interests Act Opinion body of the governmental agency or by the administrative head thereof; 2. Grants or other payment under any program wherein uniform rates for, or the amounts paid to, all qualified applicants are established solely by the administering governmental agency; In this situation, the City's purchase of a preservation easement on your property pursuant to the ARP would constitute the "sale, lease or exchange of real property between an officer ... and a governmental agency .... "Furthermore, because the ARP provides that the amount to be paid for preservation easements is subject to the final approval of City Council, the ARP constitutes a "program wherein...the amounts paid to all qualified applicants are established solely by the administering governmental agency .... " CONCLUSION I have concluded that you would have a 'personal interest in a contract" with the City of Virginia Beach to purchase the development rights of your property under the ARP. I have also concluded, however, that based upon the facts presented, there are two exceptions to the "prohibited contracts" provisions of the Act which would permit you to participate in the Program. Those exceptions involve (i) a contract for the sale, lease, or exchange of real property between an officer and a governmental agency, provided the officer does not participate in any way as an officer in such sale, lease, and exchange, and this fact is set forth as a matter of public record; and (ii) payment under any program wherein ... the amounts paid to all qualified applicants are established solely by the administering governmental agency. Therefore, as long as you do not participate as a member of Council in the City's purchase of an interest in your property under the ARP, and set forth your non-participation as a matter of public record; and as long as the ARP continues to provide that the amount to be paid by the City for such interest shall be established solely by City Council, the Conflict of Interests Act would not prohibit you from participating in the Program. Please be advised, however, that if you choose to apply for participation in the ARP, and your property's inclusion in the ARP becomes the subject of discussion and a vote by the City Council, you would be disqualified from participating in such discussion and vote. This is based upon § 2.1-639.11(A)(1) of the Act which requires each officer and employee of any Councilmember John A. Baum -6- January 23, 1996 Re: Request for Conflict of Interests Act Opinion state or local governmental or advisory agency to disqualify himseff from participating in any transaction which has application solely to property in which he has a personal interest. As a final note, the Conflict of Interests Act deals with the types of influences upon a public officer's judgment which are clearly improper. The law does not, however, protect against all appearances of improper influence. In that respect, the Act places the burden on the individual officer to evaluate whether the facts presented create an appearance of impropriety which is unacceptable or which would affect the confidence of the public in the officer's ability to be imparfal. I trust that this letter has adequately addressed your concern. If you have any additional questions or concerns, please do not hesitate to call me. Very truly yours, Leslie L. Lilley City Attorney LLL/clb Seen and Approved: Commonwealth's Attorney COUNCILMAN JOHN A BAUM BLACKWATER BOROUGH City of' Virginia June 19, 1997 6465 CRAGS CAUSEWAY VIRGINIA BEACH VIRGINIA 23457 (804) 421-2652 The Honorable Meyera E. Obemdorf, Mayor Members of City Council Municipal Center Virginia Beach, Virginia 23456 Dear Mayor Obemdorf and Members of Council: On the agenda for our June 24th meeting are two ordinances entitled "An Ordinance Authorizing the Acquisition of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Principal Amount of $128,103" and "An Ordinance Authorizing the Acquisition of an Agricultural Land Easement and the Issuance by the City of its Contract Obligations in the Maximum Principal Amount of $721,860," both of which involve property in which I have an ownership interest exceeding $10,000. In a January 23, 1996 opinion letter, written by the City Attorney and approved by the Commonwealth's Attorney, I was advised that the Conflict of Interests Act does not prohibit me from participating in the Agricultural Reserve Program ("ARP"). I was further advised, however, that I would be prohibited fi'om participating in any discussion and vote by the Council regarding inclusion, in the ARP, of any property in which I have a personal interest. I wanted to take this opportunity to let each of you know, in advance of Tuesday's meeting, that I intend to disclose my personal interest in these transactions in public during the formal session· I also intend to file a written disclosure of my personal interest in these transactions with the City Clerk requesting that a copy of the written disclosure, as well as a copy of this letter, be recorded in the official records of the Council. As a final note, please be advised that I have excused myself, and will continue to excuse myself, from any meetings or discussions of the Council involving the ARP whenever property in which I have a personal interest is the subject of the meeting or discussion. JAB/lcb CC: Very truly yours, · Baum James K. Spore, City Manager Ruth Hodges Smith, CMC/AAE, City Clerk Leslie L. Lilley, City Attorney - 27- Item V-J.l.a.b. ORDINANCES ITEM # 42297 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: a. John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 101.35 Acres Installment Purchase Agreement No. 1997-10 - $128,103. O0 (Blackwater Borough) b. John A., Wesley L., Marshall P. and Glenn Clark Baum; Jean Baum Brown and Charlotte Baum Ives - 465.67 Acres Installment Purchase Agreement No. 1997-11 - $721,860. O0 (Blackwater Borough) Voting: 6-1 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, HaroM Hetschober, Barbara M. Henley, Louis R. Jones, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay' Reba S. McClanan Council Members Abstaining: John A. Baum Council Members Absent: Mayor Meyera E. Oberndorf William W. Harrison, Jr. and Nancy K. Parker *Councilman Baum DISCLOSED and ABSTAINED (re Item d. 1.a.b.), pursuant to Section 2.1-639.14(E) of the Code of Virginia, he has an ownership interest exceeding $10,000 in the properties which are the subject of the transactions. Councilman Baum wished to disclose this interest and declare he was able to participate in the ARP, he would be prohibited from participating in any discussion and vote by City Council regarding inclusion, tn the ARP, of any property in which he has a personal interest. Councilman Baum's letter of June 20, 1997, is hereby made a part of the record. June 24, 1997 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATI ON EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $128,103 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $128,103; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 4O funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 5O deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this £4¥H day of JuN5 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 70 71 72 73 CA-97-6685 wmm[ arp ~purchase ~bauml. orn R-1 June 10, 1997 74 75 76 77 APPROVED AS TO CONTENT: A~griculture Departme~ APPROVED AS TO LEGAL Law Department 78 79 8O CERTIFIED AS TO AVAIL BILITY OF FUNDS: Director of Finance JOHN A BAUM, WESLEY L. BAUM, MARSHALL P. BAUM, GLENN CLARK BAUM, JEAN BAUM BROWN AND CHARLOTTE BAUM IVES, the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-10) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section RECITALS ............................................. 1 AGREEMENTS ........................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Def'mitions ................................ 2 Rules of Construction ........................ 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ...... 4 Delivery of Deed of Easement .................... 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ...................... 5 Registration and Transfer of this Agreement ........... 5 Mutilated, Lost, Stolen or Destroyed Agreement ........ 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City ............ 7 Representations and Warranties of the Seller ........... 8 Section Page ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5 1 SECTION 5.2 Intent of City and Tax Covenant of City ............. 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction .................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ..................... 10 Ownership of Agreement ...................... 10 Removal of Registrar and Appointment of Successor Registrar ............... 10 Qualifications of Successor Registrar ............. 10 Successor by Merger or Consolidation ........... 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ........................ 11 Parties in Interest ............................ 11 Binding Effect ............................. 11 Severability .............................. 11 Prior Agreements Cancelled; No Merger ............ 11 Amendments, Changes and Modifications ............ 11 No Personal Liability of City Officials .............. 12 Governing Law ............................ 12 Notices ................................. 12 Holidays ................................. 13 Signatures and Seals ......................................... 14 EXHIBIT A- EXHIBIT B - EXHIBIT C- EXHIBIT D- Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section Pa_Rg.e. EXHIBIT E- Transfer of Agreement - Schedule of Transferees 111 INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-10) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the day of , 199_ between JOHN A. BAUM, WESLEY L. BAUM, MARSHALL P. BAUM, GLENN CLARK BAUM, JEAN BAUM BROWN and CHARLOTTE BAUM IVES (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth o f Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1 1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 D¢finition~. As used in this Agreement, the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing , 199 . "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other entity. "Purchase Price" means $128,103, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means, collectively, John A. Baum, Wesley L. Baum, Marshall P. Baum,Glenn Clark Baum, Jean Baum Brown and Charlotte Baum Ives "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement tO Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ,202_ [25-year maturity date]. The Purchase Price is $128,103. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including ,202_, at the rate of ~% per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, an d the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer, provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Regis trar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums s hall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated, Lost. Stolen or Destroyed Agreem¢.llt. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any Joss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The City makes the following representations and warranties' ~ of the State. (a) The City is a body politic and corporate and a political subdivision (b) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in tMs Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representati0n~ and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 229-30-5288 (for John A. Baum), 229-30-1919 (for Wesley L. Baum), 231-34-2086 (for Marshall P. Baum), 224- 44-9106 (for Glenn Clark Baum), 226-54-7738 (for Jean Baum Brown) and 224-38-6800 (for Charlotte Baum Ives. The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by f'me, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowled_mnent of Seller with Regard to Tax Consequences of Transaction. The Seller has received an opimon from Kaufman & Canoles, P.C, Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross inco me of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in good faith buy, sell, own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may als o engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did no t act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar' s duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, w~thout the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successor.$ of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Ag reement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled; No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In add ition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments, Changes and M0dification~. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart o f any 11 such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City_ Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, an d neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 12 Seller: Registrar: John A. Baum 6465 Crags Causeway Virginia Beach, Virginia 23457 Wesley L. Baum 115 Brumsey Road Moyock, North Carolina 27958-9218 Marshall P. Baum 9 Ridgeway Drive Chillicothe, Ohio 45601 Charlotte Baum Ives 3217 Colonial Avenue, S.W. Roanoke, Virginia Glenn Clark Baum 4604 Vineyard Lane Virginia Beach, Virginia 23455 Jean Baum Brown 111 Lee Avenue Lexington, Virginia 24450 First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 13 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) .(SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy City Attorney Director, Department of Finance 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 ,by (SEAL) My Commission Expires: Notary Public 15 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 , by Notary Public (SEAL) My Commission Expires: 16 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 17 EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 18 EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 19 ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 20 This instrument was prepared by V~rglma Beach City Attorney's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(c)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this day of ,1997, by and between JOHN A. BAUM and {marital status} his wife; CHARLOTTE BAUM IVES and {marital stat. us} her husband, WESLEY L. BAUM and {marttal statt~s} his wife, GLENN CLARK BAUM and {marital status} his wife, MARSHALL P. BAUM and {marital statu~} his wife, JEAN BAUM BRQWN and {marital status_] her husband (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development fights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1387-80-5514 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS. COVENANTS, CONDITIONS AND A(jREEMENT$ A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain fi'om engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Asfieultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any fight, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the fight to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any fight of entry or access or any fights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. #{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and fights set forth herein. GRANTOR: JOHN A. BAUM ~SEAL) ISEAL) CHARLOTTE BAUM IVES ISEAL) ~SEAL) WESLEY L. BAUM ISEAL) ISEAL) GLENN CLARK BAUM ,(SEAL) (SEAL) MARSHALL P. B AUM ,(SEAL) ,(SEAL) JEAN BAUM BROWN (SEAL) (SEAL) COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ., 1997, by John A. Baum and , his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Charlotte Baum Ives and , her husband, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ., 1997, by Wesley L. Baum and ., his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~day of ., 1997, by Glenn Clark Baum and ., his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this~ day of ,1997, by Marshall P. Baum and , his wife, Grantor. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Jean Baum Brown and , her husband, Grantor. Notary Public (SEAL) My Commission Expires: EXHIBIT A ALL THAT certain tract of land, situate mostly in Blackwater Borough, Virginia Beach, Virginia, and partly in Currituck County, North Carolina, and containing an area of 116.57 acres, same being designated and shown as "Area = 116.57 Acres" on that certain plat entitled "SURVEY OF WOODLANDS OF F. O. BAUM", (formerly western part of S. E. Creekmore Tract) Blackwater District, City of Virginia Beach (formerly Princess Anne County), Virginia", Scale 1" = 400 t~. dated December, 1946, and made by Alonzo L. Cherry, Certified Land Surveyor, a copy of which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 20, at page 29, and in the Office of the *Registrar of Deeds of Cumtuck County, North Carolina, in Map Book 2, at page 60, with the notation "8.25 Acres - Area within State of North Carolina" being only on the plat recorded in Map Book 2, at page 60, in Currituck County, North Carolina. LESS AND EXCEPT a 0.9731 Ac. parcel conveyed to John A. Baum in Deed Book 3530, at page 1152. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property conveyed to the Grantors, from John A. Baum, Trustee, by deed, dated May 11, 1993, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3227, at page 531. EXHIBIT B ALL THAT certain tract of land, situate mostly in Blackwater Borough, Virginia Beach, Virginia, and partly in Currituck County, North Carolina, and containing an area of 116.57 acres, same being designated and shown as "Area = 116.57 Acres" on that certain plat entitled "SURVEY OF WOODLANDS OF F. O. BAUM", (formerly western part of S. E. Creekmore Tract) Blackwater District, City of Virginia Beach (formerly Princess Anne County), Virginia", Scale 1" = 400 fL dated December, 1946, and made by Alonzo L. Cherry, Certified Land Surveyor, a copy of which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 20, at page 29, and in the Office of the *Registrar of Deeds of Currituck County, North Carolina, in Map Book 2, at page 60, with the notation "8.25 Acres - Area within State of North Carolina" being only on the plat recorded in Map Book 2, at page 60, in Currituck County, North Carolina. LESS AND EXCEPT a 0.9731 Ac. parcel conveyed to John A. Baum in Deed Book 3530, at page 1152. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property conveyed to the Grantors, from John A. Baum, Trustee, by deed, dated May 11, 1993, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3227, at page 531. EXHIBIT "C" pERMITTED ENCUMBRANCES , Taxes for the 2nd half of the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. . Easement granted Virginia Electric and Power Company, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 285, at page 486 and as shown in Map Book 28, at page 3, of unspecified width along Route 611.. , Easement granted Virginia Electric and Power Company, as established by instrument recorded in the aforesaid Clerk's Office in Deed Book 237, at page 421 and as shown in Map Book 18, at page 25. 5, Easement to Norfolk & Carolina Telephone & Telegraph Co. recorded in the aforesaid Clerk's Office in Deed Book 283, at page 189. 6, Reference to quantity of acreage is for descriptive purposes only, and the policy will not insure as to quantity of acreage nor to the accuracy of the computation thereof. 10. Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the fights granted to the City in the Deed of Easement. AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRICULTURAL LAND PRESERVATION EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $721,860. WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $721,860; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 63 pursuant to the Public Finance Act of 1991 and hereby constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this 241~ day of JUNE , 19 97. 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 70 71 72 73 CA-97-6686 wmm~ordres~baum2 . orn R-1 June 10, 1997 74 75 76 77 APPROVED AS TO CONTENT: · K~griculture Department APPROVED AS TO LEGAL~ SUFFICIENCY: Law Department 78 79 8O CEE_~IFIED AS TO AVAILABILITY OF FUNDS: Director of Finance JOHN A. BAUM, WESLEY L. BAUM, MARSHALL P. BAUM. GLENN CLARK BAUM, JEAN BAUM BROWN AND CHARLOTTE BAUM IVES the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-11) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Pa~e -- RECITALS ............................................... 1 AGREEMENTS .......................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ................................. 2 Rules of Construction .......................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ...... 4 Delivery of Deed of Easement .................... 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ....................... 5 Registration and Transfer of this Agreement ........... 5 Mutilated, Lost, Stolen or Destroyed Agreement ........ 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City ............ 7 Representations and Warranties of the Seller ........... 8 ,/ Section Page ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of City .............. 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar .................... 10 Ownership of Agreement ...................... 10 Removal of Registrar and Appointment of Successor Registrar .......................... 10 Qualifications of Successor Registrar ............... 10 Successor by Merger or Consolidation ........... 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ........................... 11 Parties in Interest ............................ 11 Binding Effect ............................ 11 Severability ............................... 11 Prior Agreements Cancelled; No Merger ........... 11 Amendments, Changes and Modifications ............ 11 No Personal Liability of City Officials .............. 12 Governing Law ............................. 12 Notices ................................. 12 Holidays ................................. 13 Signatures and Seals ......................................... 14 EXHIBIT A- EXHIBIT B - EXHIBIT C - EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section Page EXHIBIT E- Transfer of Agreement - Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-11) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the ~ day of ,199_ between JOHN A. BAUM, WESLEY L. BAUM, MARSHALL P. BAUM, GLENN CLARK BAUM, JEAN BAUM BROWN and CHARLOTTE BAUM IVES (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth o f Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1 1) to promote and encourage the preservation of agricultural land in designated areas within the southern pomon of the City. B. In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the C~ty hereby agree as follows. ./ ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. As used in this Agreement, the following terms have the following meanings, unless the context clearly ~ndicates a different meaning "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (fi) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and Off) accessory uses directly related to agricultural activmes conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorxzed by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing ,199. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, m writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other entity. "Purchase Price" means $721,860, the purchase price to be paid by the City to th e Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means, collectively, John A. Baum, Wesley L. Baum, Marshall P. Baum,Glenn Clark Baum, Jean Baum Brown and Charlotte Baum Ives "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Develot>ment Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. I'/ i ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ,202_ [25-year maturity date]. The Purchase Price is $721,860. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including ,202_, at the rate of.... % per annum. Interest shall be calculated on the basis of a 360~y year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and ail interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Regis trar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums s hall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated. Lost. Stolen or Destroyed Agreement. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indenmity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of th? City. The City makes the following representations and warranties' of the State. (a) The City is a body politic and corporate and a political subdivision Co) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. - makes the following representations and warranties: The Seller (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to emer into, or the validity or enforceability of, this Agreement or the Deed of Easemem. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security imerests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 229-30-5288 (for John A. Baum), 229-30-1919 (for Wesley L. Baum), 231-34-2086 (for Marshall P. Baum), 224- 44-9106 (for Glenn Clark Baum), 226-54-7738 (for Jean Baum Brown) and 224-38-6800 (for Charlotte Baum Ives. The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City_ and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledmnent of Seller with Reltard to Tax Conseouences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross inco me of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in go od faith buy, sell, own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may als o engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 ll,~moyal of Registrar and Appointment of Successor gtgill~. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instnnnent in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar' s duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, Co) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, fu'm or corporation, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Ag reement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement sha 11 be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled; No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In add ition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modificati0.ns. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart o f any 11 such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 NO Personal Liability_ of City_ Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, an d neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 7.8 Goverlling Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City' City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 12 Seller: Registrar: John A. Baum 6465 Crags Causeway Virginia Beach, Virginia 23457 Wesley L. Baum 115 Brumsey Road Moyock, North Carolina 27958-9218 Marshall P. Baum 9 Ridgeway Drive Chillicothe, Ohio 45601 Charlotte Baum Ives 3217 Colonial Avenue, S.W. Roanoke, Virginia Glenn Clark Baum 4604 Vineyard Lane Virginia Beach, Virginia 23455 Jean Baum Brown 111 Lee Avenue Lexington, Virginia 24450 First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 13 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: .(SEAL) (SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy City Attorney Director, Department of Finance 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 ., by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 ,by (SEAL) My Commission Expires. Notary Public 15 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 ,by (SEAL) My Commission Expires' Notary Public 16 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 17 EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 18 EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 19 ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 20 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar , . 21 This instrument was prepared by V~rg~ma Beach C~ty Attorney's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this~ day of ,1997, by and between JOHN A. BAUM and [marital status] his wife; CHARLOTTE BAUM IVES and [marital status_] her husband, WESLEY L. BAUM and [marttal status} his wife, GLENN CLARK BAUM and [marital statu~l his wife, MARSHALL P. BAUM and [marital ~tatuy} his wife, JEAN BAUM BRO .WN and [marital status} her husband (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Vlrgima of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1387-31-7280 I WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS, COVENANTS, CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the fight to develop the Land for any use, ~ncluding without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of hvestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of apphcation for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any fight of entry or access or any fights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. It{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and rights set forth herein. GRANTOR: JOHN A. BAUM .(SEAL) (SEA~) CHARLOTTE BAUM IVES (SEAL) ,(SEAL) WESLEY L. BAUM ,(SEAL) ,(SEAL) GLENN CLARK BAUM ,(SEAL) ,(SEAL) MARSHALL P. BAUM (SEAL) ,(SEAL) JEAN BAUM BROWN .(SEAL) .(SEAL) COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of , 1997, by John A. Baum and , his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Charlotte Baum Ives and , her husband, Grantor. Notary Public (SEAt.) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ., 1997, by Wesley L. Baum and , his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Glenn Clark Baum and , his wife, Grantor. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Marshall P. Baum and , his wife, Grantor. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Jean Baum Brown and ., her husband, Grantor. Notary Public (SEAL) My Commission Expires: EXHIBIT A ALL THAT certain tract of land, with the buildings and improvements thereon and the rights, privileges and appurtenances therunto belonging, situate in Blackwater Borough ~n the C~ty of Virginia Beach, Virginia, now containing 473.9126 Ac., and shown as 473.9126 Ac. on a plat thereof entitled "SURVEY OF BAUM PROPERTY AS SHOWN ON MAP OF A. O. BAUM'S WOOD AND MARSHLAND IN PRINCESS ANNE AND NORFOLK COUNTIES, VIRGINIA, MAP BOOK 94, PAGE 24, BLACKWATER BOROUGH - VIRGINIA BEACH, VIRGINIA", dated January 1984, made by Mel Smith & Associates, Consulting Engineers, Surveyors, Planning, recorded in the Clerk's office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 175, at page 23. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING the same property conveyed to the Grantors, fi.om John A. Baum, Trustee, by deed, dated May 11, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book 3227, at page 529. EXHIBIT B ALL THAT certain tract of land, with the buildings and improvements thereon and the rights, privileges and appurtenances therunto belonging, situate in Blackwater Borough in the City of Virginia Beach, Virginia, now containing 473.9126 Ac., and shown as 473.9126 Ac. on a plat thereof entitled "SURVEY OF BAUM PROPERTY AS SHOWN ON MAP OF A. O. BAUM'S WOOD AND MARSHLAND IN PRINCESS ANNE AND NORFOLK COUNTIES, VIRGINIA, MAP BOOK 94, PAGE 24, BLACKWATER BOROUGH - VIRGINIA BEACH, VIRGINIA", dated January 1984, made by Mel Smith & Associates, Consulting Engineers, Surveyors, Planning, recorded in the Clerk's office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 175, at page 23. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamllco Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "ti" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING the same property conveyed to the Grantors, from John A. Baum, Trustee, by deed, dated May 11, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book 3227, at page 529. EXHIBIT "C" PERMITTED ENCUMBRANCES Taxes for the 2nd half of the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. . Easement granted Virginia Electric and Power Company, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 437, at page 172, of unspecified width along lane perpendicular to Baum Road. . Easement granted Virginia Electric and Power Company, as established by instrument recorded in the aforesaid Clerk's Office in Deed Book 237, at page 399 and as shown in Map Book 18, at page 22, along Baum Road. . Agreement regarding ditches recorded in the aforesaid Clerk's Office in Deed Book 147, at page 230. . Reference to quantity of acreage is for descriptive purposes only, and the policy will not insure as to quantity of acreage nor to the accuracy of the computation thereof. . Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. - 28 - Item V-J. 1.c.d/e ORDINANCES ITEM # 42298 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty $. Lusk Family Trust - 304. 66 Acres Installment Purchase Agreement No. 1997-12 - $587, 626.00 (Pungo Borough) Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust - 47 98 Acres Installment Purchase Agreement No. 1997-13 - $ 67,898.00 (Pungo Borough) Ernest Brown - 92.28 Acres Installment Purchase Agreement No. 1997-14 - $175,332.00 (Blackwater Borough) Voting: 7-1 (By Consent) Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Vice Mayor Wilham D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: Reba S. McClanan Council Members Absent: Mayor Meyera E. Oberndorf, William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATI ON EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $587,626. WHEREAS, pursuant to the Agricultural Lands Pzeservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $587,626; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price os manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 62 63 indebtedness under the Charter of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this24¥H day of JUNK , 19 9__?.. 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 7O 71 72 73 CA-97-6687 wmm\arp[purchase\lusktr~lusktrl.orn R-1 June 10, 1997 74 75 76 77 APPROVED AS TO CONTENT: ~riculture APPROVED AS TO LEGAL SUFFI C LENCY: L~ad[gp~rtm;n~' '- 78 79 8O C~FIED AS TO AVA~ILITY OF FUNDS: Director of Finance -~ ROBERT R. LUSK AND BETTY S. LUSK, TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST, the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-12) TABLE OF CONTENTS (This Table of Coments is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Page RECITALS ............................................... 1 AGREEMENTS ........................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ................................ 2 Rules of Construction ......................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ...... 4 Delivery of Deed of Easement .................... 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ....................... 5 Registration and Transfer of this Agreement ........... 5 Mutilated, Lost, Stolen or Destroyed Agreement ........ 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City ............ 7 Representations and Warranties of the Seller .......... 8 Section Paee -- ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of City .............. 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6. ! SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ...................... 9 Ownership of Agreement ....................... 10 Removal of Registrar and Appointment of Successor Registrar ......................... 10 Qualifications of Successor Registrar .......... 10 Successor by Merger or Consolidation .............. 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ........................... 10 Parties in Interest ........................... 11 Binding Effect ............................. 11 Severabllity .............................. 11 Prior Agreements Cancelled; No Merger ............ 11 Amendments, Changes and Modifications ............ 11 No Personal Liability of City Officmls .............. 11 Governing Law ............................. 12 Notices .................................. 12 Holidays ................................. 12 Signatures and Seals ......................................... 13 EXHIBIT A- EXHIBIT B - EXHIBIT C- EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section EXHIBIT E- Transfer of Agreement - Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-12) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the ~ day of , 199_ between ROBERT R. LUSK and BETTY S. LUSK, TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance, the C~ty has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: ARTICLE 1 DEFINITIONS SECTION 1 1 Definitions As used in this Agreement, the following terms have the following meanings, unless the context clearly indicates a different meaning "Agricultural Use" means (0 the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (10 the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach C~ty Code, and (l~l) accessory uses directly related to agricultural activities conducted on the same property, ~ncluding the sale of agricultural products as permitted by Section 401 ot the Virginia Beach City Zoning Ordinance The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed "City" means the City of Virginia Beach, Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns "City Council" means the Council of the City "City Manager" means the City Manager of the City "Code" means the Internal Revenue Code of 1986, as amended Each reference to the Code herein shall be deemed to include the United States Treasury Regulations In effect or proposed from time to time w~th respect thereto "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof "Development Rights" mean the rights of the Seller m the Land to develop the Land for any use other than an Agricultural Use Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, lndustrml or residential use except as expressly permitted by the Ordinance "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10 1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights ~n and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate "Interest Payment Date" means June 1 and December 1 in each yeal, commencing ,199 -- "Land" means the tract or tracts of land located in Virginia Beach, Virginia, contalmng approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to tlme "Permitted Encumbrances" mean the encumbrances hsted on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City "Person" or "person" means any natural person, firm, assoclanon, corporation, company, trust, partnership, public body or other entity "Purchase Price" means $587,626, the purchase price to be paid by the City to the Registered Owner in accordance w~th this Agreement "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date "Registered Owner" means the registered owner of th~s Agreement as shown on the registration books maintained by the Registrar "Registrar" means First Un~on National Bank ol Vlrg~ma or any other person hereafter appointed by the C~ty to act as Registrar and paying agent tot this Agreement "Seller" means, collecnvely, Robert R Lusk and Betty S Lusk, Trustees of the Robert R and Betty S Lusk Family Trust "State" means the Commonwealth of V~rg~ma SECTION 1 2 Rules of Construcnon (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in ~ts entirety (b) The terms "agree" and "agreements" contained herein are ~ntended to ~nclude and mean "covenant" and "covenants" (c) References to Arncles, Secnons, and other subdiv~s~ons of th~s Agreement are to the designated Articles, Secnons, and other subdivisions of th~s Agreement (d) The headings of th~s Agreement are for convemence only and shall not define or limit the provisions hereof (e) All references made O) In the neuter, masculine or feminine gender shall be deemed to have been made m all such genders, and (u) ~n the s~n,gular or plural number shall be deemed to have been made, respectively, ~n the plural or singular number as well ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2 1 Agreement to Sell and Purchase Development Rights The Seller agrees to sell the Development Rights ~n the Land to the C~ty and the C~ty agrees to purchase the Development Rights ~n the Land from the Seller on the date hereof for the Purchase Price SECTION 2 2 Delivery of Deed of Easement In order to evidence the sale of the Development R~ghts to the City, the Seller shall execute and deliver to the C~ty on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof The Deed of Easement shall be recorded ~n the Clerk's Office of the C~rcm t Court ot the C~ty ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3 1 Payment of Purchase Price (a) The C~ty shall pay the pnncipal portion of the Purchase Price to the Registered Owner In a single installment on ,202_ [25-year maturity date] The Purchase Price is $587,626. (b) Interest on the unpmd principal balance of the Purchase Price shall accrue from the date of recordanon of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and ~nclud~ng ,202_, at the rate of__% per annum Interest shall be calculated on the bas~s of a 360-day year of twelve 30-day months (c) Both the single installment of principal of the Purchase Price and th e ~nterest on the unpaid balance thereof are payable in lawful money of the United States ot America at the ume of payment (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City mmntalned by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as ~t appears on such registration books The single ~nstallment of principal of the Purchase Price shall be paid on the pnnclpal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpmd balance of the Purchase Price ~s a general obhganon of the City, an d the full faith and credit and the unlimited taxing power of the City are ~rrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable SECTION 3 2 Registration and Transfer of th~s Agreement (a) Until the Purchase Price and all interest thereon have been paid in full, the C~ty shall maintain and keep at the offices of the Registrar, registranon books for the registration and transfer of th~s Agreement, and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Regis trar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums s hall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated. Lost. Stolen or Destroyed Aereement. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The City makes the following representations and warranties: of the State. (a) The City is a body politic and corporate and a political subdivision (b) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Revresentations and Warranties of the Seller. makes the following representations and warranties: The Seller (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 539-22-1845 (for Robert R. Lusk) and 224-40-1989 (for Betty S. Lusk). The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by frae, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledmnent of Seller with Re~ard to Tax Consequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross inco me of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registr0x. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in go od faith buy, sell, own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may als o engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did no t act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor l~,gittl.~. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar' s duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 0ualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City_. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. 10 SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severabilitv. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement sha 11 be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled: No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In add ition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart o f any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability_ of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. 11 SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 Seller: Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust 4275 Harbor View Drive Coeur d'Alene, Idaho 83814 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holida_vs. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) ,(SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy City Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of ,19~, by (SEAL) My Commission Expires: Notary Public 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 ,by . Notary Public (SEAL) My Commission Expires' 15 EXHIBIT A FORM OF DEED OF EASEMI~NT [SEE ATTACHED] 16 EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 17 EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 18 ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 19 ExmBIT E TRANSFER OF AGREEMENT - SCH~EDULI~ OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar . . 20 This instrument was prepared by V~rg~ma Beach City Attorney's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 58.1-81 l(c)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this~ day of ., 1997, by and between ROBERT R. LUSK and BETTY S. LUSK TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body pohtic and corporate of the Commonwealth of Virgima (the "City") whose address is Municipal Center, Virginia Beach, Virgima 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, V~rginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acqmsition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantors Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 2318-37-9111, 2318-46-1320, 2318-35-7902, 2318-75-2690, 2318-75-4150, 2318-45- 0030, 2318-56-4380, 2318-76-2269 and 2318-86-7351 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general wan'anty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS. COVENANTS, CONDITION8 AND AOREEMENT$ A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, nmning with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the productmn of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (n) the repair, expansion or replacement of no more than one (1) bona fide dwelhng occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any fight of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. ii{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and fights set forth herein. GRANTOR: .(SEAL) Robert R. Lusk, Trustee of the Robert R. and Betty S. Lusk Family Trust (SEAL) Betty S. Lusk, Trustee of the Robert R. and Betty S. Lusk Family Trust COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ., 1997, by Robert R. Lusk and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust, Grantor. Notary Public (SEAL) My Commission Expires: EXHIBIT A PARCEL ONE ALL THAT certain tract, piece or parcel of land, with the buildings and improvements thereon, situate ~n the City of' Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and bounded and described as follows: BEGINNING at a concrete post, a comer of the lands of J. D. Salmons and M. C. Carroll, thence running in a westerly direction by the property formerly Max Rossger's to a ditch; thence down said ditch in a westerly direction to end of said ditch; thence continuing in a westerly direction in a straight line to a lead ditch; thence turning and running in a westerly direction in a straight hne across the field to the main Public Road; thence turning and running in a Southern direction down said road Two hundred and fifty-three yards to Williams Ackiss land; thence in a easterly down a lead ditch by said William Ackiss land to the property of the Granby Street Realty Corporation and thence down said ditch to what was formerly a comer of J. J. Drewry's land, now owned by O. J. Spann; thence turning and running in a northerly direction in a strmght line to the point of beginning and containing Fifty (50) acres, more or less. PARCEL TWO ALL THAT certain tract or parcel of land, lying in Morris' Mack, {Neck??} the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and containing eighty (80) acres, more or less, and bounded and described as follows: BEGINNING at an oak at the Northeast comer of Max Rossger's land, formerly the lands of W. F. Cason, and running a Western course to the Public Road and Bound{ed??} on the South by the lands of Max Rossger, formerly the land ofW. F. Cason, thence running North along the Public Road to the lands of J. W. Bright and bounded on the West by the lands of Devainey Bruce, formerly the lands of Mahaley Grimstead, thence turning East to a point where the lands of J. W. Bright intersect and bound{ed??} on the North by the lands of J. W. Bright, thence running South to the oak, aforesaid, the place of beginning, and bounded on the East of J. W. Bright. PARCEL 3 ALL OF THAT certain tract, piece or parcel of land, with the improvements thereon, situated in Back Bay, in the City of V~rginia Beach (formerly Pungo District, Princess Anne County), Virginia, and bounded as follows: On the North by the land belonging to the estate of Thos. Campbell, deceased, on the West by the land belonging to the estate of Bennet Randolph, deceased, and the land of Robert H. Dudley; on the South by the lands of the said Dudley and D. Salmons and on the East by Walke's Marsh, containing Forty-seven (47) acres, more or less. PARCEL 4 ALL THAT certain tract and parcel of land, with the buildings and improvements thereon, situated in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, containing Thirty-seven and eight- tenths (37.8 acres, more or less, as shown on a plat and survey thereof made by W. B. Gallup, C. E., March 28, 1934, and recorded in Map Book No. 10, page 78, in the Clerk's Office of the Circmt Court of the City of Virginia Beach (formerly Princess Anne County), Virginia. PARCEL ALL THAT certain tract and parcel of land, with the buildings and improvements thereon, situated in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, containing 66 acres, more or less, bounded as shown by the deed from Samuel Doudge and wife to Delaware Salmons, dated March 9, 1850, recorded in Deed Book 43, page 550, in the Clerk's Office of said City, as follows: Beginning at a pine in the marsh and running Westwardly binding the land of William Carroll and Thomas Grimstead to a comer in Robert H. Dudley's line; thence Northwardly, binding said Dudley to a comer in Thos. Campbell, Sr.'s line; thence Eastwardly binding said Thos. Campbell Sr.'s line to the marsh, and thence Southwardly down a hne of marked trees to the first station. PARCEL 6 ALL THAT certain piece or parcel of land lying and being in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and bounded and described as follows: on the North by the lands of T. A. Williams, formerly Junius W. Bright; on the East by the lands of Guy M. Salmons, formerly J. J. Drewery; on the South by the lands of Claudius D. Ackiss and on the West by the lands of J. W. Whitehurst, containing Eight (8) acres, more or less. PARCEL 7 ALL OF THAT certain tract, piece or parcel of land, including riparian rights and the appurtenances thereunto belonging, s~tuate, lying and being in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia; the same being a triangular shaped parcel of land and being more particularly bounded and described as follows: ON THE North by the lands now or formerly belong to T. Williams; on the East by the land now or formerly belonging to Claud Ackiss, and on the South by the North side of a road which separates this pared of land fi.om the remaining land of Max Rossger; the apex of said triangle being an oak between the land of Max Rossger and T. Williams. THIS LAND is subject to a fight of way reserved by J. J. Drewrey in a deed fi.om J. J. Drewrey to V. H. Kellam, duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly Princess Anne County). LESS AND EXCEPT a portion of the above property reserved unto Hattie James Lawrence and George Lawrence, her husband, starting at a point in the Northern line of State Route #759, where such road intersects the Eastern line of State Route #663, and from said point measuring thence in an Easterly direction along the Northern line of State Route #759,831'; thence continuing along the Northern line of Salmons Road, South 57° 30' East, 1028' to a point, the POINT OF BEGINNING; thence North 25° East, 210' to a pipe; thence South 57° 30' East, 105' to a pipe; thence South 25° West, 210' to the Northern side of Salmons Road; thence North 57° 30' West, along the Northern side of Salmons Road, 105' to a pipe, the point ofbeginmng; the said piece or parcel of land conta~mng 0.5 acres of land, more or less. PARCEL 8 BEGINNING at a gum, a corner with J. W. Bright, George Smith and this tract thence South 78-3/4 o E. 1.08 chains to a pine; thence S. 70-1/2° E. 2.31 chains to a holly, thence S. 75-3/4 o E. 5.20 chains to an oak, thence 79° E. 3.05 chains to a gum, thence S. 79-3/4° E. 1.88 {chatns??} to a pine, thence N. 87-3/4° E. 16.12 chains to a station in the center of Devil Cree {k???}, thence S. 76-1/4° E. 19.69 chains to a corner with J. W. Bright, Edward Whitehurst & W. T. Munden, and this tract, thence S. 13-1/4° E. 11 chains to a post corner with William N. Ackiss, Edward Whitehurst, William T. Munden and this tract, thence N. 76-1/4° W. 1.78 chains to a pine, thence N. 76-1/4° W. 14.73 chains, thence N. 76-1/4° W. 1.84 chains to a pine, in the edge of the marsh, thence N. 76- 1/2° W. 11.58 chains to a gum in the edge of the marsh, thence N. 77-1/4° W. 1.74 chains to a gum, thence N. 80° W. .94 chains to a gum, thence N. 76-3/4° W. 1.65 chains to a gum on the North side of William N. Ackiss' North ditch, thence N. 80-1/4° W. 4.47 chains to a post on the south side of William N. Ackiss North ditch and corner with said Acldss, George Smith and this tract, thence N. 11-3/4 o E..92 chains to a gum, thence N. 10-3/4 o E. 2.70 chains to a pine, thence N. 11 o E. 1.82 chains to a pine, and thence North 7° E. 1.82 chains to a pine, and thence North 7° E..38 chains to a gum, the point of beginning, said tract containing 40 acres, 2 rods and 35 poles; it being the same property conveyed to J. J. Drewrey by B. D. White, Special Commissioner, by his deed dated March 26th, 1906, and duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly County of Princess Anne), State of Virginia in Deed Book 77, at page 157. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Slit Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING (as to Parcels 1-5) the same property conveyed to the grantor fi.om Betty Salmons Lusk by deed dated December 9, 1988 and recorded in the aforesmd Clerk's Office in Deed Book 2801, at page 32. IT BEING (as to Parcel 6) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 34. IT BEING (as to Parcel 7) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office ~n Deed Book 2801, at page 37. IT BEING (as to Parcel 8) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 38. EXHIBIT B PARCEL ONE ALL THAT certain tract, piece or parcel of land, with the buildings and improvements thereon, situate m the City of Virgima Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and bounded and described as follows: BEGINNING at a concrete post, a comer of the lands of J. D. Salmons and M. C. Carroll, thence running in a westerly direction by the property formerly Max Rossger's to a ditch; thence down said ditch in a westerly direction to end of said ditch; thence continuing in a westerly direction in a straight line to a lead ditch; thence turning and running in a westerly direction in a straight line across the field to the main Public Road; thence turning and running in a Southern direction down said road Two hundred and fifty-three yards to Williams Ackiss land; thence in a easterly down a lead ditch by said William Ackiss land to the property of the Granby Street Realty Corporation and thence down said ditch to what was formerly a comer ofJ. J. Drewry's land, now owned by O. J. Spann; thence turning and running in a northerly direction in a straight line to the point of beginning and containing Fifty (50) acres, more or less. PARCEL TWO ALL THAT certain tract or parcel of land, lying in Morals' Mack, [Neck??} the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and containing eighty (80) acres, more or less, and bounded and described as follows: BEGINNING at an oak at the Northeast comer of Max Rossger's land, formerly the lands of W. F. Cason, and running a Western course to the Public Road and Bound{ed??} on the South by the lands of Max Rossger, formerly the land ofW. F. Cason, thence running North along the Public Road to the lands of J. W. Bright and bounded on the West by the lands of Devainey Bruce, formerly the lands of Mahaley Grimstead, thence turning East to a point where the lands of J. W. Bright intersect and bound{ed??} on the North by the lands of J. W. Bright, thence running South to the oak, aforesaid, the place of beginning, and bounded on the East of J. W. Bright. PARCEL 3 ALL OF THAT certain tract, piece or parcel of land, with the improvements thereon, situated in Back Bay, in the City of Virginia Beach (formerly Pungo District, Princess Anne County), Virginia, and bounded as follows: On the North by the land belonging to the estate of Thos. Campbell, deceased, on the West by the land belonging to the estate of Bennet Randolph, deceased, and the land of Robert H. Dudley; on the South by the lands of the said Dudley and D. Salmons and on the East by Walke's Marsh, containing Forty-seven (47) acres, more or less. PARCEL 4 ALL THAT certain tract and parcel of land, with the buildings and improvements thereon, situated in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, containing Thirty-seven and eight-tenths (37.8 acres, more or less, as shown on a plat and survey thereof made by W. B. Gallup, C. E., March 28, 1934, and recorded in Map Book No. 10, page 78, in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly Princess Anne County), Virginia. PARCEL 5 ALL THAT certain tract and parcel of land, with the buildings and improvements thereon, situated in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, containing 66 acres, more or less, bounded as shown by the deed from Samuel Doudge and wife to Delaware Salmons, dated March 9, 1850, recorded in Deed Book 43, page 550, in the Clerk's Office of said City, as follows: Beginning at a pine in the marsh and running Westwardly binding the land of William Carroll and Thomas Grimstead to a comer in Robert H. Dudley's line; thence Northwardly, binding said Dudley to a comer in Thos. Campbell, Sr.'s line; thence Eastwardly binding said Thos. Campbell Sr.'s line to the marsh, and thence Southwardly down a line of marked trees to the first station. PARCEL 6 ALL THAT certain piece or parcel of land lying and being in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia, and bounded and described as follows: on the North by the lands ofT. A. Williams, formerly Jumus W. Bright; on the East by the lands of Guy M. Salmons, formerly J. J. Drewery; on the South by the lands of Claudius D. Ackiss and on the West by the lands of J. W. Whitehurst, containing Eight (8) acres, more or less. PARCEL 7 ALL OF THAT certain tract, piece or parcel of land, including riparian rights and the appurtenances thereunto belonging, situate, lying and being in the City of Virginia Beach (formerly Pungo Magisterial District, Princess Anne County), Virginia; the same being a triangular shaped parcel of land and being more particularly bounded and described as follows: ON THE North by the lands now or formerly belong to T. Williams; on the East by the land now or formerly belonging to Claud Ackiss, and on the South by the North side of a road which separates this parcel of land from the remaining land of Max Rossger; the apex of said triangle being an oak between the land of Max Rossger and T. Williams. THIS LAND is subject to a fight of way reserved by J. J. Drewrey in a deed from J. J. Drewrey to V. H. Kellam, duly of record in the Clerk's Office of the Circuit Court of the City of Virgima Beach (formerly Princess Anne County). LESS AND EXCEPT a portion of the above property reserved unto Hattie James Lawrence and George Lawrence, her husband, starting at a point in the Northern line of State Route #759, where such road intersects the Eastern line of State Route #663, and fi.om said point measuring thence in an Easterly direction along the Northern line of State Route #759,831'; thence continuing along the Northern line of Salmons Road, South 57° 30' East, 1028' to a point, the POINT OF BEGINNING; thence North 25° East, 210' to a pipe; thence South 57° 30' East, 105' to a pipe; thence South 25° West, 210' to the Northern side of Salmons Road; thence North 57° 30' West, along the Northern side of Salmons Road, 105' to a pipe, the point of beginning; the said piece or parcel of land containing 0.5 acres of land, more or less. PARCEL 8 BEGINNING at a gum, a comer with J. W. Bright, George Smith and this tract thence South 78-3/4 o E. 1.08 chains to a pine; thence S. 70-1/2° E. 2.31 chains to a holly, thence S. 75-3/4° E. 5.20 chains to an oak, thence 79° E. 3.05 chmns to a gum, thence S. 79- 3/4° E. 1.88 {chains??} to a pine, thence N. 87-3/4° E. 16.12 chains to a station in the center of Devil Cree {k???}, thence S. 76- 1/4° E. 19.69 chains to a comer with J. W. Bright, Edward Whitehurst & W. T. Munden, and this tract, thence S. 13-1/4° E. 11 chains to a post comer with William N. Ackiss, Edward Whitehurst, William T. Munden and this tract, thence N. 76-1/4° W. 1.78 chains to a pine, thence N. 76-1/4° W. 14.73 chains, thence N. 76-1/4° W. 1.84 chains to a pine, in the edge of the marsh, thence N. 76-1/2° W. 11.58 chains to a gum in the edge of the marsh, thence N. 77-1/4° W. 1.74 chains to a gum, thence N. 80° W..94 chains to a gum, thence N. 76-3/4° W. 1.65 chains to a gum on the North side of William N. Ackiss' North ditch, thence N. 80-1/4° W. 4.47 chains to a post on the south side of William N. Ackiss North ditch and comer with said Ackiss, George Smith and this tract, thence N. 11-3/4 o E..92 chains to a gum, thence N. 10-3/4° E. 2.70 chains to a pine, thence N. 11 o E. 1.82 chains to a pine, and thence North 7° E. 1.82 chains to a pine, and thence North 7° E..38 chains to a gum, the point of beginning, said tract containing 40 acres, 2 rods and 35 poles; it being the same property conveyed to J. J. Drewrey by B. D. White, Special Commissioner, by his deed dated March 26th, 1906, and duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly County of Princess Anne), State of Virginia in Deed Book 77, at page 157. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING (as to Parcels 1-5) the same property conveyed to the grantor fi.om Betty Salmons Lusk by deed dated December 9, 1988 and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 32. IT BEING (as to Parcel 6) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 34. IT BEING (as to Parcel 7) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 37. IT BEING (as to Parcel 8) the same property conveyed to the grantor from Betty Salmons Lusk and recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 38. EXHIBIT "C" PERMITTED ENCUMBRANCES , Taxes for the second half of the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. , Easement granted Virginia Electric and Power Company, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 204, at page 221. (affects Parcels 1, 2 & 7) , Easement granted Virginia Electric and Power Company, as established by instrument recorded in the aforesaid Clerk's Office in Deed Book 222, at page 411. (affects Parcels 1,2 & 7) . Easement granted Virginia Electric and Power Company, as established by instrument recorded in the aforesaid Clerk's Office in Deed Book 259, at page 216 (affects Parcel 2) , Easement granted Virginia Electric and Power Company, as established by instrument recorded in the aforesaid Clerk's Office in Deed Book 286, at page 111 (affects Parcel 5) , Easement granted Virginia Electric and Power Company, as established by instnunent recorded in the aforesaid Clerk's Office in Deed Book 333, at page 147 (affects Parcel 2 & 4) , Rights of others entitled thereto in and to the portion of property deemed Salmons Road as shown in Deed Book 672, at page 210. . Riparian rights and those public easements and rights for commerce, navigation, and fisheries. Any right, title or interest of the public up to the mean high water mark and those portions of described property created by artificial means including accretions thereto. 10 Rights of the United States of America and the Commonwealth of Virginia to regulate that portion of the property which may be deemed wetlands. 11. Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the fights granted to the City in the Deed of Easement. AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATI ON EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $67,898 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $67,898; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 4O funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this 24¥x day of JUN5 , 19 97. 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 70 71 72 73 CA-97-6688 wmm\ arp \purchase \ lusktr\ lusktr2, orn R-1 June 10, 1997 74 75 76 77 APPROVED AS TO CONTENT: ~riculture Department APPROVED AS TO LEGAL SUFF, I CI~NCY: La~ ~eUp~ men~ ' 78 79 8O CERTIFIED AS TO AVAILABILITY OF FUNDS: Director of Finance ROBERT R. LUSK AND BETTY S. LUSK, TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST, the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-13) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section RECITALS ............................................... 1 AGREEMENTS .......................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ................................. 2 Rules of Construction .......................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ...... 4 Delivery of Deed of Easement .................... 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ....................... 5 Registration and Transfer of this Agreement ........... 5 Mutilated, Lost, Stolen or Destroyed Agreement ........ 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City ............ 7 Representations and Warranties of the Seller ........... 8 Section Page ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of City .............. 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ....................... 9 Ownership of Agreement ....................... 10 Removal of Registrar and Appointment of Successor Registrar .......................... 10 Qualifications of Successor Registrar ............... 10 Successor by Merger or Consolidation .............. 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ........................... 10 Parties in Interest ............................ ! 1 Binding Effect .............................. ! 1 Severability ............................... 11 Prior Agreements Cancelled; No Merger ............ 11 Amendments, Changes and Modifications ............ 1 ! No Personal Liability of City Officials .............. ! 1 Governing Law ............................. 12 Notices .................................. 12 Holidays ................................. 12 Signatures and Seals ......................................... 13 EXHIBIT A- EXHIBIT B - EXHIBIT C - EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment EXHIBIT E- Transfer of Agreement- Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-12) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the ~ day of , 199_ between ROBERT R. LUSK and BETTY S. LUSK, TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. · AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows' ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. As used in this Agreement, the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, ~ncluding, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. ?- "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing ,199 . "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the C~ty Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other entity. "Purchase Price" means $67,898, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. o "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means, collectively, Robert R. Lusk and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust. "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and "agreements" contained herein are ~ntended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement tO Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ,202_ [25-year maturity date]. The Purchase Price is $67,898. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including ,202_, at the rate of ~% per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the Umted States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of ~e Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the hability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums s hall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated~ Lost, Stolen or Destroyed Agreement. In the event that this Agreement ~s mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar ewdence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Repre~entati0ns arid Warranties of the City_. The City makes the following representations and warranties. of the State. (a) The C~ty is a body politic and corporate and a political subdivision (b) The C~ty has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 539-22-1845 (for Robert R. Lusk) and 224-40-1989 (for Betty S. Lusk). The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed .by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant 0f City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross inco me of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, ~n its individual capacity or as trustee for holders of participation interests in this Agreement, may in go od faith buy, sell, own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may als o engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did no t act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar' s duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Suc.ces~0r bY Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporatton resulting from any merger or consohdation to which the Registrar hereunder shall be a party or any restitution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the executton or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or ~nstrumentality to whom or to which any power or duiy of the City shall be transferred. 10 SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporauon, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Ag reement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, ~ncluding, without limitation, all Registered Owners from nme to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement sba 11 be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled; No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In add ition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments, Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart o f any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City_ Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, an d neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. 11 SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City' City Manager Municipal Center V~rgima Beach, VA 23456 w~th a copy to C~ty Attorney Mumcipal Center Virginia Beach, VA 23456 Seller: Robert R. and Betty S. Lusk, Trustees of the Robert R. and Betty S Lusk Family Trust 4275 Harbor View Drive Coeur d'Alene, Idaho 83814 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. Ifthe date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Bus~ness Day with the same force and effect as if done on the nominal date provided ~n this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, C~ty Manager City Clerk SELLER: (SEAL) (SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy C~ty Attorney Director, Department of Finance 13 /- COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires. Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of ,19 ,by (SEAL) My Commission Expires: Notary Public 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me ~n the City of , Virginia, this day of ,19 ,by (SEAL) My Commission Expires. Notary Public 15 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 16 EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 17 EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 18 ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except .]. Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 19 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee S~gnature of Registrar 20 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar 20 Th~s ~nstmment was prepared by V~rg~ma Beach C~ty Attorney's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 58.1-811 (C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this .. day of ,1997, by and between ROBERT R. LUSK and BETTY S. LU$'K TRUSTEES OF THE ROBERT R. AND BETTY S. LUSK FAMILY TRUST (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GP1N 2318-72-7730 WHEREAS, the City has agreed to purchase the Grantors Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and ~ts successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS, COVENANTS, CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, nmning with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zomng Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. It{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and rights set forth herein. GRANTOR: ,(SEAL) Robert R. Lusk, Trustee of the Robert R. and Betty S. Lusk Family Trust .(SEAL) Betty S. Lusk, Trustee of the Robert R. and Betty S. Lusk Family Trust COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this~ day of ,1997, by Robert R. Lusk and Betty S. Lusk, Trustees of the Robert R. and Betty S. Lusk Family Trust, Grantor. Notary Public (SEAL) My Commission Expires: EXHIBIT A ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virgima Beach, Virginia and being known, numbered and desingated as 62.878 acres, GPIN 2318-72- 7730, as shown on that certain plat entitled "Plat of Property of Robert R.. and Betty Salmons Lusk Family Trust", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of %rginia Beach, Virginia in Map Book 239, at page 85. IT BEING the same property conveyed to the Grantors from Betty Salmons Lusk by deed dated December 9, 1988 recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 35. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] EXHIBIT B ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virginia Beach, Virginia and being known, numbered and desingated as 62.878 acres, GPIN 2318-72-7730, as shown on that certain plat entitled "Plat of Property of Robert R. and Betty Salmons Lusk Family Trust", which said plat is duly recorded in the Clerk's Office of the C~rcmt Court of the City of Virginia Beach, Virginia in Map Book 239, at page 85. IT BEING the same property conveyed to the Grantors from Betty Salmons Lusk by deed dated December 9, 1988 recorded in the aforesaid Clerk's Office in Deed Book 2801, at page 35. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] EXHIBIT "C" PERMITTED ENCUMB,RANCE$ . Taxes for the second half of the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. , Easement granted Virginia Electric and Power Company, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 234, at page 454-P-1, of unspecified width and location. , Easement granted Virginia Electric and Power Company, as established by instnunent recorded in the aforesaid Clerk's Office in Deed Book 286, at page 111, of unspecified width along northern lot line. , Rights of the United States of America and the Commonwealth of Virginia to regulate that portion of the property which may be deemed wetlands. 6. Terms and conditions ofthe Robert R. and Betty S. Lusk Family Trust, dated August 5, 1988. . Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATION EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $175,332 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $175,332; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 18 land preservation easement, as defined in, and in compliance with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement mn the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginma Beach, 66 Virginia, on this 24¥x day of 0uN5 , 19 9?. 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 70 71 72 73 CA-97-6689 wmm~ arp ~purchase ~brown~brown. orn R-1 June 10, 1997 74 75 76 77 APPROVED AS TO CONTENT: ~riculture De"partm~nt APPROVED AS TO LEGAL ~aw~b~partment 78 79 8O CER-T~I.F I ED_<~~~/qAS TO A, VA~OF~~~ FUNDS: Director of Finance ERNEST BROWN the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-14) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section RECITALS ............................................... 1 AGREEMENTS ........................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ................................. 2 Rules of Construction ......................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ...... 4 Delivery of Deed of Easement .................... 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ....................... 5 Registration and Transfer of this Agreement ........... 5 Mutilated, Lost, Stolen or Destroyed Agreement ........ 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City ........... 7 Representations and Warranties of the Seller ........... 8 Section ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of City .............. 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ....................... 9 Ownership of Agreement ....................... 10 Removal of Registrar and Appointment of Successor Registrar ........................ 10 Qualifications of Successor Registrar .............. 10 Successor by Merger or Consolidation .............. 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ........................... 10 Parties in Interest ........................... 11 Binding Effect .............................. 11 Severability ............................... 11 Prior Agreements Cancelled; No Merger ............ 11 Amendments, Changes and Modifications ............ 11 No Personal Liability of City Officials .............. 11 Governing Law ............................. 12 Notices ................................. 12 Holidays ................................ 12 Signatures and Seals ....................................... 13 EXHIBIT A- EXHIBIT B - EXHIBIT C- EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section Page EXHIBIT E- Transfer of Agreement - Schedule of Transferees 111 INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-14) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the ~ day of , 199_ between ERNEST BROWN (the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1 1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 Defmition~. As used in this Agreement, the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and 0a) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing , 199 . "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other entity. "Purchase Price" means $175,332, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means Ernest Brown.. "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ,202_ [25-year maturity date]. The Purchase Price is $175,332. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including ,202_, at the rate of % per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer, provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Regis trar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums s hall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated, Lost, Stolen or Destroyed Agreement. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on ~e registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu of which such substitute Agreement was issued) presents for paymen! such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The City makes the following representations and warranties: of the State. (a) The City is a body politic and corporate and a political subdivision (b) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Number of the Seller is 228-12-5290. The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsecUons could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledgment of Seller with Regard to Tax Co .nsequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross inco me of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in good faith buy, sell, own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may als o engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did no t act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar' s duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial im~titution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. 10 SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, fLrm or corporation, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Ag reement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement sha 11 be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled; NO Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In add ition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments, Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart o f any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her indiwdual capacity, an d neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. 11 SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 Seller: Ernest Brown 2248 Princess Anne Road Virginia Beach, Virginia 23456 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as prowded in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITy: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: .(SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy City Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this __ day of , 19. , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of , Virginia, this day of , 19 ,by (SEAL) My Commission Expires: Notary Public 14 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 15 EXHIBIT B _DESCRIPTION OF LAND [SEE ATTACHED] 16 EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 17 ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member fuan of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 18 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installmem Purchase Agreemem may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar , . . , . . 19 EXHIBIT A ALL THAT certain tract or parcel of land, lying and being in Blackwater District, C~ty of Virginia Beach, State of Virginia and more particularly described as follows: BEGINNING on the South side of the Head River Road at the Northwest comer of the Smith Property and the Northeast comer of the land herein conveyed, said Point of Beg~nmng being identified on the map hereinafter referred to by the Figure "1"; running thence from said Beginning Point South 14 degrees 45 minutes West 7.83 chains; thence South 31 degrees 45 minutes East 6.80 chains; thence South 9 degrees East 0.76 chains; thence South 7 degrees 30 minutes West 2.46 chains to an iron pipe; thence North 77 degrees 45 minutes East 9.53 chains; thence North 77 degrees 30 minutes East 2.81 chains; thence North 82 degrees East 6.65 chains to the mn of a swamp; thence with the mn of the swamp following courses and distances: South 20 degrees 15 minutes East 2.84 chains; South 12 degrees West 9.83 chains; South 23 degrees East 1.73 chains; South 39 degrees 45 minutes West 1.40 chains; South 4 degrees 10 minutes East 0.87 chains; South 51 degrees 40 minutes West 5.23 chains; South 37 degrees West 1.12 chains; South 57 degrees 15 minutes West 2.73 chains; South 77 degrees 45 minutes West 0.90 Chains; South 61 degrees West 3.00 chains; South 41 degrees West 1.39 chains to a creek; thence down the creek the following courses and distances: North 81 degrees 15 minutes West 2.56 chains; thence South 79 degrees 45 minutes West 4.14 chains; South 46 degrees West 1.35 chains; South 14 degrees 45 minutes East 5.77 chains; South 4 degrees 45 minutes East 5.80 chains; South 25 degrees West 1.73 chains; South 33 degrees East 6.43 chains; South 29 degrees 45 minutes West 3.17 chains; South 57 degrees West 3.16 chains to a branch of Blackwater River; thence with said branch of Blackwater River North 60 degrees West 13.51 chains; North 77 degrees 30 minutes West 2.00 chains; North 43 degrees 15 minutes West 2.17 chains; North 30 degrees 30 minutes West 3.49 chains; North 10 degrees 30 minutes West 3.90 chains; North 36 degrees East 2.49 chains; North 7 degrees 40 minutes West 3.75 chains; North 21 degrees West 1.45 chains; North 18 degrees 20 minutes East 2.00 chains; North 38 degrees 45 minutes West 2.38 chains; North 25 degrees 30 minutes East 2.18 chains; North 82 degrees 45 minutes West 1.21 chains; North 19 degrees 30 minutes West 2.42 chains; North 74 degrees West 1.41 chains to the center of a ditch; thence with said ditch North 43 degrees 30 minutes East 14.59 chains; thence continuing with said ditch North 39 degrees West 10.29 chains to an iron pin; thence North 40 degrees East 4.37 chains; thence South 14 degrees 15 minutes West 5.36 chains; thence South 74 degrees 30 minutes East 6.54 chains; thence North 13 degrees 45 minutes East 0.15 chains; thence South 74 degrees 30 minutes East 4.85 chains to an iron pipe; thence North 13 degrees 45 minutes East 16.57 chains to an axle on the South side of Head River Road thence with said road South 75 degrees 10 minutes East 0.42 chains to the Point of Beginning, containing 115.3 acres, more or less. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING the same property conveyed to the grantor from Weyerhaeuser Real Estate Company, a Washington Corp. authorized to do business in North Carolina by deed dated February 1, 1984 and recorded in the Clerk's Office of the Circuit Court of the City Virginia Beach in Deed Book 2326, at page 1398, subject to a mineral reservation in Deed Book 2326, at page 1398 and in Deed Book 2082, at page 132. EXHIBIT B ALL THAT certain tract or parcel of land, lying and being in Blackwater District, City of Virginia Beach, State of Virginia and more particularly described as follows: BEGINNING on the South side of the Head River Road at the Northwest comer of the Smith Property and the Northeast comer of the land herein conveyed, said Point of Beginning being identified on the map hereinafter referred to by the Figure "1"; running thence fi.om said Beginning Point South 14 degrees 45 minutes West 7.83 chains; thence South 31 degrees 45 minutes East 6.80 chains; thence South 9 degrees East 0.76 chains; thence South 7 degrees 30 minutes West 2.46 chains to an iron pipe; thence North 77 degrees 45 minutes East 9.53 chains; thence North 77 degrees 30 minutes East 2.81 chains; thence North 82 degrees East 6.65 chains to the run of a swamp; thence with the run of the swamp following courses and distances: South 20 degrees 15 minutes East 2.84 chains; South 12 degrees West 9.83 chains; South 23 degrees East 1.73 chains; South 39 degrees 45 minutes West 1.40 chains; South 4 degrees 10 minutes East 0.87 chains; South 51 degrees 40 minutes West 5.23 chains; South 37 degrees West 1.12 chains; South 57 degrees 15 minutes West 2.73 chains; South 77 degrees 45 minutes West 0.90 Chains; South 61 degrees West 3.00 chains; South 41 degrees West 1.39 chains to a creek; thence down the creek the following courses and distances: North 81 degrees 15 minutes West 2.56 chains; thence South 79 degrees 45 minutes West 4.14 chains; South 46 degrees West 1.35 chains; South 14 degrees 45 minutes East 5.77 chains; South 4 degrees 45 minutes East 5.80 chains; South 25 degrees West 1.73 chains; South 33 degrees East 6.43 chains; South 29 degrees 45 minutes West 3.17 chains; South 57 degrees West 3.16 chains to a branch of Blackwater River; thence with said branch of Blackwater River North 60 degrees West 13.51 chains; North 77 degrees 30 minutes West 2.00 chains; North 43 degrees 15 minutes West 2.17 chains; North 30 degrees 30 minutes West 3.49 chains; North 10 degrees 30 minutes West 3.90 chains; North 36 degrees East 2.49 chains; North 7 degrees 40 minutes West 3.75 chains; North 21 degrees West 1.45 chains; North 18 degrees 20 minutes East 2.00 chains; North 38 degrees 45 minutes West 2.38 chains; North 25 degrees 30 minutes East 2.18 chains; North 82 degrees 45 minutes West 1.21 chains; North 19 degrees 30 minutes West 2.42 chains; North 74 degrees West 1.41 chains to the center of a ditch; thence with said ditch North 43 degrees 30 minutes East 14.59 chains; thence continuing with said ditch North 39 degrees West 10.29 chains to an iron pin; thence North 40 degrees East 4.37 chains; thence South 14 degrees 15 minutes West 5.36 chains; thence South 74 degrees 30 minutes East 6.54 chains; thence North 13 degrees 45 minutes East 0.15 chains; thence South 74 degrees 30 minutes East 4.85 chains to an iron pipe; thence North 13 degrees 45 m~nutes East 16.57 chains to an axle on the South side of Head River Road thence with said road South 75 degrees 10 minutes East 0.42 chains to the Point of Beginning, containing 115.3 acres, more or less. LESS AND EXCEPT all pomons of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING the same property conveyed to the grantor from Weyerhaeuser Real Estate Company, a Washington Corp. authorized to do business in North Carolina by deed dated February 1, 1984 and recorded in the Clerk's Office of the Circuit Court of the City Virginia Beach in Deed Book 2326, at page 1398, subject to a mineral reservation in Deed Book 2326, at page 1398 and in Deed Book 2082, at page 132. EXHIBIT "C" pERMITTED ENCUMBRANCES l, . 1 , . . . . Taxes for the second half of the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. Roll Back Taxes. Land Management Agreement with the City of Virginia Beach as recorded in the aforesaid Clerk's Office in Deed Book 3701, at page 9 and shown in Map Book 256, at page 94. Reservation of Mineral Rights recorded in the aforesaid Clerk's office in Deed Book 2326 at page 1398 and in Deed Book 2082, at page 132. Rights to the United States of America and the Commonwealth of Virginia to regulate that portion of the property which may be deemed wetlands. Riparian fights and those public easements and rights for commerce, navigation, and fisheries. Any fight, title, or interest of the public up to the mean high water mark and those portions of described property created by artificial means including accretions thereto. Rights of others entitled thereto in and to the ditches. Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. This instrument was prepared by V~rgtma Beach C~ty Attorney's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 8.1-811(C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this day of ., 1997, by and between H. ERNEST BROWN and {m. arttal sta. tus] , his wife (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1389-41-7157 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors mad assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and Enghsh covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS, COVENANTS, CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products fi.om horticultural, silvicultural or aquacultural activity, (i0 the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accesso .ry uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any fight of entry or access or any fights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infi'astmcture improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. ii{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and fights set forth herein. GRANTOR: H. ERNEST BROWN .(SEAL) (SEAL) COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of ,1997, by H. Ernest Brown and , his wife, Grantor. Notary Public (S~L) My Commission Expires: - 29 - Item V-J. 2. ORDINANCES ITEM # 42299 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to APPROPRIATE $38,500 from the General Fund Balance for a Grant to the Creeds Volunteer Rescue Squad re purchase of a replacement squad truck. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Ltnwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. OberndorJ;, Wilham W. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE TO APPROPRIATE $38,500 FROM THE GENERAL FUND, FUND BALANCE FOR THE PURPOSE OF PROVIDING A GRANT TO THE CREEDS VOLUNTEER RESCUE SQUAD FOR THE PURCHASE OF A REPLACEMENT SQUAD TRUCK WHEREAS, the Creeds Volunteer Rescue Squad has determined that the current squad truck has a h~gh maintenance hab~hty and has often experienced service fmlures, WHEREAS, the Creeds Volunteer Rescue Squad apphed for and received a State Rescue Squad Assistance Grant ~n the amount of $70,000, which equals 50% of the $140,000 replacement cost of the squad truck, WHEREAS, the Creeds Volunteer Rescue Squad has raised a total of $31,750 towards the necessary matching funds, however, because of the smaller donor base of the Creeds area and because of other future replacement needs for ambulances, Creeds Volunteer Rescue Squad does not have the fund-raising ab~hty to repay a loan, and 10 11 WHEREAS, the C~ty Council has estabhshed a grant program as well as an ~nterest-free loan program to provide funding for replacement needs of volunteer rescue squads 12 13 14 NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that $38,500 from the General Fund, fund balance be appropriated as a grant to the Creeds Volunteer Rescue Squad for the purpose of purchasing a replacement squad truck 15 Adopted by the Council of the C~ty of V~rg~ma Beach, V~rg~nla on the 24 Tt-I day of JUNE ,1997 APPROVED AS TO Approved as to Content - 30- Item V-J. 3. ORDINANCES ITEM # 42300 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE a $17,860 Federal Grant to the FY 1996-1997 Department of Social Services Operating Budget re the Building a Better Bayside Through Juvenile Delinquency Prevention program; and, increase estimated revenue accordingly. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba $. McClanan, Vice Mayor Wilham D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay' None Council Members ,4bsent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE TO ACCEPT AND APPROPRIATE AN ADDITIONAL $17,860 IN FEDERAL GRANT FUNDING TO THE FY 1996-97 DEPARTMENT OF SOCIAL SERVICES OPERATING BUDGET WHEREAS, the in April 1995, the Department of Social Services was awarded a grant funded through the V~rg~nia Department of Cnminal Justice Services for the 0 But/ding a Better Bayside Through Juvenile Delinquency Prevention program, WHEREAS, the grant has been designed to prowde mtervenbons at Bays~de 8 M~ddle School and Bays~de H~gh School which w~ll assist students ~n developing 9 alternabve methods of resolving d~sputes, provide support to ~mprove their self-esteem, 10 and prowde ~nformabon about a variety of issues which are affecbng our young people; 11 WHEREAS, the Department has been awarded $17,860 for a third year of the 12 grant funding for the Buildtng a Better Bayside Through Juvenile Dehnquency Prevent/on program; and 14 WHEREAS, the required match funding of $14,625 w~ll be provided through in- 15 k~nd (not cash) services provided through the Virginia Beach Public Schools 16 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 17 VIRGINIA, that $17,860 in grant funding be appropnated to the Department of Social !8 Services FY 1996-97 Operating Budget, BE IT FURTHER ORDAINED, that estimated revenue from grant funding be ~ncreased 20 by $17,860 Adopted by the C~ty Council of the C~ty of V~rg~nla Beach, Virginia, on the 22 24.TH , day of JI,,JNE , 1996. Th~s ordinance shall be effective from the date of its adoption. APPROVED AS TO CONTENT E D I~lock, I~lrecto-'~ Department of Management Services I' \u~cm~nl~,cntry~nhmr~apprtra ()rd - 31 - Item V-J. 4. ORDINANCES ITEM # 42301 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to TRANSFER Personnel and Operating Budget Spending Authority (not to exceed $805,980)from the Virginia Beach Public Schools Reprographics Internal Service Fund to the City's FY 1997-1998 "City/Schools Printing Services Internal Service Fund"; and, transfer four FTE positions to the City pay plan, effective 1 July 1997. Voting: 8-0 (By ConsenO Council Members Voting ~4ye: John ~4. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louts R Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay' None Council Members ~4bsent: Mayor Meyera E. Oberndorf, William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE TO TRANSFER PERSONNEL AND OPERATING BUDGET SPENDING AUTHORITY FROM THE VIRGINIA BEACH CITY PUBLIC SCHOOLS REPROGRAPHICS INTERNAL SERVICE FUND TO THE CITY'S "CITY/SCHOOLS PRINTING SERVICES INTERNAL SERVICE FUND" WHEREAS, on June 3, 1997, the School Board of the Vtrgn'na Beach Public Schools approved the consohdataon of the Vn'gtma Beach Pubhc Schools Reprograpbacs Shop and the Caty's Print Shop into the "C~ty/Schools Printing Sermces Internal Serrate Fund", 10 11 WHEREAS, the Councul of the C~ty of Vn'glma Beach adopted an ordinance on June 10, 1997 authorizing the C~ty Manager to execute an agreement for the consohdat~on of two internal servme fund agencms including the Vtrgtma Beach Pubhc Schools Reprograplucs Shop and the C~ty's Print Shop into the "C~ty/Schools Prmttng Sennces Internal Sermce Fund", 12 13 WHEREAS, flus agreement called for the Schools Reprograptucs personnel and budget to be combined xaath the C~ty Print Shop Internal Serrate Fund personnel and budget to be effective July 1, 1997, and 14 15 WHEREAS, the agreement called for the School Reprograptucs personnel to be transferred to and estabhshed m the C~ty pay plan, and for pos~t~on tatles and pay to be adjusted aecordtngly 16 17 18 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that expenditure authority to spend funding not to exceed $805,980 be transferred from the Schools Reprographms Internal Servace Fund to the "C~ty/Schools Prmtmg Serrates Internal Service Fund" for the FY 1997-98 Operating Budget 20 21 22 23 24 25 BE IT FURTHER ORDAINED that the four full-tune eqmvalent positrons from the Schools Reprograplucs Internal Servme Fund be transferred to the C~ty pay plan and estabhshed tn the "C~ty/Schools Printing Sermces Internal Service Fund" effectave July l, 1997 Ttus ordinance shall be effective from the date of adoplaon Adopted by the Council of the C~ty of Vu'gtma Beach, Vtrgaua on the ~;t JN~ ,1997 day of 26 27 28 APPROVED AS TO CONTENT DEPARTMENT OF MANAGEMENT SERVICES APPROVED AS TO LEGAL SUFFICIENCY AND FORM CITY ATTORNEY 29 c ~budgetLO7-98koshopc, on ord vol 61 June 16, 1997 sgh - 32 - Item V-J. 5. ORDINANCES ITEM # 42302 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance re a Cooperative Agreement between Virginia Beach City Council and the Virginia Beach School Board re FY 1997-1998 legal services to the Board by the Office of the City Attorney. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndor~, William W.. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE APPROVING A COOPERATIVE AGREEMENT BETWEEN CITY COUNCIL AND THE VIRGINIA BEACH SCHOOL BOARD PERTAINING TO THE PROVISION OF LEGAL SERVICES TO THE BOARD BY THE OFFICE OF THE CITY ATTORNEY IN FISCAL YEAR 1997-98 10 WHEREAS, the Office of the City Attorney provided legal 11 services to the Virginia Beach School Board and School 12 Administration in FY 1996-97 pursuant to a "Cooperative Agreement" 13 which was approved by the Board on November 5, 1996, and by City 14 Council on November 26, 1996; 15 WHEREAS, the "Cooperative Agreement" for FY 1996-97, 16 which expires on June 30, 1997, provides that "[t]his Cooperative 17 Agreement ... may be revised, as necessary, and renewed each fiscal 18 year ...; 19 WHEREAS, a "Cooperative Agreement" for FY 1997-98, which 20 includes minor revisions to the FY 1996-97 Agreement primarily 21 intended to clarify the relationship of the parties and the 22 responsibilities of the City Attorney, was approved by the School 23 Board at its meeting of June 17, 1997; and 24 WHEREAS, City Council agrees that it is in the best 25 interests of the City and the School Board for the Office of the 26 City Attorney to continue to provide legal services to the School 27 Board pursuant to the revised "Cooperative Agreement" for FY 1997- 28 98. 29 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 30 OF VIRGINIA BEACH, VIRGINIA: 31 1. That City Council hereby approves the Cooperative 32 Agreement which is attached hereto; and 33 2. That the Mayor is hereby authorized to execute the 34 Cooperative Agreement on behalf of the City Council. 35 Adopted by the Council of the City of Virginia Beach, 36 Virginia, on the 247H day of J~45 , 1997. 37 38 39 40 41 42 43 44 CA-6704 ORDIN~NONCODE~LEGALSERV2.ORD R-1 PREPARED: 06/18/97 APROVED AS TO LEGAL SUFFICIENCY -Department of Law REVISED 06/17/97 COOPERATIVE AGREEMENT BETWEEN THE CITY COUNCIL AND THE SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH PERTAINING TO LEGAL SERVICES TO BE PROVIDED TO THE SCHOOL BOARD AND SCHOOL ADMINISTRATION BY THE OFFICE OF THE CITY ATTORNEY IN FISCAL YEAR ~J)96-1-99-7 1997-98 Factual Background; 1. Chapter 9 of the Charter of the City of Virginia Beach, Virginia ("City Charter") provides that the City Attomey shall be the chief legal advisor of the City Council, the City Manager, and of all departments, boards, commissions and agencies of the City in all matters affecting the interests of the City, and that he shall have such powers and duties as may be assigned by the Council. 2. The City Charter also provides that the City Attorney is appointed by the City Council and serves at its pleasure. 3. The School Board is established by the Virginia Constitution, the City Charter, and provisions of general law, and ~s a body corporate vested with all of the powers and duties of local school boards conferred by law, lnclud~ng the right to contract and be contracted with, to sue and be sued, and to purchase, take, hold, lease, and convey school property both real and personal. 4. The School Board ~s authorized by Section 22.1-82 of the Code of Virginia (1950), as amended, to employ counsel to advise it, and to pay for such advice out of funds appropriated to the School Board. 5. S~nce the Inception of the C~ty and ~ts School Board, the Office of the City Attorney has prowded legal services to the School Board and School Adm~mstrat~on in certmn matters with the consent of both bodies. 6. Both the City Council and the School Board ~,,.,,,~ o ,.,,~,,,,,. recogmzed that the reasons for sharing services of the (~lty Attorney's Office include potentual sawngs to taxpayers, expertise of the (~lty Attorney's Office ~n City and School Board matters, corporate history_, and the ability of the (~lty Attorney's Office to provide a wide range of legal services to the Board based upon the expemse of the attorneys in numerous spec~ahzed areas of the law. 7. Generally, the Office of the C~ty Attorney has provided day-to-day legal services to the School Board with respect to real estate matters, representation of the Board on personnel matters, general adrmmstratave and procedural ~ssues, and minor htigatlon, and the School Board has employed independent legal counsel in matters involving special education, representation of School Adrmmstrat~on on personnel ~ssues, and most lltlgat~on, especially where the Board is ~ndemnlfied by insurance. 8. Prior to FY t-994 ! 993-94, the Office of the City Attorney h~n~nea~ allocated apprommately one-third of an attorney's time (500 hours) annually to school matters; however, this allocation, funded 100% by the City, was routinely exceeded. 9. In Cooperative Agreements entered into by and between the C~ty Council and the School Board for FY 1994-95 and FY 1995-96, it was recogmzed that, at a nunimum, the eqmvalent of one full-time attorney posit~on of approximately 1650 hours w~th staff support was necessary to adequately perform the level of service historically provided to the Board, and that new ;ssues would continue to evolve with the advent of an elected School Board wtuch maght alter or enlarge the amount of legal services that the School Board would want to be provided by the Office of the City Attorney. of the City Attorney ~o will provide the equivalent of two (2) full-time attorney posmons (or 3300 hours per year) and one (1).. secretarial _OOSlUOn beg~nmng J,,.,,,,j' ........... July 1, 1997; ,,, ,,o 11. The V~rglnla Code of Professional Responsibility for the Legal Profession reqmres the independent professional judgment of the Office of the City Attorney on behalf of its chents. 12. The City Council and the School Board recognize that the potential for conflicting mterests between the Council and the Board may arise;, and that. m such cases, the City Attorney must refrain from representation of interests which may conflict. 13. The City Council and the School Board also recognize that they must work together and w~th the City Attorney to ldenufy any real or perceived potenual for conflict at the earhest possible t~me, advise each other and the City Attorney of any such conflict as soon as it arises so as not to comprormse the interests of the City Council or the School Board, and assist the City Attorney m avmdmg any violation or appearance of wolation of the Code of Professional Respons~bihty. 14. The City Council and the School Board further recognize that ~t remmns in the best interest of the taxpayers of the Clty for the School Board to continue to use the legal servmes of the Office of the C~ty Attorney to the extent that no real or perceived conflict is present, and to the extent the C~ty Attorney is budgeted and staffed to handle assigned legal business of the Board. Objectives: The objective of flus Cooperative Agreement ~s to define the scope and nature of the relationship between the City Attorney's Office and the School Board, to provide for the delivery of designated legal services to the School Board, and to avoid any real or perceived conflmt ~n the delivery of those services. Agreement: NOW, THEREFORE, the City Council and the School Board hereby agree as follows: 1. The Office of the C~ty Attorney will dedicate one full-t~me attorney at a m~nimum of the Attorney IV level, or as otherwise mutually agreed. ";ho The dedicated attorney will be located m the School Adm~mstrat~on Bmld~ng and will devote all of his/her time (i e., 1650 hours per year) to the provas~on of legal services to the School Board and School Adrmmstratlon. 2. Dunng the term of th~s Agreement, the dedicated attorney shall be John F. Newhard, Jr., subject to reassignment ~n the judgment of the C~ty Attorney; provided, however, that selection of the dedicated attorney shall be mutually a~eed upon. Additionally. ~f a majority of the members of the Board express d~ssat~sfact~on w~th the legal services provided by the,,oo,~,,,,," dedlcatc(1 attorney, or by any other attomey ass~'~cd ,A,,, represent prov!d~ng services to the Board, the City Attorney will meet w~th the Board to d~scuss and evaluate ~ts concerns. Furthermore, ~f the Board and the C~ty Attorney agree that the most reasonable way to address the Board's concerns is to assign another attorney to represent the Board, the City Attorney will use h~s best efforts to make such an assignment as soon as possible. 3. The Office of the C~ty Attomey will also prowde an additional 1650 hours per year of legal services to the School Board and School Administration. These services will be prowded by the other attorneys ~n the Office based upon their various areas of expertise th school related legal 4. The Office of the C~ty Attorney will prowde day-to-day legal services to the School Board and School Adnumstration w~th respect to real estate matters, representation of the School Adm~mstrat~on ~n personnel matters, general adm~mstrat~ve and procedural issues, and general ht~gation, and, w!th the exception of special edl~cat~on ~ssues. will endeavor to handle as many other legal matters ~n-house as ~t is capable of handhng subject to the provisions of this Agreement. Throughout the term of th~s Agreement, the Office of the Oty Attorney will maintain an open hne of communication with the Board and the Division Supenntendent, and will keep them aup~ed, on..a re_mfiar bas~s, of the status of all legal matters being handled on behalf of the School Board and School Adm~nlstrauon; provided, however, that the Office of the C~ty Attorney shall not commumcate w~th the Diwslon Supenntendent concerning those matters being handled 0Il. a confidential basis for the School Bo_ardor for individual Board member~ ~n accord0nce with applicable Board policies and apphcable prowsions of the $upermtenden. t's contract. Add~tmnally, the Office of .the. C~ty Attomey wd! provide the Supenrttendent and the School Board a quarterly report of the legal services and attorney hours pr0wded pursuant to th~s Agreement and, upon request of the Board, the Board Chairman, or th.e Supenntendent, wdl ~dent~fy the amount of attorney hours expended ~n response to mqumes from ~nd~v~dual Board members. 56_. The Oty Council and the School Board recogmze and understand that the School Board shall be responsible for the management of ~ts legal matters; that, to the extent contemplated by th~s Agreement, the C~ty Attorney shall be designated as the chief legal adwsor of the Board and the School Adrmmstration, and shall assist the Board and Adrmmstratlon ~n the management of the Board's legal matters; and that the C~ty Attorney shall report to the Board concem~ng those matters he has been assigned by the Board to manage and/or handle on its behalf. 87. The City Cotmcfl and the School Board recognize the potential for real or perceived conflicts ~n the prowslon of legal services by the City Attorney, and agree to be vigilant in advising the C,ty Attorney of such ~ssues as they arise. Additionally, the City Council and the School Board understand that ~n such cases, the City Attorney will refrain from participation on behalf of the School Board but, to the extent ethically permissible, will continue representation of the C,ty Counc,1. 98. The Clty Cotmcfl and the School Board further recognize that the ablhty of the City Attorney's Office to provide legal services to the School Board ~s hnuted by the attorney hours allocated pursuant to this Agreement, the other prov~s,ons of this Agreement, and ethical constraints as they may arise. In the event ~t is anticipated that the attorney hours needed by the School Board and School Admlmstrat~on dunng FY 1997-98 will exceed the hours allocated pursuant to this Agreement, the City Attorney's Office will provide reasonable n..ouce to the School Board, and the cost of such addiuonal hours shall be negotiated. t-09. The part~es agree that th~s Cooperative Agreement ~s not a contract to be enforced by e~ther party but ~s rather an agreement setting forth the understanding of the parues regarding the parameters w~thln which the Office of the C~ty Attomey will provide legal services to the School Board and School Admamstrat~on. -}q-10. As indicated herem, it is not contemplated that the City Attorney's Office will provide more than 3300 hours of legal services under this Agreement ~n FY 1997-9.8. On July 1, 1997, or ..as soon thereafter as possible, the School Board shall transfer funds in the amount of $168.000 fi.om its FY 1997-98 Operating Budget to the FY 1997-98 Operating Budget of the Office of the City Attorney to fund the annual salaries, benefits, and certain administrative costs of one (1) Semor Attorney, one (1) Attorney II. and one (1) Secretary II. 12. Th~s Cooperative Agreement shall commence w~th the fiscal year of the pames which con-ancn¢cd begins July 1, -1-996 1.997, and expires ends June 30, 1997 1998, and may be revised, as necessary, and renewed each fiscal year thereafter; provided, however, that each party shall g~ve the other party not~ce of any intention to revise or not to renew the Agreement w~th~n mnety (90) days of the date of expiration of th~s Agreement, or any renewal hereof, in order that the other party will have the opportumty to make appropriate budget and staffing adjustments. 13. Th~s Agreement shall be submitted to, and approved by, the C~ty Councd an ~_~ _~.A.t. ...... ~,__.: ........... prio ly the School Board, ,.,,~ o.,.. ~,~,,,.,, ,~.,,,~.,,. ~c~,,.,,t,.,~ r to Ju 1, '"~':·~,~,,~ 1997. SCHOOL BOARD OF CITY OF VIRGINIA BEACH By: Robert F. Hagans, Jr., Chmrman CITY COUNCIL, CITY OF VIRGINIA BEACH By: Meyera E. Obemdoff, Mayor School Board of the City of Virginia Beach: This Cooperative Agreement was approved by majority vote of the School Board of the City of Virglma Beach, Virginia on Nc, vcrr~¢r 5, 1996 June 17, 1997. By: Secretary of the School Board City Council of the City of Virginia Beach: This Cooperative Agreement was approved by majonty vote of the City Council of ,.T ..... ,.A_ .,~ I,,,,, June 24. 1997. the City of Virginia Beach, Virginia on ,,,,,,..,,,,., ,.,,, By: City Clerk cb/worl~COOP3 AGM - 33 - Item V-J. 6. ORDINANCES ITEM # 42303 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize the City Manager and the City Attorney acquire public beach easements for the Sandbridge Beach Nourishment project, either by agreement or by condemnation. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henle); Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker* Council Lady Parker, when advising of her Mother's surgery and her need to be with her, requested the City Clerk state -- for the record -- that were she present, she would vote NAY on this item. June 24, 1997 AN ORDINANCE AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACQUIRE PUBLIC BEACH EASEMENTS FOR SANDBRIDGE BEACH NOURISHMENT PROJECT, EITHER BY AGREEMENT OR BY CONDEMNATION WHEREAS, erosion is rapidly destroying the beach in the 9 Sandbridge Beach area of the City of Virginia Beach ("City") and 10 threatening residential structures and City infrastructure therein; 11 WHEREAS, the City has pursued and continues to pursue long- 12 term federal cost participation in a beach replenishment program 13 for Sandbridge Beach; 14 WHEREAS, by Resolution No. R94-02312 adopted by the City 15 Council on June 7, 1994, the City Council endorsed the concept 16 adopted by the 1994 General Assembly for funding a federal beach 17 nourishment and hurricane protection project for the Sandbridge 18 area of the City and agreed to be the local sponsor of the project 19 subject to, among other things, the dedication by Sandbridge 20 oceanfront landowners of easements or other documents sufficient to 21 ensure a public beach along the entire Project area; 22 WHEREAS, by Resolution No. RES 96-02507 adopted by the City 23 Council on December 17, 1996, the City Council endorsed the concept 24 of a one-time, City funded, federally sponsored emergency beach 25 nourishment project at Sandbrldge Beach (the "Project") subject to 26 negotiation of a Project Cooperation Agreement with the Army Corps 27 of Engineers; 28 WHEREAS, the Project Cooperation Agreement is conditioned upon 29 the City providing satisfactory evidence to the Army' Corps of 30 Engineers that there are sufficient public property interests in 31 the beach of Sandbridge to enable the Project Cooperation Agreement 32 to be executed and the Project to begin. 33 WHEREAS, for more than two years the City Attorney has pursued 34 the acquisition of dedicated Public Beach Easements from the owners 35 of oceanfront lots in Sandbridge, and as a result, all but 15 of 36 the 242 oceanfront lots at Sandbridge have voluntarily dedicated 37 Public Beach Easements to the City in the form of Public Recreation 38 and Construction Easements attached hereto as Exhibits A and B; 39 WHEREAS, in the absence of the Project, it is expected that 40 the Sandbridge beach will continue to suffer erosion as a result of 41 direct wave attack, and residential structures and city 42 infrastructure will suffer damage or be destroyed, and through 43 restoration and nourishment of the beach at Sandbridge, the Project 44 will provide a significantly wider sandy beach along the oceanfront 45 properties, protect the oceanfront structures and city 46 infrastructure, and maintain a recreational amenity as well as 47 enhance the quality of life for residents in the Sandbridge 48 community and for members of the public who will enjoy the beach; 49 and 50 WHEREAS, in the opinion of the Council of the City of Virginia 51 Beach, Virginia, a public necessity exists for the restoration and 52 nourishment of the beach in Sandbridge for the preservation of the 53 safety, health, peace, good order, comfort, convenience, and for 54 the welfare of the people in the City of Virginia Beach. 55 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 56 VIRGINIA BEACH, VIRGINIA: 57 Section 1. That the City Council authorizes the acquisition 58 by purchase or by condemnation, if deemed necessary by the City 59 Attorney, pursuant to Sections 15.1-31, 15.1-271, 15.1-275, 15.1- 60 277, 15.1-898, Title 25-46.1 et seq., Code of Virginia of 1950, as 61 amended, all those certain Public Beach Easements as shown on the 62 individual plats entitled "PLAT SHOWING PUBLIC BEACH EASEMENT 63 DEDICATION FROM" the following: "JOANNE S. WYMAN", "ROBERT P. 64 YODER, SR. & LINDA K. YODER", " STEPHEN A. & JUDY K. PFOUTS", 65 "W. B. MEREDITH, II", "DONALD G. MAYES", "EARL W. WALKER, JR. & 66 MELBA BYRD WALKER", "MICHAEL D. & MARY FOWLKES VAUGHAN", "JAMES F. 67 MACLIN, JR. & GAIL P. MACLIN", "STEPHEN W. & BARBARA A. 68 MCCARTHY", "MILTON & JOSEPH MUNKEBY", "MYRON R. & REBECCA A. 69 KINDLEY", "HELEN ETHERIDGE MCDONALD", "DAVID C. COMBEST", "RICHARD 70 J. FERRIS, TRUSTEE", and "ZEHMER ENTERPRISES, INC.", these plats 71 being on file in the Office of Public Works, Mapping Division, 72 Virginia Beach, Virginia. Subject to Section 2, such acquisitions 73 shall be consistent with the Public Recreation and Construction 74 Easements attached hereto as Exhibits A and B and as shown on 75 "Plans for Beach Nourishment, Beach Erosion Control and Hurricane 76 Protection Project, Sandbridge Beach, Virginia Beach, Virginia" 77 prepared by the Department of the Army, Norfolk District, Corps of 78 Engineers, Norfolk, Virginia, August 1996, and other Project 79 surveys, plans and drawings on file in the Department of Public 80 Works, Office of Beach Management, in the Operations Building, 81 Municipal Center, Virginia Beach, Virginia (collectively, the 82 "Project Plans") . 83 Section 2. That the City Council authorizes the acquisition 84 by purchase or condemnation pursuant to Sections 15.1-31, 15.1-271, 85 15.1-275, 15.1-277, 15.1-898, Title 25-46.1 et seq., Code of 86 Virginia of 1950, as amended, all other property interests, if any, 87 within the Sandbridge area in accordance with the Project Plans, 88 which are necessary in the opinion of the City Attorney to satisfy 89 the Army Corps of Engineers that there are sufficient public 90 property interests in the beach of Sandbridge to enable the Project 91 Cooperation Agreement to be executed and the Project to begin. 92 Section 3. That the City Manager is hereby authorized to make 93 or cause to be made on behalf of the City of Virginia Beach, to the 94 extent that it is reasonable and practical under the circumstances 95 and to the extent funds are available, a reasonable offer to the 96 owners or persons having an interest in said property. If refused, 97 the City Attorney is hereby authorized to institute proceedings to 98 condemn said property interests, if any. The source of any such 99 funds expended shall be the funds accumulated in the Sandbridge 100 Special Service District Special Revenue Fund, and such 101 expenditures shall be charged as a cost of the Project thereby 102 reducing the funds available for beach nourishment. 103 Section 4. Nothing herein shall be interpreted as restricting 104 or limiting the authority of the City Attorney to assert and/or 105 establish any right, title or interest the City or public may 106 possess to any property as shown on the Project Plans which may be 107 needed or required to undertake the Project, by Court action or 108 otherwise, which does not utilize the power of eminent domain in 109 condemnation. 110 Adopted by the Council of the City of Virginia Beach, 111 Virginia, on the 24 day of June , 1997. 112 113 114 CA-6681 6/24/97 G: ~DATA~ORDIN~NONCODE~CA6681. OR2 R-3 -! i I L m I PUBLIC RECREATION EASEMENT THIS DEED OF EASEMENT is made this 10th day of June, 1995, by and between #, (the Grantor, even though more than one), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, (the Grantee). WITNESSETH: WHEREAS, the Grantor is the record owner of a tract or parcel of land situate in the City of Virginia Beach, Virginia more particularly described as: "PUBLIC BEACH EASEMENT DEDICATED TO THE CITY OF VIRGINIA BEACH," as shown on that certain plat entitled: "PLAT SHOWING PUBLIC BEACH EASEMENT DEDICATION FROM # LOT #, BLOCK #, SECTION #, SANDBRIDGE BEACH M.B. 51, PG. 25 PRINCESS ANNE BOROUGH -- VIRGINIA BEACH, VIRGINIA SURVEY BUREAU ENGINEERING DIVISION DEPARTMENT OF PUBLIC WORKS CITY OF VIRGINIA BEACH, VIRGINIA DATE: # SCALE: #." Said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book ~ at page ~; and It being a part of the same property conveyed to the Grantor by Deed of #, dated #, and recorded in the aforesaid Clerk's Office in Deed Book #, at page #. WHEREAS, the parties desire to provide for outdoor recreational use by the general public over and upon a portion of the above-described tract or parcel of land; and WHEREAS, the Grantor has conveyed unto the Grantee a construction easement over and upon a portion of Grantor's property; and WHEREAS, the Grantor desires to preserve certain rights to construct, reconstruct, repair, replace and maintain an approved protective structure and/or toe protection as hereinafter defined. NOW, THEREFORE, in recognition of the foregoing and in consideration of the Grantee's efforts to implement a beach and shoreline management and restoration project along GPIN # the Atlantic Ocean in Sandbridge and other valuable consideration including the mutual covenants herein recited and the acceptance hereof by Grantee, the Grantor, subject to those rights herein reserved and pursuant to the conditions hereof, does hereby grant and convey unto the Grantee, a perpetual easement for the benefit of the people of the City, the Commonwealth of Virginia, and the general public, to enter upon, and use the easement area for recreational purposes. This "Recreation Easement," granted for the purpose of giving access, passage and public recreation use, shall be located upon that portion of the Grantor's property located east of the Easement Line. The Easement Line will be established generally in a north to south alignment contiguous to, or seaward of, the exposed exterior surface of each individual existing bulkhead on properties with bulkheads, and in the case of properties with no bulkheads, the line will be established no further landward than the face of the most landward bulkhead nearest the lot, whether to the north or south. Said Recreation Easement and Easement Line are more particularly described and shown on the attached Plat prepared by Grantee which plat has been acknowledged by the Grantor's signature thereon and made a part hereof marked "Exhibit A." Said easement is granted upon and includes all lands owned by Grantor lying east of the aforementioned Easement Line and any contiguous lands locate d east of the easternmost boundary of the property described herein, to which Grantor may hold an interest. It is expressly understood and agreed that the Grantor reserves unto himself, his successors or assigns, the rights, within the Recreation Easement: (1) to build or repair, replace and maintain approved protective structures constructed at o r west of the Easement Line, or in the event of failure of an existing protective structure, t o reconstruct a protective structure seaward of but immediately adjacent to the original base of the existing failed structure, or, if necessary, immediately adjacent to the Easement Line; (2) to construct and maintain private access steps which shall not extend eastward more than five (5) feet from a protective structure, permitting access from a protective structure to the Recreation Easement; (3) to construct and maintain a deck(s) which shall not extend more than five (5) feet into the easement area, may only be constructed as a second story deck(s), may not interfere with the public's use of the easement area, and may not have support located upon the sand within the permanent easement area; and (4) subject to written approval of the type, size, configuration and design by the City Manager or his designee, to construct toe protection within fifteen feet (15) seaward of the Easemem Line. For the purposes of this Deed, an approved protective structure shall be defined as a bulkhead, seawall, revetment, or equivalent structural improvements. Toe protection shall be defined, for the purpose of this Deed, as subsurface improvemems constructed within fifteen feet (15) seaward of the Easemem Line for the purpose of protecting existing structur es against erosion or scour. The City of Virginia Beach shall be responsible for approval of all structures and toe protection subject to applicable federal, state and local laws and regulations. Grantor acknowledges and agrees that no other encroachment or use shall be permitted in the Recreation Easemem except as provided herein. Grantor further acknowledges that all structures or referenced activities are subject to all federal, state and local laws and regulations and may require separate permits. Gramor reserves the right to push up sand within the easemem subject and pursuant to Sections 62.1-13.5:3 and 62.1-13.25:1 of the Code of Virginia, 1950, As Amended, umil the commencement of construction of a beach and shoreline managemem and restoration project along the Atlantic Ocean in Sandbridge by Grantee, the Commonwealth of Virginia, or t he United States of America. Thereafter, Grantor and all successors in title specifically relinquish those rights enumerated in the Acts of Assembly of 1984, c. 518 (Virginia Code Sections 62.1-13.5:3 and 62.1- 13.25:1) for the duration of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. The Recreation Easement and its western boundary line shall never be imerpreted or construed to have moved westward from the Easement Line as shown on the above-referenced Plat, nor shall the Easement Line ever be defined or measured in relation to the location of any mean high water mark or mean low water mark. The parties hereto agree that in the event the Grantee determines it to be in the public interest to regulate the placement of aquatic recreational craft within the Recreation Easemem, Grantee agrees that the Grantor, or his successors in title, shall be entitled, without fee, to one (1) permit for the placement of an aquatic recreational craft on the beach within twenty (20) feet of the Easement Line. The rights obtained pursuant to any such contemplated permit(s) shall be subject to suspension when construction activities are being performed or in instances where the public health, safety, and welfare require restrictions on all access to the beach. It is understood and agreed that the granting of the easement herein described is solely for the recreational purposes described above and the Grantor is not conveying any other rights or privileges. It is further expressly provided and understood that the location of the Recreation Easemem dedicated herein is established in a fixed location in accordance with the attached plat and neither the Recreation Easement nor the Easement Line shall ever be interpreted or construed to have moved from the location depicted thereon, nor shall the Easement Line ever be defined or measured in relation to the location of any mean high water mark or mean low water mark. It is further agreed, upon the vesting of the Easement herein conveyed, that the Grantee, to the extent permitted by law, shall indemnify and hold harmless the Grantor, his agents, heirs, executors, successors, and assigns, from and against any and all damages, injury, liability, losses or expenses, including attorney's fees and court costs arising out of or resulting from any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein; and shall defend and hold them harmless from and against any and all claims, demand s and actions threatened or brought against them for personal injury, wrongful death, or property damage associated with, arising out of or resulting from any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein. It is expressly agreed that, upon the vesting of the Easement herein conveyed and to the extent permitted by law, Grantee will be liable for and shall repair within a reasonable time any damage to protective structures, dwellings, septic systems, or other structures located at or wes t of the Easemem Line and belonging to Grantor, if such damage is a result of any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein while entering upon, occupying and using the surface and subsurface of the easement pursuant to the terms of the Construction Easement. It is expressly understood and agreed that the conveyance of this easement by the Grantor will not impose any additional restrictions on the Grantor's use of the remainder of his property. It is agreed that Grantor retains unrestricted access from the Grantor's property to the easement herein conveyed, except when construction activities are being performed or in instances where the public health, safety, and welfare require restrictions on all access to the beach. It is expressly understood by the Grantor and Grantee that this conveyance is in anticipation of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge to be constructed in the easement area, but is not conditioned upon Grantee's present or subsequent maintenance of said easement. This easement shall vest upon the City entering into a "Project Cooperation Agreement" with the United States Army Corps of Engineers for a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. Notwithstanding the above, the restrictions set forth herein for the construction or replacement of an approved protective structure, toe protection or other encroachments shall be effective upon execution of this instrument. It is further understood and agreed by the parties that Grantee, by execution of this Deed and/or acceptance of this easement does not relinquish any rights, the Grantee or the public may possess including any claim by Grantee or the public to land east of the Easement Line, nor is Grantor or Grantee creating any duties or responsibilities now or in the future except as defined herein. This conveyance is subject to all existing duly recorded liens as same may lawfully apply to the easement hereby conveyed or parts thereof. Grantor, his heirs, successors and assigns agree to assist Grantee in obtaining the subordination of any such existing liens. Grantor acknowledges that failure to obtain the subordination of such existing liens will prevent the construction of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge in the easement area. Both Deeds of Easement and attached plats shall be recorded simultaneously in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and all recording and plat preparation costs arising from and associated with the conveyance of these easements are to be performed and paid by the Grantee. Further, Grantee agrees to furnish Grantor a copy of the fully executed and acknowledged Deeds of Easemem with attached plats as recorded and certified by th e Clerk of Court. WITNESS the following signatures and seals: .(SEAL) .(SEAL) APPROVED AS TO LEGAL SUFFICIENCY Department of Law (SEAL) ATTEST: CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia By: City Manager/Authorized Designee of the City Manager Ruth Hodges Smith City Clerk STATE OF CITY OF , to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that #, whose name#s are signed to the foregoing writing, bearing date the 10th day of June, 1995, have acknowledged the same before me in my City and State aforesaid. Given under my hand this day of , 1996. My commission expires: Notary Public STATE OF CITY OF , to- wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that JAMES K. SPORE, City Manager, or his authorized designee as executed above, on behalf of the City of Virgima Beach, Virginia, whose ~mme is signed to the foregoing writing, bearing date the 10th day of June, 1995, has acknowledged the same before me in my City and State aforesaid. Given under my hand this day of , 1996. My commission expires: Notary Public STATE OF CITY OF , to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk, on behalf of the City of Virginia Beach, Virginia, whose name is signed to the foregoing writing, bearing date the 10th day of June, 1995, has acknowledged the same before me in my City and State aforesaid. Given under my hand this day of ,1996. My commission expires: Notary Public CONSTRUCTION EASEMENT THIS DEED OF EASEMENT is made this 24th day of February, 1996, by and between #, (the Gramor, even though more than one), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, (the Grantee). WITNESSETH: WHEREAS, the Gramor is the record owner of a tract or parcel of land situate in th e City of Virginia Beach, Virginia more particularly described as: "PUBLIC BEACH EASEMENT DEDICATED TO THE CITY OF VIRGINIA BEACH," as shown on that certain plat entitled: "PLAT SHOWING PUBLIC BEACH EASEMENT DEDICATION FROM #, LOT #, TRACT #, SECTION #, SANDBRIDGE BEACH M.B. #, PG. #, PRINCESS ANNE BOROUGH -- VIRGINIA BEACH, VIRGINIA SURVEY BUREAU ENGINEERING DIVISION DEPARTMENT OF PUBLIC WORKS CITY OF VIRGINIA BEACH, VIRGINIA DATE: # SCALE: 1"= 30' ". Said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book ~ at page ~; and It being a part of the same property conveyed to the Grantor by Deed of # dated #, and recorded in the aforesaid Clerk's Office in Deed Book #, at page #. WHEREAS, the Gramor has conveyed umo the Grantee a Public Recreation Easemem over and upon a portion of Grantor's property; and WHEREAS, the Grantor desires to permit certain construction associated with a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge that may be performed upon a portion of the parcel, as hereinafter described; and WHEREAS, the Grantor desires to preserve certain rights pursuant to the terms of the Public Recreation Easement to construct, reconstruct, repair, replace and maintain an approved protective structure and/or toe protection as hereinafter defined. GPIN # NOW, THEREFORE, in recognition of the foregoing and in consideration of the Grantee's efforts to implement a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge and other valuable consideration including the mutual covenants herein recited and the acceptance hereof by Grantee, the Grantor, subject to those rights herein reserved and pursuant to the conditions hereof, does hereby grant and convey unto the Grantee and ~ts assigns, a perpetual easement to enter upon, occupy and use the surface and subsurface of a portion of the Grantor's property as hereinafter described ("Construction Easement") for the following purposes: 1. To design, survey, engineer, construct or maintain a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. The rights granted herein shall not be construed to authorize Grantee to reduce the amount of sand existing in the 2. To place dredged or excavated material upon any portion of the easement. 3. Ingress and egress for contractors and workers, their vehicles, equipment, machinery, and pipelines involved in the design, engineering, construction or maintenance of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. 4. To temporarily construct, erect or place any structures as may be necessary to aid in confining the dredged or excavated material, or for any other purpose necessary to implement a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. Everything constructed, erected or placed on said easement by the Grantee, with the exception of the dredged or excavated material, shall be and remain the property of Grantee. Unless reasonably required under the plans for such project, temporary structures placed upon the easement by Grantee, its agents, employees or contractors shall be removed in a timely fashion by Grantee upon completion of any storm damage protection, hurricane protection and/or sand replenishment project implementation. easement. The Construction Easement shall be located upon a portion of the Grantor's property located east of the "Easement Line." The Easement Line will be established generally in a north to south alignment contiguous to, or seaward of, the exposed exterior surface of each individual existing bulkhead on properties with bulkheads, and in the case of properties with no bulkheads, the line will be established no further landward than the face of the most landward bulkhead nearest the lot, whether to the north or south. Said Construction Easement and Easement Line are more particularly described and shown on the attached Plat prepared by Grantee which plat has been acknowledged by the Grantor's signature thereon and made a part hereof marked "Exhibit A." Said easement is granted upon and includes all lands owned by Grantor lying east of the aforementioned Easement Line and any contiguous lands located east of the easternmost boundary of the property described herein, to which Grantor may hold an interest. It being the same property described as "Public Recreation Easement" in a Deed of Easement of even date recorded simultaneously herewith. It is expressly understood and agreed that the Grantor reserves unto himself, his successors or assigns, the rights, within the Recreation Easement: (1) to build or repair, replace and maintain approved protective structures constructed at o r west of the Easement Line, or in the event of failure of an existing protective structure, t o reconstruct a protective structure seaward of but immediately adjacent to the original base of the existing failed structure, or, if necessary, immediately adjacent to the Easement Line; (2) to construct and maintain private access steps which shall not extend eastward more than five (5) feet from a protective structure, permitting access fro m a protective structure to the Recreation Easement; (3) to construct and maintain a deck(s) which shall not extend more than five (5) feet into the easement area, may only be constructed as a second story deck(s), may not interfere with the public's use of the easement area, and may not have support located upon the sand within the permanent easement area; and (4) subject to written approval of the type, size, configuration and design by the City Manager or his designee, to construct toe protection within fifteen feet (15) seaward of the Easement Line. For the purposes of this Deed, an approved protective structure shall be defined as a bulkhead, seawall, revetment, or equivalent structural improvements. Toe protection shall be defined, for the purpose of this Deed, as subsurface improvements constructed within fifteen feet (15) seaward of the Easement Line for the purpose of protecting existing stmctur es against erosion or scour. The City of Virginia Beach shall be responsible for approval of all structures and toe protection subject to applicable federal, state and local laws and regulations. Grantor acknowledges and agrees that no other encroachment or use shall be permitted in the Recreation Easement except as provided herein and as referenced in the Public Recreation Easement. Grantor further acknowledges that all structures or referenced activities are subject to all federal, state and local laws and regulations and may require separate permits. Grantor reserves the right to push up sand within the easement subject and pursuant to Sections 62.1-13.5:3 and 62.1-13.25:1 of the Code of Virginia, 1950, as amended, until the commencement of construction of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge by Grantee, the Commonwealth of Virginia, or the United States of America. Thereafter, Grantor and all successors in title specifically relinquish those rights enumerated in Virginia Code Sections 62.1-13.5:3 and 62.1-13.25:1 for the duration of any storm damage protection, hurricane protection and/or sand replenishment project. The Construction Easement and its western boundary line shall never be interpreted or construed to have moved westward from the Easement Line as shown on the above-referenced Plat, nor shall the Easement Line ever be defined or measured in relation to the location of any mean high water mark or mean low water mark. The parties hereto agree that in the event the Grantee determines it to be in the public interest to regulate the placement of aquatic recreational craft within the Recreation Easement, Grantee agrees that the Grantor, or his successors in title, shall be entitled, without fee, to one (1) permit for the placement of an aquatic recreational craft on the beach within twenty (20) feet o f the Easement Line. The rights obtained pursuant to any such contemplated permit(s) shall be subject to suspension when construction activities are being performed or in instances where the public health, safety, and welfare require restrictions on all access to the beach. It is understood and agreed that the granting of the easement herein described is solely for the purposes described above and the Grantor is not conveying any other rights or privileges. It is further expressly provided and understood that the location of the Construction Easement dedicated herein is established in a fixed location in accordance with the attached plat and neither the Construction Easement nor the Easement Line shall ever be interpreted or construed to have moved from the location depicted thereon, nor shall the Easement Line ever be defined or measured in relation to the location of any mean high water mark or mean low water mark. It is further agreed, upon the vesting of the Easement herein conveyed, that the Grantee, to the extent permitted by law, shall indemnify and hold harmless the Grantor, his agents, heirs, executors, successors, and assigns, from and against any and all damages, injury, liability, losses or expenses, including attorney's fees and court costs arising out of or resulting from any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein; and shall defend and hold them harmless from and against any and all claims, demand s and actions threatened or brought against them for personal injury, wrongful death, or property damage associated with, arising out of or resulting from any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein. It is expressly agreed that, upon the vesting of the Easement herein conveyed and to the extent permitted by law, Grantee will be liable for and shall repair within a reasonable time any damage to protective structures, dwellings, septic systems, or other structures located at or west of the Easement Line and belonging to Grantor, if such damage is a result of any negligence of the Grantee, its agents, employees, or contractors upon the easement dedicated herein while entering upon, occupying and using the surface and subsurface of the easement pursuant to the terms hereof. It is expressly understood and agreed that the conveyance of this easement by the Grantor will not impose any additional restrictions on the Grantor's use of the remainder of his property. It is agreed that Grantor retains unrestricted access from the Grantor's property to the easement herein conveyed, except when construction activities are being performed or in instances where the public health, safety, and welfare require restrictions on all access to the beach. It is expressly understood by the Grantor and Grantee that this conveyance is in anticipation of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge to be constructed in the easement area, but is not conditioned upon Grantee's present or subsequent maintenance of said easement. This easement shall vest upon the City entering into a "Project Cooperation Agreement" with the United States Army Corps of Engineers for a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge. Notwithstanding the above, the restrictions set forth herein for the construction or replacement of an approved protective structure, toe protection or other encroachments shall be effective upon execution of this instrument. It is further understood and agreed by the parties that Grantee, by execution of this Deed and/or acceptance of this easement does not relinquish any rights, the Grantee or the public may possess including any claim by Grantee or the public to land east of the Easement Line, nor is Grantor or Grantee creating any duties or responsibilities now or in the future except as defined herein. This conveyance is subject to all existing duly recorded liens as same may lawfully apply to the easement hereby conveyed or parts thereof. Grantor, his heirs, successors and assigns agree to assist Grantee in obtaining the subordination of any such existing liens. Grantor acknowledges that failure to obtain the subordination of such existing liens will prevent the construction of a beach and shoreline management and restoration project along the Atlantic Ocean in Sandbridge in the easement area. Both Deeds of Easement and attached plats shall be recorded simultaneously in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and all recording and plat preparation costs arising from and associated with the conveyance of these easemems are to be performed and paid by the Grantee. Further, Grantee agrees to furnish Grantor a copy of the fully executed and acknowledged Deeds of Easement with attached plats as recorded and certified by th e Clerk of Court. WITNESS the following signatures and seals: (SEAL) (SEAL) APPROVED AS TO LEGAL SUFFICIENCY Department of Law (SEAL) ATTEST: CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia By: City Manager/Authorized Designee of the City Manager Ruth Hodges Smith City Clerk STATE OF CITY/COUNTY OF , to-wit: I, , a Notary Public in and for the City/County and State aforesaid, do hereby certify that #, whose names are signed to the foregoing writing, bearing date the 24th of February, 1996, have acknowledged the same before me in my City/County and State aforesaid. Given under my hand this~ day of , 1996. My commission expires: Notary Public STATE OF CITY OF , to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that JAMES K. SPORE, City Manager, or his authorized designee as executed above, on behalf of the City of Virginia Beach, Virginia, whose name is signed to the foregoing writing, bearing date the 24th day of February, 1996, has acknowledged the same before me in my City and State aforesaid. Given under my hand this day of ,1996. My commission expires: Notary Public STATE OF CITY OF , to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk, on behalf of the City of Virginia Beach, Virginia, whose name is signed to the foregoing writing, bearing date the 24th day of February, 1996, has acknowledged the same before me in my City and State aforesaid. Given under my hand this day of , 1996. My commission expires: Notary Public G ~ \worksng~sand~phase 5~rp2146 con - 34 - Item V-J. 7. a. ORDINANCES ITEM # 42304 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize a temporary encroachment into a portion of the City's 300-foot drainage easement over London Bridge Creek (2580 Potters Road) by Dominion Building Company to construct and maintain a detention pond for stormwater management, including a storm drainage pipe and underground infiltration trench. The following conditions shall be required: . That said 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 of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location. This temporary encroachment shall terminate upon notice by the City of Virginia Beach to the applicant; and, within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's drainage easement over London Bridge Creek by the applicant and the applicant shah bear aH costs and expenses of such removal. . The applicant shah indemnify and hold harmless the City of Virginia Beach, its agents and employees from and against aH claims, damages, losses and expenses including reasonable attorney's fees in case it shah be necessary to.file or defend an action arising out of the location or existence of such temporary encroachment. . No permission or authority is given to the applicant to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified, heretn, nor to permtt the maintenance and construction of any encroachment by anyone other than the apphcant. 5. The applicant agrees to maintain said encroachment so as not to become unsightly or a hazard. The applicant must obtain a permit from either the Development Services Center or Waterfront Operations, whichever ts applicable, prior to commencing any construction within the City's drainage easement. Prior to issuance of a permit, the applicant must post a performance bond in accordance with the engineer's cost estimate. June 24, 1997 - 35 - .Item V-J. 7. a. ORDINANCES ITEM # 42304 (Continued) . It is expressly understood and agreed that the City, upon revocation of authority and permission so granted, may remove any such encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such encroachment; and pending such removal, may charge the applicant compensation for the use of such portion of the City's real property tax upon the land so occupied if it were owned by the applicant; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100. 00) per day for each and every day that such encroachment is allowed to continue thereafter, and shah collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood 0. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Loutsa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndo~ Wdliam W. Harrison, Jr. and Nancy K. Parker June 24, 1997 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF THE CITY'S 300' DRAINAGE EASEMENT OVER LONDON BRIDGE CREEK BY DOMINION BUILDING COMPANY, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Dominion Building Company, desires to construct and maintain a storm drainage pipe and underground infiltration trench into the City's drainage easement located at 2580 Potters Road. WHEREAS, City Council is authorized pursuant to §§ 15.1- 316 and 15.1-893, Code of Virginia, 1950, as amended, to authorize a temporary encroachment into the City's drainage 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 §§ 15.1-316 and 15.1-893, Code of Virginia, 1950, as amended Dominion Building Company its heirs, assigns and successors in title is authorized to construct and maintain a temporary encroachment for a storm drainage pipe and underground infiltration trench in the City's drainage easement as shown on the map entitled: "ENCROACHMENT PLAT SHOWING 18" STORM PIPE & UNDERGROUND INFILTRATION TRENCH (30" X 30") WITHIN CITY OF VA. BEACH DRAINAGE EASEMENT ON PARCEL B LOCATED AT 2580 POTTERS ROAD LYNNHAVEN BOROUGH - VIRGINIA BEACH, VIRGINIA SCALE: 1"=80' MAR. 7, 1997 BY SITE IMPROVEMENT ASSOCIATES, INC," 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 34 35 36 37 38 39 40 41 42 43 contained in the Agreement between the City of Virginia Beach and Dominion Building Company, (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 Dominion Building Company and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 24TH day of JUNE , 1997. 44 45 46 47 cA-#&&& Z \KENNEDY\ DOMINI ON. ORD R-1 PREPARED: 5/28/97 VED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM CITY' ATTORNEY SCALE !.2400' LOCATION / / ? / / / / / / / / / / / / '-.. SITE / ? / / / ELON DR. LOCATION MAP SHOWING PROPOSED ENCROACHMENT INTO CITY DRAINAGE EASEMENT OVER LONDON BRIDGE CREEK FOR 18" DRAINAGE PIPE AND UNDERGROUND INFILTRATION TRENCH @ 2580 POTTERS RD. FOR DOMINION BUILDING COMPANY SCALE: I"- 200' PREPARED BY P/W ENG. DRAFT. 5/~0/97 SCALE 1"-4800' LOCATION MAP / I I i I I I / I -"--,,- ! SITE LOCATION MAP ENCROACHMENT WAY AT INDIAN E SHOWING PROPOSED INTO CITY RIGHT OF PLANTATION DR. FOR NTRANCE FEATURE, BRICK WALL, & COLUMNS FOR BAYMARK CONSTRUCTION CO, SCALE: I"- 200' PREPARED BY P/W ENG. DRAFT, 5/9/97 PARCEL NZ // PiPE IN I10' INIql.- pOTTERS LAIIT~ OF EX~C. DRMiME EASEMENT PROP B.[X; :~ARCEL B PLAT OF EXIT. iLD6. .T.. R~ SMITH 8 POTT~ D INVESTMENTGROUP M.I. 173e a.4ea AC. PROP. PARKNG ROAD .ENCRO~MENT PLAT · SHOWING 18" STORM PIPE 8~ UNDERGR(XIND INFILTRATION TRENCH(3d~~ WITHIN CITY OF VA. BEACH DRAINAGE EASEMENT ON PARCEL B LOCATED AT 2580 POTTERS ROAD LYNNHAVEN BOROUGH - VIRGINIA BEACH, VIRGINIA SCALE: I "' 80' MAR. ?, 1997 SITE IMPROV. E. MENT AS..S. OCIATES, INC. PLANNING -- EN;INEERIN6 - CONSTRUCTION 15204 BROCKIE STREET VIRGINIA BEACH, VIR;INIA :~5464 PH# (757) 479-1341 FAX! (757) 479-8810 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'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 , day of ,%q~ , 19 ~ ~ , by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, party of the first part, and DOMINION BUILDING COMPANY, a Virginia general partnership, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, Grantee, party of the second part. W I T N E S S E T H: That, WHEREAS, it is proposed by the party of the second part to construct and maintain a detention pond for storm water management including an 18" drainage pipe and underground infiltration trench, hereinafter referred to as the "Facilities," in the City of Virginia Beach; and WHEREAS, in constructing and maintaining such Facilities, it is necessary that the said party of the second part encroach into a portion of an existing City drainage easement over London Bridge Creek; and said party of the second part has requested that the party of the first part grant a temporary encroachment to facilitate such Facilities within a portion of the City's drainage easement over London Bridge Creek. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the party of the second part and for the further consideration of One Dollar ($1.00), in hand paid, to the said party of the first GPIN 1497-73-1072 part, receipt of which is hereby acknowledged, the party of the first part doth grant to the party of the second part a temporary encroachment to use a portion of the City's drainage easement over London Bridge Creek for the purpose of constructing and maintaining such Facilities. It is expressly understood and agreed that such 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 of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location and is more particularly described as follows, to wit: An area of encroachment into a portion of the City's drainage easement over London Bridge Creek described as 113'- 18" perforated ADS pipe in 110' infiltration trench as shown on that certain plat entitled: "ENCROACHMENT PLAT SHOWING 18" STORM PIPE & UNDERGROUND INFILTRATION TRENCH (30" x 30") WITHIN CITY OF VA. BEACH DRAINAGE EASEMENT ON PARCEL B LOCATED AT 2580 POTTERS ROAD LYNNHAVEN BOROUGH - VIRGINIA BEACH, VIRGINIA," dated 3-7-97 and prepared by Site Improvement Associates, Inc., 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 shall terminate upon notice by the City of Virginia Beach to the party of the second part, and that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's drainage easement over London Bridge Creek by the party of the second part; and that the party of the second part shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the party of the second part shall indemnify and hold harmless the City of Virginia Beach, 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 such temporary encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such 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 party of the second part. It is further expressly understood and agreed that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the party of the second part must obtain a permit from either the Development Services Center or Waterfront Operations, whichever is applicable, prior to commencing any construction within the City's drainage easement. It is further expressly understood and agreed that prior to issuance of a permit, the party of the second part must post a Performance Bond in accordance with the engineer's cost estimate. It is further expressly understood and agreed that the party of the first part, upon revocation of such authority and permission so granted, may remove any such encroachment and charge the cost thereof to the party of the second part, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the party of the second part to remove such temporary encroachment; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, DOMINION BUILDING COMPANY, a Virginia general partnership, has caused this Agreement to be executed in its name on its behalf by Robert E. Mitchell, Jr., M.D., Managing Partner, with due authority to bind said entity. 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 City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk DOMINION BUILDING COMPANY, a Virginia general partnership RoWbOat's. Mf~heil, Jr.,M.D. Managing Partner STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this _ day of , 19 , 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 _ , 19 __, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~ day of , , 19 ~ ~ , by Robert E. Mitchell, Jr., M.D., Managing Partner, on behalf of DOMINION BUILDING COMPANY, a Virginia general partnership. Notary Publ ~ My Commission Expires: ,~._~ROVED A~, TQ CONTENT I1 _ ' -- I ........ APPROVED AS TO LEGAL SUFFICIENCY - 36- Item V-d. 7. b ORDINANCES ITEM # 42305 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordmance to authorize a temporary encroachment into a portion of the City 'S right-of-way of Indian Plantation Drive by Baymark Construction Corporation re construction and maintenance of an entrance feature, brick wall and columns. The following conditions shall be required: o That said 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 of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location. This temporary encroachment shall terminate upon notice by the City of Virginia Beach to the party of the second part and that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right-of-way known as Indian Plantation Drive at Indian River Road by the applicant and the applicant shall bear all costs and expenses of such removal. . The applicant shall indemnify and hold harmless the City of Virginia Beach, its agents and employees from and against all claims, damages, losses and expenses including reasonable attorney 's fees in case tt shall be necessary to ftle or defend an action arising out of the location or existence of such temporary encroachment. . The applicant agrees to obtain and keep in force all Risk Property Insurance and General Liability or such insurance as ts deemed necessary by the party of the first part and all insurance pohcies must name the City as addittonal named insured or loss payee, as applicable. The party of the second part agrees to carry Comprehensive General Liability Insurance in an amount not less than $500,000, combined single limits of such insurance policy or policies. The party of the second part will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or matertal change to, any of the insurance policies The applicant assumes all responsibihttes and liabdities, vested or contingent, with relation to the encroachment. . No permission or authority is given to the apphcants to permit the maintenance or construction 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 applicant. 6. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. June 24, 1997 -37- Item V-J. 7. b. ORDINANCES ITEM # 42305 (Continued) The applicant must submit and have approved a traffic control plan before commencing work in the City's right-of-way. The applicant must obtain a permit from the Development Services Center prior to commencing any construction within the City's right-of-way. The applicant, prior to issuance of a Highway permit, must post a Performance Bond and show proof of public liability insurance of a minimum of Five Hundred Thousand Dollars ooo.) 10. Any above-ground encroachments shah conform to the minimum setback requirements, as established by the City Traffic Engineer's Office. 11. No open cut of the public roadway shah be allowed except under extreme circumstances. Such exceptions shah be submitted to the Highway Division, Public Works, for final approval. 12. It is expressly understood and agreed that the City, upon revocation of authority and permission so granted, may remove any such encroachment and charge the cost thereof to the applicant and collect the cost in any manner provtded by law for the collection of local or state taxes; may require the apphcant to remove such encroachment; and pendtng such removal, may charge the applicant compensation for the use of such portion of the City's real property tax upon the land so occupied if it were owned by the applicant; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100. 00) per day for each and every day that such encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 8-0 (By ConsenO Council Members Vottng Aye. John A. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Vtce Mayor Wdliam D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Vottng Nay. None Council Members Absent: Mayor Meyera E. Oberndorf William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 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 THE RIGHT-OF-WAY OF INDIAN PLANTATION DRIVE BY BAYMARK CONSTRUCTION CORPORATION, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Baymark Construction Corporation, desires to construct and maintain an entrance feature, brick wall and columns into the City's right-of-way located at Indian Plantation Drive. WHEREAS, City Council is authorized pursuant to §§ 15.1- 316 and 15.1-893, Code of Virginia, 1950, as amended, to authorize 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 §§ 15.1-316 and 15.1-893, Code of Virginia, 1950, as amended Baymark Construction Corporation its heirs, assigns and successors in title is authorized to construct and maintain a temporary encroachment for an entrance feature, brick wall and columns in the City's right-of-way as shown on the map entitled: "ENCROACHMENT EXHIBIT INDIAN RIVER PLANTATION FOR BAYMARK" dated 1- 28-97 (Revised 5-27-97), and prepared by the TAF Group, 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 Baymark Construction Corporation, (the "Agreement") which is attached hereto and incorporated by reference; and 34 35 36 37 38 39 40 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 Baymark Construction Corporation and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 24TH day of JUNE , 1997. 41 42 43 44 CA-# &~ / \KENNEDY \BAYMARK. ORD R-1 PREPARED: 5/29/97 A~ROVED AS TO CONTENTS DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORUM CITY 'ATTORNEY ILl ..I ILl IJJ IJJ LU Z LU IJJ _1 IJJ Z ::IAIUQ NOIJ.VJ. NV'ld NVlQNI rI- IJJ NC~FIOA(~HMENT EXHIBIT ~X~I~'T- A F-d~7~,~~' · EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58.1-811 (a)(3) AND 58.1-811(c)(4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE THIS AGREEMENT, made this~ J~-~c)--. day of /~Jqy , 19 ~7 , by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, GRANTOR, party of the first part, and BAYMARK CONSTRUCTION CORPORATION, a Virginia corporation, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, GRANTEE, party of the second part. W I T N E S S E T H: That, WHEREAS, it is proposed by the party of the second part to construct and maintain an entrance feature, brick wall and brick columns in the City of Virginia Beach; and WHEREAS, in constructing and maintaining such entrance feature, brick wall and brick columns, it is necessary that the said party of the second part encroach into a portion of an existing City right of way known as Indian Plantation Drive at Indian River Road; and said party of the second part has requested that the party of the first part grant a temporary encroachment to facilitate such entrance feature, brick wall and brick columns within a portion of the City's right of way known as Indian Plantation Drive at Indian River Road. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the party of the second part and for the further consideration of One Dollar ($1.00), in hand paid, to the said party of the first part, receipt of which is hereby acknowledged, the party of the first part doth grant to the party of the second part a temporary encroachment to use a portion of the City's right of way known as Indian Plantation Drive at Indian River Road for the purpose of constructing and maintaining such entrance feature, brick wall and brick columns. It is expressly understood and agreed that such 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 of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location and is more particularly described as follows, to wit: An area of encroachment into a portion of the City's right of way known as Indian Plantation Drive at Indian River Road described as Entrance Feature, Brick Column and Brick Wall & Column, as shown on that certain plat entitled: "ENCROACHMENT EXHIBIT INDIAN RIVER PLANTATION FOR BAYMARK" dated 1-28-97 (Revised 5-27-97), and prepared by the TAF Group, 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 shall terminate upon notice by the City of Virginia Beach to the party of the second part, and that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right of way known as Indian Plantation Drive at Indian River Road by the party of the second part; and that the party of the second part shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the party of the second part shall indemnify and hold harmless the City of virginia Beach, 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 such temporary encroachment. The party of the second part agrees to obtain and keep in force All Risk Property Insurance and General Liability or such insurance as is deemed necessary by the party of the first part, and all insurance policies must name the party of the first part as additional named insured or loss payee, as applicable. The party of the second part 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 party of the second part will provide endorsements providing at least thirty (30) days written notice to the party of the first part prior to the cancellation or termination of, or material change to, any of the inmuranoe policiem. The p&rty of the second part assumes all responsibilities and liabilities, vested or contingent, with relation to the encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such 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 party of the second part. It is further expressly understood and agreed that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the party of the second part must submit and have approved a traffic control plan before commencing work in the City's right of way. It is further expressly understood and agreed that the party of the second part agrees that no open cut of the public roadway shall be allowed except under extreme circumstances. Such exceptions shall be submitted to the Highway Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the party of the second part must obtain a permit from the Development Services Center prior to commencing any construction within the City's right of way. It is further expressly, understood and agreed that prior to issuance of a Highway permit the party of the second part must post a Performance Bond and show proof of public liability insurance of a minimum of Five Hundred Thousand Dollars ($500,00o.o0). It is further expressly understood and agreed that any above ground encroachments shall conform to the minimum setback requirements, as established by the City Traffic Engineer's office. It is further expressly understood and agreed that the party of the first part, upon revocation of such authority and permission so granted, may remove any such encroachment and charge the cost thereof to the party of the second part, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the party of the second part to remove such temporary encroachment; and pending such removal, the party of the first part may charge the party of the second part compensation for the use of such portion of the City's right of way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by the party of the second part; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said BAYMARK CONSTRUCTION CORPORATION, a Virginia corporation, has caused this Agreement 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. 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 City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk BAYMARK CONSTRUCTION CORPORATION, a Virginia corporation kichard S. F6St~er, ~res-i~'~nt STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER, whose name is signed to the foregoing Agreement bearing date on the day of , 19 , has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing date on the day of , 19 , has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, ~~'6% ~ ~ ~--~f-- ~ , a Notary Public in and for the City and State aforesaid, do hereby certify that Richard S. Foster, President, on behalf of BAYMARK CONSTRUCTION CORPORATION, a Virginia corporation, whose name is signed to the foregoing writing, bearing date the ~o~h day of me in my City and State aforesaid. Given under my ,1~ . hand this ~Q~ day of I -Not a ryk~ub 1 l~ My Commission Expires: OVED AS TO CONTENT SIGNATURE. DEPARTMENT APPROVED AS TO LEGAL SUFFIOIENGY LOCATION MAP PROPOSED KEUPSRIVER DR.=:~ POSED SIGN · i i ii ENCROACHMENT . '" ,, LOCATION MAP ~i :::::: FOR PROPOSED SIGNS FOR COMMUNITY UNITED METHODIST CHURCH SCALE: 1- - - 300' PREPARED BY P,,W ENG. DRAFT. o605,97 - 38- Item V-J. 7. c. ORDINANCES ITEM # 42306 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council DEFERRED INDEFINITEL Y: Ordinance to authorize a temporary encroachment into a portion of the City's right-of-way of Kempsville Road by Community United Methodist Church re construction and maintenance of two (2) church identification signs. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor Wdliam D. Sessoms, Jr. and Louisa M. Strayhorn Councd Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf, William ~ Harrison, Jr. and Nancy K. Parker June 24, 1997 - 39- Item V-J. 8. a. ORDINANCES ITEM # 42307 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance authorizing license refunds in the amount of $31,2 71. 91. upon application of certain persons and upon certification of the Commissioner of the Revenue. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louts R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay' None Council Members Absent: Mayor Meyera E. Oberndorf, Wilham W. Harrison, Jr. and Nancy K. Parker June 24, 1997 FORM NO C A I REV 3,~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certificahon of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Tandoms II, Inc 2932 V~rgm~a Beach Blvd Va Beach VA 23452 Wdson, Sandra G 736 Woodstock Road Va Beach VA 23464 W~tchduck Motor Company, Inc 220 N W~tchduck Road Va Beach VA 23462 Young, Wend~ S 9500 30th Street Norfolk VA 23518 1995-96 Audit 500 76 1996 Audit 49 20 1995-96 Audit 1,202 73 1996 Audit 106 80 Th~s ordinance shall be effective from date of adoption The above abatement(s) totahng $1,859.49 of the C~ty of V~rgm~a Beach on the 500 76 49 2O 1,202 73 106 80 Certified as to Payment ~~C~I:SI~~~ Revenue Approved as to form were approved by the Council day of JL~!E ,19 97 Ruth Hodges Smith C~ty Clerk ~rO~M ~ G A 8 I~EV 3~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Roberts, S A & Batzel, D L 813 Avatar Dnve Va Beach VA 23454 1997 O5-O5-97 Roy F Weston, Inc One Weston Way-Tax Dept West Chester PA 19860-1499 1996-97 Audit Scholastic Book Fair, Inc P O Box 958411 Lake Mary FL 32975-8411 1995-96 Audit Shore Dnve Shell(N~cholas D Langston) 92 Montego Court 1996 Coronado CA 92118 Audit Th~s ordinance shall be effective from date of adoption. The above abatement(s) totahng $4,722.03 of the C~ty of V~rg~n~a Beach on the ,~4TH 47 27 47 27 2,692 4O 2,692 40 268 42 268 42 1,713 94 1,713 94 Certified as to Payment CommlsPsirt oVna;rgho;~e -e~venue Approved as to form (~;",~ttLo r; e;~ were approved by the Council day of JUNE ,19 97 Ruth Hodges Smith C~ty Clerk FOF~ NO C A ~ ~V 3,~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Impenal Productions, Inc 5152 Rugby Road Va Beach VA 23464 Kingw~tz, David A & Helen E 1436 Deerpond Lane Va Beach VA 23464 K~tchen, Paul Mckinley 3844 Colonial Parkway Va Beach VA 23452 Nlcholson, Wdharn G 5633 Hearth C~rcle Va Beach VA 23464 1995-97 Audit 414 48 19cJ4-96 Audit 31 03 1994-96 Audit 42 O0 1994-96 Audit 24 00 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $511 51 of the C~ty of V~rg~n~a Beach on the 24TH 414 48 31 O3 42 O0 24 O0 Certified as to Payment ~~C o m m~lsPsioV~rg ho~h e- v4~~enue Approved as to form ~e~s'~'e L Lilley Z~ City Attorney were approved by the Council day of JLN_E ,19 <27 Ruth Hodges Smith C~ty Clerk FORM NO C A I II~V 3.'11 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certificabon of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Costa, Lou~s D 772-202 Harnpsh~re Lane Va Beach VA 23462 E T Kernodle Inc 1120 G~nger Crescent Va Beach VA 23456 Ess~g, Joan 2400 Darden Court Va Beach VA 23456 1994-96 Audit 1994-96 Audit 1994-96 Audit 84 73 182 04 68 32 84 73 182 04 68 32 Certrfied as to Payment ~~c°obmem~ sPs,oVna~rg ho~ e~Reve nue Approved as to form Th~s ordinance shall be effect,ve from date of adoption The above abatement(s) totahng $335.09 of the C~ty of V~rg~n~a Beach on the 2Z+TH Leshe L Lilley C~ty Attorney were approved by the Council day of JtINF ,19 97 ., Ruth Hodges Smith C~ty Clerk FORM NO C A I II~V 3,~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Bower, Allen M 105 46th Street Va Beach VA 23451 Caldwell, Patnck E 2221 A Woodcreek Carrollton TX 75006 Carner, Daniel P 1275 Baker Road 215 Va Beach VA 23455 Century 21 Wdham R Realtors, Inc 3590 Holland Road 116 Va Beach VA 23452 1996 Audit 1995-96 Audit 1995 03-27-97 1995-96 Audit Th~s ordinance shall be effective from date of adoption The above abatement(s) totahng $962.27 of the C~ty of V~rg~n~a Beach on the 2Z~TH 57 35 57 35 50 00 5O 00 50 O0 5O O0 804 92 8O4 92 Certified as to Payment ~'---~~C o mem~,sPs ioVna~,rg-ho~ e e~ve n u e Approved as to form te'~i'e [. L, Ile~' - / _.....~, C~ty Attorney were approved by the Councd day of JUi',IE ,19 97 Ruth Hodges Smith C~ty Clerk IrOl~M NO C A ~ I~V 3,~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certiflcabon of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Chespeake Pet Supply Co LC 1294 Great Neck Road Va Beach VA 23454 Densmore, Dean Wdham 1101 Gladiola Crescent Va Beach VA 23456 Dominion Chrysler-Plymouth Inc 4421 Va Beach Blvd Va Beach VA 23462 Eagle R~dge Inc 1696 Dey Cove Dr~ve Va Beach VA 23462 1995-96 Audit 1995-97 Audit 1996-97 Audit 54 59 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $6,159 34 of the City of Virginia Beach on the 24TH 10 00 54 59 5,168 54 10 00 1995 Audit 926 21 5,168 54 926 21 Certified as to Payment ~-Rd6ert P Vaughan //~ Commissioner of the¢:[~venue Approved as to form City Attorney were approved by the Council day of JUNE ,1997 Ruth Hodges Smith C~ty Clerk FORM NO CA ERE¥ ~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Expressway Motel Associates P O Box 6097 Newport News VA 23606 Progressive Prosthetic & Orthped~c 4901 Cleveland Street 4 Va Beach VA 23462 Roebuck Carlson & Company 209-59th Street Va Beach VA 23451 Select Staffing Services Inc P O Box 3240 Reston VA 22090 1996 Audit 1,843 17 1994-96 Audit 5,044 52 1994-96 Audit 130 56 1996 Audit 9,703 93 Th~s ordinance shall be effective from date of adoption The above abatement(s) totahng $16,722.18 of the C~ty of V~rg~n~a Beach on the 2~TH 1,843 17 5,044 52 130 56 9,7o3 93 Certihed as to Payment Commissioner of the Revenue Approved as to form ~c~'sl~L Lille~ ~_7 "~ C~ty Attorney ~ were approved by the Council day of Jt~F ,19 97 Ruth Hodges Smith City Clerk - 40 - Item V-J. 8. b.. ORDINANCES ITEM # 42308 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance authorizing tax refunds in the amount of $72,539.22 upon application of certain persons and upon certification of the City Treasurer. Voting: 8-0 (By ConsenO Council Members Voting Aye: John ~4. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members ,4bsent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 DRM HO C A 7 AN ORDINANCE AUTHORIZING TAX REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE TREASURER FOR PAYMENT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for tax refunds upon certification of the Treasurer are hereby approved: NANE Tax Type Ticket Exonera- Date Penalty Int. Year of Tax Number tion No. Paid Total Earl ? & Lucy Yates Trs etal 97 RE(l/2) Earl P & Lucy Yates Trs etal 97 RE(2/2) Va. Beach Academy Inc. 97 RE(l/2) Doyle M & Ivy B Landsford 97 RE(l/2) Doyle M & Ivy B Landsford 97 RE(2/2) First Nationwide Mort Corp 97 RE(l/2) Charles M Purrington 97 RE(l/2) U P C P Inc. 97 RE(l/2) Cecil & Jesse Mason etal 79 RE Cecil & Jesse Mason etal 79 RE Cecil & Jesse Mason et al 80 RE Cecil & Jesse Mason et al 96 RE(l/2) Richard G & Sara E Hall 94 RE(l/2) Richard G & Sara E Hall 94 RE(2/2) Richard G & Sara E Hall 95 RE(l/2) Richard G & Sara E Hall 95 RE(2/2) Richard G & Sara E Hall 96 RE(l/2) Richard G & Sara E Hall 96 RE(2/2) Richard G & Sara E Hall 97 RE(l/2) Michael F Rose 94 RE(l/2) Michael F Rose 94 RE(2/2) Michael F Rose 95 RE(l/2)' Michael F Rose 95 RE(2/2) Michael F Rose 96 RE(l/2) Michael F Rose 96 RE(2/2) Michael F Rose 97 RE(l/2) The Sun=ns Group 97 RE(l/2) The Sutures Group 97 RE(l/2) The Sutures Group 97 RE(l/2) The Summs Group 97 RE(l/2) The Summs Group 97 RE(l/2) The Sutures Group 97 RE(l/2) Little Neck Associates LC 97 RE(l/2) Little Neck Associates LC 97 RE(l/2) Little Neck Associates LC 97 RE(l/2) Little Neck Associates LC 97 RE(l/2) Paul Bush 97 DL 134830-7 11/19/96 134830-7 5/22/97 124018-3 12/5/96 069582-5 12/5/96 069582-5 1/22/97 032542-2 12/5/96 098197-1 11/27/96 123773-9 11/26/96 008539-9 11/17/95 008539-9 12/5/95 007987-5 12/5/95 014500-1 12/5/95 047928-8 11/5/93 047928-8 6/5/94 048275-3 11/18/94 048275-3 5/24/95 049213-5 12/5/95 049213-5 5/14/96 049794-1 12/5/96 099952-7 11/24/93 099952-7 5/31/94 100854-1 11/28/94 100854-1 5/30/95 102395-2 11/24/95 102395-2 5/23/96, 103621-5 11/25/96 073117-1 11/21/96 073118-0 11/21/96 073119-9 11/21/96 073120-6 11/21/96 073121-5 11/21/96 073122-4 11/21/96 920007-6 12/5/96 930007-5 12/5/96 940009-2 12/5/96 950009-1 12/5/96 V25698 5/16/97 5,174.63 5,174.63 14.5(; 34.08 92.69 5.00 77.3(; 92.39 400.00 107.62 292.38 172.26 1.37 1.37 1.3'7 1.37 1.4~t 1.42 24. 22.8(; 22.80 22.80 22.80 23.76 23.7(, 24.40 204.36 165.8¢~ 667.8~ 273.83 132.37 13.90 17,504.53 14,339.16 14,138.62 13,263.42 2.0Q This ordinance shall be effective from date of adoption. The above abatement(s) totaling 72., 5.39.2.2_. were approved by the Council of the C~ty of Virginia Beach on the 2~T_Hday of JUNE, Ruth Hodges Smith C~ty Clerk 72,539.2, Jo~-n T. At~;,ns(~n, ~reasurer / Ap'proved as to form' Le~,L(- L,Iley'"~, ~ - 41 - Item V-J. 9. a.fo/ ORDINANCES ITEM # 42309 Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinances to AMEND the Code of the City of Virginia Beach. a. Chapter 21, Sections 2, 33.1, 116, 147, 150, 154, 191, 205, 207, 273, 318 and 371 re motor vehicles. b. Chapter 38, Section 1 re concealed weapons. Voting. 8-0 (By ConsenO Councd Members Voting Aye. John A Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf, William gE. Harrison, Jr. and Nancy K. Parker June 24, 1997 AN ORDINANCE TO AMEND VARIOUS SECTIONS OF CHAPTER 21 OF THE CITY CODE PERTAINING TO MOTOR VEHICLES SECTIONS AMENDED: Sections 21-2, 21-33.1, 21-116, 21-147, 21-150, 21- 154, 21-191, 21-205, 21-207, 21-273, 21-318, and 21-371 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 10 That Sections 21-2, 21-33.1, 21-116, 21-147, 21-150, 21-154, 11 21-191, 21-205, 21-207, 21-273, 21-318 and 21-371 of the City Code 12 are hereby amended and reordained to read as follows: 13 Sec. 21-2. Definitions. 14 The following words and phrases, when used in this chapter, 15 shall, for the purpose of this chapter, have the meanings 16 respectively ascribed to them in this section, except in those 17 instances where the context clearly indicates a different meaning: 19 Moped: .(i) A bicycle-like device with pedals and a helper 20 motor which is rated at no more than two (2) brake horsepower and 21 which produces speeds up to a maximum of thirty (30) miles per 22 hour~=-_~.~ and. (ii). a.motorcycle with.an.engin~ displacement.of fifty 23 (5.0.)..cubic centimeters or .le~s..and a.maximum, speed .of .less than 24 thirty. (30)..miles per...hour. For purposes of this chapter, a moped 25 shall be a vehicle while operated upon a highway. 27 Traffic infraction: A violation of law punishable as provided 28 in Code of Virginia, section 46.1 I13~,.6.2-1.13, which is neither a 29 felony nor a misdemeanor. 31 Sec. 21-33.1. Occupants of vehicles required to use safety belts. 32 (a) Each person at least sixteen (16) years of age and 33 occupying the front seat of a motor vehicle equipped or required by 34 the Virginia motor vehicle code to be equipped with a safety belt 35 system, consisting of lap belts, shoulder harnesses, combinations 36 thereof or similar devices, shall wear the appropriate safety belt 37 system at all times while such motor vehicle is in motion on any 38 public highway, except that a child under the age of four 39 3c4~sixteen .(16)_ years shall be protected as required by the 40 applicable provisions of the Virginia motor vehicle code. 42 43 44 but loss tb~ ~' ......... ~ ~^ ~'~ thc front seat of such 47 nce+Jb) This section shall not apply to: 48 (1) Any person for whom a licensed physician determines that 49 the use of such safety belt would be impractical by 50 reason of such person's physical condition or other 51 medical reason, provided the person so tempted carries on 52 his person or in the vehicle a signed written statement 53 of the physician identifying the exempted person and 54 stating the grounds for the exemption; or 55 (2) Any law enforcement officer transporting persons in 56 custody or traveling in circumstances which render the 57 wearing of such safety belt system impractical; or 58 (3) Any person while operating a motor vehicle and performing 59 the duties of a rural mail carrier for the United States 60 Postal Service; or 61 (4) Any person operating a motor vehicle and periorming the 62 duties of a rural newspaper route carrier, newspaper 63 bundle hauler or newspaper rack carrier, or drivers of 64 taxicabs; or 65 (5) Personnel of commercial or municipal vehicles while 66 actually engaged in the collection or delivery of goods 67 or services, including but not limited to solid waste, 68 where such collection or delivery requires the personnel 69 to exit and enter the cab of the vehicle with such 70 frequency and regularity as to render the use of safety 71 belt systems impractical and the safety benefits derived 72 therefrom insignificant. Such personnel shall resume the 73 use of safety belt systems when actual collection or 74 delivery has ceased or when the vehicle is in transit to 75 or from a point of final disposition or disposal, 76 including but not limited to solid waste facilities, 77 terminals, or other locations where the vehicle may be 78 principally garaged; or 79 (6) Any person operating a motor vehicle and performing the 80 duties of a utility meter reader; or 81 (7) Police or sheriff's department personnel operating motor 82 vehicles to enforce laws governing motor vehicle parking. 83 Any person who violates this section shall be 84 subject to a civil penalty of twenty-five dollars ($25.00) to be 85 paid into the city treasury. No assignment of points shall be made 86 under the Virginia Driver Improvement Act and no court costs shall 87 be assessed for violations of this section. 88 violation of this section shall not constitute 89 negligence, be considered in mitigation of damages of whatever 90 nature, be admissible in evidence or be the subject of comment by 91 counsel in any action for the recovery of damages arising out of 92 the operation, ownership or maintenance of a motor vehicle, nor 93 shall anything in this section change any existing law, rule or 94 procedure pertaining to any such civil action. 95 violation of this section may be charged on the 96 uniform traffic summons form. 97 q~j~-(f.). No citation for a violation of this section shall be 98 issued unless the officer issuing such citation has cause to stop 99 or arrest the driver of such motor vehicle for the violation of 100 some other provision of this Code or the Code of Virginia relating 101 to the operation, ownership, or maintenance of a motor vehicle or 102 any criminal statute. 103 104 Sec. 21-116. Obstructions to windshield or windows generally. 105 (a) Except as otherwise provided in this article or permitted 106 by state or federal law, it shall be unlawful for any person to 107 operate any motor vehicle upon a highway within the city with any 108 sign, poster, colored or tinted film or sun-shading material or 109 other colored material on the windshield, front or rear side 110 windows or rear windows of such motor vehicle. This provision, 111 however, shall not apply to any certificate or other paper required 112 by law or permitted by the superintendent to be placed on a motor 113 vehicle's window or windshield. 114 (b) Notwithstanding the provisions of subsection (a) of this 115 section, whenever a motor vehicle is equipped with a mirror on each 116 side of such vehicle, so located as to reflect to the operator of 117 such vehicle a view of the highway for a distance of not less than 118 two hundred (200) feet to the rear of such vehicle, any or all of 119 the following shall be lawful: 120 (1) To drive a motor vehicle equipped with one (1) optically 121 grooved clear plastic right-angle rear view lens attached 122 to one (1) rear window of such motor vehicle, not 123 exceeding eighteen (18) inches in diameter in the case of 124 a circular lens or not exceeding eleven (11) inches by 125 fourteen (14) inches in the case of a rectangular lens, 126 which enables the operator of the motor vehicle to view 127 below the line of sight as viewed through the rear 128 window; 129 (2) To have affixed to the rear side windows, reaz window or 130 windows of a motor vehicle any sticker or stickers, 131 regardless of size; or 132 (3) To drive a motor vehicle when the driver's clear view of 133 the highway through the rear window or windows is 134 otherwise obstructed. 135 (c) Except as provided in Code of Virginia section 46.2-1053, 136 but notwithstanding the foregoing provisions of this section, no 137 sun-shading material or tinting film may be applied or affixed to 138 any window of a motor vehicle unless such motor vehicle is equipped 139 with a mirror on each side of such motor vehicle, so located as to 140 reflect to the driver of the vehicle a view of the highway for at 141 least two hundred (200) feet to the rear of such vehicle, and the 142 sun-shading material or tinting film is applied or affixed in 143 accordance with the following: 144 (1) No sun-shading material or tinting films may be applied 145 or affixed to the rear side windows or rear window or 146 windows of any motor vehicle operated on the highways of 147 this city that reduccsreduce the total light 148 transmittance of such window to less than thirty-five 149 (35) percent; 150 (2) No sun-shading material or tinting films may be applied 151 or affixed to the front side windows of any motor vehicle 152 operated on the highways of this city that rcduccs reduce 153 total light transmittance of such window to less than 154 fifty (50) percent; 155 (3) No sun-shading material or tinting films shall be applied 156 or affixed to any window of a motor vehicle that kashave 157 a reflectance of light exceeding twenty (20) percent; 158 (4) Any person who operates a motor vehicle on the highways 159 of this city with sun-shading material or tinting films 160 that hashave a total light transmittance less than that 161 required by subdivisions (1) and (2) of this subsection 162 or a reflectance of light exceeding twenty (20) percent 163 shall be guilty of a traffic infraction but shall not be 164 awarded any demerit points by the commissioner for the 165 violation; 166 (5) Any person or firm who applies or affixes to the windows 167 of any motor vehicle in this city sun-shading material or 168 tinting films that reduce the light transmittance to 169 levels less than that allowed in subdivisions (1) and (2) 170 of this subsection or that have a reflectance of light 171 exceeding twenty (20) percent shall be guilty of a Class 172 3 misdemeanor for the first offense and of a Class 2 173 misdemeanor for any subsequent offense. 174 (d) The Virginia Division of Purchases and Supply, pursuant 175 to Code of Virginia section 2.1-446, shall determine the proper 176 standards for equipment or devices used to measure light 177 transmittance through windows of motor vehicles. Law-enforcement 178 officers shall use only such equipment or devices to measure light 179 transmittance through windows that meet the standards established 180 by the division. Such measurements made by law-enforcement officers 181 shall be given a tolerance of minus seven (-7) percentage points. 182 (e) No film or darkening material may be applied on the 183 windshield except to replace the sunshield in the uppermost area as 184 installed by the manufacturer of the vehicle. 185 (f) Nothing in this section shall be construed as prohibiting 186 the affixing to the rear window of a motor vehicle of a single 187 sticker no larger than twenty (20) square inches in area if such 188 sticker is totally contained within the lower five (5) inches of 189 the glass of such rear window, nor shall the provisions of 190 subsection (b) of this section be applied to a motor vehicle to 191 which but one such sticker is so affixed. 192 (g) Operation of a vehicle equipped by the manufacturer with 193 tinted glass conforming to federal department of transportation 194 specifications shall not constitute a violation of this section. 195 (h) Where a person is convicted within one (1) year of a 196 second or subsequent violation of this section, or of section 46.2- 197 1052 of the Code of Virginia, involving operation of the same 198 vehicle having a tinted or smoked windshield, the court, in 199 addition to any other penalty, may order the person so convicted to 200 remove such tinted or smoked windshield from the vehicle. 201 (i) The provisions of this section shall not apply to law 202 enforcement vehicles=, sight-seeing, carriers as..defined in.~.~.tioD 203 46.2-2200 of the Code of Virginia, or limousine..and.executive.....s~daD 204 carriers as defined in section 46.2.~.2500.....o.f..the Code.....o~.Vi.rqinia. -- 205 Sec. 21-147. Dimension or marker lights--Generally. 206 (a) Ail motor vehicles, trailers or semitrailers exceeding 207 seven (7) feet in width or the widest portion of which extends four 208 (4) inches beyond the front fender extremes shall be equipped with 209 lamps mounted at the extreme right and left-hand front top corners 210 of such vehicle, each of which lamps shall be capable of projecting 211 an amber light visible in clear weather for a distance of at least 212 five hundred (500) feet to the front of such vehicle, and shall be 213 equipped with lamps mounted at the extreme right and left-hand rear 214 top corners of such vehicle, each of which lights shall be capable 215 of projecting a red light visible in clear weather for a distance 216 of at least five hundred (500) feet to the rear of such vehicle; 217 provided, however, that any tractor truck need not be equipped with 218 rear red dimension or marker lamps. If the front or the rear of 219 such vehicle is not the widest portion of such vehicle, the 220 dimension or marker lights required in this section shall be 221 mounted on the widest portions of the vehicle with the amber lights 222 herein required visible from the front as herein required and the 223 red lights herein required visible from the rear as herein 224 required. The lamps herein required shall be of a type that has 225 been approved by the superintendent. 226 (b) In addition to the lamps required in subsection (a) 227 above, each such vehicle shall be equipped with amber reflectors 228 located on the side thereof, at or near the front. Red reflectors 229 shall be used on the rear of each such vehicle. Such reflectors 230 shall be securely fastened to the vehicle, not less than twcnty 231 four (24).f. ifteen (15) inches and not more than sixty (60) inches 232 from the ground, provided that, in the case of a vehicle whiehthat 233 is less than ~ ..... ~" ~ .... ....... ~ .... (24) fifteen (15) inches in height, such 234 reflectors shall be securely fastened thereto at the highest point 235 the structure of a vehicle will permit. The reflectors required 236 herein shall be of a type that have been approved by the 237 superintendent. 238 . . . 239 Sec. 21-150. Flashing, blinking or alternating colored lights. 240 (a) Only law enforcement vehicles may be equipped with 241 flashing, blinking or alternating blue, blue and red, blue and 242 white, or red, white and blue combination warning lights of types 243 approved by the superintendent. 244 (b) Only the following vehicles may be equipped with 245 flashing, blinking, or alternating red or red and white combination 246 lights which shall be of types approved by the superintendent: 247 (1) Fire apparatus; 248 (2) Forest warden vehicles; 249 (3) Ambulances, rescue and life-saving vehicles, and vehicles 250 of the Virginia Department of Emergency Services; 251 (4) Private security vehicles as specifically provided by 252 Code of Virginia, section 46.2-1023; 253 (5) Personally owned vehicles of fire department, volunteer 254 fire department or volunteer rescue squad members and of 255 drivers employed by private ambulance services, provided 256 that such light(s) shall be activated only when answering 257 emergency calls; 258 (6) School buses; 259 (7) Animal warden vehicles. 260 (c) Only the following vehicles may be equipped with 261 flashing, blinking or alternating amber warning lights, which shall 262 be of types approved by the superintendent: 263 (1) Vehicles used for the principal purpose of towing or 264 servicing disabled vehicles; 265 (2) Vehicles used in constructing, maintaining and repairing 266 highways or utilities on or along public highways; 267 (3) Vehicles used principally for removing hazardous or 268 polluting substances from state waters and drainage areas 269 on or along public highways; 270 (4) Vehicles used for servicing automatic teller machines; 271 provided such light(s) shall not be activated when the 272 vehicle is in motion; 273 (5) Vehicles used in refuse collection; 274 (6) Vehicles used by individuals for emergency snow removal 275 purposes; 276 (7) High-rail vehicles, when operated on railroad rails; 277 (8) Vehicles engaged in either escorting or towing 278 overdimensional materials, equipment, boats or housing 279 units, as provided by Code of Virginia, section 46.2- 280 1026; 281 (9) Fire apparatus, ambulances, and rescue and life-saving 282 vehicles, provided the amber lights are mounted or 283 installed at the rear of the vehicles and are used in 10 284 addition to lights permitted under subsection (b) of this 285 section; 286 (10) Vehicles owned and used by businesses providing security 287 services, provided the amber lights are not lit while the 288 vehicle is being operated on a public highway; and 289 (11) Vehicles used to collect and deliver the United States 290 mail, provided the amber lights are lit only when the 291 vehicle is actually engaged in such collection or 292 delivery; 293 (12) Vehicles used to provide escorts for funeral processions; 294 (13) Petroleum tank trucks, to be used in conjunction with 295 backup alarms; 296 (14) Vehicles used in the enforcement of vehicle parking 297 regulations=:.and 298 .(.15) ~.hiQ.l.~s...used for farm ..... agricultural, or hortiGult~ra! 299 pB.rposes.., or any farm tractor. 300 (d) Such flashing, blinking or alternating lights shall only 301 be lit when performing the functions which qualify the vehicles to 302 be so equipped. It shall be unlawful to operate on any highway any 303 motor vehicle equipped with such lighting devices, except as 304 provided by this section or Code of Virginia, section 46.2-1023 et 305 seq. 306 Sec. 21-154. When lights to be lighted; number of lights to be 307 lighted at one time; use of warning lights. 308 (a) Every vehicle in. Qpera.~ion upon a highway within this 309 city shall display lighted head lamps and illuminating devices, as 310 required by this division~(i) from sunset to sunrise .... (ii) .durirlg 11 311 and at any other time when, due to insufficient light or 312 unfavorable atmospheric conditions, persons or vehicles on the 313 highways are not clearly discernible at a distance of five hundred 314 (500) feet=., ..... and (iii) whenever windshield wipers are. in use ~.~ a 315 result .......... of ....foq ........ rain, sleet, or snow. The provisions, of this 316 sub.section, howe~er ....... shall..not apply to instances when windshield 317 wiDers....ar~.....~s~.d, intermittently in misting rain, sleet, or snow.. 318 (b) Not more than four (4) lamps used to provide general 319 illumination ahead of the vehicle, including at least two (2) head 320 lamps and any other combination of fog lamps, passing lamp, driving 321 lamp or other auxiliary lamp approved by the superintendent, shall 322 be lighted at any time. This limitation shall not preclude the 323 display of such warning lights as may be authorized by section 21- 324 150 or such lights as may be authorized by the superintendent for 325 purposes of identification, other than warning lights. 326 (c) Vehicles equipped with warning lights authorized in 327 section 21-150 shall display such lights at all times when engaged 328 in emergency calls, and if engaged in towing disabled vehicles or 329 in constructing, repairing and maintaining public highways or 330 utilities on or along public highways, such lights shall be 331 displayed during the periods prescribed in subsection (a) of this 332 section. 333 ~(d) The failure to display lighted.headlights and. illuminating 334 de.¥i¢.es under the conditions see .forth in ........ clause (ii, i,,~ ......... of 335 subsection (a) of this section shall not constitut.e..negligence....per 336 se, nor shall violation of clause (iii) of subsection (a) 337 section constitute a defense to..any claim, for.....personal i. nj.ury.....o.r 338 recovery of medical expenses for injuries sustained .......... in a mQ~,or 339 vehicle accident., 12 340 ..(.e) No.....ci.tation...for a violati, on..of clause (iii) of subsection 341 .(a) of...this....s.ec.tion .shall.....be..issued unless the..officer issuing such 342 citation has ......... cause ...... ~.o ...... StOD .... or ..... arrest the .driver of such motor -- 343 M~hicle..for the......vi.o.la.~ion of some......ot.her provision of this Code or 344 ~he Co.de ...... of Virginia ........ relating .~.o ....... the operation, ownership, or 345 mai. n~enance .............. of ....a ...... motor .......... ~ehicle. or ......... any .criminal statute .or 346 Qrdinance. 347 Sec. 21-191. Farm machinery and fire-fighting equipment exempt 348 from certain size limitations. 349 The limitations upon the size of vehicles prescribed in 350 sections 21-192, 21-193, 21-194, 21-196 and 21-197 shall not apply 351 to farm machinery when such farm machinery is temporarily 352 propelled, hauled, transported or moved upon highway by a farm 353 machinery distributor or dealer of fertilizer distributor, or by a 354 farmer in the ordinary course of business, nor to fire-fighting 355 equipment of any county, city, town or fire-fighting company or 356 association; provided that, any farm tractor in excess of one 357 hundred eight (108) inches in width which is so propelled, hauled, 358 transported or moved upon highway shall be equipped with a safety 359 light of a type approved by the superintendent, which light shall 360 be plainly visible from the rear of such tractor. 361 (b). No.~withs.~.anding subsection (a) of this section, any....~rm 362 ~rac~.or....or....other farm. agricultural, or horticultural vehicle, wider 363 ~.han one....hundred eight (108) inches may be equipped with...an....amber 364 flashing ............blinking, or alternating warning light .as provided by 365 section....46.2,1025 of the Code of Virginia ..... Any. such light, may be 13 366 installed in lieu of or in addition to the safety light, describe.d 367 .~...subsection (a) of this section. 368 (c) The absence of amber flashin9, blinking, or alt. e.rnating 369 warning liqhts on any farm tractor or other......farm ........ agricultural .......... or 370 horticultural vehicle, as authorized under .s.ub. secti, o.n ..... (b) o.f......this 371 section, shall not constitute neglig, ence .... b.e ...... considered ........... i.n 372 mitigation of damages of whatever nature ........ be..admissible...in, evidence 373 or. be. the subject of comment by counsel ..... in ..... any..action ..... for the 374 recovery of damages arising out .... of .... the opera~i, on ...... ownership ..... or 375 maintenance of any motor vehicle ......... o.r ..... farm tractor ...... nor ......shall 376 anything in this section ......... change any exis~,ing ....... law ..... rule,, ........ or 377 procedure pertaining to any such civil actio.~,. 378 Sec. 21-205. Special permits for oversize and overweight 379 vehicles generally. 38O (a) The city manager may, in his discretion, upon 381 application in writing and good cause being shown therefor, 382 issue a special permit in writing authorizing the applicant to 383 operate or move a vehicle upon the highways of the city of a 384 size or weight exceeding the maximum specified in this 385 article. Except as otherwise specifically provided, every such 386 permit may designate the route to be traversed and contain any 387 other requirements or conditions deemed necessary by the city 388 manager. For permits other than those specified in 389 subsections (b) , (c) and (d) , the following processing fees 390 shall be charged: 14 391 (1) Annual (blanket) permit .... $125.00 392 (2) Mobile crane, annual permit: 393 First unit .... 125.00 394 Each additional unit .... 25.00 395 (3) House move permit (single instance) .... 75.00 396 (4) Single trip permit .... 25.00 397 (b) Special permits to operate or move a vehicle upon the 398 highways of the city of a weight exceeding the maximum 399 specified in this article shall be granted without cost where 400 the vehicle is hauling or carrying containerized cargo in a 401 sealed, seagoing container bound to or from a Virginia seaport 402 and has been or will be transported by marine shipment, 403 provided the single axle weight does not exceed twenty 404 thousand (20,000) pounds, the tandem axle weight does not 405 exceed thirty-four thousand (34,000) pounds and the gross 406 ight ....... ~ ' we does not exceed ...... ty ..... e!ghtv thousand ~° 407 .(80.000) pounds, and provided the contents of such seagoing 408 container are not changed from the time it is loaded by the 409 consignor or his agents to the time it is delivered to the 410 consignee or his agents. Cargo moving in vehicles conforming 411 tO specifications shown in this subsection but exceeding axle 412 and gross weight limitations shown in this subsection shall be 413 considered irreducible and eligible for permits under 414 regulations of the state highway and transportation 415 commission. The requirement of this paragraph that the 416 container be bound to or from a Virginia seaport need not be 417 met if the cargo in the container (i) is destined for a 15 419 seaport outside Virginia and (ii) consists wholly of farm 420 products grown in that part of Virginia separated from the 421 larger part of the commonwealth by the Chesapeake Bay. 422 . . . 423 Sec. 21-207. Liquidated damages for violation of weight limits; 424 storage, disposition, etc., of vehicle and cargo 425 involved in weight violation. 426 (a) Any person violating any weight limit as provided by this 427 chapter or in any permit issued either by the Virginia Department 428 of Transportation or by the city manager pursuant to this Code 429 shall be assessed liquidated damages. The amount of those damages 430 shall be two cents ($0.02) per pound for each pound of excess 431 weight over the prescribed limit in this article for an excess 432 which does not exceed five thousand (5,000) pounds; five cents 433 ($0.05) per pound of excess weight over the prescribed limit in 434 this article when such excess is more than five thousand (5,000) 435 pounds; two cents ($0.02) per pound for each pound of excess axle 436 weight over the prescribed limit in any permit issued pursuant to 437 section 46.2-1139 or section 46.2-1148 of the Code of Virginia when 438 the excess is five thousand (5,000) pounds or less; five cents 439 ($0.05) per pound for each pound of excess axle weight over the 440 gross prescribed limit in any permit issued pursuant to section 441 46.2-1139 or section 46.2-1148 of the Code of Virginia when such 442 excess is more than five thousand (5,000) pounds; and ten cents 443 ($0.10) per pound for each pound of excess weight over the 444 prescribed limit in any permit issued pursuant to section 46.2-1139 445 or section 46.2-1148 of the Code of Virginia. However, whenever any 16 446 vehicle does not exceed the gross weight permitted according to the 447 table provided in section 46.2-1139 of the Code of Virginia, and 448 exceeds the axle weight in this article by two thousand (2,000) 449 pounds or less, the liquidated damages shall be assessed in the 450 amount of one cent ($0.01) per pound for each pound of excess 451 weight over the prescribed axle limit in this article. If a person 452 has no prior violations under the motor vehicle weight laws, and 453 the excess weight does not exceed two thousand five hundred (2,500) 454 pounds, the general district court may waive the liquidated damages 455 against such person. Such assessment shall be entered by the court 456 or by the department as a judgment for the city, the entry of which 457 shall constitute a lien upon the overweight vehicle. Such sums 458 shall be paid to the court or collected by the city attorney and 459 forwarded to the city treasurer and allocated to the fund 460 appropriated for the construction and maintenance of city highways. 461 (b) If the gross weight of the vehicle exceeds lawful limits 462 by at least ~m~-~" ~'^ ...... 3 f~.~ (35)twenty, five (25) percent but not more 463 than fifty (50) percent, the amount of the liquidated damages shall 464 be two (2) times the amount provided for in subsection (a) above; 465 if the gross weight of the vehicle exceeds lawful limits by more 466 than fifty (50) percent, the amount of the liquidated damages shall 467 be three (3) times the amount provided for in subsection (a) above. 468 The provisions of subsection (b) shall not apply to pickup or panel 469 trucks. 470 (c) The charge hereinabove specified shall be in addition to 471 any other liability which may be legally fixed against such owner 472 or operator of the vehicle in question for damage to a highway or 473 bridge attributable to such weight violation. 17 474 Sec. 21-273. Driving while license, permit or privilege to drive 475 suspended or revoked. 476 Except as otherwise provided in Code of Virginia, sections 477 46.2-304 and 46.2-357, no person, resident or nonresident, whose 478 license, learner's permit or privilege to drive a motor vehicle has 479 been suspended or revoked or who has been directed not to drive by 480 any court or by the commissioner or by operation of law pursuant to 481 the provisions of Code of Virginia, tit!e.18.2, title 46.2, or this 482 chapter, or who has been forbidden, as prescribed by law, by the 483 commissioner, the state corporation commission, the commonwealth 484 transportation commissioner, the state highway commissioner, any 485 court or the superintendent of state police, to operate a motor 486 vehicle in this state commonwealth, shall thereafter drive any 487 motor vehicle or any self-propelled machinery or equipment on any 488 highway in this city, unless and until the period of such 489 suspension or revocation shall have terminated. 490 For purposes of this section the phrase "motor vehicle or any 491 self-propelled machinery or equipment" shall not include mopeds. 492 A first offense of violating this section shall constitute a 493 Class 2 misdemeanor. A second or subsequent offense shall 494 constitute a Class 1 misdemeanor. 495 In addition to the above provided penalties, the court shall 496 suspend or revoke such person's license, permit or privilege to 497 drive for the same period for which it had been previously 498 suspended or revoked when such person violated this section. In 499 the event such person has violated this section by driving during 500 a period of suspension or revocation which was not for a definite 501 period of time, the court shall suspend or revoke such person's 502 license, permit or privilege to drive for an additional period not 18 503 to exceed ninety (90) days. Any additional suspension ordered 504 under the provisions of this section shall commence upon the 505 expiration of the previous suspension or revocation, unless such 506 previous suspension or revocation has expired prior to the ordering 507 of an additional suspension or revocation. 508 Sec. 21-318. Maximum speed in school zones. 5O9 (a) Notwithstanding any other provision of this article, no 510 person shall drive a motor vehicle at a speed of more than twenty- 511 five (25) miles per hour on any highway between portable signs, 512 tilt-over signs or fixed blinking signs paced in or along the 513 highway and bearing the word "school" or the words "school 514 crossing". Such word or words shall indicate that school children 515 are present in the vicinity. 516 (b) Any signs erected under this section shall be placed not 517 more than six hundred (600) feet from the limits of the school 518 property or crossing in the vicinity of the school, which is used 519 by children going to and from the school; provided that, "school 520 crossing" signs may be placed in any location where an engineering 521 and traffic investigation establishes a need therefor and the state 522 department of highways and transportation or the city council 523 approves the crossing for such signs. 524 (c) Portable signs provided for in this section shall be 525 furnished and delivered by the city. It shall be the duty of the 526 principal or chief administrative officer of each school, or some 527 responsible person designated by the school board, preferably not 528 a classroom teacher, to place such portable signs in the highway, 529 at a point not more than six hundred (600) feet from the limits of 530 the school property, and remove such signs when their presence is 531 no longer required by this section. 19 531 (d) Portable signs, tilt-over signs or fixed blinking signs 532 provided for in this section shall be placed in a position plainly 533 visible to vehicular traffic approaching from either direction, but 534 shall not be placed so as to obstruct the roadway. Such signs 535 shall be in a position, or be turned on, for thirty (30) minutes 536 preceding regular school hours and for thirty (30) minutes 537 thereafter and during such other times as the presence of children 538 on such school property or going to and from school reasonably 539 requires a special warning to motorists. 540 (e) The city council may increase or decrease the speed limit 541 provided in this section, but only after justification for such 542 increase or decrease has been shown by an engineering and traffic 543 investigation. No such increase or decrease in such speed limit 544 shall be effective, unless such increased or decreased speed limit 545 is conspicuously posted upon the portable signs, tilt-over signs or 546 fixed blinking signs required by this section. 547 .(.f..} ......... Any person ope.rating...any motor vehicle in excess of the 548 maximum..speed limit establi.shed.....in subsection (a) .... when such school. 549 crossing ..... zone is (i) .... indicated by... appropriat.ely ..placed ..... signs. 55O disp. la¥i.ng.....~he, maximum, speed limit and. (ii) in operation pursuant. 551 to.......this.....se.c~ion shall be guilty of a traffic infraction punishable 552 by....a....fine of not...more.....~han two hundred and fifty dollars (S250...00) ...... 553 i.n......addition..t.o other penalties provided by..law, 554 .(g) ................... For the. purpose, of this section, ~school crossing ...zon~..'f. 555 means an .area. located, within the vicinity of a school at or..near....a 556 highway...where the presence of children on such school prop.~ty or 557 going to..and......from school reasonably requires a special..warning to 558 mo.~.orists ........ Such zones are marked and operated in accordanc~...~i..K.h 20 560 the r~_cruirements...o.f...this section with..appropriate warning, signs or 561 Q~her..trafficcon~.rol devices...indicating...that._.a.school crossing is. 562 in proqress 563 Sec. 21-371. Parking in space reserved for persons with 564 disabilities. 565 (a) It shall be unlawful for any person to park any vehicle ....... that 566 in a parking space reserved for persons with disabilities '-'~4~ 567 limit or impair their ability to walk, unless such vehicle is 568 displaying disabled parking license plates, an organizational 569 removable windshield placard, a permanent removable windshield 570 placard or a temporary removable windshield placard issued under 571 Code of Virginia, section 46.2-731; or DV disabled license plates 572 issued under Code of Virginia, section 46.2-739, subsection B. 573 Spaces reserved for persons with disabilities shall be identified 574 by above grade signs in accordance with the provisions of Code of 575 Virginia, section 3g DD.10.36-95.1.1,. The words, "Minimum penalty 576 for violation $100.00," may be posted on an accompanying sign 577 provided,., however,i that. ef.f~ctive July 1, 199.8. all disabled 578 parking signs .shall include the following language: PENALTY, $100- 579 500 Fine,. TOW-AWAY ZONE..Such. language.may be placed on a separate 580 sign and..attached below, existing above,grad~ disabled parking 581 signs,, provided that.the bottom edge.of the attached sign is no 582 lower than four(4).fe~$.above the parking sur~ace.~ 583 (b) It shall be unlawful for any person without a disability 584 '"~ ........ that limits or impairs his or her ability to walk to park a 585 vehicle with disabled parking license plates, an organizational 586 removable windshield placard, a permanent removable windshield 587 placard or a temporary removal windshield placards in any parking 21 588 space reserved for persons with disabilities ....... ~.hat limit or 589 impair their ability to walk, except when transporting such a 590 disabled person in the vehicle. 591 (c) Any operator of a motor vehicle parked in violation of 592 this section in a parking space reserved for disabled persons on 593 public property or at a privately owned parking area shall be 594 subject to a fine of not more than twofive. ...... hundred 595 dollars (~=~ v .... 00) (S500.00) and may be issued a summons or parking 596 ticket, without the necessity of a warrant being obtained by the 597 owner of such private parking area obtaining a warrant. 598 (d) When a notice or citation is attached to a vehicle found 599 parked in violation of this section, the owner of the vehicle may, 600 within fourteen (14) calendar days thereafter, pay to the city 601 treasurer, in satisfaction of such violation, a penalty of one 602 hundred dollars ($100.00). Such payment shall constitute a plea of 603 guilty for the violation in question. If such payment is not 604 postmarked or received by the city treasurer within fourteen (14) 605 calendar days of the city after receipt of such notice or 606 violation, the penalty shall be two hundred dollars ($200.00). The 607 failure of any owner to make payment as prescribed above, or to 608 present the notice or citation for a violation of this section at 609 an office of the city treasurer for certification to the general 610 district court within thirty (30) days shall render such owner, 611 upon conviction of such violation, subject to a fine of not more 612 than twofive hundred fifty dollars ($250.00) (S500.00). 613 (e) In any prosecution charging aviola~ion of...this 614 proof that the.vehicle described....in..the, complaint ..... summo.ns, parking 615 ticket., ci.ta~ion.., or. warrant ...... was ........ parked i.n ........ violation of ....... this. 616 section, t~ether with pro.of that.....the, defendan~ was at the......time the 22 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 registered..owner.....of .the vehicte~..as~re_quired.by..~itle..46..2..chapter ~ (§ 46.2~600.~t .seq.)..of. the Code. of virginia., shall .... constitute prima faQie, evidence that the registered .owner of ~he vehiG!e, was the.person, who committed the violation. (f) NO. violation, of this section shall be dismissed for a property, owner's failure, to comply strictly with the requirements for disabled, parking signs set forth in ~. 36.99.11 of the Code of virginia,, provided the space is clearly distinguishable, as a parking..spaGe reserved for persons with.disabilitieS..that limit.or impair their, ability towalk... (g) The terms. "disabled parking., sign," "organizational removable..windshield placard," ."permanent removable.windshield placard," ."temporary removable windshield placard," and "person with a disability that limits or impairs his ability to walk" when used in this. section shall, for purposes of this section, have. the meanings.respectively ascribed to them in section 46.2-1240 of the COde of Virginia. 634 635 This ordinance shall become effective July 1, 1997. 636 637 638 639 640 641 Adopted by the City Council of the City of Virginia Beach on this 24 day of June 1997. CA-6699 DATA/ORD IN/PROPOSED/21 - 2 et . Ord 06/25/97 R2 23 AN ORDINANCE TO AMEND THE CITY CODE PERTAINING TO CONCEALED WEAPONS SECTION AMENDED: Section 38-1 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 38-1 of the City Code is hereby amended and 7 reordained to read as follows: 8 Sec. 38-1. Carrying concealed weapons. (a) If any person carries about his person, hidden from 10 common observation, (i) any pistol, revolver, or other weapon 11 designed or intended to propel a missile of any kind, or (ii)any 12 dirk, bowie knife, switchblade knife, ballistic knife, razor, 13 slingshot, spring stick, metal knucks,or blackjack, or-(iii) any 14 flailing instrument consisting of two (2) or more rigid parts 15 connected in such a manner as to allow them to swing freely, which 16 instrument may also be known as a nunchuck, nunchanka, nunchalcu, 17 shuriken or fighting chaine or (iv) any disc, of whatever 18 configuration, having at least two (2) points or pointed blades 19 which is designed to be thrown or propelled and which may be known 20 as a throwing star or oriental dart, or (v) any weapon of like kind 21 as those enumerated in this section, he shall be guilty of a Class 22 1 misdemeanor, and such weapon shall be forfeited to the city and 23 may be seized by an officer as forfeited, and such as may be needed 24 for police officers and conservators of the peace shall be devoted 25 to that purpose, and the remainder shall be destroyed by the 26 officer having them in charge. For the purposes of this section, 27 a weapon shall be deemed to be hidden from common observation when 28 it is observable but is of such deceptive appearance as to disguise 29 the weapon's true nature. 30 (b) This section shall not apply to any person carrying a 31 concealed weapon in accord with permission granted by a circuit 32 court pursuant to section 18.2-308 of the Code of Virginia. 33 (c) This section shall not apply to: 34 (1) Any person while in his own place of abode or 35 curtilage thereof; 36 (2) Any police officer, sergeant, sheriff, deputy 37 sheriff, regular game warden or animal control 38 officer; 39 (3) Any regularly enrolled member of a target shooting 40 organization who is at, or going to or from, an 41 established shooting range, provided that the 42 weapons are unloaded and securely wrapped while 43 being transported; 44 (4) Any regularly enrolled member of a weapons 45 collecting organization who is at, or going to or 46 from, a bona fide weapons exhibition, provided that 47 the weapons are unloaded and securely wrapped while 48 being transported; 49 (5) Any person carrying such weapons between his place 50 of abode and a place of purchase or repair, 51 provided the weapons are unloaded and securely 52 wrapped while being transported; 53 (6) Campus police officers appointed pursuant to 54 section 23-232 et seq. of the Code of Virginia; 55 (7) Any person actually engaged in lawful hunting, as 56 authorized by the board of game and inland 57 fisheries, under inclement weather conditions 58 necessitating temporary protection of ?lis weapon 59 from these conditions; and 60 61 62 18.2 308 cf thc Codc cf Virginia. Any...state police 63 Qffice.r.......re.tired. fromthe...Department of State Police 64 and any 1.0cal..law=.e.nforcement officer retired from 65 a.......p, ol.i. ce..departme, n.t.....o.r..sheriff's office within the 66 C.Q.~monweal.th. (i.). with.a, service,related disabili.ty 67 or .......... (.ii,,) ............ f, ollowing..at least fifteen ...... (15) .y. ears..of 68 .se~.ice .... other.t, han.....a....person terminated for....cause: 69 provide.d ....... such ..... officer carries with him...written 70 prOlOl~lllOf,,,consultation with. and a favorable review 71 o...f......~.he need to car~ a concealed weapon issued by, 72 .~he .......... chief lawrenforcement officer of the agency 73 .~.ro~..which the officer retired. 74 (d) This section shall not apply to any of the following 75 individuals while in the discharge of their official duties or 76 while in transit to or from such duties: 77 (1) Carriers of the United States mail in rural 78 districts; 79 (2) Officers or guards of any state correctional 80 institution; 81 (3) Conservators of the peace, except that the 82 following conservators of the peace shall not be 83 permitted to carry a concealed weapon unless a 84 permit is obtained pursuant to section ]8.2-308 of 85 the Code of Virginia: 86 a. Notaries public; 87 b. Registrars; 88 c. Drivers, operators or other persons in charge 89 of any motor vehicle carrier of passengers for 90 hire; ~.~@r 91 d. Commissioners in chancery; 92 (4) Noncustodial employees of the department of 93 corrections designated to carry weapons by the 94 director of the department of corrections pursuant 95 to section 53.1-29 of the Code of Virginia; 96 (5) Law enforcement agents of the Armed Forces of the 97 United States and federal agents who are otherwise 98 authorized to carry weapons by federal law while 99 engaged in the performance of their duties; and 100 (6) Law enforcement agents of the United States Naval 101 Criminal Investigative Service. 102 (e) As used in this section: 103 (1) Spring stick means a spring-loaded metal stick 104 activated by pushing a button which rapidly and 105 forcefully telescopes the weapon several times its 106 original length. 107 (2) Ballistic knife means any knife with a detachable 108 blade that is propelled by a spring-operated 109 mechanism. 110 111 112 This ordinance shall become effective July 1, 1997. Adopted by the City Council of the City of Virginia Beach on this 24 day of June 1997. 113 114 115 CA- 6692 DATA/ORD IN/PROPOSED / 38 - 1. ORD R2 06/12/97 - 42 - Item V-K. PUBLIC HEARING ITEM # 42310 PLANNING Vice Mayor Sessoms DECLARED a PUBLIC HEARING on: PLANNING 1. NO ACTION ITEM DEFERRED B Y PLANNING COMMISSION WIDENER HOMES, LTD. CHANGE OF ZONING 2. LA WRENCE A. SANCILIO, RACHEL V. SANCILIO LENA SANCILIO, MA URICE S TEINGOLD, LEWIS B. STEINGOLD AND SIGNET BANK/VIRGINIA, TRUSTEES UNDER THE WILL OF ISRAEL STEINGOLD STREET CLOSURE 3. C & C DEVELOPMENT, L.L.C. STREET CLOSURE 4. BPP DEVELOPERS, INC. STREET CLOSURE 5. LIFENE T, D/B/A LIFENE T TRANSPLANT SER VICES STREET CLOSURE 6. STE VEN S. CL YMER VARIANCE 7. JOSEPH OVERHOL T, TRUSTEE OVERttOL T TRUST CONDITIONAL CHANGE OF ZONING 8. McGINNIS REAL TY AND DEVELOPMENT COMPANY CHANGE OF ZONING AND CONDITIONAL USE PERMIT June 24, 1997 - 43 - Item V-K. PUBLIC HEARING ITEM # 42311 PLANNING B Y CONSENT Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council APPROVED in ONE MOTION Items 2, 3, 4, 5, 6, 7, and 8 of the PLANNING BY CONSENT Items. Item 2 a.b. (Phase 1) was AUTHORIZED FOR FINAL APPROVAL Item 2 a.b.c.(Phase 2) was DEFERREDANADDITIONAL 180 DAYS (December 8, 1997) Item 4 was DEFERRED AN ADDITIONAL 180 DAYS (December 8, 1997) Item 6 was WITHDRAWN. Item 7 was DEFERRED until the City Council Session of July 1, 199Z Item 8 was DEFERRED INDEFINITELY. Voting: 8-0 Council Members Voting Aye: John ,4. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members ~4bsent: Mayor Meyera E. Oberndorf, William W. Harrison, Jr. and Nancy K. Parker Vice Mayor Sessoms ABSTAINED on Item 2 (Sancilio) because of a business relationshtp. *Verbal ~4ye June 24, 1997 - 44 - Item V-K. 1. PUBLIC HEARING ITEM # 42312 PLANNING City Council TOOK NO ACTION: Application of WIDENER HOMES, LTD. for a Change of Zoning District Classification from R-7. 5 Single Family District to Conditional ~4-12 Apartment District (527 North Witchduck Road, containing 2.2 acres (B~4 YSIDE BOROUGH). This item was deferred by the Planning Commission on June 11, 1997. June 24, 1997 - 45 - Item V-K. 2. PUBLIC HEARING ITEM # 42313 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council AUTHORIZED FINAL APPROVAL Phase I and DEFERRED AN ADDITIONAL 180 DAYS FOR COMPLIANCE (December 8, 1997) Phase H of the Ordinance for discontinuance, closure and abandonment in the Petition of LAWRENCE A.. SANCILIO, RACHEL V. SANCILIO, LENA SANCILIO, MA URICE STEINGOLD, LEWIS B. STEINGOLD and SIGNET BANK/VIRGINIA, Trustees under the Will of Israel Steingold Application of Lawrence A. Sancilio, Rachel V. Sancilio, Lena Sancilio, Maurice Steingold, Lewis B. SteingoM and Signet Bank/Virginia, Trustees under the Will of Israel SteingoM for the discontinuance, closure and abandonment of the following streets: Phase 1 Wagner Street - That portion of Wagner labeled "closed ", consisting of 2,599 square feet, bounded on the South by the Northern right-of-way boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction a distance of 51.69 feet as more specifically shown on said plat. Avenue E- That portion of Avenue E, labeled "closed ~", consisting of 1,297 square feet, approximately twenty-five (25)feet in width, bounded on the South by the Northern right-of-wayi boundary of the Virginia Beach-Norfolk Expressway and extending in a Northerly direction an approximate distance of 52 feet as more spectfically shown on said plat. Phase 2 Wagner Street - All that portion of Wagner Street not included in Phase 1 above, contaimng 10,044.31 square feet (10,096 square feet - 51.69 square feet). Avenue E - All that portion of Avenue E not included in Phase 1 above, containing 162.67 square feet (214.67 sq. fl. - 52 sq. ft.) First Street- Beginning at the Western Boundary of Avenue E and running in a Westerly direction a distance of 349. 78 feet. June 24, 1997 - 46- Item V-K. 2. PUBLIC HEARING ITEM # 42313 (Continued) PLANNING Voting: 7-0 (By Consent) Council Members Voting Aye: John A. Baum, Linwood O. Branch, IIL Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan and Louisa M Strayhorn* Council Members Voting Nay: None Council Members Abstaining: Vice Mayor William D. Sessoms, Jr. Council Members Absent' Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker Vice Mayor Sessoms ABSTAINED because of a business relationship. * Verbal Aye June 24, 1997 - 47- Item V-K.3. PUBLIC HEARING ITEM # 42314 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council AUTHORIZED FINAL APPROVAL of an Ordinance upon application of C & C DEVELOPMENT, L.L.C. for the discontinuance, closure and abandonment of a portion of the East side of Pleasure House Road: Ordinance upon application of C & C Development, L.L.C. for the discontinuance, closure and abandonment of a portion of Pleasure House Road located on the east side of Pleasure House Road beginning at a point 123.17feet south of Andrew Jackson Lane, running a distance of 50. 42 feet along the east side of Pleasure House Road, running around a curve a distance of 19.81 feet, running a distance of 66.13 feet along the eastern property line and running a distance of 17. 37feet along the northern property line. Said parcel is variable in width and contains 836 square feet. BA YSIDE BOROUGH. Voting: 8-0 (By Consent) Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor Wilham D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorj~, William W. Harrison, Jr. and Nancy K. Parker *Verbal Aye June 24, 1997 - 48 - Item V-K. 4. PUBLIC HEARING ITEM # 42315 PLANNING Upon motion by Councilman Heischober, seconded by Counctlman Branch, City Council,4 UTHORIZED AN ADDITIONAL 180 DA YS FOR COMPLIANCE (December 8, 1997); Ordinance upon Application of BPP DEl'ELOPERS, INC., a Virginia Corporation for the discontinuance, closure and abandonment of Lynnhaven Drive: Petition of BPP Developers, Inc., a Virginia Corporation, for the discontinuance, closure and abandonment of Lynnhaven Drive beginning at a point 151.6 feet east of Vista Drive and running in an easterly direction a distance of 115 feet. Said parcel is variable in width and contains 3239 square feet. L YNNHA VEN BOROUGH. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members Absent: * Verbal Aye Mayor Meyera E. Oberndo~ William tV. Harrison, Jr. and Nancy K. Parker June 24, 1997 - 49 - Item V-K.$. PUBLIC HEARING ITEM # 42316 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council APPROVED, subject to compliance of conditions in 180 days (December 8, 1997) Petition of LIFENET, d/b/a LIFENET TRANSPLANT SERVICES, for the discontinuance, closure and abandonment of a portion of Baker Road: Petition of LifeNet, d/b/a/ LifeNet Transplant Services, for the discontinuance, closure and abandonment of a portion of Baker Road beginning at the southwest corner of Baker Road and Ward Court and running in a southerly direction a distance of 35 7. 65 feet. Said property contains 5294.4 square feet. B,4 YSIDE BOROUGH. The following conditions shah be required. I. . . . . Because the applicant dedicated this right-of-way in 1989 and the right-of-way is no longer needed for public purposes, the applicant shah not be required to purchase this property from the City. The proeprty shah be deeded to the applicant at no charge. The applicant is required to dedicate a drainage easement to the City across the LifeNet Transplant Services site, satisfactory to the Development Services Center. The applicant shah dedicate the right-of-way at the corner of Ward Court and Baker Road to provide a sufficient turning radius for truck traffic. This dedication shah be satisfactory to the Development Services Center. The applicant is required to resubdivide the property and vacate internal lot lines to incorporate the enclosed area into the adjoining parcel. The applicant is responsible for determining tf any private utilities are located within the area proposed for closure and working with the private utility companies to provide any necessary easement Preliminary comments from the private utility companies indicate that no private utilities will be impacted. Closure of the right-of-way shah be contingent upon compliance with the above stated conditions within 180 days of the approval by City Council (December 8, 1997) June 24, 1997 - 50- Item V-K.$. PUBLIC HEARING ITEM # 42316 (Continued) PLANNING Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Vice Mayor William D Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf, William W. Harrison, Jr. and Nancy K. Parker * Verbal Aye June 24, 1997 - 51 - Item V-K. 6. PUBLIC HEARING ITEM # 42317 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council ALLOWED WITHDRAWAL of the application of STEVEN S. CLYIffER for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision meet all requirements of the City Zoning Ordinance: Appeal from Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Steven S. Clymer. Property is located on the north side of Winston-Salem Avenue, 105 feet east of Rudee Avenue. VIRGINIA BEACH BOROUGH. Vottng 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, HaroM Heischober, Barbara M Henley, Louts R. Jones, Reba S McClanan, Vice Mayor Wdham D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf Wdliam tV. Harrison, Jr. and Nancy K. Parker * Verbal Aye June 24, 1997 - 52 - Item V-K. 7. PUBLIC HEARING ITEM # 42318 PLANNING Upon motion by Councilman Heischober, seconded by Councdman Branch, City Council DEFERRED until the City Council Session of .luly 1, 1997, an Ordinance upon application of JrOSEPH O VERtlOL T, TRUSTEE OVERttOL T TRUST for a Conditional Change of Zoning District Classification: ORDINANCE UPON APPLICATION OF JOSEPH OVERHOLT, TRUSTEE OVERHOLT TRUST FOR A CONDITIONAL CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-10 to B-2 Ordinance upon application of Joseph Overholt, Trustee Overholt Trust, for a Conditional Change of Zoning District Classification from R-10 Residential District to Conditional B-2 Community Business District on certain property located at the southwest corner of Lynnhaven Parkway and Salem Road. The proposed zoning classification change to B-2 is for commercial land use. The Comprehensive Plan recommends use of this parcel for suburban medium density residential use at densities that are compatible with single family use in accordance with other Plan policies. Said parcel contains 15 acres. KEMSPVILLE BOROUGH. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Vtce Mayor Wilham D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker *Verbal Aye June 24, 1997 - 53 - Item V-K. 8. PUBLIC HEARING ITEM # 42319 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council DEFERRED INDEFINITEL Y until the adoption of the COMPREHENSIVE PLAN Ordinances upon application of McGINNIS REAL TY AND DEVELOPMENT COMPANY for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF McGINNIS REALTY AND DE VELOPMENT COMPANY FOR A CHANGE OF ZONING FR OM A G- 1 AND AG-2 TO CONDITIONAL R-20 Ordinance upon application of McGinnis Realty & Development Company for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural Districts to Conditional R-20 Residential District on certain property located on the west side of Princess Anne Road beginning at a point 1060 feet more or less south of Elson Green Avenue. The proposed zoning classification change to Conditional R-20 is for stngle family residential land use at a density no greater than I. 7 dwelling units per acre. The Comprehensive Plan recommends use of this parcel for rurally compatible development, agriculture, public recreational facilities and public land banking opportunities. Said parcel contains 57.94 acres. PRINCESS ANNE BOROUGH. AND, ORDINANCE UPON APPLICATION OF McGINNIS REALTY & DEVELOPMENT COMPANY FOR A CONDITIONAL USE PERMIT FOR AN OPEN SPACE PROMOTION Ordinance upon application of McGinnis Realty & Development Company for a Conditional Use Permit for an open space promotion development option on certain property located on the west side of Princess Anne Road beginning at a point 1060 feet more or less south of Elson Green Avenue. Said parcel contains 57.94 acres. PRINCESSANNE BOROUGH. Voting: 8-0 (By ConsenO Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn* Council Members Voting Nay. None Council Members Absent: Mayor Meyera E. Oberndorf William }K. Harrison, Jr. and Nancy K. Parker * Verbal Aye June 24, 1997 - 54 - Item V-L. 1. APPOINTMENTS ITEM # 42320 Upon NOMINATION by Councilman Baum, City Council APPOINTED: Armando P. Placides 4 Year Term 07/01/97- 06/30/2001 SOCIAL SER VICES BOARD Voting: 8-0 Councd Members Voting Aye: John .4. Baum, Linwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members .4bsent: Mayor Meyera E. Oberndo~ William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 - 55 - Item V-L2. APPOINTMENTS ITEM # 42321 Upon NOMINATION by Councilman Baum, City Council APPOINTED: Barbara Brinson Unexpired thru 02/28/2000 YOUTH SER VICES COORDINA TING COMMITTEE Voting: 8-0 Council Members Voting ~4ye: John .4. Baum, Ltnwood O. Branch, III, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members .4bsent : Mayor Meyera E. Oberndorf, William W. Harrison, Jr. and Nancy K. Parker June 24, 1997 - 56- Item V-N.l.a.b. NEW BUSINESS ITEM # 42322 BY CONSENSUS, City Council ACCEPTED FOR RECORDATION: ABSTRACTS OF VOTES Republican Primary Election 10 June 1997 A TTORNE Y GENERAL COMMISSIONER OF RE VENUE June 24, 1997 ABSTRACT OF VOTES cast in the cfr7 of Vi~qinia Beach at the June 10, 1997 Republican Primary Election for: · Virginia· ATTORNEY GENERAL NAMES OF CAJVDIDATE$ ON BAI. ZOT K. W. "KEN" STOLLE ........................ TO TAZ VOTE$ RECEIVED fin F~GURES) 7,951 GILBERT K. DAVIS .......................... lr731 MARK L. EARLEY .......................... JERRY W. KILGORE ......................... 6,969 851 We, the undersigned Electoral Board, upon examxnatzon of the official records deposited with the Clerk of the Circuit Court of the election held on June 10, 1997, do hereby certify that the above is a true and correct Abstract of Votes cast at said Republican Primary Election for the above office Given under our hands this copy teste day of June, 1997. __ _ ~ ,Chairman ~/~ ,~~-, Vice Chairman ~/~~_~~ J , Secretary ~P~-~~Secretary, Electoral Board ARSTRACT OF VOTES cast in the city of Vit~j_r~a Beach at the June 10, 1997 Republican Primary Election for: · Virginia· COMMISSIONER OF REVENUE NAMES OF CANDIDATES ON 8ALLOT TOTAL VOTES RECEIVED (IN FIGURES) 10,421 H~Y H. RI(I%%R[~]ONIII 6~ 411 We, the undersigned Electoral Board, upon examination of the official records deposited w~th the Clerk of the Circuit Court of the election held on June 10, 1997, do hereby certify that the above is a true and correct Abstract of Votes cast at said Republican Primary Election and do, therefore, determine and declare that the following person has received the greatest number of votes cast for the above office in said election Given under our hands this copy teste' Seal llth day of June, 1997. ~// V /,- , Chairman Chairman Secretary Secretary, Electoral Board - 57- Item V-O. ADJOURNMENT ITEM # 42181 Vice Mayor Wtlham D. Sessoms DECLARED the Ctty Council Meeting ADJOURNED at 6:33 P.M. Beverly 0 Hooks, CMC/AAE Chief Deputy City Clerk Wilham D. Sessoms, Jr. Vice Mayor Ruth Hodges Smith, CMC/AAE Ctty Clerk Ctty of Vtrgtnia Beach Virgtnta June 24, 1997 - 57- Item V-O. ADJOURNMENT ITEM # 42181 Vice Mayor William D. Sessoms DECLARED the City Council Meeting ADJOURNED at 6.33 P.M. oks, CMC/AAE Chief Deputy City Clerk William D. Sessoms, Jr. Vice Mayor City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia June 24, 1997