SEPTEMBER 23, 1997 MINUTESCity of Virginia Beach
"WORLD'S LARGEST RESORT CITY"
CITY COUNCIL
~IA¥OR MEYERA E OBERNDORF At Large
VICE ~4YOR WILLIAM D SESSO~IS JR At Large
JOHN A BAUM Blackwater Borough
I INWOOD 0 BRANCH 111 Virglma Beach l~m~ugh
WILLIAM W H4RRISON JR Lvnnhaven Bowugh
HAROLD HEISCHOBER At Large
BARBARA M HENLEY Pungo Borough
LOUIS R JONES BaysMe Borough
REBA S ~fc( L4NAN Princess 4nne Borough
NANCY K PARKER At Large
LOUISA ~ STRAYHORN Kempswlle Borough
JAMES K SPORE C~ty Manager
LESLIE L LILLEY, Cay Attorney
RUTH HODGES SMITH CMC ! AAE, C~ty Clerk
CITY COUNCIL AGENDA
CITY HALL BUILDING
2401 COURTHOUSE DRIVE
VIRGINIA BEACH VIRGINI4 23456 9005
t757~ 427 4303
September 23, 1997
I. CITY MANAGER'S BRIEFINGS
- Conference Room -
2:00 PM
A,
ENVIRONMENTAL RESTORATION INITIATIVES IN ELIZABETH RIVER BASIN
Robert V Ogle, Norfolk Dtstrict Corps of Engtneers
Be
CSB COMPLEX AT BONNEY ROAD
Donald V. Jelhg, Chatrman, Commumty Services Board
II. REVIEW OF AGENDA ITEMS
III. CITY COUNCIL CONCERNS
IV. INFORMAL SESSION
- Conference Room -
3:30 PM
A. CALL TO ORDER- Mayor Meyera E. Obemdorf
B. ROLL CALL OF CITY COUNCIL
C. RECESS TO EXECUTIVE SESSION
L. ORDINANCES
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10.
Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP)
and the issuance by the City of its contract obligations:
a.
Barry D. and Paula W. Knight
Installment Purchase Agreement No. 1997-15
(BLACKWATER/PUNGO BOROUGHS)
- 191.37 Acres
- $301,551.00
b.
George A. Waller - 308.66 Acres
Installment Purchase Agreement No. 1997-16 - $845,386.00
(BLACKWATER BOROUGH)
Ordinance to authorize the City Manager and the City Attorney to retain professional
technical assistance in evaluating the Draft Environmental Impact Statement (DEIS) of the
F/A- 18 move to Oceana Naval Air Station; and, TRANSFER $80,000 from the General
Fund Reserve for Contingencies to the City Manager's FY 1997-1998 Operating Budget re
finance costs.
Ordinance to authorize the City Manager to enter into a 15-year lease with Corporate
Center Three, L.L.C. and a revised Sublease with the Virginia Department of Health for
office and clinic space in the Pembroke Three Building at 4452 Corporation Lane
(BAYSIDE BOROUGH).
Ordinance to APPROPRIATE $1,386,105 from the General Fund Balance and $89,630
from the Water and Sewer Fund Retained Earnings for the FY 1997-1998 gainsharing
program.
Ordinance to APPROPRIATE $86,200 from the Forfeited Asset Sharing Special Revenue
Fund Balance to the FY 1997-98 Operating Budget of the Police Department re replacement
and upgrading of equipment to enhance the enforcement capability of the Police
Department's Marine Patrol operation.
Ordinance to ACCEPT and APPROPRIATE a $7,000 Grant from the Virginia Department
of Forestry, TRANSFER $7,000 from the Fiscal Year 1997-1998 General Fund Reserve for
Contingencies - Grant Matches, for a total offS 14,000, to the Department of Planning's FY
97-98 Operating Budget re urban forestry work; and, estimated revenue from the
Commonwealth be increased accordingly.
Ordinance to TRANSFER $3,963 from the General Fund Reserve for Contingencies to
reimburse the Water and Sewer Fund, as a charitable gift, to Habitat for Humanity re costs
of water and sewer fees assocated with construction of a single-family dwelling at 2300
Seaboard Road (PRINCESS ANNE BOROUGH).
(Sponsored by Mayor Meyera E. Oberndorf)
Ordinance to authorize temporary encroachments into a portion of the City's right-of-way
at 3756 Indian River Road by STERLING W. and BONNIE J. THACKER re maintaining
a PVC fence until property is needed for the widening of Indian River Road
(PRINCESS ANNE BOROUGH).
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY:
Grand Limousine
Ordinances to authorize:
a,
License Refunds: $10,983.80
License and Special Tax Refunds: $ 425.93
Tax Refunds: $13,526.33
M. PUBLIC HEARING- PLANNING 6:30 PM
PLANNING BY CONSENT - To be determined during the Agenda Review Session.
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Application of BAITA DEVELOPMENT COMPANY, LLC for a Modification to the
Greel~ Run Land Use Plan on the South side of Buckner Boulevard, 400 feet more or less
East of Independence Boulevard re modi _fying the submitted site plan. dated June 27. 1996.
ond developing the outp_ arcel designated "future development area" which is a portion of
Parcel "H" Green Run PUD, containing 7.75 acres (KEMPSVILLE BOROUGH).
Deferred:
9 September 1997
Staff Recommendation:
DENIAL
Recommendation:
APPROVAL
Application of MABLE C. BROCK for a Variance to Section 4.4(b) of the Subdivision
Ordinance which requires all lots created by subdivision conform with all requirements of
the City Zoning Ordinance on the South side of Indian River Road, 1020 feet more or less
East of Princess Anne Road (PUNGO BOROUGH).
Recommendation:
APPROVAL
Application of LINDA T. CHAPPELL for a Conditional Use Permit for a recreational and
amusement facility of an outdoor nature (Haunted Hallowe'en Hayride and other related
events 'year round) on the South side of Dam Neck Road, West of London Bridge Road
(2599 Dam Neck Road), containing 20 acres (PRINCESS ANNE BOROUGH).
Recommendation:
APPROVAL
Application of CROWN CENTRAL LEASING CORPORATION for a Conditional Use
Permit for gasoline sales in conjunction with a eor~v~nien~e stor~ at the Northeast
intersection of Independence Boulevard and Pembroke Boulevard (720 Independence
Boulevard), containing 31,790.26 square feet (BAYSIDE BOROUGH).
Recommendation:
APPROVAL
Application of BAYSIDE BAPTIST CHURCH for a Conditional Use Permit for a church
parking lot expansion at the Northeast intersection of Pleasure House Road and Northampton
Boulevard (1920 Pleasure House Road), containing 3.29 acres (BAYSIDE BOROUGH).
Recommendation:
APPROVAL
Application of WIRELESS PCS, INC., Agent for AT&T WIRELESS PCS, INC. for a
Conditional Use Permit for a monopol¢ tower on the South side of Newtown Road, 220 feet
East of Cleeve Abbey (952 Newtown Road), 76.133 acres (BAYSIDE BOROUGH).
Recommendation:
APPROVAL
Application of MARSHA LYNN BUILDING CORPORATION for a Change of Zoning
District Classification from 0-2 Office District to Conditional A-18 Apartment District on
the North side of Camelot Drive, 620 feet more or less East of First Colonial Road (1724
Camelot Drive), containing 10.059 acres (LYNNHAVEN BOROUGH)
Staff Recommendation:
DENIAL
Recommendation: APPROVAL
N. APPOINTMENTS
BOARD OF BUILDING CODE APPEALS
BOND REFERENDUM REVIEW COMMITTEE
SENIOR SERVICES OF SOUTHEASTERN VIRGINIA
0. UNFINISHED BUSINESS
P. NEW BUSINESS
Q ADJOURNMENT
CITY COUNCIL WORKSHOP: THE COMPREHENSIVE PLAN
3:00- 5:00 PM
September 30, 1997
Princess Anne High School
COMMUNITY CONVERSATIONS
Princess Anne High School
September 30, 1997 and October 21, 1997
6:00- 9:30 PM
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 Dca0
09/18/97cmd
AGENDA\09-23-97.PLN
www.virginia-beach.va.us
MINUTES
VIRGINIA BEACH CITY COUNCIL
Virginia Beach, Virginia
September 23, 1997
Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING in the Councd
Conference Room, City Hall Building, on September 23, 1997, at 2:00 P.M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Harold
Heischober, Barbara M Henley, Louis R Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf and Vice Mayor William D. Sessoms, Jr.
Council Members Absent'
Nancy K. Parker
Louisa M. Strayhorn
[ENTERED: 2'18 P.M.]
[AS REGIONAL COMMISSIONER FOR TRT,
A TI'ENDING AMERICAN TRANSPOR TA TION
ALLIANCE IN CHICAGO]
-2-
CITY COUNCIL BRIEFINGS
ENVIRONMENTAL RES TORA TION INITIA TIVES IN ELIZABE TH RIVER BASIN
2:00 P.M.
ITEM # 42618
Craig Seltzer, Project Manager- U.S. Army Corps of Engineers, distributed information relative
Environmental Restoration Initiatives in Elizabeth River Basin. Said information is hereby made a part
of the record City Staff has expressed interest concerning a similar study in the Lynnhaven River. Mr
Seltzer introduced Tom Yancey and Greg Steele with the US Army Corps of Engmeers - Planning
Resource Branch; Marjorie Mayfield, Executive Director- Elizabeth Rtver Project; and, Maryilee
Hawkins, Staff- Elizabeth River Project.
In balancing the commercial and enviornmental demands of the River, the Corps study will buiM upon
the efforts of the Elizabeth River Project, whose 120-member Watershed Action Team recently reached
consensus on an 18-point Action Plan for restoring the Elizabeth River. The study will identify potential
projects and establish federal interest, which will indicate any activities that can be cost-shared with local
sponsors. The Reconnaissance effort was authorized by a Congressional Resolution in September 1995,
sponsored by the Commonwealth and endorsed by the four cities in the Watershed. The Corps is 7 months
into a 12-month Reconnaissance effort The Elizabeth River is approximately a 16J-mile basin. A report
has been published and the two major recommendations of the report are. Wetland Restoration at 19 sites
in the Basin and sediment cleanup in the southern branch of the Elizabeth River. With the utilization
of slides, Mr. Seltzer displayed several of the Wetlands Restoration Sites:
Intersection of Indian River and Military Highway: Phragmites control
and tidal marsh restoration (at headwaters of Kings Creek. Potential
uses: Natural area and habitat value; water access from adjointng
neighborhoods; canoe launch; stormwater retention area. (1-2 acres).
Elizabeth River Shores - Phragmites control an tidal marsh restoration
Potential uses: Natural area and habitat value; water access from
adjoining neighborhood; canoe launch. (I-2 acres).
1-64 Crossing of Eastern Branch - south shore: Phragmites eradication
and wetland restoration. Potential uses. Natural area and habitat value;
shoreline stabilization; water access from adjoining neighborhood; canoe
launch; stormwater retention. (1-2 acres).
City Park (Woodstock Neighborhood): Virginia Beach City Park wetland
development/restoration. Potential uses: natural area and habitat value,
outdoor classroom (Woodstock Elementary); shoreline stabilization; water
access; canoe launch. (1-2 acres).
Another major thrust in addition to Wetland Restoration is sediment restoration. In order to restore the
River, the sediments must be cleaned up. Five different sites within the basin have been identified as
being "hot spots" of sediment contamination. A map designating Scuffletown Creek as a candtdate for
sediment/habitat restoration site in the southern branch of the Elizabeth River has been contatned within
the Ctty Council's information package. The effects of sedimentation contamination are felt on a regional
basis They are not localized effects. The aquatic organisms found in the shellfish and finfish that utilize
the River feel the effects of sedimentation throughout the basin. These aquatic organisms do not know
political boundaries. The next step would be the feasibility phase for the sediment contaminates in the
River, as well as the nineteen restoration sites. The total study cost would be approximately $2,870,000
conducted over a 3-year period. The Federal contribution would entail $1,435,000 and the State/Local
Match would be $1,435,000. The total contribution of Virginia Beach would entail $107,666, which
represents 4% of the total cost of the feasibility effort. Over 'half of this contribution ($107,666) can
be provided as "in-kind" services by the City Therefore, only $$3,000 would be requested in cash over
a three year period. Fifty ($0%) percent of tidal wetlands in the River have been lost in the last 50 years
The Corps of Engineers funds will be available during the next `fiscal year 1998. The Corps has the
Presidential approval for $200,000 and is antictpating the City's funds to be made available for Fiscal
Year 1999 (July 1998). The Corps of Engtneers is requesting a letter of intent from the City and a cost
sharing agreement wtth all the local sponsors by March 1998.
September 23, 1997
-3-
CITY COUNCIL BRIEFINGS
ENVIRONMENTAL RES TORA TION INITIA TIVES IN ELIZABETH I~VER BASIN
ITEM # 42618 (Continued)
COST ALLOCATIONS FOR FEASIBILITYPHASE
TOTAL FY 98 FY 99 FY O0 FY Ol SUBTOTAL
State $ 0 $288,300 $224,400 $168,300 $681,000
Chesapeake $ 0 $ 98,800 $ 78,400 $ 58,800 $236,000
Norfolk $ 0 $ 80,633 $ 89,733 $ 67,300 $237,666
Portsmouth $ 0 $ 61,133 $ 63,733 $ 47,800 $172,666
Virginia Beach $ 0 $ 41,633 $ 37,733 $ 28,300 $107,666
The differences in the cost allocations of the various cities involve a number of wetland restoration
projects The City of Norfolk has 8 or 9 different restoration projects they wish to investigate. The site for
sediment cleanup is within the political boundaries of the City of Chesapeake, therefore, they are
contributing a greater proportion of the cost of that effort. This involves all the planning studies with
additional funds required for the project This would be funded on a 65%/35% cost sharing basis with
the local sponsors. The Federal government would provide the 65%. Much of the contamination tookplace
approximately 100 years ago.
Within the next month or two, the Corps of Engineers will present information to the other Cities involved
(Norfolk, Chesapeake and Portsmouth). Clay Bernick has assisted in identifying the restoration sites tn
Virginia Beach. It has been a very cooperative effort among the Cities. The Commonwealth of Virginia
actually initiated the request to the Corps of Engineers.
Mr. Tom Yancey advised the ecosystem of the Lynnhaven River has been changing over the years and
a similar type study as the Elizabeth River can be developed to address some of these problems. There
ts a two-fold planntng process which must be developed to implement projects (1) Reconnaissance and
(2) Detailed Feasibility Study. The Reconnaissance Study is funded entirely by the Federal Government
and is limited to a 12-month period of time. Then the City would have to make a financial commitment
to share in the feasibility cost on a 50-50 basis. If the City determines it is interested in a Study, a letter
of support requesting such a study must be written to the Corps of Engineers, indicating understanding
of the planning process and willingness to participate as a sponsor depending upon the outcome of the
Reconnaissance Study; and, Congressman Pickett's office should be contacted to request introduction of
legislation to authorize a study Environmental restoration is a high priority item within the
admimstration as far as planning studies are concerned. Of the 165 square miles in the tidal basin, 10-20
square miles are within the City of Virgima Beach.
Relative the Elizabeth River, Mr Seltzer requested a letter of intent by November 1997, which basically
would state the City's willingness to negotiate wtth the Corps on the cost of the feasibility effort. It is not
legally binding In March 1998, the Corps wouM request the signing of a Cost Sharing Agreement with
all the local sponsors, which would be a legally binding document.
Mayor Oberndorf expressed appreciation to the Corps of Engineers for the excellent performance on
behalf of the citizens of Virgtnia Beach regarding the Lake Gaston Pipeline and the areas from 8th to
Rudee Inlet with relation to the Hurricane Protection Project.
September 23, 1997
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ITEM # 42619
Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINL4 BE,4 CH CITY
COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 23, 1997,
at 3:42 P.M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndor)5, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
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ITEM # 42620
Mayor Meyera E. Oberndorf, 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 (~) (1).
To-~it:
Community Services Board - Personnel Matter
LEGAL MA TTERS: Consultation with legal counsel or briefings by staff
members, consultants, or attorneys pertaining 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:
Lake Gaston Water Supply Project
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council voted to proceed
into EXECUTIVE SESSION.
Voting: I0-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
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ITEM # 42621
Mayor Oberndorf RECONVENED the BRIEFING SESSION of the VIRGINIA BEACH CITY
COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 23, 1997,
at 3:58 P.M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., HaroM
Heischober, Barbara M. Henley, Louis R Jones, Reba S. McClanan,
Mayor Meyera E. Oberndor~, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
-7-
Item VI-E.
CER TIFICA TION OF
EXECUTIVE SESSION
ITEM # 42622
Upon motion by Councilman Harrison, seconded by Councilman Heischober, City Council CERTIFIED
THE EXECUTIVE SESSION TO BE IN ACCORDANCE IVITH 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 business matters as were identified in the motion
convening the Executive Session were heard, discussed or considered by
Virginia Beach City Council.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
Beso u on
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 # 42620 Page No. $ 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
governing body that such Executive Session was conducted in conformity with Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council
hereby certifies that, to the best of each member's knowledge, (a) only public business matters
lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive
Session to which this certification resolution applies; and, (b) only such public business matters
as were identified in the motion convening this Executive Session were heard, discussed or
considered by Virginia Beach City Council.
Ruth Hodges Smith, CMC/AAE
City Clerk
September 23, 1997
-8-
CITY COUNCIL BRIEFINGS
CSB COMPLEX A T BONNEY ROAD
3:58 P.M.
ITEM # 42623
Donald K ,lellig, Chairman - Community Services Board, with the utdization of charts, presented
information relative the CSB COMPLEXAT BONNEY ROAD. Said information is hereby made a part
of the record. Relative the consumers served, the Community Services Board rose from 5,369 consumers
in Fiscal Year 1993 to 9,224 in Fiscal Year 1997, an increase of 71% During that same period of time,
there was an equal increase in the expenditures for caring for their clients rising from $10,863,541 to
$18,487,420. However, the City's contribution to the service was relatively static going from $3.8-
MILLION to SS.O-MILLION. Therefore, the City's percentage decreased There were increased outside
funds, grants from outside agencies, private collection of co-pays and State funding. At the end of each
year, there were monies moved into the Fund Balance from $357,004 in Fiscal Year 1993 to $716,673
in Fiscal Year 1997. These funds were being accumulated for capital expenditures, i.e. computer systems,
lands, and ultimately the centralized building The cumulative Fund Balance in FY 1997 is $3,150,467.
COMMUNITY SER VICES BOARD
PROGRAMS OFFERED
MENTAL HEAL TH
Office of Consumer & Family
Affairs
(Pembroke Office Park)
Emergency Services
(Pembroke Office Park)
Child & Youth Services
(Pembroke Office Park)
Adult Outpatient Services
(Pembroke Office Park)
Older Adult Services
(Wildwood Clinic)
Wildwood Medical Clinic
(Wildwood Clinic)
Beach House
(Magic Hollow)
MENTAL RETARDATION/
DE VEL OPMENTALL Y
DISABLED
Case Management
(Pembroke Office Park)
Infant Program
OVycliff Presbyterian Church)
Respite Care
(Pembroke Office Park)
Residential Services
(Pembroke Office Park)
Employment Services
(Pembroke Office Park)
Skill Quest
(Investors Place)
SUBSTANCE AB USE
Prevention/Early
Intervention Services
(Pembroke Office Park)
Outpatient Services
(Pembroke Office Park)
Recovery Center- Detox
(Detox Facility)
Recovery Center- Day
Support
(Detox Facility)
Jail Program
(City Jait)
Project link~Crisis
Care/HIV Coordination
(Pembroke Office Park)
The growing demand for a challenged population having to receive care at multiple locations, there is
httle opportunity for economies of scale. The CSB is aware of the .financial pressures of the City
Government. The available supply of rental property has decreased over the last few years. The
Community Services Board has enjoyed submarket rents in many of its properties. The CSB realized if
they dtd not step back and review the growth, they would find themselves spending more on facilities and
overhead rather than caring for the members of the community. Ten (10) to fourteen (14) acres are
needed, which will.fit certain criteria' community compatibility, zoning, access, public transportation,
infrastructure, location relative to population base, and cost.
September 23, 1997
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CITY COUNCIL BRIEFINGS
CSB COMPLEX A T BONNEY ROAD
ITEM # 42623 (Continued)
The Design Criteria entailed:
Consumer Friendly
Clinically Appropriate
Reduce Redundancy
Financially Feasible
The City implemented the Architect & Engineer (A & E) procurement process and selected the firm of
Paul Finch & Associates to perform the architectural design for this project. The notice to proceed was
issued April 14, 1997. This was to implement the design and cost for the renovation of the Days Inn,
Unclaimed Freight and Fuller properties to accommodate the relocation of the CSB programs into their
existing facilities Paul Finch & Associates spent three months on this project. At that point, the Building
Committee of the CSB became more directly involved in the analysis and assumed more responsibility,
sharing more with management. Mr. Jellig advised Dr. Henry McCoy, Chairman - Budding Committee,
and other members of the Community Services Board: William Brunke, Patricia Chapman and Stanley
Sawyer were in attendance. There were weeks of 7'00 A.M. Meetings. The recommendation of the Building
Committee to the Community Services Board was to build a new facility on the Bonney Road property.
Mr. Jellig advised the current situation:
Current Appropriation $14,200,000
Revised Project Cost
$17,260,520
Increase $ 3,060,520
An integral part of this was a Pro Forma, which required no additional City funds, and has the
Community Services Board utilize tts accumulated fund balance, and allow for the debt service to be
handled with an appropriation of the Community Services Board, 20-year lease revenue bonds. The
growth in patient care revenue was projected forwarded at 3%, the historical norm has been 10%. The
rent is projected at today's rates of $700,000 going to the first year, which is submarket. The CSB has
36,000 feet rented at Pembroke ~ $8.85 per foot. The fund balance was utilized, but at no point did the
fund balance go below $1.6-MILLION. We continue to add to the fund balance and in "year 15" of this
project, the Community Services Board would be able to pay off the bonds and still leave $1. I-MILLION
(3% of the patient services revenue for that year) in the fund balance. Patient care would be increased
each and every year. Eliminating the patient revenue for the bonds would then infuse something in excess
of $1-MILLION a year, which could then be returned to client care and not be dealing with either paying
a mortgage, bonds, and rent. Therefore, the CSB has a demonstrated demand in this City that has grown
and expects to continue to grow. This is a financially feasible project. Nevertheless, Mr. Jellig regrets the
controversy this project has caused and accepts responsibility.
Mr. Jellig advised the original architectural effort by CMSS was an overview of zoning compatibility,
placement, et cetera, along with cost estimates for renovatton. CMSS was not involved in examining the
Unclaimed Freight property nor did CMSS ever interact with the Board or the Building Committee. Part
of the evolving process was if existing facilities are being renovated, particularly one which is
substantially changing its use, without a more thorough investigation, there are some unknowns CMSS
had requested to perform a more detailed study. Mr. Jellig believed there was opportunity for the Board
to ask more penetrating questions. Mr. Jelhg advised the original request was for $12-MILLION
However, after examining the other needs for this property (contractual fees, site preparation, City
oversight cost and infrastructure), the appropriation was raised to $14,200,000. Dr. Dennis Wool,
Executive Director - Community Services Board, advised in the original request, a portion of the fund
balance ($2.2-MILLION) was contemplated to be used to cover the contingencies.
September 23, 1997
- I0-
CITY COUNCIL BRIEFINGS
CSB COMPLEX A T BONNEY ROAD
ITEM # 42623 (Continued)
The City Attorney advised the City Council has made it clear to the City Staff all purchases by the City
are to be fully disclosed and open. To his knowledge, all purchases have been fully disclosed and opened.
In 1988, the Development Authority made a purchase about which City Council was concerned and there
was not a disclosure of the ownership. A major real estate broker made some offers on behalf of the City
As a result of this, City Council entered into a Memorandum of Understanding with the Development
Authority relative procedures in the future. Delegate Croshaw introduced a Bill in the 1989 General
Assembly saying all government aj~liations should be disclosed in real estate transactions The Bill did
not pass; however, City Council made it clear to their staff that they expected all transactions to be
disclosed.
Mr. Jellig advised 26% of the CSB Budget is from City revenue. $500,000 is projected from the sale of
Wildwood. The total funding availability for the total project will be provided to City Council. Copies
of the Pro Forma with explanation of each item shall be provided to City Council. CMSS Architects were
engaged by the staff The Building Committee was organized after procurement of CMSS Architects. Mr
Jellig advised the City Staff, Paul Finch, and Finance have reviewed the $17.2-MILLION. figure and are
comfortable with same. Due to the nature of the population serving and the need for some identity for
Beach House, DeTox Center and other services, the footprint of the first.floor needs to be larger, but
there is room for compromise.
Paul Finch advised the agencies within the Community Services Board have been interviewed and have
actually met with the clients of Beach House and some of the other agencies to discuss needs. The fact
they wish their own entrance and identity can still be handled in one building. The population would not
be mixed. It is a design process. It will not take any more space to give Beach House and SMllquest their
own entrance, as well as others. The cost estimates and square footage have been developed based on
the knowledge of how they do need to be separated. Three story construction will add to the cost for pile
foundations, which geotechntcal information currently indicates are not needed for one or 2-story
construction Initially it was estimated to entatl 132,000 square feet for needs includtng future growth
for the next five to ten years. ~4 management review decreased this square footage to 115,000 This has
been further reduced to 95,000 square feet. Mr. Finch feels comfortable with the square footage and the
dollar amount of $17.2-MILLION.
The City Attorney advised the purchase arrangement of this property, the contract as well as the deed is
in the name of the City of Virginia Beach.
Mr. Jelhg advised servicing the debt goes into the Pro Forma and the utilities are also contained within
the Pro Forma. There are always funds remaintng at the end of each year. The projected utihties are
included wtthin this $I 7.2-MILLlON figure.
September 23, 1997
- 11 -
ITEM # 42624
Mayor Meyera E. Oberndorf 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).
To-Wit:
Appointments - Boards and Commissions.
Committee on School Construction
School Division - Design Review Committee
Community Services Board - Personnel Matter
PUBLICLY-HELD PROPERTY: Discussion or consideration of the
condition, acquisition, or use of real property for public purpose, or of
the disposition of pubhcly-held property, or of plans for the future of an
institution which could affect the value of property owned or destrable for
ownershtp by such instttution pursuant to Section 2.1-344(A)(3).
To-Wit:
Agricultural Reserve Program - Pungo Borough
Telecommunication Sttes- Princess Anne Borough
Community Services Board Site
LEGAL MATTERS: Consultation with legal counsel or briefings by staff
members, consultants, or attorneys pertaining to actual or probable
litigation, or other specific legal matters requesting the proviston of legal
advice by counsel pursuant to Sectton 2.1-344(A)(7).
To-Wit:
Carson Barco v. City of Virginia Beach
Community Services Board - Legal Issues
Upon motion by Vice Mayor Sessoms, seconded by Councilman Jones, Ctty Councd voted to proceed tnto
EXECUTIVE SESSION (5:10 P.M.).
Voting: I0-0
Council Members Voting Aye.
John A Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wdliam
D. Sessoms, Jr.
Council Members Voting Nay'
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
- 12-
FORMAL SESSION
VIRGINIA BEA CH CITY CO UNCIL
September 23, 1997
6:00 P.M.
Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY
COUNCIL in the Council Chamber, City Hall Building, on Tuesday, September 23, 1997, at 6:30 P.M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, HaroM
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor Wdliam
D. Sessoms, Jr.
Council Members Absent:
Louisa M. Strayhorn
INVOCATION:
The Reverend Terry Clark
Emmanuel Lutheran Church
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
Vice Mayor Sessoms, being a Corporate Officer of Central Ftdehty Bank, disclosed there were no 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 application that may come before City Council. Vice Mayor
Sessoms' letter of January I, 1997, zs hereby made a part of the record.
September 23, 1997
- 13-
Item V-E.
CER TIFICA TION OF
EXECUTIVE SESSION
ITEM # 42625
Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council CERTIFIED THE
EXECUTIVE SESSlON TO BE IN ACCORDANCE MTH THE MOTION TO RECESS.
Only pubhc bustness matters lawfully exempted from Open Meeting
requirements by Virgima law were discussed in Executive Session to
which this certification resolution applies;
AND,
Only such public business matters as were tdentified tn the motion
convening the Executive Session were heard, discussed or constdered by
Virginia Beach City Counctl.
Voting: I0-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III,, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
Besolution
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 # 42624 Page No. 11 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
governing body that such Executive Session was conducted in conformity with Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach C, ity Council
hereby certifies that, to the best of each member's knowledge, (a) only public business matters
lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive
Session to which this certification resolution applies; and, (b) only such public business matters
as were identified in the motion convening this Executive Session were heard, discussed or
considered by Virginia Beach City Council.
Ruth Hodges S~ith, CMc/AAE
City Clerk
September 23, 1997
- 14-
Item V-F. 1.
MINUTES
ITEM # 42626
Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council APPROVED the
Minutes of the INFOR31AL AND FOR3IAL SESSIONS of September 9, 1997.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, IIL William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent.
Louisa M. Strayhorn
September 23, 1997
- 15-
Item F-G.I.
ADOPT el GENDA
FOR FORMAL SESSION
ITEM # 42627
BY CONSENSUS, City Council ADOPTED:
AGENDA FOR THE FORMAL SESSION
September 23, 1997
- 16-
Item VJ.
PRESENT,4 TION
ITEM # 42628
Mayor Oberndorf PRESENTED the GOVERNMENT FIN,4NCE OFFICERS ,4SSOCI,4TION
CER TIFIC,4 TE OF ,4 CHIE VEMENT FOR EXCELLENCE IN FINANCIAL REPOR TING to:
Patricia A. Phillips
Director of Finance
Mrs. Phillips was accompanied by Robert Hays, Senior Comptroller. The Certificate of Achievement
is the highest form of recognition in governmental accounting and financial reporting, and its attainment
represents significant accomplishment by a government and its management.
September 23, 1997
1B/OB/97 22:86 To:RUTH SMITH
UA BCH PUBLIC INFO
OCl-l~7-19~J? 13:54
From:Barbara A. Morrison
TEL' 757-427-4163
CiTY 0F RORNOKE
Oct
427-4183 Page 1/1
8,97 15:01 No.O08 P.O1
54El E~3 2940
~V~:INM~ FINAN~;~ OI~IGI~FtB' A,~,~OOIA'rlON
·
October 7, 1~7
Mary C. Kemp, Director of
Town of He~ndon. Virginia
P.O. Box
Herndon, IC~rginia i/,2070
~03)
VA. GOVERNMENT FINANCI/OI~ICBRS' AS~OC~TION
AWARD~ P~,OG~M RECIPIi~NTS
The Virginia Oovez~t F~ Ofl=~.~rs' Association, st its Amtu~l Confefetlu~ held thin yem'
in ChantUly, October 1-3, l~rT, presentexi program awards to those localities whose submissions
wcrc Judgexi most innovative and applicable to other government. There nre
Loc~lid~ with population gn~ater than 75,000, Loeallttes with population less than ?$,000, and
Schools, Authorities and Utilities.
In the category of' Localities with populadon~ greater than 75,000, this year's Ftr~t Place Winner
h: Virginia Beach Finance D~parrment, for. its program entitled "Consolidated BUlinl~s System*.
Virginia Beach coordlnaled with their ~endor for statlonet'y and office ~ppIies to develop an
electwnio file. of monthly invoice data, ready for upload to tb~ ~ounts payable system. One
~eck is th~n wri~u for lhe entlr~ month's pttrchases, This innovative approach replaced a
system of ~ecsiving hundreds of involc~ per mo~th and writirt~ rrm~ checks to pay those
invoices. Savin~ from reduced admt~ive ~fforts and increased discounts approsch
$200,000 ~w,,~ll¥. This system has s~ been expanded ~o other v~ndo~, thus inermstn~ those
savL'~$. -
Ms. 3'udkh C~nnon. Adminlstregv¢ Assistant, submltt~ th~ entry on behnlf of Vir$inia Beach.
The Virginia Oov~rmnent FI~ Officers' Association Awards Program is des~ to
reoogn~ the efforts of Vkginin governmental ~ organizations to improv~ liw delivery of
~ervices to their tntemnl and external 'customers' to promote efficiency and acco~ility in
vs~ of public funds, and to e~O~c responstblc Innovative practlc~ in financial nomm~ment.
-17-
Item V-J
PUBLIC COMMENT
COMPREHENSIVE PLAN
ITEM # 42629
The following registered to speak regarding the Comprehensive Plan:
Mary Heinricht, 5016 Mosby Road, 23455- Phone: 460-0750, represented SAVE
Mtchael Walker, 3405 Champlain Lane, 23452 -Phone: 486-4030
Verner Daniel, Charlottesville, Virginia - Phone: (804) 295-6106
Ted Goranson, 1976 Munden Point Road, 23457 - Phone' 426-6704
Carl Fisher, 1432 Sandbridge Road, 23456 - Phone: 426-7446
John P. Stasko, 909 Dwyer Court, 23454 - Phone: 426-0728
Clifford Hopkins, 2569 Tree Garden Way, 23456- Phone: 430-0142
Jim Clark, 1317 Mill Landing Road, 23457 - Phone: 426-5393
Nancy C. Johnson, 1148 Crystal Lake Drive, 23451 - Phone: 422-2834
Maury Jackson, 1125 Ditchley Road, 23451 - Phone: 428-1470
Marilyn Danner, 2601 West Landing Road, 23456- Phone: 426-7390
John B. Gallegos, 2897 Saville Garden Way, 23455 - Phone; 468-0358
Maxine Graham, 3057 South Sandpiper Road, 23456- Phone: 721-3000
Jane Bloodworth Rowe, 608 Ocean Lakes Drive, 23454 - Phone' 426-3053
Linda Anderson, 308 Sunfish Lane, 23456 - Phone' 426-5481
September 23, 1997
- 18-
Item V-K. 1.
PUBLIC HEARING
ITEM # 42629a.
`4 GRICUL TURAL PRESER VA TION PR OGR/IM
Mayor Oberndorf DECL,4RED ,4 PUBLIC HE,4RING:
,4 GRICUL TURAL PRESER V,4 TION PR OGRAM (,4RP)
(Blackwater and Pungo Boroughs)
There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HE,4RING
September 23, 1997
- 19-
Item V-L. 1
ORDINANCES
ITEM # 42630
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinances to authorize the acquisition of Agricultural Land Preservation
Easements (ARP) and the issuance by the City of its contract obligations:
Barry D and Paula W. Knight - 191.37 Acres
Installment Purchase Agreement No. 1997-15 - $301,551 O0
(BLA CKWA TER/P UNGO BOROUGHS)
George A Waller - 308.66 Acres
Installment Purchase Agreement No. 1997-16 - $845,386.00
(BLA CKWA TER BOROUGH)
Voting' 9-I
Council Members Voting Aye:
John A Baum, Ltnwood 0 Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M Henley, Louts R Jones, Mayor Meyera E.
Oberndorf Nancy K. Parker and Vice Mayor William D Sessoms, Jr
Council Members Voting Nay'
Reba S. McClanan
Council Members Absent:
Louisa M Strayhorn
September 23, 1997
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
$301,551
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 $301,551; 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% 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
62
63
64
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
the full faith and credit of the City.
65
Adopted by the Council of the City of Virginia Beach,
66
67
68
69
Virginia, on this 23RD day of SMP¥SMBMR
, 1997.
Adoption requires an affirmative vote of a majority of
all members of the City Council.
7O
71
72
73
CA-97-6771
ordin\noncode\knight.orn
R-1
August 28, 1997
74
75
76
77
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
S F I I NCY:
~a~ ~artn~ent -
78
79
8O
CERTIFIED AS TO AVAILABILITY OF FUNDS:
Director of Finance
BARRY D. KNIGHT
and
PAULA W KNIGHT
the "Seller"
and
CITY OF VIRGINIA BEACH, VIRGINIA
the "City"
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-15)
TABLE OF CONTENTS
(This Table of Contents 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 ............................................. 1
Rules of Constmctmn .................................... 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 C~ty 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 .................................. 9
Removal of Registrar and Appmntment 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 ....................................... 10
Binding Effect ......................................... 11
Severability ........................................... 11
Prior Agreements Cancelled; No Merger ..................... 11
Amendments, Changes and Modifications ................... 11
No Personal Liability of City Officials ..................... 11
Govermng Law ........................................ 11
Notices ............................................... 11
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
Pa~e
iii
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-15)
THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as
of the day of , 199_ between BARRY D. KNIGHT and PAULA W.
KNIGHT, Husband and Wife (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 C~ty.
B. In fta~herance 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 w~th 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, ammal or fowl,
including, but not hmited to, the production of frmts, 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 actiwty, (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, ~ncluding the sale of agricultural products as permitted by Section 401
of the Virginia Beach C~ty Zomng 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, V~rg~nia, 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 ~n 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 nghts 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 V~rg~nia 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 $ , 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 pnncipal
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, Barry D. Kmght and Paula W. Knight, Husband and
Wife.
"State" means the Commonwealth of Virginia
SECTION 1.2 Rul¢~ of Construction.
(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 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 (1) in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, and 0i) 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 Easerlaent. 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 ~n 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 $301,551.
(b) Interest on the unpaid pnnc~pal 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 ~ncluding ., 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 s~ngle installment of principal of the Purchase Price and the
interest on the unpaid balance thereof are payable ~n 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
fonvard all such interest payments by check or draft mailed to the person(s) appearing on the
registration books of the City maintmned 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 pnncipal 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 pnncipal
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 ~nterest thereon have been paid ~n full,
the City shall maintain and keep at the offices of the Registrar, registratmn 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 fi.om 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 fi.om 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 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 shall 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 A_m'eement. 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 ease of any mutilated Agreement, such mutilated
Agreement shall first be surrendered to the Registrar, and, in the ease of any lost, stolen or
destroyed Agreement there shall be first furnished to the City and the Registrar evidence of
such loss, [her 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 ofwhieh 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 Ret~resentations and Warranties of the City.
following representations and warranties:
The City makes the
the State.
(a) The City is a body politic and corporate and a political subdivision of
(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.
(e) 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 wan'ant~es:
(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 reqmred 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 lltigat~on 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 whmh 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 230-74-4271 (for Barry
D. Knight) and 230-88-7624 (for Paula W. Knight).
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 Intenl[ of (~ity and Tax q;ovenant of (~lty. 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" w~thin 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 ~ncome taxation.
SECTION 5.2 Acknowledmuent of Seller with Re~ard to Tax Conseauences 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 income 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 dehvery of this Agreement and ~s 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 Registritr. First Union National Bank of Virginia is
hereby designated and appointed to act as Registrar for this Agreement.
SECTION 6.2 Owllership 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 ~n any action which any Registered owner may
be entitled to take with like effect as ~f ~t did not act as Registrar hereunder. The Registrar,
in its individual capacity, either as principal or agent, may also engage, or have an interest,
in any financial or other transaction w~th 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 Removal of Registrar 0nd 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 ~s 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 {T0n$olidation. 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 consohdated, or any
corporation resulting from any merger or consohdation 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 part~es hereto, anything
in this Agreement to the contrary notwithstanding.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Successors ofCi _ty. 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 ~ntended or shall be construed to confer
upon any person, firm or corporation, other than the City, the Seller, any other Registered
10
Owner and the Registrar, any right, remedy or claim under or by reason of thru 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 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 hereafler have any fights 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 fights, liabilities and responsibilities relating to the Land, the
Development Rights and the payment for the Development Rights. In addition, 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 of 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 hability 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 commumcations reqmred under
this Agreement to be in writing shall be sufficiently given and shall be deemed to have been
11
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:
C~ty Attorney
Municipal Center
Virginia Beach, VA 23456
Seller:
Barry D. and Paula W Kmght
1852 Mill Lan&ng Road
Virginia Beach, V~rg~nia 23457
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 Hohdays. If the date for making any payment or the last date
for performance of any act or the exercising of any fight, 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 fight 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, V~rginia, 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 V~rg~nia
Beach, 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
Beach, Virginia, this day of , 19 ,, by
(SEAL)
My Commission Expires:
Notary Pubhc
15
EXHIBIT A
FORM OF DEED OF EASEMENT
[SEE ATTACHED]
16
Th~s instrument was prepared by
V~rgima Beach City Attorney's Office
Exemption Claimed: § 58.1-81 l(A)(3)
§ 58.1-811 (C)(4)
DEED OF EASEMENT
THIS DEED OF EASEMENT is made this day of ,1997, by
and between BARRY D. ~ and PAULA W. ~ (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 thc 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 $ 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, thc 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 Grantors Development
Rights (hereina~er defined) in the Land by executing and delivering this Deed of Easement
and thereby restrict the use of the Land as described herein; and
GPRq # 1387-12-6495, 2410-06-8816, 2410-65-4856, 2400-96-8172
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, Grantors 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 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 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 aquaculmral 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 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 infi'astmcture improvements in the southern part of
the City and the expenditure of public funds for such improvements, (v) preserve open
spaces, and (v0 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.
GRANTOR:
Barry D. Knight
Paula W. Knight
(SE L)
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 Barry D. Knight and
Paula W. Knight, Grantors.
(SEAL)
My Commission Expires:
Notary Public
EXHIBIT A
pARCEL ONE:
ALL THAT certain tract of land situated in the City of
Virginia Beach (formerly Blackwater Magisterial District of
Princess Anne County), in the State of Virginia, containing
two hundred (200) acres, more or less, and bounded and
described as follows, to wit:
BEGINNING at a post in the middle of Baum's Road and
running thence along a lead ditch S. 19 degrees 43' W. 1861.9
feet to a station, thence along said lead ditch S. 18 degrees W.
5383 feet to a comer, thence N. 86 degrees 25' W. 172 feet,
thence S. 54 degrees 5' W. 90 feet, thence S. 73 degrees 5' W.
102 feet, thence S. 35 degrees 35' W. 51.5 feet, thence N. 67
degrees 10' W. 51 feet, thence S. 38 degrees 35' W. 58 feet,
thence N. 67 degrees 25' W. 35 feet to a beech, thence S. 67
degrees 5' W. 217 feet to a beech, thence N. 81 degrees 25' W
328 feet to a gum, thence N. 84 degrees 10' W. 243 feet to a
pine, thence N. 88 degrees 40' W. 29 feet to a comer, thence
N. 18 degrees 4' E. 4745.7 feet to a station, thence along a
ditch N. 18 degrees 4' E. 2729.5 feet to the middle of Baum's
Road, and thence along the middle of said road S. 84 degrees
35' E. 1257.2 feet to the point of beginning.
PARCEL TWO:
ALL THAT certain piece, parcel or tract of land with the
improvements thereon, situate, lying and being in the Pungo
Borough, in the City of Virginia Beach, Virginia, and known,
numbered and designated as Parcel 3, as shown on that certain
plat entitled "Subdivision of Property of James Howard
Salmons, Jr., Deed Book 1546, at Page 114, Pungo Borough,
Virginia Beach, Virginia", dated 5 November, 1980, made by
Bonifant Land Surveys, said plat being duly recorded in the
Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Map Book 145, at Page 35.
PARCEL THREE:
ALL THAT certain lot, piece, or parcel of land, situate, lying,
and being in the City of Virginia Beach, Virginia, and being
known, numbered, and designated as Parcel 2, 6.11 acres, as
shown on that certain plat entitled "Subdivision of Property
of James Howard Salmons, Jr., Pungo Borough, Virginia
Beach, Virginia", which plat is duly recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach,
Virginia, in Map Book 145, at page 35.
pARCEL FOUR:
ALL THAT certain piece, parcel or tract of land, with the
improvements thereon, situate, lying and being in the Pungo
Borough, City of Virginia Beach, Virginia, and known,
numbered and designated as "21.19 acres" as shown on that
certain plat entitled "Subdivision of Property of James
Howard Salmons, Jr., D.B. 1546, p. 114, Pungo Borough,"
dated November 5, 1980, made by Bonifant Land Surveyors,
and duly of record in the Clerk's Office of the Circuit Court
of the City of Virginia Beach, Virginia, in Map Book 145, at
page 35, and also more particularly described and designated
as "21.19 acres" on the plat entitled "Survey of Property of
James Howard Salmons, Jr., Pungo Borough, Virginia Beach,
Va." dated January 8, 1981, made by Bonifant Land
Surveyors and recorded in the aforesaid Clerk's Office in
Deed Book 2208, at page 1798.
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 PARCEL ONE) a portion of the same
property conveyed to Barry D. Knight and Paula W. Knight,
fi.om William James Kirby, Sr., et ux, by deed dated May 26,
1993, duly recorded in the aforesaid Clerk's Office in Deed
Book 3246, at page 729.
IT BEING (as to PARCEL TWO) a portion of the same
property conveyed to Barry D. Knight fi.om James H.
Salmons, Jr., et ux, by deed dated May 6, 1981, duly recorded
in the aforesaid Clerk's Office in Deed Book 2117, at page
252.
IT BEING (as to PARCEL THREE) a portion of the property
conveyed to Barry D. Knight fi.om Kevin M. Brunick,
Trustee, by deed dated June 25, 1987, duly recorded in the
aforesaid Clerk's Office in Deed Book 2648, at page 550.
IT BEING (as to PARCEL FOUR) a portion of the property
conveyed to Barry D. Knight fi.om The Bank of Tidewater, a
Virginia corporation, by deed dated July 10, 1988, duly
recorded in the aforesaid Clerk's Office in Deed Book 2718,
at page 1813.
EXHIBIT B
DESCRIPTION OF LAND
[SEE ATTACHED]
17
EXHIBIT B
PARCEL ONE:
ALL THAT certain tract of land situated in the City of Virginia
Beach (formerly Blackwater Magisterial District of Princess Anne
County), in the State of Virginia, containing two hundred (200)
acres, more or less, and bounded and described as follows, to wit:
BEGINNING at a post in the middle of Baum's Road and running
thence along a lead ditch S. 19 degrees 43' W. 1861.9 feet to a
station, thence along said lead ditch S. 18 degrees W. 5383 feet to
a comer, thence N. 86 degrees 25' W. 172 feet, thence S. 54
degrees 5' W. 90 feet, thence S. 73 degrees 5' W. 102 feet, thence
S. 35 degrees 35' W. 51.5 feet, thence N. 67 degrees 10' W. 51 feet,
thence S. 38 degrees 35' W. 58 feet, thence N. 67 degrees 25' W.
35 feet to a beech, thence S. 67 degrees 5' W. 217 feet to a beech,
thence N. 81 degrees 25'W 328 feet to a gum, thence N. 84
degrees 10' W. 243 feet to a pine, thence N. 88 degrees 40' W. 29
feet to a comer, thence N. 18 degrees 4' E. 4745.7 feet to a station,
thence along a ditch N. 18 degrees 4' E. 2729.5 feet to the middle
of Baum's Road, and thence along the middle of said road S. 84
degrees 35' E. 1257.2 feet to the point of beginning.
PARCEL TWO:
ALL THAT certain piece, parcel or tract of land with the
improvements thereon, situate, lying and being in the Pungo
Borough, in the City of Virginia Beach, Virginia, and known,
numbered and designated as Parcel 3, as shown on that certain plat
entitled "Subdivision of Property of James Howard Salmons, Jr.,
Deed Book 1546, at Page 114, Pungo Borough, Virginia Beach,
Virginia", dated 5 November, 1980, made by Bonifant Land
Surveys, said plat being duly recorded in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia, in Map Book
145, at Page 35.
PARCEL THREE:
ALL THAT certain lot, piece, or parcel of land, situate, lying, and
being in the City of Virginia Beach, Virginia, and being known,
numbered, and designated as Parcel 2, 6.11 acres, as shown on that
certain plat entitled "Subdivision of Property of James Howard
Salmons, Jr., Pungo Borough, Virginia Beach, Virginia", which
plat is duly recorded in the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, in Map Book 145, at page 35.
pARCEL FOUR:
ALL THAT certain piece, parcel or tract of land, with the
improvements thereon, situate, lying and being in the Pungo
Borough, City of Virginia Beach, Virginia, and known, numbered
and designated as "21.19 acres" as shown on that certain plat
entitled "Subdivision of Property of James Howard Salmons, Jr.,
D.B. 1546, p. 114, Pungo Borough," dated November 5, 1980,
made by Bonifant Land Surveyors, and duly of record in the
Clerk's Office of the Circuit Court of the City of Virginia Beach,
Virginia, in Map Book 145, at page 35, and also more particularly
described and designated as "21.19 acres" on the plat entitled
"Survey of Property of James Howard Salmons, Jr., Pungo
Borough, Virginia Beach, Va." dated January 8, 1981, made by
Bonifant Land Surveyors and recorded in the aforesaid Clerk's
Office in Deed Book 2208, at page 1798.
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 PARCEL ONE) a portion of the same property
conveyed to Barry D. Knight and Paula W. Knight, fi.om William
James Kirby, Sr., et ux, by deed dated May 26, 1993, duly
recorded in the aforesaid Clerk's Office in Deed Book 3246, at
page 729.
IT BEING (as to PARCEL TWO) a portion of the same property
conveyed to Barry D. Knight fi.om James H. Salmons, Jr., et ux, by
deed dated May 6, 1981, duly recorded in the aforesaid Clerk's
Office in Deed Book 2117, at page 252.
IT BEING (as to PARCEL THREE) a portion of the property
conveyed to Barry D. Knight from Kevin M. Brunick, Trustee, by
deed dated June 25, 1987, duly recorded in the aforesaid Clerk's
Office in Deed Book 2648, at page 550.
IT BEING (as to PARCEL FOUR) a portion of the property
conveyed to Barry D. Knight from The Bank of Tidewater, a
Virginia corporation, by deed dated July 10, 1988, duly recorded in
the aforesaid Clerk's Office in Deed Book 2718, at page 1813.
EXHIBIT C
PERMITTED ENCkJ-MBRANCE$
[SEE ATTACHED]
18
EXHIBIT "C"
PERMITTED ENCUMBRANCES
.
Taxes for the fiscal year 1997/1998 and any/all stormwatea' fees, which are liens not yet due
and payable, and taxes and stormwater fees for all subsequent billing periods.
2. Roll Back Taxes.
.
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.
EXHIBIT "C"
pERMITTED ENCUMBRANCES
ALL PARCELS:
,
Taxes for the fiscal year 1997/1998 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.
.
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.
pARCEL ONE:
.
Rights of others in and to the use of any drains and/or ditches located over, across, in or
under the insured premises, and fights to enter upon said premises to maintain the same.
.
Title to that portion of the property lying below the mean high water mark, riparian rights
of the named insured incident to the premises, and riparian fights of upper and lower riparian
owners.
,
Rights of the Federal Government, the Commonwealth of Virginia and the City of Virginia
Beach to regulate all marsMand meadowland or wetland contained within the bounds of the
real estate described in Schedule A.
7. Rights of others in and to the waters of Smith Creek.
8. Right of drainage through ditch to Smith's Creek.
.
Easement granted Virginia Electric and Power Company by instrument recorded in Deed
Book 873, at page 260.
10.
The terms and provisions of the Timber Deed to J. W. Jones Lumber Company, Inc.,
recorded in Deed Book 3218, at page 762 (Virginia Beach), and in Deed Book 2909, at page
794 (Chesapeake).
11. Land Management Agreement recorded in Deed Book 3348, at page 379.
12.
Agreement with the City of Virginia Beach, recorded in Deed Book 3385, at page 269,
dedicating drainage easement as shown in Map Book 234, at page 87 for stormwater mn off.
PARCEL TWO:
[TO FOLLOW]
PARCEL THREE:
[TO FOLLOW]
PARCEL FOUR:
[TO FOLLOW]
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 th~s
Assignment is attached; and the Registered Owner hereby irrevocably d~rects 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 certffies 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 an the books
kept for such purpose and in the registrataon blank below.
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No. of
Transferee
Signature of Registrar
,
o
,
o
20
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
$845,386
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 $845,386; 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% 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
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
66
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 23P, D day of SSP¥SMBSR
, 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-97-6772
\ordin\noncode \wal 1 er. orn
R-1
August 28, 1997
74
75
76
77
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
SUF~FI C~ENC, Y: .
Law Department
78
79
80
CE~IE.D AS TO AVAILABILITY OF FUNDS:
Director of Finance l'
GEORGE A. WALLER
the "Seller"
and
CITY OF VIRGINIA BEACH, VIRGINIA
the "City"
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-16)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
Section Pa_ag.~
RECITALS ........................................................... 1
AGREEMENTS ....................................................... 1
ARTICLE 1
DEFINITIONS
SECTION 1.1
SECTION 1.2
Definitions ............................................. 1
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 C~ty ..................... 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 ................................. 9
Removal of Registrar and Appointment of
Successor Registrar ........................... 10
Qualifications of Successor Registrar ....................... 10
Successor by Merger or Consohdation ..................... 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. ! 0
Successors of City ...................................... 10
Parttes in Interest ...................................... 10
Binding Effect ......................................... 11
Severabflity .......................................... 11
Prior Agreements Cancelled; No Merger ..................... 11
Amendments, Changes and Modffications ................... 11
No Personal Liability of City Officials ...................... 11
Governing Law ........................................ 11
Notmes ............................................... 11
Hohdays ............................................. 12
Signatures and Seals .................................................... 12
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
Page
iii
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-16)
THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as
of the~ day of ., 199_ between GEORGE A. WALLER (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 Raghts (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 consideratmn, the
receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby
agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition~. As used in this Agreement, the following terms have the
following meanings, unless the context clearly indmates 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 pohtic 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 fights 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 I 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 en. tity.
"Purchase Price" means $845,386, 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 George A. Waller.
"State" means the Commonwealth of Virginia.
SECTION 1.2 Rules of C0nstruCt~orl.
(a) The words "hereof," "herein," "hereunder," "hereto," and other words
of similar import refer to this Agreement in its entirety.
Co) 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 ~n all such genders, and (i0 ~n 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 $~11 and Purchase Devel0pm~nt 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 dehver 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 ~n 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 $845,386.
(b) Interest on the unpaid principal balance of the Purchase Price shall
accrue fi.om 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 marled 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 unhmited 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 thru
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 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 shall 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 Mutilat_ed, Lost. Stolen or Destroyed A_m'eement. 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 (~n 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 indemmty 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.
following representations and warranties:
The City makes the
the State.
(a) The City is a body politic and corporate and a political subdivision of
(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 ~n 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, dehvery 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 R~ghts to be conveyed thereby.
(0 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 231-09-6765. The
representations in subsections (f) and (g) above are made under penalties of perjury and the
information contained therein may be d~sclosed 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.
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 Removal of Registrar and Appointment of Successor Registrar. The
City shall have the fight, 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 instmrnent 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 fight 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 0r Consohdatio.n. If the Registrar is a bank, trust
company or other financial institutmn, any institution or corporation into which the Registrar
hereunder may be merged or converted or with which ~t 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.(~il;y. 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 P...attics in Inlere,!;. 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.
10
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 A~eements 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 responsibiht~es relating to the Land, the
Development Rights and the payment for the Development Rights. In addition, 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 of 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.
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:
11
City:
with a copy to:
Seller:
Registrar:
City Manager
Municipal Center
Virginia Beach, VA 23456
City Attomey
Municipal Center
Virginia Beach, VA 23456
George A. Waller
3340 Ives Road
Virginia Beach, Virginia 23457
First Union National Bank of Virginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, V~rg~ma 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.
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
12
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
Notary Public
(SEAL)
My Commission Expires:
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
Beach,
The foregoing instrument was acknowledged before me in the City of Virginia
Virginia, this day of , 19 , by
Notary Public
My Commission Expires:
14
EXHIBIT A
FORM OF DEED OF EASEMENT
[SEE ATTACHED]
15
This instrument was prepared by
Vlrg~ma Beach City Attorney's Office
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 GEORGE A. _W_3I,i,F~, and (marital status?) (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 # 1480-18-7240
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, Grantors 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, Grantors 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 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 right 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:
George A. Waller
(SE,S.L)
(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 George A. Waller and
, Grantor.
Notary Public
(sn,~t,)
My Commission Expires:
EXHIBIT A
PARCEL ONE
ALL THAT certain tract of land situated in Blackwater
Borough, Virginia Beach, Virginia, containing thirty-nine and
five tenths (39.5) acres, and described as follows:
BEGINNING at a post on a lane running S. 2 degrees W. 23
chains to a ditch; thence along the ditch N. 86 degrees W.
17.58 chains to a ditch between property now or formerly
Webb and Bailey; thence along the ditch N. 15 ½ degrees E.
10 chains; thence N. 12 degrees E. 13 chains to a lane
between property now or formerly Ives and Webb; thence
along the lane S. 84 ~/4 degrees E. 17.50 chains to the
beginning, all of which more fully appears by reference to a
plat of the said land made March 4, 1905, by E. E. Burroughs,
County Surveyor;
PARCEL 2:
ALL THAT certain tract, piece or parcel of land, situated and
being in Blackwater Borough, Virginia Beach, Virginia,
bounded and described as follows:
BEGINNING at a station near property now or formerly A. L.
Ives' gate 18 links fi.om a ditch running S. 83 degrees E.
17.04 chains to a poplar comer of property now or formerly
Batchelder and Ives on property now or formerly of Y. B.
Miller's line; thence 24 ½ degrees E. 7.94 chains to a gum
stump; thence S. 22 ½ degrees E. 4 chains to a water oak;
thence S. 36 ½ degrees E. 5.43 chains to an ash; thence S. 37
½ degrees E. 1.60 chains to a gum; thence S 13 ~A degrees E.
1.63 chains to a gum; thence S. 16 ½ degrees E..43 chains at
bend of ditch; thence S. 19 degrees W. 1.72 chains to a gum;
thence S. 14 V2 degrees W. 3.74 chains to a water oak; thence
S. 28 ~/n degrees W..99 chains to a gum; thence S. 33 degrees
W..65 chains to a maple; thence S. 8 degrees W. 1.29 chains
to a gum; thence S. 4 degrees W. 1.46 chains to a gum; thence
S. 4 degrees W. 3.76 chains to a beech and a red oak; thence
S. 2 ½ degrees W. 2.84 chains to a red oak; thence S. ¼
degrees E. 191 chains to a white oak, comer of'property now
or formerly Batchelder and Baxter; thence N. 89 ~ degrees
W. 15 chains to a station in a ditch; thence S. 79 lA degrees
W. 1.22 chains to a comer now or formerly of Batchelder and
Baxter; thence S. 9 lA degrees W. 1.50 chains to a gum;
thence S. 10 degrees 4" W. 3.12 chains to a pine; thence N. 86
lA degrees W. 6.43 chains to a station on a ditch; thence N. 7
degrees E. 42.59 chains to the beginning, and containing 79
acres, 2 mods and 13 poles. There is excepted from the above
description all of that 45.8 acres transferred to property now
or formerly T. A. Ives by Herbert Realty Corporation by deed
recorded in the Clerk's Office of the Circuit Court of the City
of Virginia Beach, Virginia, in Deed Book 160, page 136,
reference to which is hereby made.
ALL THAT certain tract, piece and parcel of land, situated in
Blackwater Borough, Virginia Beach, Virginia, and bounded
and described as follows:
BEGINNING at a poplar and running N. 79 IA degrees E..96
chains to a beech; thence along a ditch S. 88 lA degrees E.
14.71 chains, S. 2 lA degrees W. 4.00 chains, S. 70 ~A E. 7.97
chains, S. 9 degrees E. 4.03 chains, S. 4 degrees W. 14.40
chains, S. 89 degrees W. 1.13 chains to a beech, S. 89 degrees
W. 74 chains to a gum due west 4.00 chains to a gum, S. 89
degrees W. 1.21 chains to a gum, S. 88 degrees W. 1.82
chains to a pine; S. 88 degrees W. 2.77 chains to a gum; S. 88
degrees W. 1.97 chains to a gum, S. 88 degrees W. 2.69
chains to an oak, S. 88 degrees W. 2.26 chains to an oak, S.
88 degrees W. 1.87 chains to an oak, S. 88 degrees W. 4.63
chains to a pine; S. 88 degrees W. 1.19 chains to an oak; S. 88
degrees W. 6.70 chains to a maple, S. 88 degrees W. 44
chains to a post, S. 5 lA degrees W. 81 chains to a ditch, N. 80
½ degrees W. 63 chains to a gum; thence along a ditch N. 80
lA degrees W. 3.52 chains, N. 17 ¼ degrees E. 1.56 chains, N.
74 degrees W. 10.91 chains, N. 35 degrees E. 3.58 chains to
an oak stump, N. 36 ~A degrees E. 3.86 chains to a pine, N. 34
lA degrees E. 2.00 chains to a gum stump, N. 36 degrees E.
1.42 chains to a post, S. 86 % E. 36 chains to a gum, S. 86 ~A
degrees E. 1.07 chains to a gum, S. 84 lA degrees E. 1.40
chains to an oak, S. 86 ¼ degrees E. 2.45 chains to a beech,
S. 83 ¼ degrees E. 1.33 chains to a pine; N. 85 degrees E.
3.76 chains to a maple, N. 76 degrees E. 3.25 chains to an
oak, N. 2 ~ degrees E. 7.05 chains to a gum, N. 13 degrees E.
3.65 chains to an oak, N. 9 ~/2 degrees E. 1.43 chains to the
beginning, containing eighty and two-filths (80 2/5) acres, as
shown by plat thereof made by E. E. Burroughs, County
Surveyor, recorded April 4, 1906;
PARCEL 4;
ALL THOSE two certain tracts or parcels of land situate in
Black Water Borough, Virginia Beach, Virginia, the same
being bounded and described as follows:
(a) A tract of open land containing twenty nine
and five tenths (29.5) acres, located on the south side of the
lane adjoining the lands now or formerly belonging to Webb,
Ives and Whitehurst, now or formerly Amos L. Ives, and
more particular described as shown on a survey and plat of
same bearing date March 4, 1905, and made by E. E.
Burroughs, County Surveyor, recorded in the Clerk's Office
aforesaid, in Map Book 3, page 259;
(b) That certain tract or parcel of woodland
containing three acres located on the north side of the lane
running through the lands now or formerly Ives, being
bounded on the north, east and west by the land now or
formerly belonging to Amos L. Ives and on the south by the
said lane, the said three acres being the center block of three
acres as shown on a plat dated November 16, 1903, and made
by E. E. Burroughs, County Surveyor;
PARCEL 5:
ALL THAT certain piece or parcel of land with the buildings
and improvements thereon, and the privileges thereto
belonging, situated in Pungo Borough, Virginia Beach,
Virginia, bounded and described as follows:
COMMENCING at a post at the comer of property now or
formerly Jonathan Wood's deceased, land, and adjoining the
land now or formerly of Dr. Williams on the north; thence
nmning in an east course to the land now or formerly ofI. B.
Baxter; thence nmning south and various other courses to the
land now or formerly of the said Wood; thence nmning in a
west course to a comer; thence running in a north course to
the beginning place; containing by estimation fifty (50) acres,
more or less;
PARCEL 6:
ALL THAT certain piece or parcel of land, with the buildings
and improvements thereon and the appurtenances thereto
belonging, in Pungo Borough, Virginia Beach, Virginia, and
known as the property now or formerly Amos L. Ives Home
Tract, and bounded and described as follows:
BEGINNING at a poplar, a running line with property now or
formerly J. C. Emeis and a comer with another tract of the
said property now or formerly of Amos L. Ives, purchased by
B. F. Batchelder, Executor, and the said Ives Home Tract,
which said poplar stands in the centre of a branch which
divides the said Home Tract fi.om the lands now or formerly
of J. C. Emeis, and extending in a line with said property now
or formerly Ives-Batchelder Tract North 81 ~A degrees West
98 chains to a gum, North 28 ~A degrees West 10.03 chains to
a post near property now or formerly Amos L. Ives gate;
thence in a line with said Ives private road South 8 degrees 28
min. West to a point opposite the Northern line of another
private road of said of property now or formerly Amos L. Ives
running Westerly along the first mentioned private road,
thence crossing the first mentioned private road, and along the
Northern line of said other private road to a post in the line of
property now or formerly Calvin Smith; North 17 ~A degrees
East 3.88 chains to a maple; thence same course 4.13 chains
to a gum, North 47 degrees West 5.37 chains to a post, North
44 ¼ degrees West 2.47 chains to a maple in property now or
formerly Mrs. Sadie Holt's line; thence in line with said
property now or formerly Holt North 15 ~A degrees West 46
chains to a beech; North 44 ¼ degrees West 1.45 chains to a
pine stump North 38 ¼ degrees West .77 chains to a station;
North 44 ~ degrees West 4.79 chains to a station, North 14 ¼
degrees West 3.64 chains to a station, North 1 ¼ degrees
West 2.98 chains to a post in centre of a branch, North 28
degrees East .78 chains to a gum, North 31 ~A degrees East
2.02 chains to a gum, North 12 ¼ degrees West .95 chains to
a gum, North 11 degrees West 1.49 chains to a maple; thence
in a line with other swamp lands of the property now or
formerly of said Amos L. Ives (supposed to be in the City of
Chesapeake) North 21 ¼ degrees West 1.69 chains to an elm,
North 37 Va degrees West .53 chains to a gum, North 40
degrees West 1.50 chains to a gum, same course .65 chains to
a gum, North 37 Va degrees West 2.00 chains to a gum; same
course 2.13 chains to a maple North 38 ½ degrees West 1.42
chains to a gum, North 36 ½ degrees West .73 chains to a
gum, North 35 ¼ degrees West .72 chains to a gum, a running
line on property now or formerly Y. B. Miller's line, and
thence in a general Easterly course along a line of marked
trees along the Southern line of said property now or formerly
Y. M. Miller, Nellie Miller, W. L. Ives and P. W. Ives to a
post in the line of other land of the property now or formerly
of said Amos L. Ives, thence South 2 ½ degrees West 10.84
chains to a post at the edge of the high land; thence North 67
Va degrees East 7.20 chains to a post; thence along a line of
marked trees South ½ degrees West .30 chains to a gum,
South Va degrees East 1.77 chains to a gum, South 3.17 chains
to a gum, South 3 ½ degrees West 1.23 chains to a gum,
South ½ degrees East 1.74 chains to an ash in the mouth of
a branch in property now or formerly J. C. Emeis Line; South
48 ½ degrees West 1.05 chains to a gum, in the mouth of said
branch; and thence along a line of marked trees down the
centre of the branch, dividing line between property now or
formerly A. L. Ives and property now or formerly J. C. Emeis
to the beginning poplar, containing two hundred and sixteen
(216) acres, more or less; EXCEPTING, however, fi.om the
above bounds a tract of land of nine (9) acres at the Southwest
comer of the land hereby conveyed, and EXCEPTING also
the graveyard 30 feet square in the yard of the house on the
tract hereby conveyed; being a part of the land devised to the
said Amos L. Ives by the Will of his father, Jesse Ives, Sr., in
Will Book 5, page 112.
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 George
a. Waller and , his wife, from Allen J.
Gordon and Martin W. Boelens, Jr. Special Commissioners,
by deed, dated May 17, 1993, duly recorded in the aforesaid
Clerk's Office in Deed Book , at page ~.
10
EXHIBIT B
DESCRIPTION OF LAND,,,,
[SEE ATTACHED]
16
EXHIBIT B
PARCEL ONE:
ALL THAT certain tract of land situated in the City of Virginia
Beach (formerly Blackwater Magisterial District of Princess Anne
County), in the State of Virginia, containing two hundred (200)
acres, more or less, and bounded and described as follows, to wit:
BEGINNING at a post in the middle of Baum's Road and running
thence along a lead ditch S. 19 degrees 43' W. 1861.9 feet to a
station, thence along said lead ditch S. 18 degrees W. 5383 feet to
a comer, thence N. 86 degrees 25' W. 172 feet, thence S. 54
degrees 5' W. 90 feet, thence S. 73 degrees 5' W. 102 feet, thence
S. 35 degrees 35' W. 51.5 feet, thence N. 67 degrees 10' W. 51 feet,
thence S. 38 degrees 35' W. 58 feet, thence N. 67 degrees 25' W.
35 feet to a beech, thence S. 67 degrees 5' W. 217 feet to a beech,
thence N. 81 degrees 25' W 328 feet to a gum, thence N. 84
degrees 10' W. 243 feet to a pine, thence N. 88 degrees 40' W. 29
feet to a comer, thence N. 18 degrees 4' E. 4745.7 feet to a station,
thence along a ditch N. 18 degrees 4' E. 2729.5 feet to the middle
of Baum's Road, and thence along the middle of said road S. 84
degrees 35' E. 1257.2 feet to the point of beginning.
PARCEL TWO;
ALL THAT certain piece, parcel or tract of land with the
improvements thereon, situate, lying and being in the Pungo
Borough, in the City of Virginia Beach, Virginia, and known,
numbered and designated as Parcel 3, as shown on that certain plat
entitled "Subdivision of Property of James Howard Salmons, Jr.,
Deed Book 1546, at Page 114, Pungo Borough, Virginia Beach,
Virginia", dated 5 November, 1980, made by Bonifant Land
Surveys, said plat being duly recorded in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia, in Map Book
145, at Page 35.
PARCEL THREE:
ALL THAT certain lot, piece, or parcel of land, situate, lying, and
being in the City of Virginia Beach, Virginia, and being known,
numbered, and designated as Parcel 2, 6.11 acres, as shown on that
certain plat entitled "Subdivision of Property of James Howard
Salmons, Jr., Pungo Borough, Virginia Beach, Virginia", which
plat is duly recorded in the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, in Map Book 145, at page 35.
PARCEL ]FOUR:
ALL THAT certain piece, parcel or tract of land, with the
improvements thereon, situate, lying and being in the Pungo
Borough, City of Virginia Beach, Virginia, and known, numbered
and designated as "21.19 acres" as shown on that certain plat
entitled "Subdivision of Property of 3'ames Howard Salmons, Sr.,
D.B. 1546, p. 114, Pungo Borough," dated November 5, 1980,
made by Bonifant Land Surveyors, and duly of record in the
Clerk's Office of the Circuit Court of the City of Virginia Beach,
Virginia, in Map Book 145, at page 35, and also more particularly
described and designated as "21.19 acres" on the plat entitled
"Survey of Property of Sames Howard Salmons, Jr., Pungo
Borough, Virginia Beach, Va." dated 3.anuary 8, 1981, made by
Bonifant Land Surveyors and recorded in the aforesaid Clerk's
Office in Deed Book 2208, at page 1798.
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 Parcel One) a portion of the same property
conveyed to Barry D. Knight and Paula W. Knight, fi.om William
James Kirby, Sr., et ux, by deed dated May 26, 1993, duly
recorded in the aforesaid Clerk's Office in Deed Book 3246, at
page 729.
IT BEING (as to Parcel Two) a portion of the same property
conveyed to Barry D. Knight from James H. Salmons, Jr. and Gail
E. Salmons, by deed dated May 6, 198 l, duly recorded in the
aforesaid Clerk's Office in Deed Book 2117, at page 252.
IT BEING (as to Parcel Three) a portion of the property conveyed
to Barry D. Knight from Kevin M. Brunick, Trustee, by deed dated
June 25, 1987, duly recorded in the aforesaid Clerk's Office in
Deed Book 2648, at page 550.
IT BEING (as to Parcel Four) a portion of the property conveyed to
Barry D. Knight from The Bank of Tidewater, a Virginia
Corporation, by deed dated July 10, 1988, duly recorded in the
aforesaid Clerk's Office in Deed Book 2718, at page 1813.
EXHIBIT C
PERMITTED ENCUMBRANCES
[SEE ATTACHED]
17
EXHIBIT "C"
pERMITTED ENCUMBRANCES
Taxes for 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.
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.
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
Assigrmaent 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
Assigrmaent 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 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
,
,
o
19
- 20 -
Item V-L 2
ORDINANCES
ITEM # 42631
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinance to authorize and direct the City Manager and the Ctty
Attorney to retain professional technical assistance in evaluating the
Draft Environmental Impact Statement of the F?A-18 move to Oceana
Naval Air Station; and, TRANSFER $80,000 from the General Fund
Reserve for Contingencies to the City Manager's FY 1997-1998
Operating Budget refinance costs.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, IIL William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay'
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
1
2
3
4
5
7
8
10
AN ORDINANCE AUTHORIZING AND DIRECTING THE
CITY MANAGER AND THE CITY ATTORNEY TO RETAIN
PROFESSIONAL TECHNICAL ASSISTANCE IN
EVALUATING THE DRAFT ENVIRONMENTAL IMPACT
STATEMENT ON THE F/A-18 MOVE TO OCEANA NAVAL
AIR STATION, AND TRANSFERRING FUNDS IN THE
AMOUNT OF $80,000 FROM THE GENERAL FUND
RESERVE FOR CONTINGENCIES TO THE CITY
MANAGER'S FY 1997-98 OPERATING BUDGET TO
FINANCE THE COSTS OF SUCH ASSISTANCE
11
WHEREAS, in 1995, the Base Realignment and Closure
12 Commission (BRACC) recommended that the Navy's F/A-18s from Cecil
13 Field, Florida, be moved to other east coast naval air stations,
14 primarily Oceana;
15
WHEREAS, as required by federal law, a Draft
16 Environmental Impact Statement (DEIS) has been completed and
17 released subject to a 45-day review period, which can be extended
18 an additional 30 days;
19
WHEREAS, due to the highly specialized and technical
20 nature of the impact statement, it is in the City's best interests
21 to hire a firm with expertise in noise and accident potential zones
22 to help review the DEIS; and
23
WHEREAS, the cost of hiring expert assistance for this
24 review is estimated at $80,000 with funding to come from a transfer
25 from the General Fund Reserve for Contingencies.
26
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
27 OF VIRGINIA BEACH, VIRGINIA:
28
That the City Manager and the City Attorney are hereby
29 authorized and directed to retain professional technical assistance
30 in evaluating the Draft Environmental Impact Statement on the F/A-
31
18 move to Oceana Naval Air Station.
32
BE IT FURTHER RESOLVED:
33
That funds in the amount of $80,000 are hereby
34
35
transferred from the General Fund Reserve for Contingencies to the
City Manager's FY 1997-98 Operating Budget to finance the costs of
36 such assistance.
37
38
Adopted by the Council of the City of Virginia Beach,
Virginia, on the 23 day of September , 1997.
39
40
41
42
CA-6786
ORD I N\ NONCODE \ OCEANA. ORD
R-1
PREPARED: 09/17/97
APPROVED AS TO CONTENT
Management Serwces .~/
APPROVED AS TO LEGAL
-l~epartment of Law
- 21 -
Item V-L.3
ORDINANCES
ITEM # 42632
Upon motion by Vice Mayor Sessoms, seconded by Councilman Harrison, City Council ADOPTED:
Ordinance to authorize the Ctty Manager to enter into a 5-year lease
with Corporate Center Three, L.L.C and a revised Sublease with the
Virginia Department of Health for office and clinic space in the
Pembroke Three Building at 4452 Corporation Lane (B.SYSIDE
BOROUGH)
Vottng: 10-0
Council Members Vottng Aye'
John ~t. Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndor~, Nancy K. Parker and Vice Mayor William
D Sessoms, Jr.
Council Members Voting Nay'
None
Council Members ~lbsent.
Louisa M. Strayhorn
September 23, 1997
1
2
3
4
5
6
7
8
9
10
AN ORDINANCE AUTHORIZING
THE CITY MANAGER TO ENTER
INTO A REVISED SUBLEASE
WITH THE VIRGINIA STATE
DEPARTMENT OF HEALTH FOR
OFFICE AND CLINIC SPACE
CONTAINING 32,635 SQUARE
FEET IN THE BAYSIDE
BOROUGH FOR USE BY THE
STATE HEALTH DEPARTMENT.
11
WHEREAS, the City of Virginia Beach (the
12 "City") desires to enter into a lease agreement (the "Lease") with
13 Corporate Center Three, L.L.C. (the "Landlord"), for the lease of
14 32,635 square feet of office and clinic space located in the
15 Pembroke Corporate Center Three building at 4452 Corporation Lane,
16 Virginia Beach, Virginia (the "Premises"), for use by the Virginia
17 State Department of Health (the "VDH"); and
18
WHEREAS, the City further desires to enter into
19 a sublease agreement (the "Sublease") with the VDH for sublease of
20 the Premises; and
21
WHEREAS, both the Lease and the Sublease are
22 for terms of fifteen (15) years, with two renewal options of five
23 (5) years per renewal; and
24
WHEREAS, the Lease and the Sublease will assist
25 the City in fulfilling its obligations under §32.1-30 of the Code
26 of Virginia (1950), as amended (the "Code"), to maintain a local
27 health department; and
28
WHEREAS, funding for the obligations under the
29 Lease and the Sublease is part of the Agreement between the City
30 and the VDH in satisfaction of the requirements of §32.1-31 of the
31 Code (the "Agreement ") , and
32
WHEREAS, by Ordinance No 97-2449K adopted June
33 3, 1997, City Council authorized and directed the City Manager to
34 enter into the Lease and the Sublease, in substantially the forms
35 attached to said Ordinance as Exhibit 1 and Exhibit 2; and
36
WHEREAS, the Lease has been fully executed by
37 the Landlord, but is conditioned upon the execution of the
38 Sublease; and
39
WHEREAS, agreement has now been reached with
40 State officials for the terms of the Sublease including some
41 substantive revisions to the form approved by Council on June 3,
42 1997, which provide for the termination of the existing lease with
43 the VDH and the payment, in addition to the City's obligations
44 under the Agreement, of a termination fee by the City for
45 terminating the existing lease with the VDH; and
46
WHEREAS, the City Manager seeks authorization to enter into
47 the revised Sublease.
48
THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL
49 OF THE CITY OF VIRGINIA BEACH, VIRGINIA:
50 That the City Manager is hereby authorized and directed to enter
51 into the revised Sublease substantially in the form attached hereto
52 as Exhibit 1.
53
Adopted by the Council of the City of Virginia
54 Beach, Virginia on the 23 day of September , 1997.
55
56
57
CA-6784
NONCODE\CA6784.0R1
PREPARED: 9/17/97
58
59
60
61
62
63
64
65
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM
City Attorney
APPROVED AS TO CONTENTS
Signature
Department
~ A8 TO &VAIi.,AB/UTY OF FUNDS
SUBLEASE AND TERMINATION AGREEMENT
THIS SUBLEASE AND TERMINATION AGREEMENT, entered this 2nd day of May,
1997, by and between the CITY OF VIRGINIA BEACH (the "City") and the
COMMONWEALTH OF VIRGINIA by the Department of Health (the "VDH").
WHEREAS, the City has entered into a lease of even date herewith between Corporate
Center Three, L.L.C. (the "Landlord") and the City (the "Lease"), for space which the City wishes
to sublet to the VDH and the VDH wishes to sublease from the City; and,
WHEREAS, the City owns certain real property located at 3432 Virginia Beach Boulevard,
Virginia Beach, Virginia, a portion of which is leased to the VDH until October 30, 2011 by lease
dated November 1, 1986 which lease the parties wish to hereby cancel and terminate (the "Prior
Lease").
NOW THEREFORE, WITNESSETH: That on and subject to the terms and provisions of
the Lease, a copy of which is attached hereto and incorporated herein, the City doth sublet unto the
VDH, the following property, to-wit:
32,635 square feet of rentable space located on the First and Second Floors in the
office building known as Pembroke Corporate Center Three, 4452 Corporation Lane,
Virginia Beach, Virginia 23462 (the "Premises").
The Premises are hereby leased to be used and occupied by the VDH and its agent or agents
for such purpose or purposes as the VDH may now or hereafter be empowered by law to use the
same, in any or all of the undertakings of the VDH and its agents or affiliates.
This Sublease shall coincide with the term of the Lease and the rent payable hereunder shall
be in the amount payable by the City as set forth in the Lease.
1. Subject to the terms and provisions of the Lease, the City covenants and agrees that it will
require the Landlord to do or permit the following:
A. To deliver quiet possession of the Premises to the VDH on the effective date of this
Sublease.
B. To deliver the Premises in good repair suitable to the use for which they are leased
and warrant that all plumbing, heating, air-conditioning, electrical and mechanical devices
and appliances (if provided by the Landlord) of every nature upon the Premises are in good
repair and working order.
-1-
C. To keep the Premises and all plumbing, heating, air-conditio~ng, electrical and mechanical
devices and appliances (if provided by the Landlord) of every nature upon the Premises in good
repair and in working order at the expense of the Landlord during the tenancy of this Sublease and
to provide heat, air-conditioning, electricity, water and sewer, and janitorial services on the premises
at the Landlord's expense during the tenancy of this Sublease.
D. If the Premises are damaged by fire or otherwise, but not so as to render the Premises
untenantable, upon being notified so to do by the VDH or its duly authorized agent, to repair and
restore, as promptly as possible, the Premises to their former condition, in which event there shall
be a prorata abatement of the rent for the period during which the repairs and restoration are being
completed, for the portion of the Premises not usable by the VDH during such period.
E. That in the event of the failure of the City or the Landlord to make such repairs and
restoration within a reasonable time aider notice, then the VDH may terminate this Sublease or
proceed to make, or cause to be made, such repairs at the expense of the Landlord and deduct the
cost thereof from ensuing rentals as they become due or collect such cost from the Landlord in any
manner which may be provided by law.
F. To equip and make such alterations and additions to the Premises and the equipment therein
belonging to the Landlord as shall be necessary at all times to comply with the provisions of Federal,
State and Local laws, ordinances, and regulations pertaining to health, safety, fire, and public
welfare.
G. The VDH may make such alterations, modifications, additions and/or improvements upon
or to the Premises and may install or remove such fixtures and partitions as the VDH may deem
proper: provided, however, that any such alterations shall require the prior written consent of the
Landlord, which consent shall not be withheld unreasonably, and any structural alterations of the
roof, foundation or exterior walls shall require the prior written consent of the Landlord. All
materials used in such alterations, modifications, additions or improvements, and all fixtures and
partitions made and/or installed by the VDH shall remain the property of the VDH and, upon
termination of this Sublease, may, at the VDH's option., be removed.
2. The VDH covenants and agrees:
A. To pay the rent herein provided for in the manner herein provided, without the necessity of
demand being made therefor by the City.
B. At the termination of this Sublease, to deliver peacefully the Premises in as good order and
repair as the same was at the beginning of this Sublease, reasonable wear and tear expected, subject
to the agreement of the Landlord to make repairs and restoration as elsewhere herein provided.
3. It is mutually covenanted and agreed by the City and the VDH subject to the terms of the Lease:
-2-
A. That for the purpose of this Sublease, it is mutually understood and agreed that where the
words 'repair' and/or 'restoration' are used, the same shall be deemed to include the replacement of
broken or cracked glass.
B. That if the Premises be so damaged by fire or otherwise as to render the same, in the opinion
of the VDH, untenantable, for the purpose or use the VDH has Subleased same, this Sublease shall
terminate as of the date of such damage, destruction or casualty upon the VDH's giving written
notice of that fact to the City at the address set forth below: and provided that the VDH agrees to
remove all of its property from the Premises within thirty (30) days.
C. That in the event that by operation of law the VDH shall cease to exist, or the powers of the
VDH shall be so construed as not to permit the VDH to continue to use the Premises herein demised
for the purpose for which they shall have been used, then in that event, this Sublease and all
responsibility and liability of the VDH of whatever kind hereunder shall terminate.
D. That a written notice of seven (7)months shall be given by the VDH should it desire to vacate
the Premises at the termination of this Sublease and should the City desire possession at the
termination of tlus Lease, a six (6) month notice shall be required to be given by the City; and in the
event no such notice is given by either party, then this Sublease shall continue in force from year to
year at the same annual rental and subject to all the terms, conditions, and covenants herein
contained.
E. That any and all notices affecting this Sublease may be served by the parties hereto or their
duly authorized agents, as effectively as if the same were served by any officer authorized by law
to serve notices; and the return of such person of the time and manner of the service thereof shall
have the same force and effect as to any legal proceedings based thereon as the return of any officer
authorized by law to serve notices.
F. This written Sublease constitutes the entire agreement between the City and the VDH
regarding the demise of the property herein described and no agent of either party has any authority
to alter, amend, or waive any of the terms hereof, unless such amendment be in writing and
consented to and signatured by the parties hereto.
4. The City hereby designates:
James C. Lawson
Whose address is:
Office of Real Estate, Room 170
Operations Building
Virginia Beach, Virginia 23456
as the agent of the City and directs that any and all notices hereunder, when served upon the said Agent,
-:3-
shall have the same force and effect as if served upon the City in person; and
The VDH hereby designates:
Virginia Beach Health Department
Whose address is:
and,
Whose address is:
4452 Corporation Lane
Virginia Beach, Virginia 23462
Department of Health
Office of Purchasing and General Services
1500 East Main Street, Room 217
Richmond, Virginia 23218-2448
as the Agent of the VDH for the purpose of accepting notice as may be herein provided. The City directs
that the payment of all rents to accrue hereunder shall be paid to:
The Landlord at:
P. O. Box 2218
Virginia Beach, Virginia 23462
or to such other party and such other place as the Landlord or the City may from time to time designate in
writing. The City shall provide the VDH with copies of all notices given or received by the City in
connection with the Lease and/or this Sublease.
5. Special covenants:
A. This Sublease is conditioned upon and subject to all state laws and continuation of the State-
local health department affiliation now in existence; and this sublease shall be canceled
automatically in the event of termination of the State-local health department affiliation now in
existence, or in the event the local, State, or Federal government fails to appropriate or allocate
sufficient funds for the purpose of continuation of this Sublease.
B. To the extent necessary and/or appropriate, (i) the rights and obligations of the City under
the Lease shall be deemed to be the fights and obligations of the VDH under this Sublease, and (ii)
the obligations of the City under this Sublease shall be deemed to be the obligations of the Landlord
under the Lease. Nothing in the preceding sentence, however, shall be construed to be a waiver of
any fight which the City or the VDH has against the other under this Sublease in the event the VDH,
the City or the Landlord shall fail to perform under either the Lease or this Sublease.
6. The Prior Lease shall be canceled, terminated and of no further force or effect on the later of the
commencement date of this Sublease or the date the City's property located at 3432 Virginia Beach
Boulevard is vacated by the VDH.
A. In consideration of such termination, the City covenants and agrees to pay to the VDH, in
addition to any amounts due to the VDH under any State-local health department affiliation, the sum
of Four Hundred Twenty Thousand and 00/100 Dollars ($420,000.00) in 14 annual installments of
Thirty Thousand and 00/100 Dollars ($30,000.00) each, the first such installment to be due and
payable on November 1, 1997 and subsequent installments shall be paid on the first day of
November of each year through November 1, 2010. Payments shall be delivered to the
Commonwealth of Virginia, Department of Health, at its headquarters located at 1500 E. Main
Street, Richmond, Virginia 23219 or to such other place as VDH may from time to time direct.
B. In consideration of the agreement set forth in Section 6(A) above, the Commonwealth of
Virginia by the VDH hereby waives and releases any and all claims and causes of action it has or
may have against the City arising out of or in connection with, the termination of the Prior Lease.
C. Notwithstanding the preceding subsection 6(B) above, such waiver shall be null and void and
any claims and causes of actions the Commonwealth of Virginia may assert shall be revived in the
event that the City at any time fails to comply with the termination terms or fails to pay any
installment of the termination consideration in a timely fashion. In addition, the Commonwealth
reserves the right to assess interest penalties against the City at the then-prevailing statutory legal
rate of interest set forth in Va. Code {}6.1-330.53.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures and seals.
This Sublease arrangement is recommended this~
day of ,1997.
VIRGINIA STATE DEPARTMENT OF HEALTH
By:
(Virginia Beach Health Director)
APPROVED AS TO FORM:
By:
(Assistant Attomey General)
-5-
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
,, to-wit:
The foregoing Sublease and Termination Agreement was acknowledged before me
by
on the~ day of
997, in the jurisdiction
aforesaid.
Notary Public
My commission expires:
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
, to-wit:
The foregoing Sublease and Termination Agreement was acknowledged before me
by
on the~ day of
1997, in the jurisdiction
aforesaid.
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
,, to-wit:
The foregoing Sublease and Termination Agreement was acknowledged before me
by
on the, day of
997, in the jurisdiction
aforesaid.
Notary Public
My commission expires:
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
, to-wit:
The foregoing Sublease and Termination Agreement was acknowledged before me
by
on the~ day of
997, in the jurisdiction
aforesaid.
Notary Public
My commission expires:
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF
, to-wit:
The foregoing Sublease and Termination Agreement was acknowledged before me
-7-
by on the ~ day of ,1997, in the jurisdiction
aforesaid.
Notary Public
My commission expires:
RECOMMEND APPROVAL:
DIVISION OF ENGINEERING AND
BUILDINGS
RECOMMEND APPROVAL:
DEPARTMENT OF GENERAL SERVICI3
By: By:
Director Director
APPROVED BY THE GOVERNOR
Pursuant to {}2.1-504.2 of the Code of Virginia (1950), as amended, and by the authority delegated to
me under Executive Order 31 (94) ,dated October 25, 1994, I hereby approve acquisition of the demised
premises and termination of the Prior Lease pursuant to this Sublease and Termination Agreement and the
execution of this instrument for and on behalf of the Governor of Virginia.
Secretary of Administration
(Date)
G ~DATA~FORMSXDEEDS\WORKING\CA6784 SUB
- 22 -
Item V-L. 4
ORDINANCES
ITEM # 42633
Upon motton by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED:
Ordinance to APPROPRIATE $1,386,105 from the General Fund
Balance and $89,630 from the retatned earings of the Water and Sewer
Fund for the FY 1997-1998 gainsharing program.
Voting: 10-0
Council Members Voting Aye:
John A Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wtlliam
D. Sessoms, Jr
Council Members Voting Nay:
None
Council Members Absent'
Louisa M Strayhorn
September 23, 1997
AN ORDINANCE TO APPROPRIATE FUNDS IN THE AMOUNT OF
$1,386,'105 FROM THE GENERAL FUND BALANCE AND $89,630 FROM
THE WATER AND SEWER FUND RETAINED EARNINGS
FOR THE GAINSHARING PROGRAM
WHEREAS, it is desire of the City Council to continue the Gainsharing Program for
the employees of Virginia Beach which w~ll allow employees to share in savings reahzed through
organizational improvements;
10
WHEREAS, there are sufficient funds available in the General Fund Balance to
continue the Ga~nsharing Program while maintaining the policy level of funding ~n the Debt Service
Reserve Fund; and
11
12
earnings
WHEREAS, there are also sufficient funds available in Water & Sewer Fund retained
13
14
15
16
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
VIRGINIA BEACH, that funds in the amount of $1,386,105 and $89,630 be appropriated from the
General Fund Balance and the Water and Sewer Fund Retained Earnings, respecbvely, for the
Gainsharing Program.
17
18
19
BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
BEACH, that checks for Gainsharing savings be issued to all eligible permanent and part-time
employees on October 31, 1997, in accordance w~th the City's Gainshanng Policy.
20
This ordinance shall be in effect from the date of its adoption.
21
22
Adopted by the City Council of the City of Virginia Beach, Virginia on the 23
day of Septembez: , 1997.
APPROVED AS TO CONTENT
Walter C. Kraer~~...
Department of Management Services
APPROVED AS TO ;,
LEGAL SUFFICIEN.$Y
I-HSTORIC INDIVIDUAL GAINSHARING AMOUNTS
FOR FULL-TIME EMPLOYEES
1993 $319.00
1994 $258.00
1995 $218.00
1996 $304.00
1997 $224.00
- 23 -
Item V-L.$
ORDINANCES
ITEM # 42634
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Councd ADOPTED:
Ordinance to APPROPRIATE $86,200 from the Forfeited Asset Sharing
Special Revenue Fund Balance to the FY 1997-98 Operating Budget of
the Police Department re replacement and upgrading of equipment to
enhance the enforcement capability of the Police Department's Marine
Patrol operation.
Voting: 10-0
Council Members Vottng Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
AN ORDINANCE TO APPROPRIATE $86,200 OF FUND
BALANCE IN THE FORFEITED ASSET SHARING SPECIAL
REVENUE FUND TO THE FY '1997-98 OPERATING BUDGET
OF THE POLICE DEPARTMENT
WHEREAS, the number of personal watercraft registered ~n the Commonwealth of V~rgima
has doubled between 1994 and 1996, accounbng for 36% of all reported boabng accidents,
8
9
10
WHEREAS, the City of V~rg~nia Beach has a greater concentrabon of personal watercraft
than any other area of the Commonwealth and has expenenced a dramabc increase ~n
accidents and injuries arising from ~mproper operabon of personal watercraft,
11
12
WHEREAS, drug forfeiture funds, once appropnated, may be used for traimng and
equipment to enhance the enforcement capab~hty of the Police Department, and
13
14
WHEREAS, sufficient funds are available to be appropriated from the fund balance of the
Forfeited Asset Sharing Special Revenue Fund,
15
16
17
18
19
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA
BEACH, VIRGINIA, that $86,200 be appropriated from fund balance of the Forfeited Asset
Shanng Special Revenue Fund to the FY 1997-98 Operating Budget of the Pohce Department
for replacement and upgrading of equipment to enhance the enforcement capabdity of the
Police Department's Manne Patrol operabon
20
Th~s ordinance shall be effective on the date of its adoption
21
22
Adopted by the Council of the C~ty of Virg~ma Beach, V~rg~n~a, on the
September , 1997
23 of
23
24
25
26
27
APPROVED AS TO CONT~E~T
Walter 6¢l~aemer, Jr
Resource and Management Services Admimstrator
Department of Management Services
APPROVED AS TO
LE~:~/',L SUFF:CgE~''''',:Y ",
- 24 -
Item V-L. 6
ORDINANCES
ITEM # 42635
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ,4DOPTED:
Ordinance to ,4 CCEPT and ,4PPROPRI,4 TEa $7,000 Grant from the
Virginia Department of Forestry, TRANSFER $7,000 from the Fiscal
Year 1997-1998 General Fund Reserve for Contingencies - Grant
Matches for a total of $14,000 to the Fiscal Year 1997-1998 Operating
Budget of the Department of Planning for urban forestry work; and,
estimated revenue from the Commonwealth be increased accordingly.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay.
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
AN ORDINANCE TO ACCEPT AND APPROPRIATE A GRANT IN THE
AMOUNT OF $7,000 FROM THE VIRGINIA DEPARTMENT OF FORESTRY AND
TO TRANSFER $7,000 AS MATCHING FUNDS FROM GENERAL FUND RESERVE
FOR CONTINGENCIES - GRANT MATCHES FOR A TOTAL APPROPRIATION OF
$14,000 TO THE FISCAL YEAR 1997-1998 OPERATING BUDGET OF THE
DEPARTMENT OF PLANNING
7
8
9
10
11
WHEREAS, the Commonwealth of Virginia's Department of Forestry has provided a
grant in the amount of $7,000 to help continue a temporary Environmental Planning
Technician I position to support the Department of Planning's urban forestry work, allow for
the development of an urban forestry riparian demonstration project, and the purchase of
supplies to support volunteer urban forestry efforts in the City of Virgima Beach,
12
13
WHEREAS, this grant requires a cash match of $7,000 which is available in the Fiscal
Year 1997-1998 General Fund Reserve for Contingencies - Grant Matches;
14
15
16
17
WHEREAS, the work to be provided through these resources will significantly
enhance the opportunity to restore, enhance and conserve the valuable urban forest resource
within the City and thereby provide a unique opportunity to augment the physical appearance
of the City, ~ncrease environmental education, and improve environmental qualily.
18
19
20
21
22
23
24
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
VIRGINIA BEACH, VIRGINIA, that a $7,000 grant from the Commonwealth of Virginia's
Department of Forestry is hereby accepted and appropriated to the Fiscal Year 1997-1998
Operating Budget of the Department of Planning for urban forestry work, and $7,000 in
matching funds is transferred from the Fiscal Year 1997-1998 General Fund Reserve for
Contingencies - Grant Matches to the Fiscal Year 1997-1998 Operating Budget of the
Department of Planning for urban forestry work;
25
26
BE IT FURTHER ORDAINED that estimated Revenue from the Commonwealth be
increased by th&'same amount of the grant of $7,000; and
27
28
29
BE IT FURTHER ORDAINED that a temporary Environmental Planning Technician
I position be continued in Fiscal Year 1997-1998 within the Department of Planning to carry
out the work of this grant
30
31
Adopted the ~
Beach, Virginia.
23 day of September 1997, by the Council of the City of Virginia
APPROVED AS TO CONTENT
Department of Management Serwces
_
'- ' I III _ II
APPROVED AS TO
- 25-
Item V-L. 7
ORDINANCES
ITEM # ~2656
Upon motion by Vtce Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED:
Ordinance to TRANSFER $3,963 from the General Fund Reserve for
Contingencies to reimburse the Water and Sewer Fund, as a charitable
gift, to Habitat for Humanity re costs of water and sewer fees associated
with construction of a single-family dwelling at 2300 Seaboard Road
(PRINCESS ANNE BOROUGH)
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood 0 Branch, IlL William W. Harrison, Jr., HaroM
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent.
Louisa M. Strayhorn
September 23, 1997
Requested by Mayor Meyera E. Oberndorf
AN ORDINANCE AUTHORIZING THE TRANSFER
OF $3,963 FROM THE GENERAL FUND
RESERVE FOR CONTINGENCIES FOR THE
PURPOSE OF REIMBURSING THE WATER AND
SEWER FUND FOR THE COSTS OF WATER AND
SEWER FEES ASSOCIATED WITH THE
CONSTRUCTION OF A HABITAT FOR HUMANITY
SINGLE-FAMILY DWELLING
WHEREAS, South Hampton Roads Habitat for Humanity, Inc.
10 ("Habitat for Humanity"), a local affiliate of Habitat for Humanity
11 International, endeavors to improve housing opportunities for low-
12 income, working families in the City of Virginia Beach by
13 constructing single-family homes built with the labor of volunteers
14 and the families who purchase these homes;
15
WHEREAS, Habitat for Humanity is constructing a single-
16 family dwelling at 2300 Seaboard Road in the Princess Anne Borough;
17
WHEREAS, the costs of construction of this single-family
18 dwelling will include water and sewer fees in the amount of $3,963;
19 and
20
WHEREAS, the City of Virginia Beach wishes to show its
21 support for this project by reimbursing the Water and Sewer Fund,
22 as a charitable gift to Habitat for Humanity, for the costs of such
23 water and sewer fees.
24
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
25 OF VIRGINIA BEACH, VIRGINIA:
26
That City Council hereby authorizes the transfer of
27 $3,963 from the General Fund Reserve for Contingencies for the
28 purpose of reimbursing the Water and Sewer Fund, as a charitable
29 gift to Habitat for Humanity, for the costs of water and sewer fees
30 associated with construction of a single-family dwelling at 2300
31 Seaboard Road in the Princess Anne Borough.
32
33
Adopted by the Council of the City of Virginia Beach,
Virginia, on the __ 23_ day of September , 1997.
34
35
36
37
CA-6782
ORDIN~NONCODE[HABIT2. ORD
R-1
PREPARED: 09/09/97
38
39
40
41
APPROVED AS TO CONTENT:
Management Ser~
APPROVED AS TO LEGAL
SUFFICIENCY:
Law Department
- 26-
Item V-L. 8
ORDINANCES
ITEM # 4263 7
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED:
Ordinance to authorize temporary encroachments tnto a portion of the
City's right-of-way at 3756 Indian River Road by STERLING W. and
BONNIE J. THACKER re maintaining a PVC fence until property ts
needed for the widening of Indian River Road (PRINCESS ANNE
BOROUGH
The following conditions shah be required:
The temporary encroachment shah be constructed and
maintained in accordance with the laws of the Commonwealth
of Vtrginta and the City of Virginia Beach and in accordance
with the Ctty of Virginia Beach Public Works Department's
specifications and approval as to size, alignment and location.
.
The temporary encroachment and use herein authorized shall
termtnate upon notice by the City of Virgtnia Beach to the
applicants that the City intends to use the right-of-way within
a reasonable period of time afier the date of such notice and
such intended use requires the removal of the Fence and/or the
~4djacent Fence; that within thirty (30) days after such notice
is gtven, such temporary encroachment shall be removed from
the City's right-of-way known as Indian River Road by the
apphcants and such use shall cease; and the applicants shah
bear aH costs and expenses of such removal and cessation
The applicants shall indemnify and hold harmless the City of
Vtrginia 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 locatton or extstence of such temporary
encroachment or the use of any portion of the Ctty's right-of-
way by the apphcants, their guests, invitees, employees,
contractors and agents
.
The applicant shall obtain and keep in force such tnsurance as
is necessary to adequately insure the City against liability for
the existence of the temporary encroachment into and uses of
the City's right-of-way, by the City, and all insurance policies
must name the City as additional named insured or loss payee,
as applicable and shall carry the provtsion that the tnsurance
will not be cancelled or materially modified without thtrty (30)
days written notice to the City's Risk Management Office. The
Ctty reserves the right to review such insurance policy or
policies and to require tncreased coverage every five (5) years
during the extstence of the temporary encroachment into and
uses of the City's right-of-way; provided, however, such
increased coverages shall be commensurate with that required
by the City for stmtlar temporary encroachment tnto and uses
of the City's right-of-way The apphcant assumes all
responsibilities and liabihties, vested or contingent, with
relation to the temporary encroachment and use herein
authorized.
September 23, 1997
- 27-
Item V-L. 8
ORDINANCES
ITEM # 42637 (Continued)
No permisston or authority is given to the applicants to permit
the maintenance or construction of any encroachment other
than that specified herein and to the limtted extent specified
herem, nor to permit the maintenance and construction of any
encroachments by any one other than the applicants
The applicants agree to maintain the temporary encroachment
and any portion of the City's right-of-way so as not to become
unsightly or a hazard.
The City, upon revocatton of such authority and permisston so
granted, may remove any such temporary 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 temporary
encroachment; and, pending such removal, the City may charge
the applicant 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 occupted if it were owned by the
applicants, and tf such removal shall not be made within the
ttme specified by the City, the Ctty shall impose a penalty in the
sum of One Hundred Dollars ($100.00) per day for each and
every day that such temporary encroachment ts allowed to
conttnue thereafter, and shall collect such compensatmn and
penalties in any manner provided by law for the collection of
local or state taxes.
.
This Agreement shall remain in full force and effect, except as
modified hereby, with all references made therein to "wooden
fence" betng construed to be the "Adjacent Fence" as described
heretn.
Voting' I0-0
Council Members Voting Aye:
John A. Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K Parker and Vice Mayor Wtlham
D Sessoms, Jr
Council Members Voting Nay'
None
Council Members Absent:
Louisa M Strayhorn
September 23, 1997
1 Requested by Department of Publmc Works
AN ORDINANCE TO AUTHORIZE
TEMPORARY ENCROACHMENTS INTO
A PORTION OFTHE RIGHT-OF-WAY
OF INDIAN RIVER ROAD BY
STERLING W. AND BONNIE J.
THACKER, THEIR HEIRS, ASSIGNS
AND SUCCESSORS IN TITLE
WHEREAS, Sterling W. and Bonnie J. Thacker desire to
10 maintamn an existing fence mn the Cmty's rmght-of-way Located at
11 3756 Indian Rmver Road. WHEREAS, City Councml ms authormzed
12
13
pursuant to §~ 15.1-316 and 15.1-893, Code of Virgmn~a, 1950, as
amended, to authormze a temporary encroachment upon the City's
14 rmght-of-way subject to such terms and condmtmons as Council may
15 prescrmbe.
16
NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY
17 OF VIRGINIA BEACH, VIRGINIA:
18
19
20
That pursuant to the authormty and to the extent thereof
contained in §§ 15.1-316 and 15.1-893, Code of Virgmnma, 1950, as
amended, Sterlmng W. and Bonnme J. Thacker, their hemrs, assigns
21 and successors mn title are authormzed to mamntamn a temporary
22 encroachment for a fence in the C~ty's right-of-way as shown on the
23 map entitled: "EXHIBIT B, PLAN SHEET 1 OF 2" and "EXHIBIT B, PLAN
24
25
SHEET 2 OF 2" copmes of which are on file mn the Department of
Public Works and to which reference ms made for a more particular
26 descrmption; and
27
BE IT FURTHER ORDAINED, that the temporary encroachments
28 are expressly sublect to those terms, cond~tmons and crmteria
29
30
contamned in the Agreement between the City of Vmrg~nma Beach and
Sterlmng W. and Bonnme J. Thacker dated July 30, i[997 (the
31 "Agreement") a copy of which ~s attached hereto and mncorporated by
32 reference; and
33 BE IT FURTHER ORDAINED that the City Manager or hms
34 authorized designee is hereby authormzed to execute the Agreement.
35
BE IT FURTHER ORDAINED, that this Ordmnance shall not be
36 mn effect untml such time as STERLING W. AND BONNIE J. THACKER and
37 the City Manager or hms authorized designee have executed the
38 Agreement and the Agreement has been recorded mn the Clerk's offmce
39 of the C~rcu~t Court.
40
41
Adopted by the Councml of the Cmty of V~rg~nma Beach,
Virginia, on the 23 day of September , 1997.
42 CA-~
43 SBURNS kHAYES \,TN_ACKER. ORD
44 R-1
45 PREPA~RED: AUGUST 25, 1997
APP ,VED TO CONTEN S
DEPARTMENT
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM
7 CITY ATTORNEY
SETTLEI~NT ~REEI~ENT
THIS SETTLEMENT AGREEMENT is made as of the 15th day
of January, 1997, by and between the CITY OF VIRGINIA BEACH, a
municipal corporation of the Commonwealth of Virginia (the "City"),
and STERLING W. THACKER and BONNIE T. T~ACKER, husband and wife
(the "Thackers").
W~EREAS, the City and the Thackers have been
litigating a condemnation proceeding pending in the Circuit Court
of the City of Virginia Beach, Virginia (the "Court"), styled CITY
OF VIRGINIA BEACH V. STERLING W. T~ACKER, et al, etc., AT LAW NO.
CL96-356 (the "Litigation"), involving certain real property and
improvements thereon located in the City along Indian River Road,
more particularly described in the Litigation pleadings (the
"Property"); and
WHEREAS, the City and the Thackers have reached an
agreement to settle the Litigation.
NOW, THEREFORE, WITNESSETH: That for and in
consideration of the mutual promises and undertakings set forth
herein, the City and the Thackers do hereby agree as follows:
1. The trial date for the Litigation shall be continued to
August 19, 1997 (the "Trial Date"), pending satisfaction of the
obligations and conditions set forth in paragraphs 3,4 and 5 below
(the "Obligations and Conditions"). Upon satisfaction of all of
the Obligations and Conditions prior to June 19, 1997, the City and
the Thackers shall execute all documents necessary to conclude the
Litigation by means of an Agreement After Certificate or other
appropriate documents and procedure to fully vest title to the
Property in the City and conclude the litigation. If the
Obligations and Conditions are not satisfied prior to June 19,
1997, the City and the Thackers anticipate that a trial will be
conducted on the Trial Date, although satisfaction after June 19,
1997, but prior to the Trial Date will not preclude the conclusion
of the Litigation as outlined herein.
2. The total purchase price to be paid by the City to the
Thackers for the Property is $12,000, $11,000 of which has already
been paid into Court and distributed to the Thackers. The
remaining $1,000 shall be paid by the City at the time appropriate
documents and pleadings are filed with and an appropriate order is
entered by the Court to conclude the Litigation in accordance with
paragraph 1 above.
3. The City and the Thackers acknowledge that there is
existing PVC fencing (the "Fences") located on the Property and on
the City's right-of-way adjacent to the Property on the West (the
"Adjacent Property"). On or before March 1, 1997, the Thackers
agree to apply for an encroachment permit or permits and a fence
permit (if necessary) and provide all necessary supporting
documentation to enable the Thackers to keep the Fences in their
current location and to continue the existing uses of portions of
the Property and the Adjacent Property as pasture pursuant to the
terms of an encroachment agreement substantially in the form
attached hereto (the "Encroachment"). The City will waive the
application fees normally charged in connection with processing the
Encroachment application and any required fence permit application.
The City shall make available at no cost to the Thackers, the plats
and drawings for the Gum Swamp Bridge Project (CIP 2-122) as they
affect the Property and the Adjacent Property to enable the
Thackers to copy same for use in the application process.
4. The Thackers acknowledge that obtaining the Encroachment
is subject to approval by City Council and that there is no
guarantee of approval by City Council. City staff, however, will
process the Encroachment application promptly and in good faith
with a recommendation to City Council for approval. City staff
will also process any required fence permit application promptly.
5. Any portion of the Fences located on City-owned property
adjacent to the Property on the East shall be removed by the
Thackers.
6. The City (to the extent permitted by law) and the Thackers
agree to cooperate in good faith with each other and to diligently
pursue the approval of the Encroachment to satisfy the Obligations
and Conditions so that the Litigation can be concluded in
accordance with the terms set forth in this Agreement.
7. The City and the Thackers acknowledge that this Agreement
represents the entire understanding of the parties with respect to
the settlement of the Litigation, and the terms hereof shall not be
modified in any way without the written consent of all parties.
8. This Agreement shall be binding upon the parties hereto
and their respective heirs, personal representatives, successors
and assigns.
Approved as to Content:
Public Works/Real Estate
CITY OF VIRGINIA BEACH
By: ~.
City Manager/Designee
Certified as to Availability
of Funds:
Finance Department
~hacker
(SEAL)
Approved as to Legal
Sufficiency:
e p. ~fhacker
G \ \~ayle\wp\work\thacker agr
THIS AGREEMENT, made this day of ,
1997, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a
municipal corporation of the Commonwealth of Virginia (the "City"
and for indexing purposes, the "Grantor"), party of the first
part; and STERLING W. THACKER and BONNIE T. THACKER, husband and
wife (the "Thackers" and for indexing purposes, the "Grantees"),
whose address is 3756 Indian River Road, Virginia Beach, Virginia
23456, and their respective heirs, assigns and successors in
title, collectively, party of the second part.
W I T N E S S E T H:
WHEREAS, the Thackers owned certain real property more
particularly described on Exhibit A attached hereto (the
"Property") which has been condemned by the City for present and
future road widening and related public purposes; and
WHEREAS, the Thackers had constructed on the Property
prior to the taking of same by the City a PVC fence (the "Fence")
which is not required to be moved at the present time; and
WHEREAS, the Thackers have constructed additional PVC
fencing (the "Adjacent Fence") in the Indian River Road right-of-
way to the west of the Property (the "Adjacent Property") to
replace wooden fencing for which an encroachment agreement was
previously approved by the City which Agreement is duly recorded
GPIN #'S 1484-10-1671
1484 -01-8054
in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia in Deed Book 2610, at page 640 (the
"Prior Agreement"); and
W~EREAS, it is the desire of the Thackers to maintain
the Fence and the Adjacent Fence in their present location within
the City's right-of-way and to continue the existing uses of
portions of the Property and the Adjacent Property as pasture as
temporary encroachments pursuant to the terms of this Agreement,
and the Thackers have requested that the City grant a temporary
encroachment to facilitate such temporary encroachments within a
portion of the City's right-of-way known as 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 City, receipt of which is
hereby acknowledged, the City 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 River Road for the purposes
of permitting the Fence and the Adjacent Fence to remain and
continuing the existing uses of portions of the Property and the
Adjacent Property as pasture.
It is expressly understood and agreed that the
temporary encroachment and use herein authorized shall be
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
River Road as shown on that certain plat
entitled: "#," a copy of which is attached
hereto as Exhibit "B" and to which reference
is made for a more particular description.
It is further expressly understood and agreed that (i)
the temporary encroachment and use herein authorized shall
terminate upon notice by the City to the party of the second part
that the City intends to use the right-of-way within a reasonable
period of time after the date of such notice and such intended
use requires the removal of the Fence and/or the Adjacent Fence;
(ii) 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 River Road by the party of the
second part and such use shall cease; and (iii) the party of the
second part shall bear all costs and expenses of such removal and
cessation.
It is further expressly understood and agreed that the
party of the second part, jointly and severally, 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 or the use of any
portion of the City's right-of-way by the party of the second
,
part, or their guests, invitees, employees, contractors, and
agents.
The party of the second part agrees to obtain and keep
in force such insurance as is necessary to adequately insure the
City against liability for the existence of the temporary
encroachments into and uses of the City's right-of-way, by the
City, and all insurance policies must name the City as additional
named insured or loss payee, as applicable and shall carry the
provision that the insurance will not be cancelled or materially
modified without thirty (30) days prior written notice to the
City's Risk Management Office. The City reserves the right to
review such insurance policy or policies and to require increased
coverage every five (5) years during the existence of the
temporary encroachments into and uses of the City's right-of-way;
provided, however, such increased coverages shall be commensurate
with that required by the
encroachments into and uses of
City for
the City' s
similar temporary
right -of -way. The
party of the second part assumes all responsibilities and
liabilities, vested or contingent, with relation to the temporary
encroachment and use herein authorized. 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 or use other than
that specified herein and to the limited extent specified herein,
nor to permit the maintenance and construction of any
,
encroachment or use 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 temporary
encroachment and any portion of the City's right-of-way used by
the party of the second part so as not to become unsightly or a
hazard.
It is further expressly understood and agreed that upon
revocation of the authority and permission so granted herein, the
City 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
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 everyday 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.
The Prior Agreement shall remain in full force and
effect, except as modified hereby, with all references made
therein to "wooden fence" being construed to be the "Adjacent
Fence" as described herein.
IN WITNESS WHEREOF, the Thackers have caused this
Agreement to be executed by their signatures and seals duly
affixed. Further, that the City has caused this Agreement to be
executed in its name and on its behalf by its City Manager/or
authorized Designee of the City Manager and its seal be hereunto
affixed and attested by its City Clerk.
CITY OF VIRGINIA BEACH
By
City Manager/Authorized
Designee of the City Manager
(SEAL)
ATTE ST:
City Clerk
By (SEAL)
Sterling W. Thacker
By (SEAL)
Bonnie T. Thacker
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 of 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, , a Notary Public
in and for the City and State aforesaid, do hereby certify that
RUTH HODGES SMITH, City Clerk of 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, , a Notary Public
in and for the City and State aforesaid, do hereby certify that
Sterling W. Thacker and Bonnie T. Thacker, whose names are signed
·
to the foregoing
writing,
, 19
·
bearing date the day of
, , have acknowledged the same before
me in my City and State aforesaid.
Given under my hand this
19 .
day of
My Commission Expires:
Notary Public
G.\...\deeds\working\rp3S69.agr
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SITE
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LIBATION MAP
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LOCATION FOR STERLING W. AND BONNIE J. THACKER
ENCROACHMENT AT 3756 INDIAN RIVER ROAD
SCALE: 1" = 400'
/ /
PREPARED BY P/W ENG. DRAFT. 8 /13 /97
THIS AGREEMENT, made this~day of C~.~ , 1997, by and
between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the
Commonwealth of Virginia (the "City" and for indexing purposes, the "Grantor"), party of
the first part; and STERLING W. THACKER and BONNIE.T. THACKER, husband and
, wife (the "Thackers" and for indexing purposes, the "Grantees"), whose address is 3756
Indian River Road, Virginia Beach, Virginia 23456, and their respective heirs, assigns and
successors in title, collectively, party of the second part.
WITNESETH:
WHEREAS, the Thackers owned certain real property more particularly
described on Exhibit A attached hereto (the "Property") which has been condemned by the
City for present and future road widening and related public purposes; and
WHEREAS, the Thackers had constructed on the Property prior to the taking
of same by the City a PVC fence (the "Fence") which is not required to be moved at the
present time; and
WHEREAS, the Thackers have constructed additional PVC fencing (the
"Adjacent Fence") in the Indian River Road right-of-way to the west of the Property (the
"Adjacent Property " )to replace wooden fencing for which an encroachment agreement was
previously approved by the City which Agreement is duly recorded in the Clerk's Office
GPIN #'s
1484-10-1671
1484-01-8054
Exhibit B, Plan Sheet 1 of 2, and the plat entitled: PLAT TO
ACCOMPANY ENCROACHMENT PERMIT SHOWING
IMPROVEMENTS ALONG INDIAN RIVER ROAD AS
SHOWN ON "LAND MANAGEMENT DRAINAGE PLAN
AND DEDICATION PLAT OF PROPERTY OF STERLING
W. THACKER AND BONNIE J. THACKER", dated
October 22, 1986, Scale: 1" =50', prepared by Rouse-Sirine
Assocites, LTD, attached hereto as Exhibit B, Plan Sheet 2 of
2, to which references are made for a more particular
description.
It is further expressly understood and agreed that (i) the temporary
encroachment and use herein authorized shall terminate upon notice by the City to the party
of the second part that the City intends to use the right-of-way within a reasonable period of
time after the date of such notice and such intended use requires the removal of the Fence
and/or the Adjacent Fence; (ii) 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
River Road by the party of the second part and such use shall cease; and (iii) the party of
the second part shall bear all costs and expenses of such removal and cessation.
It is further expressly understood and agreed that the party of the second
part, jointly and severally, 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 or the use of any
portion of the City's right-of-way by the party of the second part, or their guests, invitees,
employees, contractors, and agents.
the temporary encroachments into and uses of the City's right-of-way, by the City, and all
insurance policies must name the City as additional named insured or loss payee, as
applicable and shall carry the provision that the insurance will not be canceled or materially
modified without thirty (30) days prior written notice to the City's Risk Management
Office. The City reserves the right to review such insurance policy or policies and to
require increased coverage every five (5) years during the existence of the temporary
encroachments into and uses of the City's right-of-way; provided, however, such increased
coverages shall be commensurate with that required by the City for similar temporary
encroachments into and uses of the City's right-of-way. The party of the second part
assumes all responsibilities and liabilities, vested or contingent, with relation to the
temporary encroachments and uses herein authorized.
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 or use other than that specified herein and to the limited
extent specified herein, nor to permit the maintenance and construction of any
encroachment or use 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 temporary encroachment and any portion of the City's right-of-way
used by the party of the second part so as not to become unsightly or a hazard.
It is further expressly understood and agreed that upon revocation of the
authority and permission so granted herein, the City 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 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.
The Prior Agreement shall remain in full force and effect, except as modified
hereby, with all references made therein to "wooden fence" being construed to be the
Adjacent Fence" as described herein.
IN WITNESS WHEREOF, the Thackers have caused this Agreement to be
executed by their signatures and seals duly affixed. Further, that the City has caused this
Agreement to be executed in its name and on its behalf by its City Manager/or authorized
Designee of the City Manager and its seal be hereunto affixed and attested by its City
Clerk.
(SEAL)
LEGAL SUFFICt 7';~TM
llll
CITY OF VIRGINIA BEACH
By
City Manager/Authorized Designee of
the City Manager
ATTEST:
City Clerk
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to-wit:
By ~EAL)
S~rling W. Tha(k[r
·
)
I!
, a Notary Public in and
for the City and State aforesaid, do hereby certify that
, City
Manager/Authorized Designee of the City Manager of 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 .
Notary Public
My Commission Expires:
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 of the
CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing
EXHIBIT A
All that certain lot, tract or parcel of land together with the improvements
thereon, situate, lying and being in the City of Virginia Beach, Virginia,
designated and described as "PARCEL 004 NOW OR FORMERLY
STERLING W. THACKER & BONNIE,,T. THACKER, TAKE AREA:
42,960.83 S.F., 0.986 AC." as shown on that certain plat entitled: "PLAT
SHOWING PROPERTY TO BE ACQUIRED FOR INDIAN RIVER
ROAD, GUM SWAMP BRIDGE PROJECT (CIP 2-122) BY THE CITY
OF VIRGINIA BEACH, VIRGINIA FROM PARCEL 004 STERLING W.
THACKER & BONNIEy. THACKER (D.B. 2710, PG. 2056) PRINCESS
ANNE BOROUGH - VIRGINIA BEACH, VIRGINIA", Scale: 1" = 50',
dated September 22, 1993, made by Meridian Associates, Inc., which plat
is duly recorded in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia, in Map Book 246, at page 2, to which reference
is made for a more particular description.
It being a part of the same property conveyed to the Sterling W. Thacker,
et ux, from J. Baldwin Smith, III, unmarried, et al, by Deed dated January
28, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book
2710, at page 2056.
0
,V', 3NI'I H3.LVW
~ &0~
&.~.~HS N~fqd
,T,I~IHX~
PLAT TO ACCOMPANY '
ENCROACHMENT PERMIT
SHOWING IMPROVEMENTS ALONG INDIAN RIVER ROAD
AS SHOWN ON "LAND MANAGEMENT DRAINAGE PLAN AND DEDICATION'
PLAT OF PROPERTY OF
II
STERLING W. THACKER AND BONNIE d. THACKER
KEMPSVILLE BOROUGH-VIRGINIA BEACH~ VIRGINIA
SCALE: I" 50'
= OCTOBER ~Z, 1986
F~OUSE -- $11~INE ASSOCIATES, LTD.
9URVEY'ORS AND ENOINEER~
VIRGINIA BEACH, VIRGINIA
(DB. 2554, P 775 )
- 28 -
Item V-L. 9.
ORDINANCES
ITEM # 42638
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED:
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY:
Grand Limousine
Vottng' I0-0
Council Members Voting Aye:
John A Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold
Hetschober, Barbara M Henley, Louis R Jones, Reba S. McClanan,
Mayor Meyera E. Oberndo~ Nancy K. Parker and Vtce Mayor William
D. Sessoms, Jr.
Councd Members Vottng Nay.
None
Council Members Absent:
Louisa M Strayhorn
Items 9 and 10 were voted upon in ONE MOTION.
September 23, 1997
- 29 -
Item V-L. lO.a.b.m
ORDINANCES
ITEM # 42639
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED:
Ordinances to authorize:
License Refunds:
$10,983.80
License and Special Tax Refunds:
Tax Refunds:
$ 425.93
$13,526.33
Voting' 10-0
Council Members Voting Aye:
John A. Baum, Linwood 0 Branch, III, William ~ Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor Wilham
D. Sessoms, Jr.
Council Members Voting Nay:
None
Councd Members Absent:
Louisa M. Strayhorn
September 23, 1997
FORM NO C A 8 flFV 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 apphcabons for license refunds, upon certiflcabon
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Alhson & Edge PC
770 Lynnhaven Pkwy 135
Va Beach VA 23452
Bolan, Joseph B
1011 Barnacle Court
Va Beach VA 23451
Chesapeake Controls Inc
1220 Executive Blvd 108
Chesapeake VA 23320
Charlotte Camera Brokers Inc
2400 Park Road S-G
Charlotte NC 28203
1997 Audit 2,798 00
1995 Audit 129 97
1994-97 Audit 141 51
1996-97 Audit 170 35
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $3,239 83
of the C~ty of V~rg~n~a Beach on the 23
2,798 00
129 97
141 51
17O 35
Cerhfled as to Payment
~ //'J
.J~rt 15 Vau~han/../ -
Commissioner of the Revenue
Approved as to form
('L--'~sI~ L L, Ile~'-
C~ty Attorney
were approved by the Council
day of September ,19 97
Ruth Hodges Smith
C~ty Clerk
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 certrfication
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Lattuca, Samuel C & Trudy
1108 Eaglewood Dr~ve
Va Beach VA 23454
S M Lawrence Co Inc
P O Box 638/245 Preston St
Jackson TN 38302-0638
1995 Audit 11 64 11 64
1995-96 Audit
51 38 51 38
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $63 02
of the C~ty of V~rg~n~a Beach on the
23
D.t~ert,f,ed as tp~av.~en~/
""~Rc;~m IsPs i oVna~, r~o;~h e Revenue --
Approved as to form
C~ty Attorney
were approved by the Council
day of September ,19 97
Ruth Hodges Smith
C~ty Clerk
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 applicabons for license refunds, upon cerhficat~on
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Ad Ventures Adverbs~ng Inc
448 V~k~ng Dnve
Va Beach VA 23452
Agnos, Peter G
524 Longdale Crescent
Chesapeake VA 23325
Fnedmans Inc
P O Box 8025
Savannah GA 31412
Kinney Shoe Corporation
P O Box 2731
Harnsburg PA 17105
1995-97 Audit
1995-97 Audit
1994-97 Audit
1995-97 Audit
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $2,274 33
of the C~ty of V~rg~n~a Beach on the
23
19 99
19 99
8OO 72
800 72
376 36
376 36
1,077 26
1,077 26
Cerbfled as to Payment
~:~b'~rt P Vaughan
Commissioner of the-Revenue
Approved as to form
'L-'~sI,~ L L, Ile~'
C~ty Attorney ~
were approved by the Council
day of September
,19 97
Ruth Hodges Smith
City Clerk
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 cerbfication
of the Commismoner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Malbon, Luther R
3161 Newbndge Road
Va Beach VA 23456
Nee, Margente P & Wdham D
827 Cathedral Drive
Va Beach VA 23455
Omnkosky, T~mothy A & M~d~a N
828 Old Cutler Road
Va Beach VA 23454
1994 Audit 19 98
1995-96 Audit
1995-97 Audit
60 33
66 99
19 98
60 33
66 99
Th~s ordinance shall be effecbve from date of
adopbon
The above abatement(s) totaling $147 30
23
of the C~ty of V~rg~n~a Beach on the
Cerbfled as to Payment
~:h:~" P V aughan
Commissioner of th'e-Re'venu' -'" - ' e
Approved as to form
C~ty Attorney
were approved by the Council
September
day of
,19
97
Ruth Hodges Smith
City Clerk
FORM NO C A 1~ REV 3'N
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 apphcations for hcense refunds, upon certification
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Pockets of V~rg~n~a Inc
4848 Va Beach Blvd
Va Beach VA 23462
V~ewtron~cs Service Co Inc
329 Va Beach Blvd
Va Beach VA 23451
1995-97 Audit
1995-97 Audit
156 92
70 83
156 92
70 83
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $227 75
of the C~ty of V~rg~n~a Beach on the 23
Certified as to Payment
Robert P Vaugl'~,,7
Commissioner of the Revenue
Approved as to form
~L'~sf~e L L,IT~y"' ~
C~ty Attorney
were approved by the Council
day of September ,19 97
Ruth Hodges Smith
City Clerk
FOFIM NO C~ A ~ ~IEV
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 cerhfication
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Paragon Steakhouse Restr Inc
10200 W~llow Creek Road
San D~ego CA 92131
Pets Bed & Breakfast Ltd
4601 Staghorn Dnve
Va Beach VA 23456
Wdhelmsen L~nes USA Inc
7737 Hampton Blvd
Norfolk VA 23505
1994-96 Audit 1,094 99
1996-97 Audit 84 35
1996-97 Audit 2,476 13
1 ,O94 99
84 35
2,476 13
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $3,655.47
of the C~ty of V~rg~n~a Beach on the
23
Certified as to Payment
~,Ro~ert P Vaughan/c_~
Commissioner of the Revenue
Approved as to form
C~ty Attorney
were approved by the Council
day of September
,19
97
Ruth Hodges Smith
City Clerk
FORM NO C ~. B REV
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 I~cense refunds, upon certiflcabon
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Fraz~er, Thomas J Jr
925 Preddy Creek Road
Barbourswlle VA 22923
Fraz~er, Thomas J Sr
925 Preddy Creek Road
Barbourswlle VA 22923
Manne Electromcs Inc
Rt 33 Box 160
Hartfleld VA 23071
Mccoy, Raymond Jr
1560 Beachv~ew Dnve
Va Beach VA 23464
1996-97 Audit
1996-97 Audit
1994-95 Audit
167 86
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $1,439 12
of the C~ty of V~rg~n~a Beach on the
10 00
1,226 19
167 86
1995 Audit 35 07
10 00
23
1,226 19
35 O7
Cerbfled as to Payment
~:b~ert P Vaughr~_.~/'
Commissioner of the Revenue
Approved as to form
'lL~sr.~ L blley '"~
C~ty Attorney
were approved by the Council
day of Septer. bez:
,19
97
Ruth Hodges Smith
C~ty Clerk
AN ORDINANCE AUTHORIZING LICENSE AND SPECIAL
TAX 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 and special tax refunds, upon
cert~hcation of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Spy Store Of V~rg~n~a Inc
324 Scarlet Oak Dnve
Va Beach VA 23452
Wh~tfleld, Clarence
4401 Lmdenwood Court
Va Beach VA 23456
1995-96 Audit
1994-96 Audit
69 07
10 O0
69 O7
10 O0
Th~s ordinance shall be effective from date of
adoption.
The above abatement(s) totaling $79 07
of the C~ty of V~rg~n~a Beach on the 23
Cerhhed as to Payment
~---~R~bert P Vaugh~'
Commissioner of the Revenue
Approved as to form
were approved by the Councd
day of September ,19 97
Ruth Hodges Smith
C~ty Clerk
AN ORDINANCE AUTHORIZING LICENSE AND SPECIAL
TAX 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 and special tax refunds, upon
cerbflcation of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Brookstone Incorporated
17 R~vers~de Street
Nashua NH 03062
Checkers Dnve-ln Restr Inc
P O Box 1079
Clearwater FL 34617
Cutch~ns, Joey Lee
P O Box 1196
Mechamcswlle VA 23111
Glomar Ltd
757 Harns Point Dr~ve
Va Beach VA 23455
1995 Audit
1994-95 Sp Tax
1995-97 Audit
1994 Audit
Th~s ordinance shall be effective from date of
adoption.
The above abatement(s) totaling $283 84
of the C~ty of V~rg~n~a Beach on the 23
65 21
65 21
21 99
21 99
150 oo
15O O0
46 64
46 64
Cerbfled as to Payment
~-'R~bert P Vaughan
Commissioner of the Revenue
Approved as to form
L~'~I,~ L L,Ile~- '"'"
C~ty Attorney ~
were approved by the Council
day of Sept4ember
,19 97
Ruth Hodges Smith
C~ty Clerk
FORM NO 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:
Tax Type Ticket Exonera- Date Penalty Int.
NAME Year of Tax Number tion No. PaId
Total
Burnside, Bruce D. & Sandra
Sargent, Henry & Betty
Sargent, Henry & Betty
Sargent, Henry & Betty B.
Sargent, Henry & Betty B.
Sargent, Henry & Betty B.
Sargent, Henry & Betty B.
Burnside, Bruce D. & Sandra
Burnside, Bruce D. & Sandra
Chesson, Betty S.
Lake, John K. & Brenda B.
Virginia Beach United Methodist
Virginia Beach United Methodist
Virginia Beach United Methodist
Virginia Beach United Methodist
Virginia Beach United Methodist
Virginia Beach United Methodist
Virginia Beach United Me%hodist
Virginia Beach United Methodist
Virginia Beach United etc. Trus
Virginia Beach United etc. Trus
Virginia Beach United Methodist
Virginia Beach United Methodist
Creeds Associates, Inc.
Creeds Associates, Inc.
Barnes, Patricia V.
Barnes, Patricia V.
3arnes, Patricia V.
3arnes, Patricia V.
Barnes, Patricia V.
Barnes, Patricia V.
Ballentine, Earl W. & Katherine
First Lynnhaven Baptist Church
Dam Neck Properties
Dam Neck Properties
Dozier Family L. C.
Kinser, Robert R.
96(2/2) RE 96-016452-4 05/23/96
95(1/2) RE 95-103581-5 12/05/94
95(2/2) RE 95-103581-5 06/05/95
96(1/2) RE 96-105115-4 12/05/95
96(2/2) RE 96-105115-4 06/05/96
97(1/2) RE 97-106360-3 12/05/96
97(2/2) RE 97-106360-3 06/05/97
97(1/2) RE 97-016679-0 11/15/96
97(2/2) RE 97-016679-0 05/12/97
97(2/2) RE 97-021329-4 01/29/97
97(2/2) RE 97-068590-7 06/05/97
96(1/2) RE 96-124187-8 11/22/95
96(2/2) RE 96-124187-8 05/28/96
97(1/2) RE 97-125547-9 11/15/96
97(2/2) RE 97-125547-9 05/22/97
97(1/2) RE 97-125548-8 11/15/96
97(2/2) RE 97-125548-8 05/22/97
97(1/2) RE 97-125549-7 11/15/96
97(2/2) RE 97-125549-7 05/22/97
96(1/2) RE 96-124186-9 11/22/95
96(2/2) RE 96-124186-9 05/28/96
96(1/2) RE 96-085455-6 11/22/95
96(2/2) RE 96-085455-6 05/28/96
96(1/2) RE 96-026136-7 12/05/95
96(2/2) RE 96-026136-7 06/05/96
97(1/2) RE 97-006497-1 12/05/96
97(2/2) RE 97-006497-1 05/22/97
96(1/2) RE 96-006376-8 12/05/95
96(2/2) RE 96-006376-8 05/14/96
95(1/2) RE 95-006245~8 11/18/94
95(2/2) RE 95-006245-8 05/26/95
97(2/2) RE 97-005663-1 05/30/97
97(2/2) RE 97-039187-7 05/22/97
97(1/2) RE 97-028374-3 12/05/96
97(2/2) RE 97-028374-3 06/05/97
97(2/2) RE 97-048988-9 05/28/97
97(2/2) RE 97-089487-9 03/31/97
12.86
15.32
15.32
15.97
15.97
17.28
17.28
100.09
100.09
24.09
915.56
1395.45
1395.45
494.10
494.10
915.00
915.00
786.90
786.90
1054.50
1054.50
349.08
891.00
106.16
106.16
22.33
22.33
21.74
21.74
20.86
20.86
414.56
936.68
3.66
3.66
25.25
18.53
Total:
$13,526.33
Th~s ordinance shall be effective from date of adoption.
The above abatement(s) totaling
$13,526.33 were approved by
the Council of the C~ty of V~rg~n~a
Beach on the 23_day of September., 1997
Ruth Hodges Smith
C ~ty Clerk
Approved as to form:
- 30-
Item V-M.
PUBLIC HEARING
ITEM # 42640
PLANNING
Mayor Oberndorf DECLARED a PUBLIC HE,4RING on:
PLANNING
1. B,4IT,4 DEVELOPMENT COMP,4NY, LLC
MODIFIC,4 TION TO GREEN
RUN L,4ND USE PL,4N
2. MABLE C. BROCK
VARIANCE
3. LINDA T. CHAPPELL
CONDITIONAL USE PERMIT
4. CROWN CENTRAL LE,4SING CORPORATION
CONDITION,4L USE PERMIT
5. B,4 YSIDE BAPTIST CHURCH
CONDITIONAL USE PERMIT
6. WIRELESS PCS, INC., A GENT FOR
,4 T & T WIRELESS PCS, INC.
CONDITIONAL USER PERMIT
7. MARSH,4 LYNN BUILDING CORPORA TION
CHANGE OF ZONING
September 23, 1997
- 31 -
Item V-M. 1.
PUBLIC HEARING
ITEM # 42641
PLANNING
Correspondence dated September 19, 1997, from Attorney R. Edward Bourdon, Jr., Pembroke Office Park,
Pembroke One-The Fifth Floor, Phone:499-8971, requesting DEFERRAL until the City Council Session
of October 14, 1997, is hereby made apart of the record.
Upon motion by Vice Mayor Sessoms, seconded by Councdman Harrison, City Council DEFERRED unttl
the City Council Sesston of October 14, 1997, an Ordinance upon Application of BAITA
DEVELOPMENT COMPANY, LLC for a Modification to the Green Run Land Use Plan:
ORDINANCE UPON APPLICATION OF BAITA DEVELOPMENT
COMPANY, LLC, FOR A MODIFICATION TO THE GREEN RUN
LAND USE PLAN
Ordinance upon application of Baita Development Company, LLC, for a
modtficatton to the Green Run Land Plan on the south side of Buckner
Boulevard for the purpose of modifying the submttted site plan dated June
27, 1996, and developing the outparcel designated "future development
area" whwh is a portion of Parcel "H" Green Run PUD Satd parcel
contains 7. 75 acres. KEMPSVILLE BOROUGH.
Vottng: 10-0
Council Members Voting Aye:
John A. Baum, Ltnwood 0 Branch, III, William W Harrison, Jr, HaroM
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay'
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
- 32 -
Item V-M.2.
PUBLIC HEARING
ITEM # 42642
PLANNING
Upon motion by Council Lady Henley, seconded by Councilman Baum, City Council APPROVED the
Apphcation of MABLE C. BROCK for a Variance to Section 4. 4(b) of the Subdivision Ordinance which
requires all lots created by subdivision conform with all requirements of the City Zoning Ordinance
Appeal from Decisions of Admtnistrattve officers in regard to certatn
elements of the Subdivision Ordinance, subdivision for Mabel C Brock
Property is located on the south side of Indian River Road, 1020 feet
more or less east of Princess Anne Road. PUNGO BOROUGH.
The following conditions shah be required:
The shed on the east side of proposed Parcel 2A and the
residence on Parcel 2 are nonconforming in that they do not
meet the side yard setback of 20 feet as required in the AG-
I?AG-2 Agricultural District Any additions to these structures
that fail to meet minimum setbacks or other requirements wtH
require a variance from the Board of Zoning Appeals.
The final plat is to show exact locations of septic systems and
limits of existing drain fields. Reciprocal easements shah be
provided as necessary for maintenance of existing systems.
.
Due to the close proximity of the two existing dwellings and the
small amount of street frontage occupied, the existtng common
driveway shall be maintained, rather than creating an
addittonal access point onto Indian River Road
Votzng: 10-0
Council Members Voting Aye'
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Me/nbers Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
- 33 -
Item V-M.$.
PUBLIC HEARING
ITEM # 42643
PLANNING
Attorney R. Edward Bourdon, Pembroke One, Phone: 499-8971, represented the applicant
Upon motion by Council Lady McClanan, seconded by Vice Mayor Sessoms, City Council ADOPTED the
Ordinance upon application of LINDA T. CHAPPELL for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF LINDA T. CHAPPELL FOR A
CONDITIONAL USE PERMIT FOR A RECREATIONAL AND
AMUSEMENT FACILITY OF AN OUTDOOR NATURE R09972134
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon apphcation of Linda T Chappell for a Conditional Use
Permtt for a recreational and amusement facdtty of an outdoor nature on
the south stde of Dam Neck Road, west of London Brtdge Road Said
parcel ts located at 2599 Dam Neck Road and contams 20 acres more or
less. PRINCESS ANNE BOROUGH.
The following conditions shall be required:
I.
.
This conditional use permit request is approved for Halloween
hayrides and other related events open to the public year
round Other acttvtttes may include hayrides, nature-oriented
walking tours and spectal seasonal events such as Easter egg
hunts.
All tmprovements shown on the site plan submitted to Planmng
Commission must be installed before operation of the hayride.
A waiver of pavement, curbing and guttering for the proposed
parking lots must be obtained from the Permit and Inspections
office.
All public activities, except parla'ng, must take place outside of
the area designated as High Noise Zone 3 on the offictal zoning
maps, as existing on the date of approval
5_ Thts facih~ shall close at Midnight.
This Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~_ -third of September Nineteen
Hundred and Ninety-Seven.
September 23, 1997
- 34 -
Item V-M.3.
PUBLIC HEARING
ITEM # 42643 (Continued)
PLANNING
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Ltnwood O. Branch, III, William W. Harrison, Jr., HaroM
Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham
D. Sessoms, Jr.
Council Members Vottng Nay:
None
Council Members Absent:
Loutsa M. Strayhorn
September 23, 1997
- 35 -
Item V-M. 4.
PUBLIC HEARING
ITEM # 42644
PLANNING
Upon motion by Councdman Jones, seconded by Councilman Heischober, City Council ADOPTED
an Ordinance upon Application of CROWN CENTRAl_, LE~4SING CORPORATION for a Conditional
Use Permit:
ORDINANCE UPON APPLICATION OF CROWN CENTRAL LEASING
CORPORA TION FOR GASOLINE SALES IN CONJUNCTION WITH A
CONVENIENCE STORE R09972135
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Crown Central Leasing for gasoline sales
in conjunction wtth a convenience store at the northeast intersection of
Independence Boulevard and Pembroke Boulevard. Said parcel is located
at 720 Independence Boulevard and contatns 31,790 26 square feet.
BA YSIDE BOROUGH.
The following conditions shall be required:
.
The property shall be developed in accordance with the
submitted site plan and landscape plan, except as provided
below.
ao
bo
The existing access point on Independence Boulevard nearest
to the intersection with Pembroke Boulevard shall be closed.
The remaining access point may be moved to the center of the
Independence Boulevard frontage.
The landscape plan shall be revised to depict a single-access
point on Independence Boulevard and the street frontage
landscaping design shown along Independence Boulevard and
Pembroke Boulevard shall be extended along all street frontage
not occupied by points of ingress and egress.
o
Freestanding stgnage shall be hmited to the existing monument-
style sign, or a replacement monument-style tn full conformance
with current sign regulations.
The stte shall conform wtth all applicable stormwater
management requirements, which shall not be permitted to
reduce landscaped open space as depicted on the submttted
landscape plan.
This Ordinance shall be effective tn accordance with Section 107 09 of the Zoning Ordinance
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-thtrd of September Ntneteen
Hundred and Ntnet},-Seven.
September 23, 1997
- 36-
Item V-M. 4.
PUBLIC HEARING
ITEM # 42644 (Continued)
PLANNING
Voting' 10-0
Council Members Votmg Aye:
John A. Baum, Linwood 0 Branch, IlL William W Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R Jones, Reba S McClanan,
Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
Items 4, 5 and 6 WERE VOTED UPON IN ONE MOTION.
September 23, 1997
-37-
Item V-M.$.
PUBLIC HEARING
PLANNING
ITEM # 42645
Upon motion by Councilman Jones, seconded by Councilman Heischober, City Council ADOPTED an
Ordinance upon application of BA YSlDE BAPTIST CHURCH for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF BAYSIDE BAPTIST CHURCH
FOR A CONDITIONAL USE PERMIT FOR A CHURCH PARKING LOT
EXPANSION R09972135
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Bayside Baptist Church for a Condittonal
Use Permit for a church parking lot expansion at the northeast
intersection of Pleasure House Road and Northampton Boulevard. Satd
parcel is located at 1920 Pleasure House Road and contains 3 29 acres
BA YSIDE BOROUGH.
The following conditions shall be required:
The parking lot shall be constructed as depicted on the
submitted stte plan entitled, "Site Plan, Parking Lot Addition,
Baystde Baptist Church," dated March 1997 and prepared by
AES Consulting Engineers.
2. Parking lot landscaping for the parking lot expansion shall
meet or exceed current Ordinance requirements
3. The site shall comply with apphcable stormwater management
requirements.
This Ordinance shall be effective in accordance with Section 107 09 of the Zoning Ordinance
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenff_ -third of September Nineteen
Hundred and NineS-Seven
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan,
Mayor Meyera E Oberndorf, Nancy K. Parker and Vice Mayor William
D Sessoms, Jr
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
Items 4, $ and 6 WERE VOTED UPON IN ONE MOTION.
September 23, 1997
- 38-
Item V-M. 6.
PUBLIC HEARING
ITEM # 42646
PLANNING
Upon motion by Councilman Jones, seconded by Councilman Heischober, City Council ADOPTED an
Ordinance upon Application of WIRELESS PCS, INC., for AT& T WIRELESS PCS, INC. for a
Conditional Use Permit:
ORDINANCE UPON APPLICA TION OF WIRELESS PCS, INC., A GENT
FOR AT&T WIRELESS PCS, INC., FOR A CONDITIONAL USE
PERMIT FOR A MONOPOLE TOWER R09972136
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Wireless PCS, Inc, agent for A T&T
Wireless PCS, Inc, Inc., for a Conditional Use Permit for a monopole
tower on the south side of Newtown Road, 220feet east of Cleeve Abbey
Satd parcel is located at 952 Newtown Road and contains 76.133 acres.
BA YSIDE BOROUGH.
The following conditions shall be required:
The proposed tower must be developed substantially tn
accordance with site plan entitled Preliminary Site Plan for
Williams Farm, revised August 8, 1997 Items of particular
importance on the plan include the drawings of the proposed
tower, the tree preservation area and the note concerntng no
homes being built within 200 feet of the tower.
.
The proposed tower cannot exceed 135feet in height and must
utilize an E series or Unicell antenna on the top tier. The
second tier of antennas, if used, must be flush-mounted as
depicted on the submitted plan.
The applicant must record deed restrictions on all of the
property surrounding the proposed compound to ensure that no
additional homes are developed within 200feet of the proposed
tower.
.
Except for those trees located within the fenced compound, no
trees shall be removed from .5 acre leased area of the site. The
final site plan submitted to the Development Services Center
must identify the tree preservation area in LARGE BOLD
TYPE.
o
A variance to the 200-foot setback requirement and landscape
requirements will need to be considered by the Board of Zontng
Appeals.
The approved tower must be designed to accommodate at least
one ad&tional user If a secondary user chooses to use the
tower, flush-mounted antennas as depicted on the submitted
plan must be used.
This Ordinance shah be effective tn accordance with Section 107 (f) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-third of September Nineteen
Hundred and NinetF-Seven.
September 23, 1997
- 39 -
Item V-M. 6.
PUBLIC HEARING
ITEM # 42646 (Continued)
PLANNING
Voting 10-0
Council Members Voting Aye:
John A Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Hetschober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor Wdliam
D. Sessoms, Jr
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
Items 4, 5 and 6 WERE VOTED UPON IN ONE MOTION.
September 23, 1997
- 40 -
Item V-M. 7.
PUBLIC HEARING
ITEM # 42647
PLANNING
Attorney R. J. Nutter, II, 4425 Corporation Lane g420, Phone' 518-3200, represented the applicant
Upon motion by Councilman Harrison, seconded by Councilman Branch, City Council,/tDOPTED the
Ordinance upon Application of MARSHA LYNN BUILDING CORPORA TION for a Change of Zontng
District Classificatton:
ORDINANCE UPON APPLICATION OF MARSHA LYNN BUILDING
CORPORATION FOR A CHANGE OF ZONING FROM 0-2 TO
CONDITIONAL A- 18 Z09971086
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon application of Marsha Lynn Building Corporation for a
Change of Zoning District Classification from 0-2 Office District to
Conditional A-18 Apartment District on certain property located on the
north side of Camelot Drive beginning at a point 620 feet more or less
east of First Colontal Road The proposed zoning classtficatton change
to A-18 ts for multi-faintly land use at a density no greater than 18
dwelling units per acre The Comprehensive Plan recommends use of this
parcel for office use in accordance with other Plan pohcies Said parcel
is located at 1724 Camelot Drive and contains 10.059 acres.
L YNNHA VEN BOROUGH
The following con&tion shall be required:
1. An Agreement encompassing proffers shall be recorded with the
Clerk of Circuit Court.
This Ordinance shall be effecttve in accordance wtth Section 107 (f) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-third of September Nineteen
Hundred and Ninety-Seven.
Voting' 10-0
Council Members Vottng Aye.
John A. Baum, Linwood O. Branch, I[I, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R Jones, Reba S. McClanan,
Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
THIS AGREEMENT, made this 22nd day of July, 1997 by and between MARSHA
LYNN BUILDING CORPORATION, a Virginia corporation, contract purchaser of the
property described on Exhibit A attached hereto, and HILLHAVEN PROPERTIES, LTD, an
Oregon corporation, the owner of the property described on Exhibit A attached hereto
(hereinafter collectively referred to as "Grantors"); and the CITY OF VIRGINIA BEACH, a
municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee").
WITNESSETH:
WHEREAS, the Grantors have initiated an amendment to the Zoning Map of the City
of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the
classification of the Grantors' property from 0-2 (Office) to A-18 (Apartment) on certain
property which contains a total of 10.059 acres, more or less, located in the Lynnhaven
Borough of the City of Virginia Beach, Virginia, more particularly described in the attached
Exhibit A (hereinafter the "Property"); and
WHEREAS, the Grantee's policy is to provide only for the orderly development of
land for various purposes, including multi-family and office purposes, through zoning and other
land development legislation; and
WHEREAS, the Grantors acknowledge that the competing and sometimes
incompatible uses conflict, and that in order to permit differing uses on and in the area of the
subject Property and at the same time to recognize the effects of the change and the need for
various types of uses, including those listed above, certain reasonable conditions governing the
use of the Property for the protection of the community that are not generally applicable to land
similarly zoned A-18 are needed to cope with the situation to which the Grantors' rezoning
application gives rise; and
WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior
to the public hearing before the Grantee, as part of the proposed conditional amendment to the
Zoning Map, in addition to the regulations provided for in the existing A-18 zoning district by
the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the
Prepared by Mays & Valentine, L L P
4425 Corporation Lane, Suite 420
V~rgima Beach, VA 23462
physical development, operation and use of the Property to be adopted as a part of said
amendment to the new Zoning Map relative to the Property, all of which have a reasonable
relation to the rezoning and the need for which is generated by the rezoning; and
WHEREAS, said conditions having been proffered by the Grantors and allowed and
accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions
shall continue in full force and effect until a subsequent amendment changes the zoning on the
Property covered by such conditions; provided, however, that such conditions shall continue
despite a subsequent amendment if the subsequent amendment is part of the comprehensive
implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the
foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record
owner of the subject Property at the time of recordation of such instrument; provided, further,
that said inslrun~ent is consented to by the-Grantee in writing as evidenced by a certified copy
of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing
before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.1-
431, which said ordinance or resolution shall be recorded along with said instrument as
conclusive evidence of such consent.
NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees,
and other successors in title or interest, voluntarily and without any requirement by or exaction
from the Grantee or its governing body and without any element of compulsion of quid pro quo
for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the
following declaration of conditions and restrictions which shall restrict and govern the physical
development, operation and use of the Property if developed for a use permitted under the A-18
zoning classification, and hereby covenant and agree that these Proffers shall constitute
covenants running with the said Property, which shall be binding upon the Property and upon
all parties and persons claiming under or through the Grantors, their heirs, personal
representatives, assigns, grantees and other successors in interest or title, namely:
1. The Grantors shall not construct more than one hundred eighteen (118) residential
dwelling units on the Property.
2. The Grantors shall develop the Property substantially in accordance with the site
plan entitled "Preliminary Site Plan of Proposed Lot 2-B, Subdivision of Residual Parcel 2,
Subdivision of Property of Hillhaven Properties, Ltd. for Marsha Lynn Building Corporation,"
dated March 24, 1997, last revised June 23, 1997, prepared by John E. Sifine & Associates,
Ltd., a copy of which has been exhibited to the City Council of the City of Virginia Beach and
is on file in the Planning Department of the City of Virginia Beach (the "Site Plan").
3. The design, external building materials and colors of the fourplex style buildings
on the Property shall be the same as those displayed on the rendering entitled "Marsha Lynn
Bldg. Corp., Chancellor's Walk Four Plex Unit," dated April 18, 1997, prepared by Mark
Bradley Associates, a copy of which has.been exhibited to the City Council of the City of
Virginia Beach and is on file in the Planning Department of the City of Virginia Beach. As
indicated on such rendering, the exterior of the fourplex style buildings shall be all brick.
4. The design, external building materials and colors of the townhouse style
buildings on the Property shall be the same as those displayed on the rendering entitled
"Marsha Lynn Bldg. Corp., Chancellor's Walk," dated April 18, 1997, last revised .~une 11,
1997, prepared by Mark Bradley Associates, a copy of which has been exhibited to the City
Council of the City of Virginia Beach and is on file in the Planning Department of the City of
Virginia Beach. As indicated on such rendering, the exterior of the townhouse style buildings
shall be all brick.
5. The Grantors shall maintain a minimum 35-foot buffer along the northern
boundary of the Property ("Buffer Area"). Within the northernmost 17.5 feet of the Buffer
Area, Grantors shall install Category IV landscaping consisting of (a) existing plants and trees
which shall be preserved, and (b) Leyland Cypress trees planted no further apart than eight feet.
During construction, the Grantors shall install protection barriers satisfactory to the Planning
Director of the City of Virginia Beach to protect existing trees and large plants in the
northernmost 17.5 feet of the Buffer Area. Installation of such landscaping in the northernmost
17.5 feet of the Buffer Area shall be completed no later than the date of completion of the
fences described in paragraph 6 below.
6. The Grantors shall install a solid 8-foot fence approximately 17.5 feet south of the
northern boundary line of the Property and a solid 6-foot fenc~ along the predominantly east
and west borders of the Property as shown on the Site Plan. The Grantors shall construct
additional solid 8-foot fences along the eastern boundary line of the Property between the
eastern terminus of the 8ofoot fence depicted on the Site Plan and the northern boundary line of
the Property and along the western boundary line of the Property between the western terminus
of the 8-foot fence depicted on the Site Plan and the northern boundary line of the Property,
provided that the Cn-antors receive any necessary variances from the City of Virginia Beach and
the construction of such fences will not require removal of existing trees from the Buffer Area.
The building materials used for the fences shall be the same as those displayed on the Site Plan.
Construction of the fences shall be completed prior to commencement of framing of any
residential dwelling units on the Property.
7. The air conditioning units serving the 10 northernmost residential dwelling units
on the Property shall be "vertical discharge" units designed to dissipate any noise and exhaust
vertically rather than horizontally. No air conditioning units serving such 10 northernmost
dwelling units shall be reciprocating engine systems such as the York Triathalon reciprocating
engine cooling system or equivalent systems.
8. The design and height of the streetlights installed by the Grantors on the Property
shall be substantially as shown on the rendering entitled "Proposed Streetlights for Chancellor
Walk" dated July 22, 1997, a copy of which has been exhibited to the City Council of the City
of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach.
9. Except to the extent required by the City of Virginia Beach for subdivision or site
plan approval, ~rantors shall not grant any utility easements within 17.5 feet of the northern
boundary line of the Property.
10. On each private access drive built on the Property, the northernmost residential
dwelling units served by such access drive shall be constructed prior to the other residential
dwelling units served by the same access drive.
11. The Grantors shall not install or permit any trash dumpsters on the Property, and
will include detailed restrictions regarding the handling and disposal of trash in the
condominium instruments governing each of the dwelling units on the Property.
12. The Grantors shall not permit the installation or maintenance of basketball
backboards or skateboard ramps on the Property.
Further conditions may be required by the Grantee during detailed Site Plan and/or
Subdivision review and administration of applicable City Codes by all cognizant City agencies
and departments to meet all applicable City Code requirements.
All references hereinabove to zoning districts and to regulations applicable thereto, refer
to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the
conditional zoning amendment is approved by the Grantee.
The Grantors covenant and agree that (1) the Zoning Administrator of the City of
Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing
body of the City of Virginia Beach, Virginia to administer and enforce the foregoing
conditions, including (i) the ordering in writing of the remedying of any noncompliance with
such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such
conditions, including mandatory or prohibitory injunction, abatement, damages or other
appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute
cause to deny the issuance of any of the required building or occupancy permits as may be
appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the
provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the
governing body for the review thereof prior to instituting proceedings in court; and (4) the
Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to
the zoning of the subject Property on the map and that the ordinance and the conditions may be
made readily available and accessible for public inspection in the office of the Zoning
Administrator and in the Planning Department and that they shall be recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of
the Grantors and Grantee.
WITNESS THE FOLLOWING SIGNATURES AND SEALS.
MARSHA LYNN BUILDING CORPORATION, a
Virginia corporation
By: ~~AL)
Donald L. Moore, President
HILLHAVEN PROPERTIES, LTD., an Oregon
corporation
(SEAL)
st^t oF viaar i^ or mon ^
The foregoing instrument was acknowledged before me this ~ day ofJ U lt,J , 1997,
by Donald L. Moore, as President of Marsha Lynn Building Corporation, a Virginia ~'orporation,
on behalf of the corporation.
Notary Public
My Commission Expires:
CITY/COUNTY/OF .L,/~~/~_ ~,~ ~~ to-wit:
~.The foregoing instrument was acknowledged before me this~5 r~y of
by t '~/-'/~///~xr~.. '~j,,z~ .~'. , as ~"'~~~~ Hillhaven ~ Ltd.,
an 0~~ co~o~a~ion,~6~b-~h'ai'f 6f the corporatJsn. Cd ' ' {.,)
My Commission Expires: ,,/~/~//~;~
EXHIBIT A
ALL THAT certain lot, piece or parcel of land situate, lying and being in the City of Virginia
Beach, Virginia and more particularly bounded and described as follows, to-wit:
Beginning at a point in the northeastern comer of the intersection of First Colonial Road and
Camelot Drive as shown on a plat recorded in M.B. 122, Pg. 42 in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia; thence, departing the eastern line of First
Colonial Road, following the northern right-of-way line of Camelot Drive, N. 76° 39' 48" E.
385.00' to a point, thence S. 14° 28' 49" E., 29.99' to a point, thence N 76° 39' 48" E., 225.45'
to the Tree Point of Beginning; thence, departing the aforementioned right-of-way line N. 14°
28' 49" W. 481.30' to a point; thence, S. 89° 31' 51" E. 1016.92' to a point; thence, S. 11 o 48'
07" E. 442.42' to a point; thence, S. 76° 39' 48" W. 508.28' to a point, thence N. 14° 27' 25" W.
95.02' to a point on the proposed northeastern right-of-way line Camelot Drive; thence,
following the aforesaid right-of-way line along a curve to the left having a radius of 160.00' a
distance of 249.75' to a point thence S 76° 34' 48" W., a distance of 297.27' to the Tree Point of
Beginning.
The aforedescribed parcel lies wholly within the City of Virginia Beach, Virginia and contains
438,177 sq. ft. or 10.0591 acres.
Being a part of the same property conveyed to HILLHAVEN PROPERTIES, LTD., an Oregon
corporation by deed from P. C. Associates, a Virginia general partnership, dated March 1, 1989,
filed for record March 1, 1989, in Deed Book 2808, Page 449.
8771
- 41 -
Item V-N. 1.
APPOINTMENTS
ITEM # 42648
BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS:
BOARD OF BUILDING CODE APPEALS
BOARD REFERENDUM REVIEW COMMITTEE
SENIOR SER VICES OF SOUTHEASTERN VIRGINIA
September 23, 1997
- 42 -
Item V-O.
RECESS INTO
EXECUTIVE SESSION
ITEM # 42649
Mayor Meyera E. Oberndorf 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).
To Wit:
Appointments - Boards and Commissions:
Committee on School Construction
School Division - Design Review Committee
PUBLICLY-HELD PROPERTY. Discussion 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 could affect the value of property owned or desirable for
ownershtp by such institution pursuant to Sectton 2.1-344(A)(3).
To- Wit:
Agricultural Reserve Program - Pungo Borough
Telecommunication Sites - Princess Anne Borough
Hampton Roads Agricultural Research and Extension
LEGAL MA TTERS: Consultation with legal counsel or briefings by staff
members, consultants, or attorneys pertaining to actual or probable
littgation, or other specific legal matters requesting the provision of legal
advice by counsel pursuant to Section 2.1-344(A)(7).
To-Wtt'
Carson Barco v. City of Virginia Beach
Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council voted to proceed
into EXECUTIVE SESSION (8:07 P.M.).
Voting. 10-0
Council Members Voting Aye:
John A Baum, Linwood O. Branch, III, William W Harrison, Jr., Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Councd Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
September 23, 1997
- 43 -
ITEM # 42650
Mayor Oberndorf RECONVENED the FORMAL SESSION of the VIRGINIA BEA CH CITY COUNCIL
in the City Council Conference Room, City Hall Building, on Tuesday, September 25, 1997, at 9:15 P.M.
Council Members Present:
John A Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor William
D Sessoms, Jr.
Council Members Absent'
Louisa M. Strayhorn
September 23, 1997
- 44 -
Item V-P.
CER TIFICA TION OF
EXECUTIVE SESSION
ITEM # 42651
Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council CERTIFIED THE
EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS.
Only public business matters lawfully exempted from Open Meeting
requirements by Virginia law were discussed in Executive Session to
which this certification resolution applies,
AND,
Only such public business matters as were tdentified in the motton
convening the Executive Session were heard, discussed or considered by
Vtrginia Beach City Council
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William
D Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent'
Louisa M. Strayhorn
*Verbal Vote
September 23, 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 # 42649 Page No. 42 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
governing body that such Executive Session was conducted in conformity with Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council
hereby certifies that, to the best of each member's knowledge, (a) only public business matters
lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive
Session to which this certification resolution applies; and, Co) 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.
u o "ges S-mi , CMC AAE
City Clerk
September 23, 1997
- 45 -
Item V-Q.
ADJOURNMENT
ITEM # 42652
Mayor Oberndorf DECLARED the City Council Meeting ADJOURNED at 9:20 P.M.
Chief Deputy City Clerk
~E- -
City Clerk
Meyera E. Oberndorf
Mayor
Ctty of Vtrgtnia Beach
Virginia
September 23, 1997