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MAY 24, 2005 MINUTESII CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At -Large VICE MAYOR LOUIS K JONES, Bayside - District 4 HARRY E. DIEZEL Kempsville - District 2 ROBERTM. DYER, Centerville - District 1 REBA S. McCLANAN, Rose Hall - District 3 RICHARD A. MADDOX, Beach - District 6 JIM REEVE, Princess Anne - District 7 PF. TER W. SCHMIDT, At -Large RONA. VILLANUEVA, At -Large ROSF,MARY WILSON, At -Large .LAMES L. WOOD, Lynnhaven -District .i CITY MANAGER -JAMES K SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES SMITH, MMC CITY OF VIRGINIA BEACH COMMUNITY FOR A LIFETIME CITY COUNCIL AGENDA 24 MAY 2005 I. CITY MANAGER'S BRIEFING - Conference Room - 1. VOTING MACHINES - Replacement David Sullivan, Chief Information Officer II. CITY COUNCIL COMMENTS III. REVIEW OF AGENDA ITEMS IV. INFORMAL SESSION - Conference Room - A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION _ ax 0 S O`9 �FOUR NP M� CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 427-4303 FAX (757) 426-5669 E-MAIL: Ctycncl@vbgov.com 3:30 P.M. 4:30 P.M. V. FORMAL SESSION - Council Chamber - 6:00 P.M. A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Walley Sherbon, Jr. Pastor, New Life Presbyterian Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS May 10, 2005 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARINGS 1. FARMER'S MARKET LEASE #14 Yoder's Dairies of Tidewater, Inc. 2. LEASES OF CITY OWNED PROPERTIES: a. Contemporary Art Center of Virginia - 2200 Parks Avenue b. Dolphin Run Condominium Association, Inc. - 3rd Street at Atlantic Avenue c. C.B.M. Co. t/a SCHOONER INN - 108 Atlantic Avenue I. CONSENT AGENDA J. ORDINANCES 1. Ordinances to AMEND the City Code: a. REPEAL § 12-30 re fees for copies of records by Fire Department b. REORDAIN § 27-3 re fees for copies of records by Police Department K. 2. Ordinances to AUTHORIZE the City Manager to execute Leases of certain city -owned property: a. Virginia Beach Farmers Market — Yoder's Dairies of Tidewater, Inc. (Slip #14) b. Contemporary Art Center — 2200 Parks Avenue c. Dolphin Run Condominium Association, Inc at 3rd Street and Atlantic Avenue d. C.B.M. Co. t/a SCHOONER INN at 108 Atlantic Avenue 3. Ordinance to AUTHORIZE acquisition of property in fee simple for the right-of-way associated with the Laskin Road Gateway — 30th Street Project and the ACQUISITION of temporary and permanent easements, either by agreement or condemnation 4. Ordinance to AUTHORIZE a temporary encroachment for GLADYS L. MADDOX into a portion of the right-of-way at 7th Street and Ocean Avenue to construct and maintain planters with trees, surface grates, marlin lights and colored pavement. (DISTRICT 6 — BEACH) Ordinance to ACCEPT and APPROPRIATE $146,846 from the DEA Seized Property Special Revenue Fund to the Police Department's FY 2004-05 operating budget re purchase of equipment and canines 6. Ordinance to TRANSFER $3,045,000 within the Virginia Beach School Board's FY 2004-05 operating budget from the Instruction category to the Transportation and Operations and Maintenance categories to purchase needed materials and equipment PLANNING 1. Application of S & J, L.L.C. for the discontinuance, closure and abandonment of a portion of First Street (DISTRICT 3 — ROSE HALL) RECOMMENDATION: APPROVAL 2. Application of DAM NECK SQUARE APARTMENTS, L.C. re Modification of the Dam Neck Estates PD -H1 Land Use Plan and Conditional Change of Zoning from PD -H1 Planned Unit Development to 0-1 Office District, at Dam Neck Road, approximately 1200 feet west of General Booth Boulevard (DISTRICT 6 — BEACH) RECOMMENDATION: APPROVAL 3. Application of LAND & BUILDING IV. L.C. for the Modification o Proffer Number 1 on a Conditional Change o Zoning (approved by City Council on March 28, 2000 Troy A. Titus), re access to a strip retail center at 5221 Indian River Road (DISTRICT 1 — CENTERVILLE) RECOMMENDATION: DEFERRED INDEFINITELY: APPROVAL April 12, 2005 4. Application of PLATINUM HOMES, L.L.C. for a Chanize ofZoninz District Classi acation from AG -1 and AG -2 Agricultural Districts to Conditional A-24 Apartment District at 484,492 and 508 Dam Neck Road (DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION: APPROVAL 5. Application of FRONTIER DEVELOPMENT, L.L.C. for a Change of Zoning District Classi acation from Conditional I-1 Light Industrial District to Conditional B-2 Community Business District at 5824 Northampton Boulevard (DISTRICT 4 — BAYSIDE) RECOMMENDATION: L. APPOINTMENTS Eastern Virginia Medical School Francis Land House Board of Governors Health Services Advisory Board Investment Partnership Advisory Committee Open Space Subcommittee Performing Arts Theatre Advisory Committee Towing Advisory Board M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ********** If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: 427-4305 Agenda 05/24/05 b1b www.vbgov.com MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 24 May 2005 Vice Mayor Louis R. Jones called to order the CITYMANAGER'S BRIEFING re Voting Machines - Replacement in the Council Conference Room, City Hall, on Tuesday, May 24, 2005, at 3:30 P.M. Council Members Present: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan and Richard A. Maddox Council Members Absent: Mayor Meyera E. Oberndorf Jim Reeve Peter W. Schmidt Ron A. Villanueva Rosemary Wilson James L. Wood [Economic Development Conference in Las Vegas] [Entered: 3:57 P.M.] [Entered: 3:42 P.M.] [Entered: 3:50 P.M.] [Entered: 3:40 P.M] [Economic Development Conference in Las Vegas] -2 - CITY MANAGER'S BRIEFING VOTING MACHINES - Replacement 3:30 P.M. ITEM # 53959 The City Manager introduced David Sullivan, Chieflnformation Officer, who has been co-ordinating with the Virginia Beach Electoral Board relative replacement of Voting Machines. Mr. Sullivan advised this item is the culmination of a tremendous effort over the past two years, primarily by the Voter Registrar's office and the Virginia Beach Electoral Board. Virginia Beach Electoral Board J.A.G. `Budd"Parrish - Chairman W. Keith Curtis - Vice Chairman Shirley H. Mulderrig - Secretary Pat Harrington -Acting Voter Registrar The Code of Virginia, Title 24.2, Chapter 1, Article 3, provides that the majority of the Judges of the Circuit Court appoint the three (3) members of the Electoral Board: Serve staggered three-year terms beginning March First Two (2) members must be on the political party of the Governor and one (1) of the other major party Article II, Section 8, of the Constitution provides the Electoral Board appoint the officers of Election and the Registrar Beginning January 1, 2006, the Help America Vote Act (HA VA) (P.L. 107-252) requires: The technology and administration of every voting system used in federal elections to meet uniform and nondiscriminatory requirements Permit voters to verify their selections, notify them of over votes, and allow them to change their votes or correct an error before casting the ballot Have a paper audit capacity Be accessible to all individuals with disabilities and allow voters to vote independently and in private Provide alternative language accessibility as required by the Voting Rights Act May 24, 2005 mm CITY MANAGER'S BRIEFING VOTING MACHINES -Replacement ITEM # 53959 (Continued) Mr. Sullivan advised there are five (5) types of voting systems existing today: paper ballots (less than I% nationwide, over 1% in Virginia), punch cards (19% nationwide, 12% in Virginia), mechanical lever machines (47% in Virginia, less nationwide), optical scan machines (113 nationwide, 20% in Virginia) ; and, Direct Recording Electronic (DRE) (30% nationwide, 18% in Virginia). Of these, only DREs and the most advanced optical scan machines possess the technology to meet the Help America Vote Act's (HA VA) requirements, without being modified. Virginia Beach currently utilizes the punch cards. The Voter Registrar conducted an 18 -month evaluation process. Included numerous vendor demonstrations attended by: Voters Virginia Beach Electoral Board members Elected Officials Election Officers Registrar's staff City staff Hands on testing and preference selection by disabled voters Worked closely with the State Board of Elections to assure full compliance with rapidly changing requirements Mr. Sullivan advised all of the research points to the DREsproduce the best election results with thefewest number of errors. Johnson County, Kansas, has approximately 328, 000 registered voters and is a similar size environment to Virginia Beach. In 2002, Johnson County implemented the new technology county -wide and received favorable comments. Decision ADD one hundred (100) additionalAccu Vote TSXElectronic Ballot Stations with assistive voting kits for ADA (Americans with Disabilities Act) accessibility REPLACE the current punch cards with eight hundred (800) Diebold Accu Vote TSX Electronic Ballot Stations PURCHASEfour (4) Accu Vote Optical Scan tabulators forAbsentee Balloting Security Concerns Touch Screen Units: Stand-alone, never connected to the Internet No single point of failure Locked doors restrict access Dynamic password protection Voter Access card encryption Cast ballot encryption and internal randomization Cast ballots stored in two (2) redundant secure places Unofficial Election Night Results Paper election result printouts from each unit May 24, 2005 CITY MANAGER'S BRIEFING VOTING MACHINES - Replacement ITEM # 53959 (Continued) Implementation Plan June 2005 Dual Primaries Testing the Diebold Accu Vote TSX (DRE Touch Screen) equipment in three (3) precincts The Accu Vote OS (Optical Scan) equipment in the Central Absentee Precinct along with theirLookup Devices in fifteen (15) precincts November 2005 General Election ADA Accessible Accu Vote TSX equipment available for disabled voter access in each precinct Existing punch card equipment will remain the primary method for all other voters Pending approval of the State Board of Elections and Department of Justice May 2006 General Election Full use of Accu Vote TSX by all voters on election day Funding for the Project Capital Improvement Program #3-335 Communications and Information Technology Project - Electronic Ballot System - ADA Machines FY 2004-05, $415,000 ($315,000 Federal and $100, 000 Local) Capital Improvement Program #3-370 Communications and Information Technology Project - Voting Machine Replacements FY 2005-06, ($2,500,000 Local up front, with $1,500,000 Federal reimbursement expected) Estimated Cost Voting Machines $ 2,847,505 Absentee Ballot System 20,800 Election Management Software/Hardware 75,400 Warehouse Equipment 69,184 Training and Services 147,718 TOTAL $ 3,160,607 May 24, 2005 -5 - CITY MANAGER'S BRIEFING VOTING MACHINES - Replacement ITEM # 53959 (Continued) Mr. Sullivan advised the units do not draw a lot of electric power, similar to a laptop computer from a power standpoint, with battery capabilities in the event of a temporary power loss. Five (5) to ten (10) laptop computers will be involved in most precincts and are not a major drain. Power outages have not been a major problem in the past. Pat Harrington, Acting Voter Registrar, advised every precinct will have a pack of optical scan ballots to utilize in emergency situations. If there is a power loss and all equipment is down, the voters will still be able to vote with the optical scan ballots. Ms. Harrington advised the Diebold Accu Vote TSX (DRE Touch Screen) equipment shall be utilized in three (3) precincts: Brandon, Glenwood and Reon during the June 2005 Dual Primaries. May 24, 2005 -6- A GENDA RE VIE W SESSION 4:01 P.M. ITEM # 53960 J.1. Ordinances to AMEND the City Code: a. REPEAL § 12-30 re fees for copies of records by Fire Department b. REORDAIN § 27-3 re fees for copies of records by Police Department Associate City Attorney Kathy Rountree advised these amendments remove provisions of the City Code relating to specified fees the Police and Fire Department can charge for public records. These charges are now governed by Administrative Directive 8.01, which limits charges for supplying records to the actual cost of doing so, in accordance with the Freedom of Information Act. Council Lady McClanan referenced the newspaper article relative the Game and Inland Fisheries in Richmond which charged $5, 500 forFOI requests from the Games Department and the correct material was not furnished. Associate City Attorney Rod Ingram, advised costs of this nature have never been imposed by the City i.e. paying for an official's travel to review the documents as well as the meals. When a broad request is made for documents, the staff estimates the cost. However, in the "deposit request" correspondence, if the scope of the request is narrowed, the estimate will be recalculated. Often, an individual will request every document "under the sun " on a particular subject and then after learning of the time, effort and cost of retrieval, the request will be narrowed to only the documents desired. Often, these are provided at little or no cost. The Internal Audit Department determines the cost to make a photocopy. In Virginia Beach, the cost was determined to be 5¢ a page. Therefore, 5¢ a page plus the hourly rate of the photocopier is charged for the documentation. The lowest compensated employee is assigned the photocopying. ITEM # 53961 J.2. Ordinance to AUTHORIZE the City Manager to execute Leases of certain city -owned property: c. Dolphin Run Condominium Association, Inc at 3'd Street and Atlantic Avenue Council Lady McClanan will ABSTAIN on Item J.2. c. (Dolphin Run Condominium) as she and her husband own a condominium at Dolphin Run. The City Manager advised this lease is just for this season, with a 30 -day combination clause. ITEM # 53962 J.3. Ordinance to AUTHORIZE acquisition ofproperty in fee simple for the right-of-way associated with the Laskin Road Gateway — 30'h Street Project and the ACQUISITION of temporary and permanent easements, either by agreement or condemnation The City Manager advised there will be a brief presentation during the Closed Session re the properties. May 24, 2005 - 7 - AGENDA REVIEW SESSION ITEM # 53962 J.5. Ordinance to ACCEPT and APPROPRIATE $146,846 from the DEA Seized Property Special Revenue Fund to the Police Department's FY2004-05 operating budget re purchase of equipment and canines The Deputy Chief advised Councilman Schmidt that upon retirement, the canines are given to their handlers or are allowed by be adopted. Generally, the handler and the canine have developed such a bond, they remain together. ITEM # 53963 J. 6. Ordinance to TRANSFER $3,045, 000 within the Virginia Beach School Board's FY2004-05 operating budget from the Instruction category to the Transportation and Operations and Maintenance categories to purchase needed materials and equipment Council Lady McClanan inquired whether this Ordinance impacts the salary issue. The City Manager advised these Reversion dollars do not affect the salaries. The FY 2004-05 School Operating Budget was appropriated by City Council by categories and any transfer of funds between the categories must be approved by City Council prior to transfer and expenditure offunds by the School Board. The School Board, in a resolution dated May 3, 2005, requests the City Council approve categorical transfers as follows: $2,020,000 from Instruction to Transportation and $1,025,000 from Instruction to Operations and Maintenance. ITEM # 53964 BY CONSENSUS, the following shall compose the CONSENT AGENDA: ORDINANCES J.1. Ordinances to AMEND the City Code: a. REPEAL § 12-30 re fees for copies of records by Fire Department b. REORDAIN§ 27-3 re fees for copies of records by Police Department J.2. Ordinances to AUTHORIZE the City Manager to execute Leases of certain city -owned property: a. Virginia Beach Farmers Market — Yoder's Dairies of Tidewater, Inc. (Slip #14) b. Contemporary Art Center — 2200 Parks Avenue c. Dolphin Run Condominium Association, Inc at 3' Street and Atlantic Avenue d. C.B.M. Co. t/a SCHOONER INN at 108 Atlantic Avenue May 24, 2005 AGENDA REVIEW SESSION ITEM # 53964 (Continued) J.4. Ordinance to AUTHORIZE a temporary encroachment for GLADYS L. MADDOX into a portion of the right-of- way at 7' Street and Ocean Avenue to construct and maintain planters with trees, surface grates, marlin lights and colored pavement. (DISTRICT 6— BEACH) J.S. Ordinance to ACCEPT and APPROPRIATE $146,846 from the DEA Seized Property Special Revenue Fund to the Police Department's FY2004-05 operating budget re purchase of equipment and canines J. 6. Ordinance to TRANSFER $3,045, 000 within the Virginia Beach School Board's FY2004-05 operating budgetfrom the Instruction category to the Transportation and Operations and Maintenance categories to purchase needed materials and equipment Council Lady McClanan will ABSTAINon Item J.2. c. (Dolphin Run Condominium) as she and her husband own a condominium at Dolphin Run. Councilman Maddox will ABSTAIN on Item J.4. (Gladys L. Maddox encroachment), as the applicant is his mother. May 24, 2005 A GENDA RE VIE W SESSION ITEM # 53965 K2. Application of Dam Neck Square Apartments, L.C. re Modification of the Dam Neck Estates PD -HI Land Use Plan and Conditional Change of Zonin$ from PD HI Planned Unit Development to 0-1 Office District, at Dam Neck Road (DISTRICT 6 — BEACH) Stephen White, Planning, advised, the General Assemblygave the City authority to require noise attenuation for non-residential buildings. The City staff wished to be assured these office buildings meet that requirement. Mr. White distributed a faxed copy of correspondence from Attorney R. Edward Bourdon, representing the applicant, who advised his client's unequivocal commitment to abide by the construction regulations involving noise attenuation which will become mandatory on July 1, 2005. ITEM # 53966 K.3. Application of LAND & BUILDING IV. L.C. for the Modification of Proffer Number 1 on a Conditional Change o Zoning (approved by City Council on March 28, 2000 Troy A. Titus), re access to a strip retail center at 5221 Indian River Road (DISTRICT 1 — CENTER VILLE) Councilman Dyer advised the applicant has provided a revised plan that addresses the concerns (access to the rear lot and thus access to Kempsville Road, has been eliminated. Councilman Dyer was not sure whether having just one access in that location would be advisable. Traffic lights are costly, but if that intersection by Canterbury by the Golden Corral continues to be a "hot spot", he would like to request signalization. A storage unit is currently under construction and will be causing more traffic at this intersection. The Golden Corral, at this location, is one of the highest utilized facilities in the United States. Once -the Walgreen is developed, this intersection will continue to be a "nightmare". Councilman Villanueva advised 500 feet in front of the proposed application is the busy intersection of Indian River and Kempsville Road, with a 7-11 Store on the corner. Further south, is the fork oflndian River and Ferrell Parkway which is the gateway to the Transition area from the west. Councilman Diezel supports the concerns for the traffic light. Mr. White advised this `property by right" could have been a three-story office building. Vice Mayor Jones will ABSTAIN, as he is the owner of three (3) pieces of property almost directly across the street from the application. ITEM # 53967 K.4. Application ofPLATINUMHOMES, L.L.C. fora Change of Zoninz District Classification from AG -I and AG -2 Agricultural Districts to Conditional A-24 Apartment District at 484, 492 and 508 Dam Neck Road (DISTRICT 7 — PRINCESS ANNE) Council Lady Wilson advised this application would have been an opportunityfor "affordable workforce housing". Mr. White does not believe the homes would be in the range of "workforce " housing. Council Members McClanan and Wilson will vote NAY. May 24, 2005 -10- A GENDA RE VIE W SESSION ITEM # 53968 K.S. Application ofFRONTIERDEVELOPMENT, L.L.C. for a Chanzeof Zoning District Classification from Conditional1-1 Light Industrial District to Conditional B- 2 Community Business District at 5824 Northampton Boulevard (DISTRICT 4 - BAYSIDE) Stephen White, Planning, advised there will be a Starbucks drive-through and probably be a Baja Fresh restaurant. ITEM # 53969 BY CONSENSUS, the following shall compose the CONSENT AGENDA: PLANNING K.1. Application of S & J, L.L.C. for the discontinuance, closure and abandonment of a portion of First Street (DISTRICT 3 - ROSE HALL) K.2. Application of DAM NECK SQUARE APARTMENTS, L.C. re Modification of the Dam Neck Estates PD -HI Land Use Plan and Conditional Chan-ae of Zoning from PD -HI Planned Unit Development to 0-1 Office District, at Dam Neck Road (DISTRICT 6 - BEACH) K.4. Application ofPLATINUMHOMES, L.L.C. fora Change of Zoniniz District Classification from AG -1 and AG -2 Agricultural Districts to Conditional A-24 Apartment District at 484, 492 and 508 Dam Neck Road (DISTRICT 7 - PRINCESS ANNE) K. 5. Application of FRONTIER DEVELOPMENT, L.L. C. for a Change of Zoning District Classi acation from Conditional i-1 Light Industrial District to Conditional B- 2 Community Business District at 5824 Northampton Boulevard (DISTRICT 4 - BAYSIDE) Council Members McClanan and Wilson will vote a VERBAL NA Yon Item K 4. (Platinum Homes, L.L. C.) May 24, 2005 -11 - CITY COUNCIL COMMENTS rIPAINEFFA ITEM # 53970 Councilman Reeve inquired re a report relative Workforce and Affordable Housing concerning the Inclusionary Zoning Workshop in Fairfax, Virginia (May 16 - 17, 2005). Councilman Villanueva advised a report is being compiled by the participants of the tour: Council Members Dyer and Villanueva, Karen Lasley - Administrator, Zoning and Andrew Friedman - Director - Housing and Neighborhood Preservation. Councilman Dyer advised this Inclusionary Zoning would require many ordinance amendments. Councilman Dyer gave the City Manager a booklet relative this Workshop containing all the necessary ordinances for distribution to the City Council on Friday, May 27, 2005. A presentation with Empower Hampton Roads should be scheduled for a City Council Session. Councilman Dyer advised approximately fifteen (15) locations were site visited. Some of the sites were located in McLane, Virginia. Some of the housing is located with $2 -MILLION residential homes. This Inclusionary housing blended in well with the neighborhood. There was buy -in with the development community creating a "win-win" situation. Councilman Dyer advised an example provided in the Workshop was ifa property was rezoned for 100 units, the City would allow 120, twelve (12) of which would be Inclusionary Zoning. Therefore, a density bonus of eight (8) units would be provided to the developer. Lotteries would determine the purchasers. There also were incentive programs for Emergency Medical Service personnel. The personnel would be placed in the Workforce Housing. However, at the end of the two-year period when their salary has increased, the personnel would be cycled into another home. Councilman Villanueva advised there were slots for teachers, fire, police and nurses. Councilman Diezel urged the developers not be pushed, but that they participate voluntarily. Councilman Schmidt referenced information to review concerning successes in California around the San Francisco Bay area. Councilman Schmidt is very concerned re the location of the successes concerning Inclusionary Zoning and how these may be adapted to fit within Virginia Beach. Councilman Villanueva advised a Redevelopment Authority is necessary to accomplish this Inclusionary Zoning. A combination of the Redevelopment and Housing Authority would oversee the lottery and income evaluation. Council Lady Wilson advised the Partner Group is working on suggestions re Workforce Housing i. e. tax abatement, which will be coming forward. Meetings have been conducted with developers. Charles Meyer, Chief Operating Officer, advised a Briefing shall be scheduled for June 14, 2005 re Workforce Housing concerning the completion of the Housing Needs Assessment and Market Analysis, prepared for the City by the Center for Housing Research, Virginia Tech, and the policy issues being discussed by the Partners Group. ITEM # 53971 Vice Mayor Jones referenced the fax to Mayor Meyera E. Oberndorf -Virginia Beach and Mayor Dalton S. Edge - Chesapeake from Philip A. Shucet - Commissioner - Commonwealth of Virginia, Department of Transportation, re the presentation of the Draft Environmental Impact Statement for the Southeastern Parkway and Greenbelt to the Federal Highway Administration for approval. May 24, 2005 -12 - CITY COUNCIL COMMENTS ITEM # 53971 (Continued) Mr. Shucet requested commitment in writing to the following: Regarding the construction of Dominion Boulevard and the Southeastern Parkway and Greenbelt, we are committed to: A system of tolling or other financing mechanisms that achieves the recovery of funding necessary to construct the physical improvements associated with Dominion Boulevard (Route 17 South) and the Southeastern Parkway and Greenbelt (including the expanded Oak Grove Connector) from traffic utilizing the new, improved, or expanded roadways; 2. A single and exclusive toll revenue and financing study encompassing the limits of both Dominion Boulevard and the Southeastern Parkway and Greenbelt, treating the projects as a single project for the purpose of financing; and, 3. The amendment adopted and approved in the minutes of the August 20, 2003, Metropolitan Planning Organization (MPO) meeting stating that, `If the Southeastern Parkway and Greenbelt does notgo forward, the $520-MILLIONin NHS/RSTP funds, including the $100-MILLIONfor the Dominion Boulevard Bridge, will go back into the regional Metropolitan Planning Organization (MPO) for reallocation. " The Vice Mayor referenced, for City Council's consideration, the suggested response letter from Mayor Oberndorf. BY CONSENSUS, the Mayor's correspondence shall be forwarded to Honorable Philip Shucet. ITEM # 53972 Vice Mayor Jones advised he would not be able to attend the Annual Goal Setting Retreat on August 5 and 6, 2005. Mayor Oberndorf will also be out of the Country August 9 through August 18, 2005. Council Lady McClanan believes a time should be established to assure the attendance of all City Council members. The City Manager will distribute to City Council a preference sheet of the various weekends in August for the scheduling of the Retreat. May 24, 2005 -13 - ITEM # 53973 Vice Mayor Jones entertained a motion topermit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-344(A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation ofspecificpublicofficers, appointees or employees pursuant to Section 2.2-3711 (A) (1). To Wit: Appointments: Boards and Commissions: Arts and Humanities Commission Beaches and Waterways Commission Chesapeake Bay Alcohol Safety Action Program Eastern Virginia Medical School Hampton Roads Planning District Commission - HRPDC Health Services Advisory Board Investment Partnership Advisory Committee - PPEA Minority Business Council Open Space Advisory Committee Parks and Recreation Commission Shore Drive Advisory Committee Social Services Board Tidewater Community College Board Tidewater Regional Group Home Commission Towing Advisory Board 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 ofplans for the future of an institution which could affect the value ofproperty owned or desirable for ownership by such institution pursuant to Section 2.2-3711(A)(3). Acquisition/Disposition of Property: Kempsville District Princess Anne District Beach District Upon motion by Councilman Reeve, seconded by Councilman Schmidt, City Council voted to proceed into CLOSED SESSION (4:45 P.M.). May 24, 2005 -14 - ITEM # 53973 (Continued) Voting: 9-0 Council Members Voting Aye.- Harry ye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood (Break: 4:45 P.M. - 5:00 P.M.) (Closed Session: 5:00 P.M. - 5:50 P.M.) (Dinner: 5:50 P.M. - 6:13 P.M.) May 24, 2005 -15 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL May 24, 2005 6:15 P.M. Vice Mayor Louis R. Jones called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, May 24, 2005, at 6:15 P.M. Council Members Present: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Absent: Mayor Meyera E. Oberndorf [Economic Development Conference in Las Vegas] James L. Wood [Economic Development Conference in Las Vegas] INVOCATION. Vice Mayor Louis R. Jones Vice Mayor Jones prayed for the family of Deputy Sheriff Robert Ogden concerning their tragic loss PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accountingfirm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she willprepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made apart of the record. Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes the disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made apart of the record. May 24, 2005 -16 - Item V -E. CERTIFICATION OF CLOSED SESSION ITEM # 53974 Upon motion by Councilman Schmidt, seconded by Councilman Dyer, City Council CERTIFIED THE CLOSED SESSION TO BE INACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: r0rs,S Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 53973, page 13, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3711(A) of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby 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 Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. uth Hodg s Smith, MMC City Clerk May 24, 2005 Item V -F.1. MINUTES -17 - ITEM #53975 Upon motion by Councilman Reeve, seconded by Councilman Dyer, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSION of May 10, 2005. Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 -18 - Item V -G. ADOPT AGENDA FOR FORMAL SESSION ITEM #53976 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION May 24, 2005 -19 - Item V -H.1. PUBLIC HEARING ITEM #53977 Vice Mayor Jones DECLARED A PUBLIC HEARING: FARMER'S MARKET LESS #14 Yoder's Dairies of Tidewater, Inc. There being no speakers, Vice Mayor Jones CLOSED THE PUBLIC HEARING May 24, 2005 -20 - Item V -H.1. PUBLIC HEARING ITEM #53978 Vice Mayor Jones DECLARED A PUBLIC HEARING: LEASES OF CITY OWNED PROPERTIES: Contemporary Art Center of Virginia - 220 Parks Avenue Dolphin Run Condominium Association, Inc. - 3'd Street at Atlantic Avenue C.B.M. Co. t/a SCHOONER INN -108 Atlantic Avenue There being no speakers, Vice Mayor Jones CLOSED THE PUBLIC HEARING May 24, 2005 -21 - Item V -J. ORDINANCES ITEM # 53979 Upon -motion by Councilman Schmidt, seconded by Councilman Reeve, City CouncilAPPROVEDINONE MOTION Items 1 a/b, 2a/b/c/d, 3, 4, 5 and 6 of the CONSENT AGENDA. Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Council Lady McClanan VERBALLYABSTAINED on Item J.2c (Dolphin Run Condominium Association, Inc., as she and her husband own a Condominium at Dolphin Run. Council Members McClanan and Dyer voted a VERBAL NAY on Item J.3 (Laskin Road Gateway - 30' Street Project) Councilman Maddox VERBALLY ABSTAINED on Item J.4 (Gladys L. Maddox encroachment) as his mother is the applicant May 24, 2005 -22 - Item V -J.1 alb ORDINANCES ITEM # 53980 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinances to AMEND the City Code.- a. ode: a. REPEAL § 12-30 re fees for copies of records by Fire Department b. REORDAIN§ 27-3 re fees for copies of records by Police Department Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 AN ORDINANCE TO AMEND THE CITY CODE 2 OF THE CITY OF VIRGINIA BEACH BY 3 REPEALING THE SECTION PERTAINING TO 4 AUTHORITY OF DEPARTMENT TO FURNISH 5 COPIES OF RECORDS, AND FEES THEREOF 6 7 SECTION REPEALED: X12-30 9 reeeras,and Peas thereffer. 10 (a) Tire—depaL=ti:ftent of ice_- pLceteeti-n is hereby ,ther_zee, t^ 11 12 repert-s te- e vieweel by preper- evens eens st^n} with tie 13 pre-�s-i�—e��e� —�r�e-�e�ezf theVirginiaf^ a l�, �� r- t = re�� r e-��G� 14 of Virginia, setren 2.1 3 15 (b) r -e? —a-heeer��iees fftents-oz=red—ice, -ubs«t,-en (a) a ev-e,-� 16 €ellewi-n-g fees shall b . 17 (1) Phe to s t-atim e—ee py ef fiLce—ine d ent—rep e r } . . . $S.90 18 (22) Phetest-atie—eepy—ef fire—inspeetlen repent . . . 5.00 19 (3) Tee^ssi-ng fiice—repet—e—rte ew e . . . 20 Adopted by the Council of the City of Virginia Beach, 21 Virginia, on the 24th day of May, 2005. APPROVED AS TO CONTENTS: Fir De ent CA -8545 H:\PA\GG\ORDRES\12-30 Fee ord.doc R1 - November 17, 2004 APPROVED AS TO LEGAL SUFFICIENCY: V /I � t- 14. Cit Attorney s Office 1 AN ORDINANCE TO AMEND AND REORDAIN 2 THE CITY CODE PERTAINING TO THE 3 AUTORITY OF POLICE DEPARTMENT TO 4 FURNISH COPIES OF RECORDS, PERFORM 5 CERTAIN SERVICES, ETC. AND FEES 6 THEREOF 7 8 SECTION AMENDED: § 27-3 9 10 11 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 12 BEACH, VIRGINIA: 13 That Section 27-3 of the City Code is hereby amended and 14 reordained to read as follows: 15 Sec. 27-3. Authority of department to furnish copies of 16 records, perform certain services, etc., and fees therefor. 17 (a) The department of police is hereby authorized to fdrnish 18 19 release forensic photographs after all criminal charges are 20 resolved and when such release is provided by law, te—na^ feeerd 21 eheeks and r eper=-s —( l e e a l tee r d e e take f---�r g^ r -p rints e€ 22 inelivi-dlda-ls enrequest to furnish photostatic copies of accident 23 reports and offense reports, and to allow ^oTfense such reports to 24 be viewed by proper persons consistent with the provisions of the 25 Virginia Freedom of Information Act, Code of Virginia § 2.2-3700. 1. el The 26 ( b ) F6zthe —crrc—S-C1r-5�re= _ T�C� _ = �-eircerzrcs�z�s��_.a = �-eir—(-a ) �n� e�oL^�cc 27 Chief of Police is herebv authorized to make record checks and 28 reports (local record only)and take fingerprints of individuals on 29 request. fFor the processing of applications for permits required 30 by law, the following fees shall be charged: 31 32 33 • - 34 -(A+ (1)Record check and report by name (local) . . . 15.00 35 +3 (2)Fingerprinting of individuals on request . . . 5.00 36 (6) Pdlling enc repeict e . 37 • • 38 +8}(3)Process bingo permit application . . . 100.00 39 +9+(4)Process raffle permit application . . . 50.00 40 (-19)(5)Dance hall permit application . . . 50.00 41 (6)Turkey shoot permit application . . . 50.00 42 (-12)(7)Certificate for public convenience and necessity . . . 50.00 43 (8)Precious metals permit . . . 200.00 44 ' (9)Vendor permit . . . 25.00 45 ' (10)Concealed weapon permit . . . 35.00 46 Adopted by the Council of the City of Virginia Beach, 47 Virginia, on the 24th day of May, 2005. APPROVED AS TO CONTENTS: I Polir epartmt CA -8543 H:\PA\GG\ORDRES\27-3 Fee ord.doc Rl - November 17, 2004 APPROVED AS TO LEGAL SUFFICIENCY: J � C y Attorne Office SAM Item V J.2. a/b/d ORDINANCES ITEM # 53981 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinances to AUTHORIZE the City Manager to execute Leases of certain city -owned property: a. Virginia Beach Farmers Market — Yoder's Dairies of Tidewater, Inc. (Slip #14) b. Contemporary Art Center — 2200 Parks Avenue d. C.B.M. Co. t/a SCHOONER INN at 108 Atlantic Avenue Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO LEASE SPACE AT THE 3 VIRGINIA BEACH FARMERS MARKET 4 5 WHEREAS, the City of Virginia Beach has leased spaces at 6 the Farmers Market since its inception; 7 WHEREAS, Yoder's Dairies of Tidewater, Inc. wishes to lease 8 a space at the Farmers Market; and 9 WHEREAS, a public hearing concerning the proposed lease has 10 been advertised and conducted. 11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 12 OF VIRGINIA BEACH, VIRGINIA: 13 That the City Manager or his designee is hereby authorized 14 on behalf of the City of Virginia Beach to enter into a lease 15 agreement from May 25, 2005 through May 24, 2008 with Yoder's 16 Dairies of Tidewater, Inc. for Space #14 at the Farmers Market. 17 A summary of the material terms of such lease is hereby 18 attached. 19 20 Adopted by the City Council of Virginia Beach, Virginia on 21 this 24thday of May , 2005. APPROVED AS TO CONTENTS: Agricu ure p Deartm nt APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA9615 H:\PA\GG\ORDRES\Farmers Market Space Lease.ORD.doc R-2 May 11, 2005 SUMMARY OF MATERIAL TERMS LEASE FOR RETAIL SPACE AT THE VIRGINIA BEACH FARMERS MARKET LESSOR: City of Virginia Beach LESSEE: Yoder's Dairies of Tidewater, Inc. TERM: May 25, 2005 through May 24, 2008 RENT: $537 per month/$6,444 annually PROMOTIONAL FEE: $30 per month RIGHTS AND RESPONSIBILITIES OF LESSEE: • Use leased space for retail business consistent with the purpose of the Farmers Market. • Maintain leased space, including heating and air conditioning units. • Purchase and maintain commercial general liability insurance. • Keep business open during hours of Farmers Market operation. • Pay additional fees for electricity. RIGHTS AND RESPONSIBILITIES OF CITY: • Maintain common areas of the Farmers Market and structural elements of the leased space. • Pay for water and sewer service. TERMINATION: City may terminate by providing Lessee sixty (60) day notice. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AN ORDINANCE APPROVING THE LEASE OF CITY LAND AND IMPROVEMENTS AT 2200 PARKS AVENUE TO THE CONTEMPORARY ART CENTER OF VIRGINIA WHEREAS, the City of Virginia Beach ("the City") is the owner of 9.617 acres of land, and all improvements thereon shown on Exhibit A (the "Premises"), located at 2200 Parks Avenue; WHEREAS, the Contemporary Art Center of Virginia has leased the Premises from the City since 1986 for the operation of the Contemporary Art Center; and WHEREAS, the Contemporary Art Center of Virginia seeks to renew its Lease Agreement with the City for the Premises; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 15 OF VIRGINIA BEACH, VIRGINIA THAT: 16 17 18 19 20 21 22 The Lease Agreement dated as of May 1, 2005 between the City and the Contemporary Art Center of Virginia for City land and improvements located at 2200 Parks Avenue for a five (5) year term is hereby approved and further; The City Manager is authorized and directed to execute the proposed Lease Agreement between the parties, which is attached and labeled Exhibit B. Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of May 12005 Approved As To Content 1Z4 DMS/Faci sties Management Approved as to Legal Sufficiency OffiFe of th sty At orney CA9528 11 (IID\REAL ESTATE\LEASES\CONTEMPORARY ART CENTER\Contempoiaty arts cli tadiaace_ DO(' May 11, 2005 EXHIBIT B LEASE AGREEMENT FOR CONTEMPORARY ART CENTER OF VIRGINIA THIS AGREEMENT (the "Lease") is entered into as of the 1St day of May 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, (the "City") and the CONTEMPORARY ART CENTER OF VIRGINIA, a corporation of the Commonwealth of Virginia, (the "Tenant"). WITNESSETH: That the City, for and in consideration of the rent, and of the covenants and agreements to be kept and performed by the parties hereto, agrees to rent and does by these presents hereby rent to the Tenant, and the Tenant does hereby accept said Lease upon the terms and conditions set forth herein, all that certain piece, parcel, or tract of land, together with any and all improvements and appurtenances thereon, belonging, lying, situate and being in the City of Virginia Beach, Virginia, the following described property (the "Premises"), to -wit: All that certain 9.617 acres of pieces or parcels of land as shown on the certain subdivision plat entitled "PLAT SHOWING PUBLIC UTILITY EASEMENT & VACATION OF RIGHT OF WAY LINES & RESUBDIVISION OF PROPERTY TO THE NORTH AND SOUTH OF OLD VIRGINIA BEACH ROAD FOR THE CITY OF VIRGINIA BEACH, LYNNHAVEN BOROUGH< VIRGINIA BEACH, VIRGINIA BUREAU OF SURVEYS AND MAPPING ENGINEERING DIVISION DEPARTMENT OF PUBLIC WORKS CITY OF VIRGINIA BEACH, VIRGINIA DATED NOV. 26, 1990, REV. DATE: FEB. 7, 1991, REV. DATE: MAR. 7, 1991, REV. DATE: APR. 10, 1991, SCALE: 1" = 100'", a copy of which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 211 at Page 96-97. GPIN: 2417-88-0355 This Agreement and Lease is conditioned upon the following terms, conditions, and covenants. Premises. For that and in consideration of the terms, conditions, covenants, promises, and agreements herein made, Lessor hereby leases and demises unto Lessee the Premises, which includes the 38,000 square foot facility located at 2200 Parks Avenue, Virginia Beach, Virginia as shown on Exhibit A attached hereto. 2. Term. The term of this Lease shall be for a period of five (5) years, commencing on May 1, 2005, and ending at midnight on April 30, 2010. It is the intent of the parties to renew this Lease, to the extent permitted by law, as long as both parties are dedicated to preserving the artistic nature of the CONTEMPORARY ART CENTER OF VIRGINIA (the "Building") and operating an activity which enhances the cultural identity of the City of Virginia Beach. 3. Rent. The total rent for the term hereof and any renewal term hereof shall be one dollar ($1.00) per annum, which the Tenant shall pay to the City, in advance, at such place as may be designated by the City. 4. Use. The Tenant will use and occupy the Premises for purposes of enhancing the public's access to art and culture in the City of Virginia Beach. Such use and occupancy may include, without limitation, art exhibits and related special events, receptions, and meetings, art classes, the operation of gift shops and food and beverage concessions, theatre and recreational purposes, and fund-raising activities which are intended to preserve the artistic nature of an arts museum. The Building must remain open to the general public for at least 120 days per year and for at least 1,000 hours per year. The Tenant agrees to abide by, observe and comply with all federal, state, and municipal laws, ordinances and regulations applicable to its use and occupancy of the Premises and with any covenants and restrictions to which the Premises are now or may hereafter be made subject. The Tenant further agrees that it will not do or permit any act or thing or omit any act or thing which conflicts or otherwise fails to comply with the terms of any policy of insurance covering the Premises. The Tenant shall not use nor permit the Premises to be used for any purpose other than as stated in this section of the Lease without prior written consent of the City, which consent shall not be unreasonably withheld. 5. Notice. Any notice provided for or required by this Lease shall be deemed to have been delivered on the date that such notice has been personally delivered or deposited in the U.S. Mail, first class, return receipt requested, postage prepaid and addressed as follows: (A) To the City: Facilities Management Office Department of Management Services City of Virginia Beach 2424 Courthouse Drive Virginia Beach, VA 23456 _(B) - To. the _Tenant: - - CONTEMPORARY ART CENTER OF VIRGINIA 2200 Parks Avenue i►: Virginia Beach, VA 23451 6. Name. The official name of the Tenant's operation shall not be changed without the prior written approval of the City, which approval shall not be unreasonably withheld. 7. Signs. Tenant shall install and maintain during the term of this Lease a plaque, prominently displayed at the entrance to the building, giving recognition to the City as a principal in the ownership and establishment of the Premises. Such plaque, together with any other sign located on the Premises, shall be constructed and maintained in accordance with applicable State and local laws and shall be approved by the City, which approval shall not be unreasonably withheld. 8. Attachments. The following document is attached hereto and such document shall be incorporated herein by reference: (A) Exhibit A — Plat of Premises (B) Exhibit B - Insurance Obligations 9. Default. If, after receiving written notice from the City, the Tenant fails to complete performance within forty-five (45) days thereafter or within such additional time as may be reasonably necessary, of any covenant or agreement to be performed by the Tenant herein, or causes material damage to or neglects the Building, the City shall have the right to: (i) terminate this Lease, whereupon Tenant shall quit and surrender the Premises to the City; (ii) re-enter and repossess the Premises and lockout Tenant; and (iii) cure the breach or default at the Tenant's expenses, and all costs incurred by City in curing same shall be payable to the City on demand. The City shall retain the right to sue for damages as allowed by law and to pursue such other remedies as allowed by law or in equity. 10. Indemnification. The Tenant agrees to indemnify and save the City and its agents, employees, and officials harmless against all liabilities, expenses and losses including reasonable attorneys' fees incurred by the City as a result of (a) failure by the Tenant to perform any covenant required to be performed by the Tenant hereunder; or (b) any accident, injury, death or property damage which happens in or about the leased Premises or results from the condition, maintenance or operation of the leased 3 Premises or which arises from the negligence or intentional torts of Tenant or its agents, servants or employees. The City shall not be liable for any loss, injury, death, or damage to persons or property which at any time may be suffered or sustained by the Tenant or by any person who may at any time be using, occupying or visiting the Premises or be in, on, or about the same, whether such loss, injury, death, or damage shall be caused by or in any way result from or arise out of any act, omission, or negligence of the Tenant or any occupant, visitor, or user of any portion of the Premises. The Tenant hereby waives all claims against the City for injuries to person or property in or about the Premises, from any cause arising at any time. The Tenant further agrees to defend, indemnify, and hold harmless the City, its employees, agents and volunteers from any and all liability and/or damages for injuries to persons or damage to property arising out of the acts or omissions of the Tenant, or the Tenant's agents or employees under this Lease. Notwithstanding the above, the Tenant shall not be required to indemnify the City against any liabilities, expenses or losses incurred by the City, nor shall the Tenant be liable for any loss, injury, death or damage to persons or property, which results from the gross negligence or intentional misconduct of the City or any of its agents, officers or employees. 11. City/Tenant Services, Maintenance, Repair and Alterations. City shall, at City cost: (A) maintain the Premises in good condition and repair, including all buildings and improvements, sidewalks, and landscaping; (B) provide payment for all water and sewer and stormwater utility costs and fees; and (C) approve in advance the acquisition or installation by the Tenant of any equipment it is expected to maintain. The grounds will be maintained by the City in a manner consistent with the municipal nature of the Premises. The City shall, upon prior notice to the Tenant, have access to the Building, at reasonable intervals during normal business hours, for purposes of inspecting or repairing the Building; however, no notice need be given in the case of an emergency. However, the City shall not unreasonably interfere with the Tenant's use of the Building. The City shall have the right to establish reasonable rules and regulations governing the use and occupancy of the Premises. The Tenant shall pay for telecommunications fees 4 and services and utilities unless specified to be paid by the City. Additionally, the Tenant shall provide written security procedures designed to reasonably protect the Building, against damage, which procedures must be approved by the City. The Tenant shall not perform any repairs upon the Premises, structural or otherwise, unless minor in nature and approval of the City is first obtained, but shall use its best efforts to maintain the Premises in a neat and orderly condition. The City shall maintain the Premises, including all buildings and improvements, sidewalks and landscaping in good repair. No alterations, improvements or additions of a permanent nature shall be made to the Premises without the prior written approval of the City, which approval shall not be unreasonably withheld. Such alterations, improvements and additions must comply with all applicable building codes, ordinances and regulations. Any such alterations, improvements or additions shall be at the sole expense of the Tenant and Tenant shall indemnify the City against any expense or damage to the Premises as a result thereof. There shall be maintained at the Tenant's sole expense, at all times when any alteration, improvement or addition is in progress, worker's compensation insurance in accordance with state law covering all persons employed in connection with any such alteration, improvement or addition, and general liability insurance for the Tenant covering the additional hazards resulting from any such alteration, improvement or addition. Upon the termination of the Lease, the Tenant shall deliver the Building to the City in good and clean condition, excepting ordinary wear and tear or loss or damages caused by fire or other casualty. 12. Furnishings. At the expiration or earlier termination of this Lease, should the Tenant fail to remove any furnishings or other personal property owned by Tenant within ten (10) days of the date of such expiration or termination, the Tenant shall be deemed to have waived all rights to any such furnishings or other personal property not so removed. 13. Fire or Casualty. Except as otherwise provided herein, in the event the Building, or improvements on the Premises or any part thereof, are damaged or destroyed by fire or other casualty, the City may elect to terminate this Lease effective 5 as of the date of the casualty. The City is not obligated to rebuild the Premises in the event of damage or destruction by fire or other casualty. Tenant shall be responsible for the repair and restoration of all Tenant improvements at its sole cost and expense. 14. Art Collections. All collections of artwork, displayed or stored, are the responsibility of the Tenant, except as otherwise provided herein. Any modifications to this condition must be a written memorandum of understanding agreed to by both parties. 15. ,.. Assignment and Subletting. The Tenant shall not assign this Lease in whole or in part or sublease all or any part of the Premises without the prior written consent of the City. Any such sublease or assignment without consent shall be void, and shall, at the option of the City, terminate this Lease. The provisions of this paragraph shall not be applicable to any contract or agreement between the Tenant and a third party involving the temporary short-term occupancy of the Premises by such third party for (i) an art display, exhibit, forum or similar event, or (ii) the provision of ancillary services (e.g., catering) associated with any such event. This Lease is binding upon, and inures to the benefit of, the parties and their respective heirs, personal representatives, successors and assigns. 16. Surrender. Upon the expiration of earlier termination of this Lease, the Tenant shall surrender to the City the Premises in good and clean condition, ordinary wear and tear and damage by fire or other casualty excepted. 17. Severability. If any provision of this Lease or its application to any person or circumstance shall to any extent be determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is determined to be invalid or unenforceable, shall not be affected, and each remaining provision of this Lease shall continue to be valid and enforceable to the fullest extent permitted by law. 18. Rules and Regulations. The Tenant, will comply with all federal, state, and local laws, ordinances, and regulations (collectively, the "Laws"), relating to the business conducted on the Premises by the Tenant, and the Tenant, hereby agrees to observe and strictly comply with all reasonable rules and regulations adopted by the City from time to time with respect to the occupancy of or operations on the Premises. The City shall not be liable for the nonobservance or violation by the Tenant, or any agent, employee, contractor, invitee or licensee of the Tenant, of any Laws, rules and regulations. The tenant will indemnify and hold the City and its agents, employees, and officials harmless from and against any expense or liability (including reasonable attorneys' fees) resulting from any acts /or omissions of Tenant, its agents, employees, invitees, or independent contractors that violated the Laws, rules and regulations. This provision shall survive termination of this Lease. 19. Required Approvals. All approvals required herein must be obtained in writing. The Department of Management Services/Facilities Management Office shall be responsible for administration and oversight of this Lease. 20. Non -Discrimination. During the term of this Lease, the Tenant agrees that it will not discriminate against any person, including, without limitation, any artist, exhibitor, contractor, vendor, employee or applicant for employment, on the basis of such person's race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification/consideration reasonably necessary to the normal operation of the Tenant. 21. Environmental Concerns. The City hereby warrants to the Tenant, that, to the best of the City's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed or, or is located in either the Building or the soil or groundwater on or under the Premises. Any costs associated with violations of the law including, but not limited to, remediations, clean-up costs, fines, administrative or civil penalties or charges, and third party claims imposed on the City by any regulatory agency or by any third party as a result of the noncompliance with federal, state or local environmental laws and regulations or nuisance statutes by the Tenant or by its employees, contractors, consultants, subconsultants, or any other persons, corporations or legal entities retained by if for the Premises, shall be paid by the Tenant. This provision shall survive the expiration or sooner termination of this Lease. 22. Liens — Tenant's Duty to Keep Premises Free of Liens The Tenant shall keep the Premises and every part thereof and all buildings and other improvements at 7 any time located thereon free and clear of any and all mechanics', material men, and other liens for or arising out of or in connection with work or labor done, services performed, or materials or appliances used or furnished for or in connection with any operations of the Tenant, any alteration, improvement or actions which the Tenant might make or cause to be made by any person or persons other than employees, contractors or agents of the City, on or about the Premises, and at all times promptly and fully pay and discharge any and all claims upon which such lien may or could be based, and to indemnify the City. and all of the Premises and buildings and improvements thereon against all such items and claims of liens and related lawsuits. 23. Miscellaneous Provisions: Quiet Enioyment. Subject to the provisions of this Lease and the City's remedies in the event of Tenant's default, Tenant will have and enjoy quiet and peaceable possession of the Premises during the Term. Nonwavier. No waiver of any covenant or condition by either party shall be deemed to imply or constitute a further waiver of the same covenant or condition or a waiver of any other covenant or condition of this Lease. Governing Law/Venue: This Lease shall be construed and governed by the applicable laws of the Commonwealth of Virginia. Venue of any suit brought to enforce the terms of this Lease or arising from the rights, liabilities or obligations set forth herein shall be filed in a court of competent jurisdiction in the City of Virginia Beach. Force Maieure. Neither party shall be liable to the other for any breach or violation of this Lease resulting from any occurrence or event, including any Act of God, strikes, war, lockouts, labor trouble, insurrection or occurrence beyond the reasonable control of any party hereto. Modification. This Lease shall not be modified except by a written instrument executed by the City and Tenant or their respective successors or assigns. IN WITNESS WHEREOF, the City and the Tenant have duly executed this Agreement as of the date first written above. CITY OF VIRGINIA BEACH By: (SEAL) ATTEST: Ruth Hodge Smith City Clerk City Manager/Authorized Designee of the City Manager ATTEST: CONTEMPORARY ART CENTER OF VIRGINIA 0 Chair, Board of Trustees CITY ACKNOWLEDGMENTS STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2005, by , City Manager/Authorized Designee of the City Manager, on behalf of the City of Virginia Beach, Virginia. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2005, by , City Clerk, on behalf of the City of Virginia Beach, Virginia. My commission expires: 10 Notary Public TENANT ACKNOWLEDGMENTS STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this/—& day of 2005, by , Chair, Board of Trustees, and G• �J• )-)-I �' , Corporate Secretary, on behalf of the CONTEMPORARY ART ENTER OF VIRGI , Virginia corporation. 1 - NotPublic_ My commission expires:C,.ary y APPROVAL AS TO CONTENT: CCa Manageme t Serviced acilities Management Office APPROVAL AS TO CONTENT: Risk Management Administrator APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office 11 APPROVAL AS TO CONTENT: M eums and Cultural Arts Interstate Primary Roads Streets �] Parcel Water Bodies EXHIBIT "A" SCALE 1: 1,858 100 0 100 200 300 FEET http://g is-server/amap/vb_aerial. mwf 12 A Wednesday, May 11, 2005 9:35 N EXHIBIT "B" INSURANCE OBLIGATIONS A. The City's Insurance Obliqations. The City may at its discretion provide programs of insurance and/or self- insurance to cover physical damage to or loss of the building due to fire, flood, or other casualty. B. The Tenant's Insurance Obligations. The tenant shall, at all times during the Term at its own cost and expense, carry commercial general liability insurance on the Premises with limits of not less than $1,000,000.00 combined single limit. The Tenant shall also carry "all-risk" casualty insurance; written at replacement cost value and with replacement cost endorsement, covering all the Tenant's personal property in the Building (including, without limitation, fixtures, floor coverings, furniture, and other property removable by the Tenant under the provisions of the Lease) and all leasehold improvements installed in the Building by or on behalf of the Tenant and if, and to the extent permitted by law, worker's compensation or similar insurance. All liability insurance policies shall be written by companies authorized to conduct the business of insurance in the Commonwealth of Virginia and acceptable to the City and shall name the City as an additional named insured. Each such policy shall also contain a provision prohibiting cancellation or material modification without thirty (30) days prior written notice to the City or its designee. Certificates of such insurance shall be delivered to the City promptly after the issuance of the respective policies. If the Tenant fails to provide or maintain such liability insurance, the City may, but shall not be obligated to, do so and collect the cost thereof as Additional Rent. 13 SUMMARY OF TERMS LEASE FOR THE USE OF 9.617 ACRES OF CITY REAL PROPERTY AND IMPROVEMENTS THEREON LESSOR: City of Virginia Beach LESSEE: CONTEMPORARY ART CENTER OF VIRGINIA PREMISES: Approximately 9.617 Acres of City property, which includes a 38,000 square foot facility located at 2200 Parks Avenue and known as the Contemporary Art Center of Virginia. TERM: May 1, 2005 through April 30, 2010 RENT: Rent shall be One Dollar ($1.00) Per Annum RIGHTS AND RESPONSIBILITIES OF THE CONTEMPORARY ART CENTER OF VIRGINIA: • Will use the Premises for art exhibits, related special events, receptions, meetings, art classes, and such other activities as will enhance the public's access to art and culture in the City of Virginia Beach and for no other purpose. • Will remain open to the general public for at least 120 days and a total of at least 1,000 hours per year. • Will erect and maintain a sign during the term of the Lease, which shall give recognition to the Lessor as a principal in the ownership and establishment of the Premises. • Will maintain commercial general liability insurance with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Such insurance shall name the City of Virginia Beach as an additional insured. • Will assume the entire responsibility and liability for any and all damages to persons or property caused by any act or omission of the Lessee or its agents, etc. associated with the use of the Premises. • Will comply with all applicable laws, ordinances, and regulations in the performance of its obligations under the Lease. RIGHTS AND RESPONSIBILITIES OF THE CITY: • Will have access to the Premises at reasonable times, during normal business hours, for the purposes of inspecting or repairing the Premises; however, no notice need be given in the event of an emergency. • Will maintain the Premises in good condition and repair, including all buildings and improvements, sidewalks, and landscaping. • Will provide payment for all water, sewer, and stormwater utility costs. TERMINATION: In the event of a default by the Tenant, the City may terminate the Lease whereupon Tenant shall quit and surrender the Premises to the City. H:\OID\REAL ESTATE\LEASES\CONTEMPORARY ART CENTER\CAC. SUMMARY OF TERMS.doc LEASE AGREEMENT FOR CONTEMPORARY ART CENTER OF VIRGINIA THIS AGREEMENT (the "Lease") is entered into as of the 1st day of May 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, (the "City") and the CONTEMPORARY ART CENTER OF VIRGINIA, a corporation of the Commonwealth of Virginia, (the "Tenant"). WITNESSETH: That the City, for and in consideration of the rent, and of the covenants and agreements to be kept and performed by the parties hereto, agrees to rent and does by these presents hereby rent to the Tenant, and the Tenant does hereby accept said Lease upon the terms and conditions set forth herein, all that certain piece, parcel, or tract of land, together with any and all improvements and appurtenances thereon, belonging, lying, situate and being in the City of Virginia Beach, Virginia, the following described property (the "Premises"), to -wit: All that certain 9.617 acres of pieces or parcels of land as shown on the certain subdivision plat entitled "PLAT SHOWING PUBLIC UTILITY EASEMENT & VACATION OF RIGHT OF WAY LINES & RESUBDIVISION OF PROPERTY TO THE NORTH AND SOUTH OF OLD VIRGINIA BEACH ROAD FOR THE CITY OF VIRGINIA BEACH, LYNNHAVEN BOROUGH< VIRGINIA BEACH, VIRGINIA BUREAU OF SURVEYS AND MAPPING ENGINEERING DIVISION DEPARTMENT OF PUBLIC WORKS CITY OF VIRGINIA BEACH, VIRGINIA DATED NOV. 26, 1990, REV. DATE: FEB. 7, 1991, REV. DATE: MAR. 7, 1991, REV. DATE: APR. 10, 1991, SCALE: 1"= 100'", a copy of which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 211 at Page 96-97. G PI N: 2417-88-0355 This Agreement and Lease is conditioned upon the following terms, conditions, and covenants. Premises. For that and in consideration of the terms, conditions, covenants, promises, and agreements herein made, Lessor hereby leases and demises unto Lessee the Premises, which includes the 38,000 square foot facility located at 2200 Parks Avenue, Virginia Beach, Virginia as shown on Exhibit A attached hereto. 2. Term. The term of this Lease shall be for a period of five (5) years, commencing on May 1, 2005, and ending at midnight on April 30, 2010. It is the intent of the parties to renew this Lease, to the extent permitted by law, as long as both parties are dedicated to preserving the artistic nature of the CONTEMPORARY ART CENTER OF VIRGINIA (the "Building") and operating an activity which enhances the cultural identity of the City of Virginia Beach. 3. Rent. The total rent for the term hereof and any renewal term hereof shall be one dollar ($1.00) per annum, which the Tenant shall pay to the City, in advance, at such place as may be designated by the City. 4. Use. The Tenant will use and occupy the Premises for purposes of enhancing the public's access to art and culture in the City of Virginia Beach. Such use and occupancy may include, without limitation, art exhibits and related special events, receptions, and meetings, art classes, the operation of gift shops and food and beverage concessions, theatre and recreational purposes, and fund-raising activities which are intended to preserve the artistic nature of an arts museum. The Building must remain open to the general public for at least 120 days per year and for at least 1,000 hours per year. The Tenant agrees to abide by, observe and comply with all federal, state, and municipal laws, ordinances and regulations applicable to its use and occupancy of the Premises and with any covenants and restrictions to which the Premises are now or may hereafter be made subject. The Tenant further agrees that it will not do or permit any act or thing or omit any act or thing which conflicts or otherwise fails to comply with the terms of any policy of insurance covering the Premises. The Tenant shall not use nor permit the Premises to be used for any purpose other than as stated in this section of the Lease without prior written consent of the City, which consent shall not be unreasonably withheld. 5. Notice. Any notice provided for or required by this Lease shall be deemed to have been delivered on the date that such notice has been personally delivered or deposited in the U.S. Mail, first class, return receipt requested, postage prepaid and addressed as follows: (A) To the City: Facilities Management Office Department of Management Services City of Virginia Beach 2424 Courthouse Drive Virginia Beach, VA 23456 (B) To the Tenant: CONTEMPORARY ART CENTER OF VIRGINIA 2200 Parks Avenue Virginia Beach, VA 23451 6. Name. The official name of the Tenant's operation shall not be changed without the prior written approval of the City, which approval shall not be unreasonably withheld. 7. Signs. Tenant shall install and maintain during the term of this Lease a plaque, prominently displayed at the entrance to the building, giving recognition to the City as a principal in the ownership and establishment of the Premises. Such plaque, together with any other sign located on the Premises, shall be constructed and maintained in accordance with applicable State and local laws and shall be approved by the City, which approval shall not be unreasonably withheld. 8. Attachments. The following document is attached hereto and such document shall be incorporated herein by reference: (A) Exhibit A — Plat of Premises (B) Exhibit B - Insurance Obligations 9. Default. If, after receiving written notice from the City, the Tenant fails to complete performance within forty-five (45) days thereafter or within such additional time as may be reasonably necessary, of any covenant or agreement to be performed by the Tenant herein, or causes material damage to or neglects the Building, the City shall have the right to: (i) terminate this Lease, whereupon Tenant shall quit and surrender the Premises to the City; (ii) re-enter and repossess the Premises and lockout Tenant; and (iii) cure the breach or default at the Tenant's expenses, and all costs incurred by City in curing same shall be payable to the City on demand. The City shall retain the right to sue for damages as allowed by law and to pursue such other remedies as allowed by law or in equity. 10. Indemnification. The Tenant agrees to indemnify and save the City and its agents, employees, and officials harmless against all liabilities, expenses and losses including reasonable attorneys' fees incurred by the City as a result of (a) failure by the Tenant to perform any covenant required to be performed by the Tenant hereunder; or (b) any accident, injury, death or property damage which happens in or about the leased Premises or results from the condition, maintenance or operation of the leased 3 Premises or which arises from the negligence or intentional torts of Tenant or its agents, servants or employees. The City shall not be liable for any loss, injury, death, or damage to persons or property which at any time may be suffered or sustained by the Tenant or by any person who may at any time be using, occupying or visiting the Premises or be in, on, or about the same, whether such loss, injury, death, or damage shall be caused by or in any way result from or arise out of any act, omission, or negligence of the Tenant or any occupant, visitor, or user of any portion of the Premises. The Tenant hereby waives all claims against the City for injuries to person or property in or about the Premises, from any cause arising at any time. The Tenant further agrees to defend, indemnify, and hold harmless the City, its employees, agents and volunteers from any and all liability and/or damages for injuries to persons or damage to property arising out of the acts or omissions of the Tenant, or the Tenant's agents or employees under this Lease. Notwithstanding the above, the Tenant shall not be required to indemnify the City against any liabilities, expenses or losses incurred by the City, nor shall the Tenant be liable for any loss, injury, death or damage to persons or property, which results from the gross negligence or intentional misconduct of the City or any of its agents, officers or employees. 11. City/Tenant Services, Maintenance. Repair and Alterations. City shall, at City cost: (A) maintain the Premises in good condition and repair, including all buildings and improvements, sidewalks, and landscaping; (B) provide payment for all water and sewer and stormwater utility costs and fees; and (C) approve in advance the acquisition or installation by the Tenant of any equipment it is expected to maintain. The grounds will be maintained by the City in a manner consistent with the municipal nature of the Premises. The City shall, upon prior notice to the Tenant, have access to the Building, at reasonable intervals during normal business hours, for purposes of inspecting or repairing the Building; however, no notice need be given in the case of an emergency. However, the City shall not unreasonably interfere with the Tenant's use of the Building. The City shall have the right to establish reasonable rules and regulations governing the use and occupancy of the Premises. The Tenant shall pay for telecommunications fees 4 and services and utilities unless specified to be paid by the City. Additionally, the Tenant shall provide written security procedures designed to reasonably protect the Building, against damage, which procedures must be approved by the City. The Tenant shall not perform any repairs upon the Premises, structural or otherwise, unless minor in nature and approval of the City is first obtained, but shall use its best efforts to maintain the Premises in a neat and orderly condition. The City shall maintain the Premises, including all buildings and improvements, sidewalks and landscaping in good repair. No alterations, improvements or additions of a permanent nature shall be made to the Premises without the prior written approval of the City, which approval shall not be unreasonably withheld. Such alterations, improvements and additions must comply with all applicable building codes, ordinances and regulations. Any such alterations, improvements or additions shall be at the sole expense of the Tenant and Tenant shall indemnify the City against any expense or damage to the Premises as a result thereof. There shall be maintained at the Tenant's sole expense, at all times when any alteration, improvement or addition is in progress, worker's compensation insurance in accordance with state law covering all persons employed in connection with any such alteration, improvement or addition, and general liability insurance for the Tenalk covering the additional hazards resulting from any such alteration, improvement or addition. Upon the termination of the Lease, the Tenant shall deliver the Building to the City in good and clean condition, excepting ordinary wear and tear or loss or damages caused by fire or other casualty. 12. Furnishings. At the expiration or earlier termination of this Lease, should the Tenant fail to remove any furnishings or other personal property owned by Tenant within ten (10) days of the date of such expiration or termination, the Tenant shall be deemed to have waived all rights to any such furnishings or other personal property not so removed. 13. Fire or Casualty. Except as otherwise provided herein, in the event the Building, or improvements on the Premises or any part thereof, are damaged or destroyed by fire or other casualty, the City may elect to terminate this Lease effective as of the date of the casualty. The City is not obligated to rebuild the Premises in the event of damage or destruction by fire or other casualty. Tenant shall be responsible for the repair and restoration of all Tenant improvements at its sole cost and expense. 14. Art Collections. All collections of artwork, displayed or stored, are the responsibility of the Tenant, except as otherwise provided herein. Any modifications to this condition must be a written memorandum of understanding agreed to by both parties. 15. Assignment and Subletting. The Tenant shall not assign this Lease in whole or in part or sublease all or any part of the Premises without the prior written consent of the City. Any such sublease or assignment without consent shall be void, and shall, at the option of the City, terminate this Lease. The provisions of this paragraph shall not be applicable to any contract or agreement between the Tenant and a third party involving the temporary short-term occupancy of the Premises by such third party for (i) an art display, exhibit, forum or similar event, or (ii) the provision of ancillary services (e.g., catering) associated with any such event. This Lease is binding upon, and inures to the benefit of, the parties and their respective heirs, personal representatives, successors and assigns. 16. Surrender. Upon the expiration of earlier termination of this Lease, the Tenant shall surrender to the City the Premises in good and clean condition, ordinary wear and tear and damage by fire or other casualty excepted. 17. Severability. If any provision of this Lease or its application to any person or circumstance shall to any extent be determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is determined to be invalid or unenforceable, shall not be affected, and each remaining provision of this Lease shall continue to be valid and enforceable to the fullest extent permitted by law. 18. Rules and Regulations. The Tenant, will comply with all federal, state, and local laws, ordinances, and regulations (collectively, the "Laws"), relating to the business conducted on the Premises by the Tenant, and the Tenant, hereby agrees to observe and strictly comply with all reasonable rules and regulations adopted by the City from time to time with respect to the occupancy of or operations on the Premises. M The City shall not be liable for the nonobservance or violation by the Tenant, or any agent, employee, contractor, invitee or licensee of the Tenant, of any Laws, rules and regulations. The tenant will indemnify and hold the City and its agents, employees, and officials harmless from and against any expense or liability (including reasonable attorneys' fees) resulting from any acts /or omissions of Tenant, its agents, employees, invitees, or independent contractors that violated the Laws, rules and regulations. This provision shall survive termination of this Lease. 19. Required Approvals. All approvals required herein must be obtained in writing. The Department of Management Services/Facilities Management Office shall be responsible for administration and oversight of this Lease. 20. Non -Discrimination. During the term of this Lease, the Tenant agrees that it will not discriminate against any person, including, without limitation, any artist, exhibitor, contractor, vendor, employee or applicant for employment, on the basis of such person's race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification/consideration reasonably necessary to the normal operation of the Tenant. 21. Environmental Concerns. The City hereby warrants to the Tenant, that, to the best of the City's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed or, or is located in either the Building or the soil or groundwater on or under the Premises. Any costs associated with violations of the law including, but not limited to, remediations, clean-up costs, fines, administrative or civil penalties or charges, and third party claims imposed on the City by any regulatory agency or by any third party as a result of the noncompliance with federal, state or local environmental laws and regulations or nuisance statutes by the Tenant or by its employees, contractors, consultants, subconsultants, or any other persons, corporations or legal entities retained by if for the Premises, shall be paid by the Tenant. This provision shall survive the expiration or sooner termination of this Lease. 22. Liens — Tenant's Duty to Keep Premises Free of Liens. The Tenant shall keep the Premises and every part thereof and all buildings and other improvements at 7 any time located thereon free and clear of any and all mechanics', material men, and other liens for or arising out of or in connection with work or labor done, services performed, or materials or appliances used or furnished for or in connection with any operations of the Tenant, any alteration, improvement or actions which the Tenant might make or cause to be made by any person or persons other than employees, contractors or agents of the City, on or about the Premises, and at all times promptly and fully pay and discharge any and all claims upon which such lien may or could be based, and to indemnify the City. and all of the Premises and buildings and improvements thereon against all such items and claims of liens and related lawsuits. 23. Miscellaneous Provisions: Quiet Enioyment. Subject to the provisions of this Lease and the City's remedies in the event of Tenant's default, Tenant will have and enjoy quiet and peaceable possession of the Premises during the Term. Nonwavier. No waiver of any covenant or condition by either party shall be deemed to imply or constitute a further waiver of the same covenant or condition or a waiver of any other covenant or condition of this Lease. Governing Law/Venue: This Lease shall be construed and governed by the applicable laws of the Commonwealth of Virginia. Venue of any suit brought to enforce the terms of this Lease or arising from the rights, liabilities or obligations set forth herein shall be filed in a court of competent jurisdiction in the City of Virginia Beach. Force Maieure. Neither party shall be liable to the other for any breach or violation of this Lease resulting from any occurrence or event, including any Act of God, strikes, war, lockouts, labor trouble, insurrection or occurrence beyond the reasonable control of any party hereto. Modification. This Lease shall not be modified except by a written instrument executed by the City and Tenant or their respective successors or assigns. IN WITNESS WHEREOF, the City and the Tenant have duly executed this Agreement as of the date first written above. CITY OF VIRGINIA BEACH By: (SEAL) ATTEST: Ruth Hodge Smith City Clerk City Manager/Authorized Designee of the City Manager ATTEST: CONTEMPORARY ART CENTER OF VIRGINIA Chair, Board of Trustees CITY ACKNOWLEDGMENTS STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2005, by , City Manager/Authorized Designee of the City Manager, on behalf of the City of Virginia Beach, Virginia. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2005, by , City Clerk, on behalf of the City of Virginia Beach, Virginia. My commission expires: 10 Notary Public TENANT ACKNOWLEDGMENTS STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: .zj The foregoing instrument was acknowledged before me this day of 2005,,�by Chair, Board of Trustees, and Corporate Secretary, on behalf of the CONTEMPORARY ART &NTER OF VIRGIN Virginia corporation. Notary Public My commission expires: APPROVAL AS TO CONTENT Managemefit Service4t acilities Management Office APPROVAL AS TO CONTENT: Risk Management Administrator APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office 11 APPROVAL AS TO CONTENT: M eums and Cultural Arts Interstate Primary Roads Streets Parcel Water Bodies EXHIBIT "A" SCALE 1 :1,858 100 0 100 200 300 FEET http://gis-server/amap/vb_aerial.mwf Wednesday, May 11, 2005 9:35 AM 12 EXHIBIT "B" INSURANCE OBLIGATIONS A. The City's Insurance Obligations. The City may at its discretion provide programs of insurance and/or self- insurance to cover physical damage to or loss of the building due to fire, flood, or other casualty. B. The Tenant's Insurance Obligations. The tenant shall, at all times during the Term at its own cost and expense, carry commercial general liability insurance on the Premises with limits of not less than $1,000,000.00 combined single limit. The Tenant shall also carry "all-risk" casualty insurance, written at replacement cost value and with replacement cost endorsement, covering all the Tenant's personal property in the Building (including, without limitation, fixtures, floor coverings, furniture, and other property removable by the Tenant under the provisions of the Lease) and all leasehold improvements installed in the Building by or on behalf of the Tenant and if, and to the extent permitted by law, worker's compensation or similar insurance. All liability insurance policies shall be written by companies authorized to conduct the business of insurance in the Commonwealth of Virginia and acceptable to the City and shall name the City as an additional named insured. Each such policy shall also contain a provision prohibiting cancellation or material modification without thirty (30) days prior written notice to the City or its designee. Certificates of such insurance shall be delivered to the City promptly after the issuance of the respective policies. If the Tenant fails to provide or maintain such liability insurance, the City may, but shall not be obligated to, do so and collect the cost thereof as Additional Rent. 13 I AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A LEASE FOR LESS 3 THAN FIVE YEARS WITH THE C.B.M. CO., T/A 4 SCHOONER INN FOR 0.21 ACRE OF CITY 5 OWNED LAND LOCATED NEAR 3RD STREET AND 6 ATLANTIC AVENUE, BEING A PART OF THE 7 PARCEL LOCATED AT 108 ATLANTIC AVENUE 8 IN THE CITY OF VIRGINIA BEACH 9 10 WHEREAS, the City of Virginia Beach ("the City") is the owner of .21 acre of land 11 located near 3rd Street and Atlantic Avenue, being a part of the parcel located at 108 Atlantic 12 Avenue in Virginia Beach, Virginia (the "Premises"); 13 WHEREAS, CBM Company, t/a Schooner Inn ("Schooner Inn") would like to 14 enter into a formal lease arrangement with the City for the Premises shown on Exhibit 15 A; 16 WHEREAS, the Premises will be utilized as an overflow parking lot for the 17 registered guests of the Schooner Inn and for no other purpose; 18 WHEREAS, Schooner Inn has agreed to pay the City $19,908.00, payable either 19 in a lump sum or in equal monthly payments of $1,659 for the use of this property for a 20 twelve-month period; 21 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 22 OF VIRGINIA BEACH, VIRGINIA: 23 That the City Manager is hereby authorized to execute a lease for a term of less 24 than five (5) years between Schooner Inn and the City, for the Premises in accordance 25 with the Summary of Terms attached hereto and such other terms, conditions or 26 modifications as may be satisfactory to the City Attorney and the City Manager. 27 28 29 Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of 30 May , 2005 31 32 APPROVED AS TO LEGAL 33 SUFFICIENCY AND FORM 34 35 �� 36 37 Signature 38 39 40 41 43 CA -9527 H:\OID\REAL ESTATE\LEASES\Dolphin Run & Schooner Inn\Schooner Inn.ordinance.doc 44 May 10, 2005 45 APPROVED AS TO CONTENT Signatur A14 -C - /ms� Department — Interstate -- Primary Roads Streets Y. Parcel Water Bodies SCALE 1 :1,858 100 0 100 200 300 FEET Iittp://gis-server/amap/vb_aerial.mwf U) Monday, May 09. 2005 2:14 PM THIS LEASE AGREEMENT ("Lease"), made this day of , 2005, by and between the CITY OF VIRGINIA BEACH (GRANTOR/LESSOR), a municipal corporation of the Commonwealth of Virginia, hereinafter referred to as "City" or "Lessor," party of the first part, and C. B. M. Co. T/A SCHOONER INN (GRANTEE/LESSEE), hereinafter referred to as "Lessee," party of the second part. WITNESSETH 1. LEASED PREMISES. That for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be observed and performed, LESSOR leases to Lessee and Lessee rents from LESSOR the following property, hereinafter referred to as the "Property", delineated as shaded area upon the attached map labeled "Exhibit A" entitled "EXHIBIT "A" TO BE LEASED TO SCHOONER INN BY THE CITY OF VIRGINIA BEACH", reference being made to said exhibit for a more accurate description thereof. 2. RENT. That for and in consideration of the sum of $19,908.00, payable either in a lump sum or in equal monthly payments of $1,659.00 no later than the 5th of each month, over the term of this agreement, LESSOR does hereby lease and demise unto Lessee the Property. 3. TERM. The term of this Lease shall be for twelve months commencing May 1, 2005 and expiring April 30, 2006. 4. USE OF PROPERTY —PURPOSES. Lessee covenants that the Property shall be used solely for overflow parking for guests staying at the Schooner Inn. This Lease may be terminated on thirty (30) days' notice by LESSOR to Lessee. Lessee shall use the Property only for the purposes listed herein and any other use thereof, unless necessarily incidental to such listed and allowed uses, shall constitute a breach of this Lease and cause its immediate termination. The Property is leased by LESSOR to Lessee "as is," and the sole responsibility for the maintenance and upkeep of the Property shall be with Lessee. 5. ASSIGNMENT AND SUBLEASE. This Lease may not be assigned or transferred, and the Property shall not be sublet, either in whole or in part, by Lessee without LESSOR's prior written consent. 6. TERMINATION AND RIGHT OF ENTRY BY LESSOR. A. In the event that Lessee shall for any reason be in default of the terms of this Lease, the LESSOR may give Lessee written notice of such default by certified mail/return receipt requested at the address set forth in Paragraph 14 of this Lease. Unless otherwise provided, Lessee shall have ten (10) days from the date such notice is mailed in which to cure the default. Upon the occurrence of a default, in addition to all other rights and remedies as provided by law, the LESSOR shall have the right to: (a) terminate this Lease, whereupon Lessee shall quit and surrender the Property to the LESSOR and Lessee shall remain liable for all Rent that may be due up to the time this Lease terminates or the LESSOR takes possession of the Property; (b) reenter and repossess the Property and lock out the Lessee; and (c) cure the breach or default at Lessee's expense. Lessee shall remain liable for all costs, fees and expenses incurred by the LESSOR in curing the default and the same shall be additional Rent payable to LESSOR on demand. B. LESSOR reserves the right at any time, without prior written notice, to enter upon the property after it has been determined that an emergency exists. C. The parties acknowledge that LESSOR has certain powers, purposes and responsibilities. To discharge its powers, purposes or responsibilities, LESSOR shall have the right to require Lessee to immediately dismantle and remove any and all 2 improvements from the Property, within forty-eight hours after notice is given to Lessee. Thereafter, LESSOR shall have the exclusive right to enter upon and use the Property, and Lessee shall surrender possession and control thereof to LESSOR. D. Further, LESSOR reserves the right to terminate this Lease by giving written notice to Lessee at least thirty (30) days prior to the date of termination. All rent paid in advance shall be refunded. 7. Lessee will keep all equipment and improvements, if any, placed upon the Property by Lessee, in a safe, clean, and orderly condition; be responsible for all activities on the Property that fall under his control; and will act immediately in response to any notices by LESSOR with reference to the forgoing. It is further understood and agreed as part of the consideration hereof, that Lessee shall be responsible for the maintenance and/or repair of the Property arising out of Lessee's use of the Property. Should any maintenance and/or repair work be deemed necessary, then the decision of LESSOR as to the scope of the required work and the amount of such liability shall control and be binding on Lessee. 8. LESSOR'S RIGHT TO GRANT EASEMENTS. LESSOR reserves the right to grant easements and rights of way across or upon the Property, for streets, alleys, public highways, drainage, utilities, telephone and telegraph transmissions lines, pipelines, irrigation canals, and similar purposes. 9. INDEMNIFICATION/INSURANCE BY LESSEE. Lessee shall indemnify and save harmless LESSOR and all its officials, agents and employees from and against all losses and expenses incurred because of claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any injuries to property or person, including death, occurring on 3 the Property, arising out of or in connection with Lessee's use of the Property. During the term of this Lease, Lessee shall obtain and keep in force the following policies of insurance: of Virginia. Worker's Compensation Insurance as required under Title 65.2 of the Code Commercial General Liability Insurance in an amount not less than one million dollars ($1,000,000) combined single limits (CSL). Such insurance shall name LESSOR as an additional insured. Automobile Liability Insurance including coverage for non -owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits (CSL). All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Virginia and, acceptable to LESSOR, and shall carry the provision that the insurance will not be canceled or materially modified without thirty days (30) prior written notice to LESSOR. Lessee shall provide a certificate evidencing the existence of such insurance. 10. APPLICABLE LAW. This Lease shall be deemed to be a Virginia Lease and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. 11. COMPLIANCE WITH ALL LAWS. Lessee shall comply with all laws, rules and regulations of LESSOR and all other governmental authorities respecting the use, operation and activities on the Property, including all applicable environmental Laws, and 0 shall not make or be a party to any unlawful, improper or offensive use of such premises or nuisance thereon. City hereby represents to the Lessee, that to the best of the City's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed of, or is located on the leased Property or the soil or groundwater on or under the leased Property. Any costs associated with violations of the law including, but not limited to, remediations, clean up costs, fines, administrative or civil penalties or charges, and third party claims imposed on the City by any regulatory agency or by any third party as a result of the noncompliance with federal, state or local environmental laws and regulations or nuisance statutes by the Lessee or by its employees, contractors, consultants, subconsultants, or any other persons, corporations or legal entities retained by it for the leased Property, shall be paid by the Lessee. It is expressly understood and agreed that Lessee, in no way, represents or acts on behalf of LESSOR or any department thereof. 12. VENUE. Any and all suits for any claims or for any and every breach or dispute arising out of this Lease shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. 13. INVALIDITY. If any section, paragraph, subparagraph, sentence, clause or phrase of this Lease shall be declared or judged invalid or unconstitutional, such adjudication shall not affect the other sections, paragraphs, sentences, clauses or phrases. 14. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Lease shall be delivered or sent by certified mail, prepaid, return receipt requested, and addressed as follows: If to Lessee, to: CBM Company T/A SCHOONER INN 315 ATLANTIC AVENUE VIRGINIA BEACH, VA 23451 757-422-8826 5 If to LESSOR, to: FACILITIES MANAGEMENT OFFICE CITY HALL BUILDING, ROOM 323 MUNICIPAL COMPLEX, BUILDING 1 VIRGINIA BEACH, VA 23456 15. ENTIRE AGREEMENT. This lease contains the entire agreement between the parties hereto and may not be modified orally or in any manner other than an agreement in writing, signed by all the parties hereto and their respective successors in interest. This lease shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors, and permitted assigns of the parties hereto. 16. SURVIVAL. The representations, warranties, and agreements of the parties contained in this Lease and in all other documents delivered in connection with this Lease shall survive the expiration or sooner termination of this Lease. 17. HOLDOVER. If Lessee fails to surrender the Property on the date that the Term of this Lease expires or terminates, Lessee's continued occupancy shall be deemed to be a tenancy -at -will (and not a tenancy from month-to-month or from year-to-year) cancelable by Lessor upon 48 hours prior oral or written notice, and such tenancy shall be subject to all of the provisions of this Lease, except that Rent during the holdover tenancy shall be equal to twice the Rent in effect immediately prior to the end of the Term. IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed by their proper representatives as of the day and year first above written. CITY OF VIRGINIA BEACH City Manager/Authorized Designee of the City Manager 0 (SEAL) ATTEST: Ruth Hodges Smith City Clerk APPROVED AS TO CONTENT: -&04uj4—/4 Facilities Ma gement Of ce Department of Management Services Lessee: (SEAL) CBM Company, T/A Schooner Inn Robert L. Yoder, President 7 APPROVED AS TO LEGAL SUFFICIENCY: Law Department APPROVED AS TO CONTENT: Risk Management STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2005, by , City Manager/Authorized Designee of the City Manager of the City of Virginia Beach, on its behalf. He/She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2005, by Ruth Hodges Smith, City Clerk of the City of Virginia Beach, on its behalf. She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this _W day of L, , 2005, by , _C 8� , Lessee, on its behalf. /She is personally known to me. Notary Publicvm"/?l 4*44lef My commission expires: a'' r1)%' W 0 q — Interstate -- Primary Roads Streets Parcel Water Bodies SCALE 1 :1,858 VIOL I 100 0 100 200 300 FEET http://gis-server/amap/vb_aerial.mwf Monday, May 09, 2005 2:14 PM -24 - Item V -J.2. c ORDINANCES ITEM # 53982 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinance to AUTHORIZE the City Manager to execute Leases of certain city -owned property: c. Dolphin Run Condominium Association, Inc at Yd Street and Atlantic Avenue Voting: 8-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: Reba S. McClanan Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Council Lady McClanan ABSTAINED as she and her husband own a condominium in Dolphin Run May 24, 2005 I AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A LEASE FOR LESS 3 THAN FIVE YEARS WITH DOLPHIN RUN 4 CONDOMINIUM ASSOCIATION, INC. FOR .09 5 ACRE OF CITY OWNED LAND LOCATED AT 3RD 6 STREET AND ATLANTIC AVENUE IN THE CITY OF 7 VIRGINIA BEACH 8 9 WHEREAS, the City of Virginia Beach ("the City") is the owner of .09 acre of land 10 located at P Street and Atlantic Avenue in Virginia Beach, Virginia (the "Premises"); 11 WHEREAS, Dolphin Run Condominium Association, Inc. ("Dolphin Run 12 Condominium") would like to enter into a formal lease arrangement with the City for the 13 Premises shown on Exhibit A; 14 WHEREAS, the Premises will be utilized as an overflow parking lot for the 15 registered guests of the Dolphin Run Condominium and for no other purpose; 16 WHEREAS, Dolphin Run Condominium has agreed to pay the City $4,320 for 17 the use of this property for a four-month period; 18 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 19 OF VIRGINIA BEACH, VIRGINIA: 20 That the City Manager is hereby authorized to execute a lease for a term of less 21 than five (5) years between Dolphin Run Condominium and the City, for the Premises in 22 accordance with the Summary of Terms attached hereto and such other terms, 23 conditions or modifications as may be satisfactory to the City Attorney and the City 24 Manager. 25 26 Adopted by the Council of the City of Virginia Beach, Virginia on the 24th day of 27 May , 2005 28 APPROVED AS TO LEGAL 29 SUFFICIENCY AND FORM 30 1�" 31 Signature APPROVED AS TO CONTENT Lcl"1�1 Signature 32 14C. 33 Department O CA -9526 H:\OID\REAL ESTATE\LEASES\Dolphin Run & Schooner Inn\Dolphin Run Condominium.ordinance.doc 36 May 10, 2005 Interstate -- Primary Roads Streets _,..._ Parcel k Water Bodies 6UALE 1 : 1,858 N 100 0 100 200 300 FEET '/gis-server/amap/vb_aerial.mwf THIS LEASE AGREEMENT ("Lease"), made this day of , 2005, by and between the CITY OF VIRGINIA BEACH (GRANTOR/LESSOR), a municipal corporation of the Commonwealth of Virginia, hereinafter referred to as "CITY" or "LESSOR," party of the first part, and Dolphin Run Condominium Association, Inc. (GRANTEE/LESSEE), hereinafter referred to as "Lessee," party of the second part. WITNESSETH 1. LEASED PREMISES. That for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be observed and performed, LESSOR leases to Lessee and Lessee rents from LESSOR the following property, hereinafter referred to as the "Property", delineated as shaded area upon the attached map labeled "Exhibit A" entitled "EXHIBIT "A" TO BE LEASED TO DOLPHIN RUN CONDOMINIUMS BY THE CITY OF VIRGINIA BEACH", reference being made to said exhibit for a more accurate description thereof. 2. RENT. That for and in consideration of the sum of $4,320.00, payable either in a in a lump sum or in equal monthly payments of $1,080.00 no later than the 5'h of each month, over the term of this agreement, LESSOR does hereby lease and demise unto Lessee the Property. 3. TERM. The term of this Lease shall be for four months commencing May 15, 2005 and expiring September 15, 2005. 4. USE OF PROPERTY —PURPOSES. Lessee covenants that the Property shall be used solely for overflow parking for guests staying at the Dolphin Run Condominiums. This Lease may be terminated on thirty (30) days' notice by LESSOR to Lessee. Lessee shall use the Property only for the purposes listed herein and any other use thereof, unless necessarily incidental to such listed and allowed uses, shall constitute a breach of this Lease and cause its immediate termination. The Property is leased by LESSOR to Lessee "as is," and the sole responsibility for the maintenance and upkeep of the Property shall be with Lessee. 5. ASSIGNMENT AND SUBLEASE. This Lease may not be assigned or transferred, and the Property shall not be sublet, either in whole or in part, by Lessee without LESSOR's prior written consent. 6. TERMINATION AND RIGHT OF ENTRY BY LESSOR. A. In the event that Lessee shall for any reason be in default of the terms of this Lease, the LESSOR may give Lessee written notice of such default by certified mail/return receipt requested at the address set forth in Paragraph 14 of this Lease. Unless otherwise provided, Lessee shall have ten (10) days from the date such notice is mailed in which to cure the default. Upon the occurrence of a default, in addition to all other rights and remedies as provided by law, the LESSOR shall have the right to: (a) terminate this Lease, whereupon Lessee shall quit and surrender the Property to the LESSOR and Lessee shall remain liable for all Rent that may be due up to the time this Lease terminates or the LESSOR takes possession of the Property; (b) reenter and repossess the Property and lock out the Lessee; and (c) cure the breach or default at Lessee's expense. Lessee shall remain liable for all costs, fees and expenses incurred by the LESSOR in curing the default and the same shall be additional Rent payable to LESSOR on demand. 2 B. LESSOR reserves the right at any time, without prior written notice to enter upon the property after it has been determined that an emergency exists. C. The parties acknowledge that LESSOR has certain powers, purposes and responsibilities. To discharge its powers, purposes or responsibilities, LESSOR shall have the right to require Lessee to immediately dismantle and remove any and all improvements from the Property, within forty- eight hours after notice is given to Lessee. Thereafter, LESSOR shall have the exclusive right to enter upon and use the Property, and Lessee shall surrender possession and control thereof to LESSOR. D. Further, LESSOR reserves the right to terminate this Lease by giving written notice to Lessee at least thirty (30) days prior to the date of termination. All rent paid in advance shall be refunded. 7. Lessee will keep all equipment and improvements, if any, placed upon the Property by Lessee, in a safe, clean, and orderly condition; be responsible for all activities on the Property that fall under his control; and will act immediately in response to any notices by LESSOR with reference to the forgoing. It is further understood and agreed as part of the consideration hereof, that Lessee shall be responsible for the maintenance and/or repair of the Property arising out of Lessee's use of the Property. Should any maintenance and/or repair work be deemed necessary, then the decision of LESSOR as to the scope of the required work and the amount of such liability shall control and be binding on Lessee. 3 8. LESSOR'S RIGHT TO GRANT EASEMENTS. LESSOR reserves the right to grant easements and rights of way across or upon the Property, for streets, alleys, public highways, drainage, utilities, telephone and telegraph transmissions lines, pipelines, irrigation canals, and similar purposes. 9. INDEMNIFICATION/INSURANCE BY LESSEE. Lessee shall indemnify and save harmless LESSOR and all its officials, agents and employees from and against all losses and expenses incurred because of claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any injuries to property or person, including death, occurring on the Property, arising out of or in connection with Lessee's use of the Property. During the term of this Lease, Lessee shall obtain and keep in force the following policies of insurance: Worker's Compensation Insurance as required under Title 65.2 of the Code of Virginia. Commercial General Liability Insurance in an amount not less than one million dollars ($1,000,000) combined single limits (CSL). Such insurance shall name LESSOR as an additional insured. Automobile Liability Insurance including coverage for non -owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits (CSL). All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Virginia and, acceptable to LESSOR, and shall carry the provision that the insurance will not be canceled or materially modified without thirty days (30) prior written notice to 0 LESSOR. Lessee shall provide a certificate evidencing the existence of such insurance. 10. APPLICABLE LAW. This Lease shall be deemed to be a Virginia Lease and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. 11. COMPLIANCE WITH ALL LAWS. Lessee shall comply with all laws, rules and regulations of LESSOR and all other governmental authorities respecting the use, operation and activities on the Property, including all applicable environmental Laws, and shall not make or be a party to any unlawful, improper or offensive use of such premises or nuisance thereon. City hereby represents to the Lessee, that to the best of the City's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed of, or is located on the leased Property or the soil or groundwater on or under the leased Property. Any costs associated with violations of the law including, but not limited to, remediations, clean up costs, fines, administrative or civil penalties or charges, and third party claims imposed on the City by any regulatory agency or by any third party as a result of the noncompliance with federal, state or local environmental laws and regulations or nuisance statutes by the Lessee or by its employees, contractors, consultants, subconsultants, or any other persons, corporations or legal entities retained by it for the leased Property, shall be paid by the Lessee. GW It is expressly understood and agreed that Lessee, in no way, represents or acts on behalf of LESSOR or any department thereof. 12. VENUE. Any and all suits for any claims or for any and every breach or dispute arising out of this Lease shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. 13. INVALIDITY. If any section, paragraph, subparagraph, sentence, clause or phrase of this Lease shall be declared or judged invalid or unconstitutional, such adjudication shall not affect the other sections, paragraphs, sentences, clauses or phrases. 14. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Lease shall be delivered or sent by certified mail, prepaid, return receipt requested, and addressed as follows: If to Lessee, to: DOLPHIN RUN CONDOMINIUM 303 ATLANTIC AVENUE VIRGINIA BEACH, VA 23451 If to LESSOR, to: FACILITIES MANAGEMENT OFFICE CITY HALL BUILDING, ROOM 323 MUNICIPAL COMPLEX, BUILDING 1 VIRGINIA BEACH, VA 23456 15. ENTIRE AGREEMENT. This lease contains the entire agreement between the parties hereto and may not be modified orally or in any manner other than an agreement in writing, signed by all the parties hereto and their respective successors in interest. This lease shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors, and permitted assigns of the parties hereto. L 16. SURVIVAL. The representations, warranties, and agreements of the parties contained in this Lease and in all other documents delivered in connection with this Lease shall survive the expiration or sooner termination of this Lease. 17. HOLDOVER. If Lessee fails to surrender the Property on the date that the Term of this Lease expires or terminates, Lessee's continued occupancy shall be deemed to be a tenancy -at -will (and not a tenancy from month-to-month or from year-to-year) cancelable by Lessor upon 48 hours prior oral or written notice, and such tenancy shall be subject to all of the provisions of this Lease, except that Rent during the holdover tenancy shall be equal to twice the Rent in effect immediately prior to the end of the Term. IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed by their proper representatives as of the day and year first above written. (SEAL) ATTEST: Ruth Hodges Smith City Clerk CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager 7 Les e: SEAL) olphin Run Condominium Association, Inc. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: — L041 14 �/Za, r— / 16 Facilities Man gement Offi a Law Department Department of Management Services APPROVED AS TO CONTENT: Risk Management STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2005, by , City Manager/Authorized Designee of the City Manager of the City of Virginia Beach, on its behalf. He/She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2005, by Ruth Hodges Smith, City Clerk of the City of Virginia Beach, on its behalf. She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this I '11 day of J- 2005, by I , Lessee, on its, half. He/She is personally known to me. My comml ion xpires: Notary Public 9 — Interstate -- Primary Roads Streets Parcel y��I Water Bodies SCALE 1 :1,858 " 100 0 100 200 300 FEET p://gis-server/amap/vb_aerial.mwf U) T.—A—, nn..—L, nn nnnr- -25 - Item V -J.3. ORDINANCES ITEM # 53983 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinance to AUTHORIZE acquisition of property in fee simple for the right-of-way associated with the Laskin Road Gateway — 30' Street Project and the ACQUISITION of temporary and permanent easements, either by agreement or condemnation Voting: 7-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson Council Members Voting Nay.- Robert ay: Robert M. Dyer and Reba S. McClanan Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE TO AUTHORIZE ACQUISITION OF PROPERTY IN FEE SIMPLE FOR THE RIGHT OF WAY ASSOCIATED WITH LASKIN ROAD GATEWAY — 30" STREET PROJECT, CIP 2-076 AND THE ACQUISITION OF TEMPORARY AND PERMANENT EASEMENTS, EITHER BY AGREEMENT OR CONDEMNATION WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a public necessity exists for the construction of this important roadway project to improve transportation within the City and for other related public purposes for the preservation of the safety, health, peace, good order, comfort, convenience, and for the welfare of the people in the City of Virginia Beach. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: Section 1. That the City Council authorizes the acquisition by purchase or condemnation pursuant to Sections 15.2-1901, et sec., Sections 33.1-89, et seq., and Title 25.1 of the Code of Virginia of 1950, as amended, of all that certain real property in fee simple, including temporary and permanent easements and entire tracts upon which such rights of way or easements shall be located, within the limitations and conditions of Section 33.1-91 of the Code of Virginia of 1950, as amended (the "Property"), as shown on the plans entitled "Laskin Road Gateway — 30th Street" (the "Project") and more specifically described on the acquisition plats for the Project (plats and plans collectively referred to as the "Plans"), the Plans being on file in the Engineering Division, Department of Public Works, City of Virginia Beach, Virginia. Section 2. That the City Manager is hereby authorized to make or cause to be made on behalf of the City of Virginia Beach, to the extent that funds are available, a reasonable offer to the owners or persons having an interest in said Property. If refused, the City Attorney is hereby authorized to institute proceedings to condemn said Property. 29 Adopted by the Council of the City of Virginia Beach, Virginia, on the 24th day of 30 1 May , 2005. 31 32 CAg30tg 33 PREPARED: 04/14/05 34 35 APPROVED AS TO CONTENT 36 37n�s �- oAWs4-, 3 8tGINATURE 39 T W eEfi j �'S- 4 0 DEPARTMENT 41 42 43 APPROVED AS TO LEGAL 44 SUFFICIENCY AND FORM 45 46 47 CITY ATTORNEY 48 f:/data/bid/realestate/acquisitions/working-ccwid/acquisitionordinances/ca9398 ordinance.doci oX 0 N °p 0 D d Q LOCATION MAP SHOWING LAS KI N ROAD GATEWAY - CI P 2-076 SCALE: 1" = 400' PREPARED BY PM/ ENG. DRAFT. 29 -APR -2005 -26 - Item 26 - Item V -J.4 ORDINANCES ITEM # 53984 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinance to AUTHORIZE a temporary encroachment for GLADYS L. MADDOX into a portion of the right-of-way at 7" Street and Ocean Avenue to construct and maintain planters with trees, surface grates, marlin lights and colored pavement. (DISTRICT 6 —BEACH) The following conditions shall be required: 1. The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 2. The applicant shall indemnify and hold harmless the City, its agents and employees from and against all claims, damages, losses and expenses, including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the temporary encroachment. 3. No permission or authority is given to the applicants to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachments by any one other than the applicant. 4. The applicant agrees that there will no be a valet operation in the roundabout located at the most eastern portion of the 7" Street. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. 6. The applicant agrees to submit and have approved a traffic control plan before commencing work in the encroachment area. 7. The applicant agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. 8. The applicant agrees to obtain a permit from the Development Services Center of the Planning Department prior to commencing any construction within the encroachment area. May 24, 2005 -27 - Item 27 - Item V -J.4. ORDINANCES ITEM # 53984 (Continued) 9. Prior to issuance of a right-of-way permit, the applicant must post sureties in accordance with the project engineer's cost estimate, to the Office of Development Services Center/Planning Department. 10. The applicant shall obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The applicant must also carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500, 000), combined single limits of such insurance policy or policies. The applicant must provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 11. The City, upon revocation of such authority and permission so granted, may remove the 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 occupied if it were owned by the applicant; and ifsuch removal shall not be made within the time specified by the City, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary 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. May 24, 2005 -28 - Item V -J..4. ORDINANCES ITEM # 53984 (Continued) Voting: 8-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: Richard A. Maddox Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Councilman Maddox ABSTAINED, as the applicant is his mother, with whom he also has a business relationship. May 24, 2005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE A TEMPORARY ENCROACHMENT INTO A PORTION OF THE RIGHTS-OF-WAY KNOWN AS 7T" STREET AND OCEAN AVENUE, BY GLADYS L. MADDOX HER HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Gladys L. Maddox desires to construct and maintain thirteen (13) planters with trees, two (2) surface grates, four (4) marlin lights, and colored pavement (roundabout), upon the City's rights-of-way located at 703 Atlantic Avenue. WHEREAS, City Council is authorized pursuant to §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the City's right-of-way subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 18 VIRGINIA BEACH, VIRGINIA: 19 20 21 22 23 24 25 26 27 28 That pursuant to the authority and to the extent thereof contained in §§ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Gladys L. Maddox her heirs, assigns and successors in title are authorized to construct and maintain temporary encroachments for thirteen (13) planters with trees, two (2) surface grates, four (4) marlin lights, and colored pavement (roundabout) in the City's rights-of-way as shown on the plat entitled: "7th STREET PARK — DAIRY QUEEN GPIN: 2427-23-8783", a copy of which is attached and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the 29 City of Virginia Beach and Gladys L. Maddox (the "Agreement"), which is attached 30 hereto and incorporated by reference; and 31 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 32 is hereby authorized to execute the Agreement; and 33 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 34 time as Gladys L. Maddox and the City Manager or his authorized designee execute the 35 Agreement. 36 Adopted by the Council of the City of Virginia Beach, Virginia, on the 37 24thday of May , 2005. c: 39 APPROVED AS TO CONTENTS 40 C. 41 9IGNATURE 42 pto f& 8 43 DEPARTMENT 44 45 APPROVED AS TO LEGAL 46 SWFIC ENCY AND FORM 47 48 CIT EY 49 50 CA -9531 51 PREPARED: 5/9/05 52 F;IDataIATYIOrdinjNONCODEIPW ORDINICA9531 Maddox.doc i PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(c) (3) THIS AGREEMENT, made this 26th day of April, 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and ! GLADYS L. MADDOX, HER HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "BLOCK 1 LOTS 5 & 6" as shown on "PLAT OF THE OCEAN LOT INVESTMENT CO. VIRGINIA BEACH, VA. SCALE 1"=100' JULY 1, 1922", and being further designated and described as 703 Atlantic Avenue, Virginia Beach, Virginia 23451; WHEREAS, it is proposed by the Grantee to construct and maintain thirteen (13) planters with trees, two (2) surface grates, four (4) marlin lights, and colored pavement (roundabout), "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City rights of way known as 7th Street and Ocean Avenue "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 2427-23-8783 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "7TH STREET PARK DAIRY QUEEN GPIN. 2427-23-8783," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. 11 It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees that there will not be a valet operation in the roundabout located at the most eastern portion of 7th Street. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in The Encroachment Area. It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post a bond or other security, in accordance with their engineer's cost estimate, to the Office of Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Gladys L. Maddox, the said Grantee has caused this Agreement to be executed by her signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk Gladys L. Maiddox STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2005, by DESIGNEE OF THE CITY MANAGER. My Commission Expires: C CITY MANAGER/AUTHORIZED Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2005, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. Notary Public My Commission Expires: STATE OF VIRGINIA CITY/ KY OF VIRGINIA BEACH , to -wit: The foregoing instrument was acknowledged before me this 26th day of April , 2005, by Gladys L. Maddox. Notary Public qy Commission Expires: August 31, 2006 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM SIGNATURE Pry 4A1 Ed DEPARTMENT G:\USERS\SHARED\WP80\RE\Rea1 Estate Forms\WORD DOCS\ENCROACHMENTS\ENCROACHMENT.AGREEMENT.doe c r — — — PROPOSED * EXISTING MARLIN LIGHT LIGHT POLE (ENCROACHMENT TO ISE RELOCATED TO REMAIN — — — -i AREA RELOCATED x— LI RTE POLE E PROPOSED MARLIN LIGHT PLANTER PROPOSED 15&0' PLANTER WITH ===n 100.0' TREE (TYP) i i EXISTING RAMADA INN i i _ WATER _ I_ ...... ..--- Civil Engineers Land Surveyors Land Planners Landscape Architects 757.431.1041 proj. no. 204-1224 sheet 1 of 3 drawing no. C-1.0 ATLANTIC AVE date: 05/09/05 COMMENTS: file: EXHIBIT .dwg tech: DJC proj.man.: MPF principle: WDA project: 7TH STREET PARK DAIRY QUEEN GPIN, 2427-23-8783 scale:drawing title: 11-50' I ENCROACHMENT EXHIBIT (M.B. 6,PG. 263) PROPOSED PALM TREE PLANTING AREA PROPOSED LOCATION OF IMPROVEMENTS AND RELOCATED MARLIN LK*HTS date: 05/09/05 COMMENTS: file: EXHIBIT .dwg tech: DJC proj.man.: MPF principle: WDA Civil Engineers project: 7TH STREET PARK Land Surveyors Land Planners DAIRY QUEEN Landscape Architects 757.431.1041 proj. no. 204.1224 GPIN= 2427-23-8783 (M.B. 6,PG. 263) sheet 2 of 3 scale: drawing title: drawing no. C-1.1 1W"50ENCROACHMENT EXHIBIT VIEW N R.O.W, LOOKNO SOUTH WEST AT EXISTNO RAMADA VIEW N R.O.W.. LOOKNO SOUTH EAST AT EXISTNO RAMADA VIEW N R.O.W. LOOKNO EAST AT BEACH Civil Engineers Land Surveyors Land Planners Landscape Architects 757.431.1041 proj. no. 204-1224 sheet 3 of 3 drawing no. C-1.2 VIEW N RAW, LOOKM WEST AT ATLANTIC AVE date: 05/09/05 COMMENTS: file: EXHIBIT .dwg tech: DJC proj.man.: MPF principle: WDA project: 7TH STREET PARK DAIRY QUEEN GPIN, 2427-23-8783 scale:drawing title: V-50' I ENCROACHMENT EXHIBIT (M.B. 6,PG. 263) 12.32 s 0 42�'23'a,83 GAIN 2 �, 0 �Z on s �A As U\\ ON MAP 'T REQUESTED ., .... .jL. MADDOX ._. INTO CIN RIGHT OF WAY 703 ATLANTIC AVENUE GPIN 2427-23-8783 SCALE: 1" = 200' m GLADYS MADDOX.DGN M.J.S. PREPARED BY P/W ENG. CADD DEPT. 41'(/2005 -29 - Item 29 - Item V -J.5. ORDINANCES ITEM # 53985 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinance to ACCEPT and APPROPRIATE $146,846 from the DEA Seized Property Special Revenue Fund to the Police Department's FY 2004-05 operating budget re purchase of equipment and canines Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 AN ORDINANCE TO APPROPRIATE $146,846 FROM 2 THE DEA SEIZED PROPERTY SPECIAL REVENUE 3 FUND TO THE POLICE DEPARTMENT'S FY 2004- 4 05 OPERATING BUDGET FOR THE PURCHASE OF 5 EQUIPMENT AND CANINES 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 1. That $146,846 is hereby appropriated from the DEA Seized 9 10 11 12 13 14 15 Property Special Revenue Fund to the Police Department's FY 2004-05 Operating Budget for the purchase of equipment and canines. 2. That estimated revenue in the FY 2004-05 Operating Budget from the DEA Seized Property Fund is hereby increased by $146,846. Adopted by the Council of the City of Virginia Beach, 16 Virginia, on the 24th day of May 2005. Requires an affirmative vote by a majority of the members of the City Council. APPROVED AS TO CONTENT Management Services / APPROVED AS TO LEGAL SU F C E CY ly. 4/1 City Attorney's Office CA9617 H:\PA\GG\ORSRES\DEA Seized Property Fund ORD R-1 May 11, 2005 worn Item T- J. 6 ORDINANCES ITEM # 53986 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council, ADOPTED: Ordinance to TRANSFER $3,045,000 within the Virginia Beach School Board's FY2004-05 operating budget from the Instruction category to the Transportation and Operations and Maintenance categories to purchase needed materials and equipment Voting: 9-0 (By Consent) Council Members Voting Aye.- Harry ye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 AN ORDINANCE TO APPROVE THE 2 TRANSFER OF $3,045,000 WITHIN 3 THE FY 2004-05 SCHOOL BOARD 4 OPERATING BUDGET 5 WHEREAS, the School Board adopted a resolution on May 3, 6 2005, recommending the transfer of funds from the Instruction 7 category to the Transportation category and the Operations and 8 Maintenance category to purchase needed materials and equipment. 9 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 10 OF VIRGINIA BEACH, VIRGINIA: 11 That the School Board's transfer of $3,045,000 from the 12 Instruction category of the FY 2004-05 School Board Operating 13 Budget, consisting of $2,020,000 to the Transportation category, 14 and $1,025,000 to the Operations and Maintenance category, is 15 hereby approved. 16 Adopted by the Council of the City of Virginia Beach, 17 Virginia, on this 24th day of May, 2005. APPROVED AS TO CONTENT: 1 Department of I Management Services APPROVED AS TO LEGAL SUFFICIENCY: V V City Attorney's Office CA9612 R-3 P&A/GG/OrdRes/School Board Mid -Year Categorical Transfer.ORD May 17, 2005 +IRGINIA BEACH CITY PUBLIC SCI-IooLs _ A H E A D O F T H E C U R V E SCHOOL BOARD RESOLUTION REGARDING FY 2004/05 SPENDING PLAN AND REQUEST FOR Daniel D. Edwards CATEGORICAL TRANSFER Chairman DisVld 1 - Centerville 1513 Beachview Drive WHEREAS, On April 19, 2005, the Administration presented to the School Board a mid -year VA Beach, VA 23464 review of the FY 04/05 Operating Budget which indicated that approximately $9,080,098 million of 495.3551 (h).717-0259(cell) $588,494,966 or 1.5% of the FY 04/05 appropriated funds were available; and Sandra Smith -Jones Vice Chairman WHEREAS, on April 19, 2005 the administration made recommendations regarding the uses of Distric7058 kCre Creek the FY 04/05 available funds; and; 705 Rock Creek Court VA Beach, VA 23462 490.8167(h) WHEREAS, the School Board FY 2005/2006 Operating Budget adopted on March 8, 2005 did not Rita Sweet Bellitto include funding totaling $ 5,092,976 that was an integral part of the FY 2005/2006 Estimate of At -Large Needs presented February 8, 2005; and P.O. Box 64909 VA23467 418-0960 (h)) WHEREAS, the items included in this $5,092,976 are necessary for the continued operation of the Jane S. Brooks school system; and ch District Hilltop ltopRad WHEREAS the administration recommends that the $9.08 million be allocated as follows: 721 H81fop Road r VA Beach, VA 23454 $ 2,600,000 for the Instructional Technology Replacement Cycle 425.1597 (h) $ 1,200,000 for the Bus Replacement cycle Emma L. "Em" Davis $ 1,187,122 for an enterprise K-12 grade book program District 5 - Lynnhaven 1125 Michaelwood Drive • $ 750,000 for School Plant genera( Maintenance and Repair VA Beach, VA 23452 . $ 660,000 for vehicle replacement 340•8911 (n) • $ 700,000 for Employee Self Service of WISE and additional programming and upgrades At -Large F. Fissinger, Sr. $ 370,400 to purchase calculators for middle and high schools as mandated by the State for 05/06 testing 412 Becton Place $ 350,000 for Read 180 materials for high schools VA Beach,) 23452 $ 314,470 for instructional materials required for the opening of Three Oaks Elementary School 488.4567 (h) • q P 9 ry Dan R. Lowe $ 265,000 to replace servers throughout the district District 4- Bayslde • $ 238,000 for equipment for the Technical and Career Education Center 4617 Red Coat Road $ 150,000 to replace 2 -way radios used in bus transportation VA Beach, VA 23455 490.3681(h) $ 131,000 to purchase software for the opening of Three Oaks Elementary School Michael W. Stewart $ 50,000 to purchase custodial equipment for the opening of Three Oaks Elementary School District 3 - Rose Hall $ 27,500 to purchase secondary sheet music 105 Brentwood Court $ 23,606 to purchase equipment for Student Activities VA Beach, VA 23452 P 498.4303 (h) . 445-4637 (w) . $ 12,000 to purchase copier/printer for Technology Arthur T. Tate • $ 11,000 for computers at Open Campus High School and Virginia Beach Centra( Academy At -Large $ 10,000 to purchase Laptops for on-line learning staff 1709 Ladysmith Mews VA Beach, VA 23455 • $ 10,000 to purchase secondary theatre scripts 460.5451 (h) . $ 10,000 for copiers for transportation offices Carolyn 0. Weems . $ 10,000 to purchase computer equipment for School Plant; and At -Large 1420 Claudia Drive WHEREAS, the Board approves and affirms the recommended uses of the FY 2004/2005 VA Beach, VA 23455 464-6674 (h) Operating funds as presented by the Administration; and Lois S. Williams,Ph.D. WHEREAS, categorical transfers are necessary to facilitate these purchases; and District 7 - Princess Anne 2VA 532 asCVAales 234Court WHEREAS, any transfer of funds between categories must be approved by City Council prior to 233-0891 (w) transfer and expenditure of funds by the School Board. SUPERINTENDENT Now, therefore, be it Timothy R. Janney,Ph.D. RESOLVED: That the Board approves and affirms the recommended uses and directs the 2512 George Mason Drive VA Beach, VA 23456 Administration to proceed with expending/encumbering/transferring items that do not require -a 263.1007 categorical transfer, and be it School Administration Building • 2512 George Mason Drive • F.O. Box 6038 , Virginia Beach, VA 23456-0038 RESOLUTION REGARDING FY 2004/05 SPENDING PLAN AND REQUEST FOR CATEGORICAL TRANSFER (continued) Page 2 of 2 FUTHER RESOLVED: That the Board requests the City Council to approve categorical transfers as follows: • $ 2,020,000 from Instruction to Transportation • $ 1,025,000 from Instruction to Operations and Maintenance and be it FURTHER RESOLVED: That a copy of this resolution be spread across the official minutes of this Board, and the Clerk of the Board is directed to deliver a copy of this resolution to the Mayor, each member of City Council, the City Manager, and the City Clerk. Adopted by the School Board of the City of Virginia Beach this 3rd day of May 2005. SEAL Attest__ • Dianne P. Alexander, Clerk of the Board CERTIFIeD TO BE A TRUE AND CORRECT COPY. I Clerk, coo- -t5oaru V1 .,_le City of Virzi-'- -+oarh Item K.1 PLANNING I.S&J, L.L.C. -31 - ITEM # 53987 2. DAM NECK SQUARE APARTMENTS, L. C. 3. LAND & BUILDING IV. L.C. 4. PLATINUM HOMES, L. L. C. 5. FRONTIER DEVELOPMENT, L.L.C. STREET CLOSURE MODIFICATION to the Dam Neck Estates PD -HI Land Use Plan MODIFICATION re Proffer Number I Conditional Change ofZoning (Approved: March 28, 2000, Troy A. Titus) CONDITIONAL CHANGE OF ZONING CONDITIONAL CHANGE OF ZONING May 24, 2005 -32 - Item L PLANNING ITEM # 53988 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City CouncilAPPROVED IN ONE MOTIONItems 1, 2, 4 and 5 of the PLANNING BY CONSENT AGENDA. Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Council Members McClanan and Wilson voted a VERBAL NAY on Item K4. (PLATINUM HOMES, L.L. C.) May 24, 2005 -33 - Item K.1. PLANNING ITEM # 53989 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council ADOPTED the Ordinance upon application ofS & J, L.L. C. for the discontinuance, closure and abandonment of a portion of First Street: Ordinance upon Application of S & J, L.L.C. for the discontinuance, closure and abandonment of a portion of First Street beginning on the east side of South Kentucky Avenue and extending 100 feet in an easterly direction. DISTRICT 3 — ROSE HALL The following conditions shall be required: The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures, " approved by City Council. Copies of the policy are available in the Planning Department 2. The applicant is required to resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant is required to verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. 4. The applicant shall provide a ten foot (10 ) wide pedestrian easement within the required twenty foot (20 ) public utility easement through the property. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council (May 23, 2006). If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. May 24, 2005 -34 - Item K.1. PLANNING ITEM # 53989 (Continued) Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 ORDINANCE NO. IN THE MATTER OF CLOSING, VACATING AND DISCONTINUING A PORTION OF THAT CERTAIN STREET KNOWN AS A PORTION OF FIRST STREET AS SHOWN ON THAT CERTAIN PLAT ENTITLED STREET CLOSURE EXHIBIT A PORTION OF FIRST STREET BLOCK 1 — SITE LAYOUT — MIDWAY — VIRGINIA BEACH, VIRIGNIA: WHEREAS, S & J, L.L.C. applied to the Council of the City of Virginia Beach, Virginia, to have the hereinafter described street discontinued, closed, and vacated; and WHEREAS, it is the judgment of the Council that said street be discontinued, closed, and vacated, subject to certain conditions having been met on or before one (1) year from City Council's adoption of this Ordinance; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Virginia Beach, Virginia: SECTION I That the hereinafter described street be discontinued, closed and vacated, subject to certain conditions being met on or before one (1) year from City Council's adoption of this ordinance: GPIN: 1487-13-7198 and 1487-13-8007 1 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 All that certain piece or parcel of land situate, lying and being in the City of Virginia Beach, Virginia, designated and described as "PROPOSED CLOSURE FIRST STREET - 50' RIW - UNIMROVED - (M.B. 7, P. 130)" shown as the hatched area on that certain plat entitled: "STREET CLOSURE EXHIBIT A PORTION OF FIRST STREET BLOCK 1 - SITE LAYOUT - MIDWAY - VIRGINIA BEACH, VIRIGNIA" Scale: _1"=_25', dated August 4, 2004, prepared by Kellam Gerwitz, a copy of which is attached hereto as Exhibit A. SECTION II The following conditions must be met on or before one (1) year from City Council's adoption of this ordinance: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of said policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The resubdivision plat shall be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, the applicant shall provide easements satisfactory to the utility companies. 4. The Applicant shall provide a 10' wide pedestrian easement within the required 20' public utility easement through the property. 4 65 5. Closure of the right-of-way shall be contingent upon compliance with the 66 above stated conditions within one year of approval by City Council. If all conditions noted 67 above are not in compliance and the final plat is not approved within one year of the City 68 Council vote to close the street, this approval will be considered null and void. 69 70 71 SECTION III 72 73 1. If the preceding conditions are not fulfilled on or before May 23, 2006, 74 this Ordinance will be deemed null and void without further action by the City Council. 75 2. If all conditions are met on or before May 23, 2006, the date of final 76 closure is the date the street closure ordinance is recorded by the City Attorney. 77 3. In the event the City of Virginia Beach has any interest in the underlying 78 fee, the City Manager or his designee is authorized to execute whatever documents, if any, that 79 may be requested to convey such interest, provided said documents are approved by the City 8o Attorney's Office. 81 82 SECTION IV 83 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 84 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY OF 85 VIRGINIA BEACH as "Grantor" and S & J, L.L.C. as "Grantee." :. 3 86 Adopted by the Council of the City of Virginia Beach, Virginia, on this 2 4 th day 87 of May , 2005. 88 89 90 91 CA -9460 92 DateMay 24, 2005 93 HAOIDUZEAL ESTATE\Street ClosureUorms\ORD.doc 94 95 APPROVED AS TO CONTENT: 96 97 98 Planning Department 99 100 101 APPROVED AS TO LEGAL 102 SUFFICIENCY: 103 c6lij� 104 105 City Attorney 106 4 N: 3473236.29 E: 72187738.27 AW, I I LOT 10A, BLOCK 1, N/F I SCOT A. FERGUSON I & MICHELLE `5l (D. B. 4097, P. 872) (M. B. 269, P. 68) E 7'49" 70� LOTS 16-79, BLOCK 1, N/F 14 0CEA NBAYHOMES, L.L.C. 14—A z 1487-13-8290 BLOCK o (INSTR. No. _1 ----- --200405040069708) 0 o NFREBY VACATED v N (M.B. 4, P. 191) v v . N: 34 73146.94 E: 12787749.03 HEREBY VACATED �87.97i� / z CLOSURE/ o / PROPOSED o W z /FIRST STREET 50' R/W _ UNIMPROVED 130) / 83'06'01" E 100.00' �Lo�k I 1....A 12. I (INSTR. # 200412160197531) I _I I LE: I"=25' STREET CLOSURE EXHIBIT A PORTION OF FIRST STREET BLOCKsl + I?- -MIDWAY— VIRGINIA BEACH VIRGINIA FERGUSON I I 1487-13-7286 V04067_exhibit. d wg RJT/wcg ��LLAM C'ERWITZ ENGINEERING -SURVEYING -PLANNING 500 CENTRAL DRIVE -SUIT[ 113 -VIRGINIA BEACH, VA 27030 (757) 340 -0828 -FAX (757)340-16U3 Exhibit A Item K.2. PLANNING -35 - ITEM # 53990 Upon motion by Vice Mayor Jones, seconded by Councilman Reeve, City Council MODIFIED an Ordinance upon application of Dam Neck Square Apartments, L.C. re Modification of the Dam Neck Estates PD -Hl Land Use Plan and Conditional Change of Zoning ORDINANCE UPON APPLICATION OF DAM NECK SQUARE APARTMENTS, L. C. TO MODIFY THE DAM NECK ESTATES PD -HI LAND USE PLAN AND CONDITIONAL CHANGE OF ZONING FROM PD -HI PLANNED UNIT DEVELOPMENT TO 0-1 OFFICE DISTRICT ZO5051223 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Dam Neck Square Apartments, L. C. to modify the Dam Neck Estates PD -Hl Land Use Plan and Conditional Change of Zoning from PD -HI Planned Unit Development to 0-1 Office District. Property is located on the north side of Dam Neck Road, approximately 1200 feet west of General Booth Boulevard (GPIN 24154528510000). The Comprehensive Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose ofthe modification is to use a currently undeveloped portion of the site for an office complex. DISTRICT 6 — BEACH The following condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made apart of the record Mr. White distributed a faxed copy of correspondence from Attorney R. Edward Bourdon, representing the applicant, who advised his client's unequivocal commitment to abide by the construction regulations involving noise attenuation which will become mandatory on July 1, 2005. (Said letter is hereby made apart of the record) This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of May, Two Thousand Five Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer McClanan, Richard A. Maddox, Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Vice Mayor Louis R. Jones, Reba S. Jim Reeve, Peter W. Schmidt, Ron A. Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 PEMMPOWt O=PCE PAQW - BUILtwC ONE 281 INDRCFNDENCE BOULEVARp F1r7W FLOOR VIRGINIA BBAcu, VIRGINIA 23462-2QS9 TELEPHONE. 757-A99-8971 FACSIMILE' 757.456-5445 SYKES. BOURDON. 1 `LUERN & LEVY. 1L .c,. ATTORNEYS AN[) COUNSELORS AT LAW Via P` csimile No.: 426-5667 Robert J. Scott, Director Department of Planning Building 2, Room 115 Municipal Center Virginia Beach, Virginia 23456 ATTN: Stephen J. White May 24, 2005 Re: Application of Dam Neck Square Apartments, Dam Neck Estates PD -NI Land Usc Plan Zoning; May 24, 2005 City Council Agenda Dear Mr. White - .ION M AHERN SCOTT N ALPERIN R EDWARD BOURDON. JR JAedES T. CROMWELL L. STEVEN EMMERT DAVID Y. HOLLAND KIRK 8 LEVY JENNICER D. OAAM-SMITW NO` ADD R SYKES. JR L C. for Modification to the and Conditional Change of I am writing in response to the concern raised at the informal briefing of City Council this day concerning applicability of the Amended State Code provisions requiring noise attenuating construction in non-residential buildings located within noise impact zones under the AICUZ program. This shall confirm that I have been authorized to make the following two commitruents on behalf of Dam Neck Square Apartments, L.C. It is inconceivable that my client could be in a position to receive site plan approval prior to .July 1, 2005. In fact, my client does not anticipate even submitting a site plan for review by the Development Services Center of the City of Virginia Beach prior to July 1, 2005. Due to the impossibility of obtaining site plan approval and a building permit prior to July 1, 2005, my client could not possibly avoid the obligation of complying with the more stringent. building code provisions which will become mandatory on July 1, 2005. 2. As many of my other clients have discovered, via their voluntary use of noise attenuating construction on office buildings and commercial buildings on Lynnhaven Parkway, use of this type of construction significantly increases the value and marketability of their properties- Dam Neck Square Apartments, L.C., fully intends to utilize the noise attenuating SYUS. BOURDON. MM IRN h LEVY. P C. Robert J. Scott, Director May 24, 2005 Page 2 construction standards which become mandatory on July 1, 2005, with respect to this office project. My intent, via this letter, is to communicate my client's unequivocal commitment to abide by the construction regulations involving noise attenuation which will become mandatory on July 1, 2005. Should you or any member of City Council have any questions concerning the contents of this correspondence, please do not hesitate to ask. With kind regards, I am Very truly yours, RESjr/arhm R. Edward Bourdon, Jr. Enclosures rr B Kay Wilmon, Associate City Attorney Michael P. Rashkind. Dam Neck Square Apartmcrttn, L.C. Gcnild Porterfield. Porterfield Design Ccnter AMENDMENTPDHPLAN /DAMNECKSQUAREAPARiMENTS /SCOTTS -36 - Item 36 - Item K.3. PLANNING ITEM # 53991 The following spoke in SUPPORT of the application: William Verebely, Verebely & Associates Architects, 2200 Dunbarton Drive, Chesapeake, Phone: 424-4351, represented the applicant. Mr. Verebely met with Councilman Dyer and City staff to discuss issues regarding traffic impacts. Mr. Verebely advised because of the nature of his client's business, he prefers to have a strip retail center rather than 3 -story office building. The applicant has provided a revised plan addressing the concerns (access to the rear lot, and thus access to Kempsville Road has been eliminated). Mitchell Dunbar, 1234 E. Ocean View Avenue, Norfolk, Phone: 620-1823, represented the applicant. Mr. Dunbar and his son plan to develop this property. At the present time, there is an easement through the Golden Corral. However, they wish to scale the application to a retail complex and possibly close the easement. Mr. Dunbar envisions a Pawn shop similar to his other operation in Virginia Beach. The next phase will be the design ofthe building. Ifthe application is approved, the easement through Golden Corral will be closed. Upon motion by Councilman Dyer, seconded by Councilman Diezel, City Council MODIFIED, AS PROFFERED, Ordinance upon application of LAND & BUILDING IV. L.C. re Modification of Proffer Number 1 on a Conditional Change ofZoning (approved by City Council on March 28, 2000 Troy A. Titus), re access to a strip retail center: ORDINANCE UPON APPLICATION OF LAND & BUILDING IV. L. C. FOR THE MODIFICATION OF PROFFERS FOR A CONDITIONAL CHANGE OF ZONING APPLICA TIONAPPRO VED BY CITY COUNCIL ONMARCH28, 2000 (TROYA. TITUS) ZO5051224 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Land & Building IV. L. C. for the Modification ofPro f ers for a Conditional Change of Zoning application approved by City Council on March 28, 2000 (Troy A. Titus). Property is located at 5221 Indian River Road (GPIN 14654704140000). The Comprehensive Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose of the requested modification is to develop the site for a strip retail center rather than the previously approved office building. DISTRICT 1 - CENTER VILLE The following condition shall be required: A Modified Agreement encompassing modified proffers shall be recorded with the Clerk of the Circuit Court and is hereby made apart of the record. The traffic engineers shall be involved in any discussions re maximizing the quality of the traffic flow in this area (i.e. traffic signalization). May 24, 2005 -37 - Item 37 - Item K.3. PLANNING ITEM # 53991 (Continued) This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of May, Two Thousand Five Voting: 8-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Abstaining: Vice Mayor Louis R. Jones Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood Vice Mayor Jones ABSTAINED as he owns three (3) properties directly across from the application May 24, 2005 In Reply Refer To Our File No. DF -6108 TO: Leslie L. Lilley FROM: William M. Macali CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: March 22, 2005 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Land & Building IV, L.C. The above -referenced conditional zoning application is scheduled to be heard by the City Council on April 12, 2005. I have reviewed the subj ect proffer agreement, dated February 14, 2005 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. WMM/nlb Enclosure cc: Kathleen Hassen PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS FROM LAND & BUILDING IV, L.C. TO THE CITY OF VIRGINIA BEACH, a municipal corporation THIS AGREEMENT, made this 14 I day of February, 2005, by and between LAND & BUILDING IV, L.C., Owner and Grantor (hereinafter called "L&B"), party of the first part, and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the second part. WITNESSETH: WHEREAS, L&B is the owner of a certain parcel of property located at 5221 Indian River Road in the City of Virginia Beach, which said site was granted a change of zoning to Conditional B-2 (Community Business District) by the City of Virginia Beach, Virginia City Council on March 28, 2002, which said property is described in Exhibit A attached hereto and incorporated by this reference a part hereof, said property being hereinafter referred to as "the Property;" and WHEREAS, the proffered site plan for the change of zoning on said property to Conditional B-2 depicts a "three-story office building" and "future retail center," the previously recorded proffer agreement referred to being recorded in Book 4223 at page 1176, in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; and WHEREAS, L&B has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change this restriction in order that the three-story office building be eliminated and a one-story retail center be constructed as shown on the preliminary site layout plan and building elevation GPIN 1465 47 0414 0000 PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake. VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 entitled "PROPOSED RETAIL CENTER FOR LAND & BUILDING IV, L.C. 5221 INDIAN RIVER ROAD VIRGINIA BEACH, VA," dated November 5, 2004, made by Verebely & Associates, Architects, Chesapeake, Virginia; and WHEREAS, the proffers contained in this agreement replace, in their entirety, the previous proffers; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict and that, in order to permit differing uses on and in the area of the Property, and at the same time to recognize the effects of change, and a need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's re -zoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the B-2 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property which has a reasonable relation to the re -zoning, the need for which is generated by the re -zoning. NOW, THEREFORE, the Grantor, for itself, its successors and assigns, and for Grantee and other successors in title or interest, voluntarily, and without any requirement -2- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax. 757 436 5552 Halbert T Dail VSB 4035 by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, re -zoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors and assigns, Grantee, and other successors in interest or title: 1. When the Property is developed, the site plan, landscape plan and building elevation shall be developed substantially as shown on the site plan entitled "PROPOSED RETAIL CENTER FOR LAND & BUILDING IV, L.C. 5221 INDIAN RIVER ROAD VIRGINIA BEACH, VA," dated November 5, 2004, made by Verebely & Associates, Architects, Chesapeake, Virginia (Site Plan), which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning. 2. In addition to those uses which are prohibited by law, the following uses shall be prohibited on the Property: (a) Eating and drinking establishments with drive-through windows; (b) Greenhouses and plant nurseries; and (c) Grocery stores, carry -out food stores and convenience stores, any of which are not freestanding. 3. Grantor covenants and agrees that a monument sign shall be located as shown on the Site Plan. Grantor further covenants and agrees that tenant signs shall be installed adjacent to or above tenant entrance doors, and will be box type, lighted signs. -3- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax- 757 436 5552 Halbert T Dail VSB 4035 These conditions, however, may be repealed, 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 Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and, if not so recorded, said instrument shall be void. 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. Grantor further covenants and agrees that: (a) 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 and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied, and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceeding; (b) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; -4- PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake, VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 (c) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (d) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee; WITNESS the following signatures and seals as of the date first above written. GRANTOR: LAND & BUILDING IV, L.C. By z -,x 4� -/ MITCHELL DUNBAR, PRESIDENT /I Ij STATE OF VIRGINIA AT LARGE, IN THE CITY OF to -wit: The foregoing instrument was subscribed, sworn to and acknowledged before me on ��y Ryan Mitchell Dunbar, who holds the office of President, on behalf of Land & Building IV, L.C. My Term of Office Expires: -5- IC PREPARED BY/ RETURN TO: HALBERT T DAIL & ASSOC, PC 213 River Walk Pkwy -Ste 107 Chesapeake. VA 23320 Phone: 757 436 3245 Fax: 757 436 5552 Halbert T Dail VSB 4035 EXHIBIT A ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, WITH THE BUILDINGS AND IMPROVEMENTS THEREON, LYING, SITUATE AND BEING IN THE CITY OF VIRGINIA BEACH, VIRGINIA, AND BEING KNOWN, NUMBERED AND DESIGNATED AS PARCEL 3, AS SHOWN ON THAT CERTAIN PLAT ENTITLED, "RESUBDIVISION OF PARCEL -2- (M.B. 96, PAGE 7, SHEET 2) AND PROPERTY OF TROY A TITUS (M.B. 131, PAGE 29), KEMPSVILLE BOROUGH, VIRGINIA BEACH, VIRGINIA," WHICH SAID PLAT IS DULY RECORDED IN THE CLERK'S OFFICE OF THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, VIRGINIA, IN MAP BOOK 258, AT PAGES 23 AND 24. BEING THE SAME PROPERTY CONVEYED TO GRANTOR BY DEED OF A.J.R. LIMITED PARTNERSHIP, L.L.P., DATED NOVEMBER 5, 2003, AND DULY OF RECORD IN THE CLERK'S OFFICE AFORESAID AS INSTRUMENT NUMBER 200312160208002. -6- Land & Building IV, L.C. Page 3 of 3 4-jvvU UJ1,, u 1 ,. .. Cf� 31 � t 1�'S�N371 JOTS ion riv1 i sLA I I. U 5 % :Z 7 t r � h4 7 Z�� V r c{ I. U 5 % :Z 7 t r � Z�� V I. U 5 % :Z -38 - Item K.4. PLANNING ITEM # 53992 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council ADOPTED an Ordinance upon application of PLATINUMHOMES, L.L.C. for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF PLATINUM HOMES, L.L.C. FORA CHANGE OF ZONING DISTRICT CLASSIFICATIONFROMA G-1 AND AG -2 AGRICULTURAL DISTRICTS TO CONDITIONAL A-24 APARTMENT DISTRICT ZO5051225 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Platinum Homes, L.L.C. for a Change o Zoning District Classi acation from AG -1 and AG -2 Agricultural Districts to Conditional A-24 Apartment District on property located at 484, 492 and 508 Dana Neck Road (GPINs 24254533750000; 24254514150000; 24254594070000). The Comprehensive Plan designates this site as being part of the Primary Residential Area, suitable for appropriately located suburban residential and non-residential uses consistent with the policies of the Comprehensive Plan. The purpose of the zoning change is to develop the site with 82 dwelling units at a density of 8.3 units per acre. DISTRICT 7 —PRINCESS ANNE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (fl of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of May, Two Thousand Five Voting: 7-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Richard A. Maddox, Jim Reeve, Peter W. Schmidt and Ron A. Villanueva Council Members Voting Nay: Reba S. McClanan and Rosemary Wilson Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 In Reply Refer To Our File No. DF -6065 TO: Leslie L. Lilley M FROM: William M. Macali V" CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: April 19, 2005 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Platinum Homes, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on May 24, 2005. I have reviewed the subject proffer agreement, dated November 30, 2004, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. Vv`MM/nlb Enclosure cc: Kathleen Hassen PREPARED BY: SYKES. BOURDON, Aiim & LEVY. P.0 PLATINUM HOMES, L.L.C., a Virginia limited liability company ERNEST SCOFIELD, JR. MEGAN R. HUGHES TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 30th day of November 2004, by and between PLATINUM HOMES, L.L.C, a Virginia limited liability company, party of the first part, Grantor; ERNEST SCOFIELD, JR., party of the second part, Grantor; MEGAN R. HUGHES, party of the third part, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the fourth part, Grantee. WITNESSETH: WHEREAS, the party of the second part is the owner of a parcel of land located in the Princess Anne District of the City of Virginia Beach, containing approximately 3.0 acres as more particularly described as Parcel 1, in Exhibit "A" attached hereto and incorporated herein by reference, which parcel, along with the other parcels described in Exhibit "A", are referred to herein as the "Property"; and WHEREAS, the party of the third part is the owner of two (2) contiguous parcels of land located in the Princess Anne District of the City of Virginia Beach, containing a total of approximately 6.8863 acres as more particularly described as Parcels 2 and 3, in Exhibit "A" attached hereto and incorporated herein by reference, which parcels, along with Parcel 1, are referred to herein as the "Property"; and GPIN: 2425-35-9407 2425-45-1415 2425-45-3375 1 PREPARED BY: Ej SMS. BOURDON. ! '"MN & LEVY. K WHEREAS, the party of the first part, as contract purchaser of the Property has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from AG-A/AG-2 Agricultural Districts to Conditional A-24 Apartment District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-24 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantee, 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 or 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 and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and 2 persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, the entrances, streets, landscaping and fencing shall be substantially in accordance with the "Conceptual Layout of FIELDSTONE GLEN", dated November 30, 2004, prepared by WPL Engineers, Surveyors and Landscape Architects, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Concept Plan"). 2. Vehicular Ingress and Egress shall be via two (2) curb cuts from Dam Neck Road as depicted on the Concept Plan. 3. When the Property is developed, there will be no more than eighty-two (82) residential condominium units, each of which shall have a garage, within fifteen (15) buildings as depicted on the Concept Plan. 4. When the Property is developed, the residential structures depicted on the Concept Plan shall have the architectural design and utilize the building materials substantially as depicted and designated on the exhibit entitled "Fieldstone Glen, a condominium Virginia Beach, Virginia", which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department ("Elevations"). 5. When the Property is developed, the entrance sign and fencing designated on the Concept Plan shall be constructed substantially in accordance with the exhibit entitled "Fieldstone Glen, a Condominium" which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department ("Entrance Feature"). 6. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall PREPARED 8". continue in full force and effect until a subsequent amendment changes the zoning SYKES. BOURDON. ►1� ARRRN & LEVY. P.C. of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the 3 PREPARED BY: SYKES. $OURD0N. AHERN & LEVY. P.C. subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, 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 Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees 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 and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions 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 these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances 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 they shall be recorded in the Clerk's Office of the Circuit Court of 0 City of Virginia Beach, Virginia, and indexed in the name of the Grantor and the Grantee. PREPARED BY: IM SMS. 80URDON. t4£RN & L£vY. P.C. 5 PREPARED BY: SYKES, BOURDON. AHERN & LEW P.0 WITNESS the following signature and seal: GRANTOR: Platinum Homes, L.L.C., a Virginia limited liability company (SEAL) t 5'0t&- ging Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 30th day of November, 2004, by Brian C. Large, Managing Member of Platinum Homes, L.L.C., a Virginia limited liability company, Grantor. //, -,� "/-/ otary Public My Commission Expires: August 31, 2006 X PREPARED BY. SYKES. BOURDON. AMERN & LEVY. PC WITNESS the following signature and seal: GRANTOR: "�//" (SEAL) rn t Sc field, Jr. STATE OF VIRGINIA / CITY/COUNTY OFZZfl;V , to -wit: n �T e foregoing instrument was acknowledged before me this day of f�L , 2004, by Ernest Scofield, Jr., Grantor. v' Not is My Commission Expires: /,2 3%, 7 WITNESS the following signature and seal: GRANTOR: (SEAL) e an R. es STATE OF VIRGINIA t/ r�G 'N' ' AAA to-wit:CITY/COUNTY•F, .s/ Th foregoing instrument was acknowledged before me this day of �eo C , 2004, by Megan R. Hughes, Grantor. i lic My Commission Expires: 1� 3 / — uJ PREPARED 8Y: SYKES. BOURDON, AHERN & LEW P.0 PREPARED BY: SYKES. BOURDON. [HERN & LEVY. K r_. PARCEL 1: EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, situate in the City of Virginia Beach, State of Virginia, being known, numbered and designated as Parcel X, on the plat entitled "Subdivision of Part of Tract `A' and Part of Tract S' Property of George P. Treynor (M.B. 46, P. 3), Princess Anne Borough - Virginia Beach, Virginia" Scale: 1" = 100'", dated February 15, 1988, Rev.: November 23, 1988, which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2801, at Page 633, reference to said plat is hereby made for a more particular description of said tract. GPIN: 2425-35-9407 PARCEL II: ALL THAT certain lot, piece or parcel of land, situate in the City of Virginia Beach, State of Virginia, being known, numbered and designated as Parcel Y-1, on the plat entitled "Subdivision of Parcel `Y', Subdivision of Part of Tract `A' and Part of Tract B', Property of George P. Treynor", dated April 4, 1990, made by Mel Smith and Associates, Consulting Engineers, Surveyors, Planners, which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 207, at Page 81, reference to said plat is hereby made for a more particular description of said tract. GPIN: 2425-45-1415 PARCEL III: ALL THAT certain lot, piece or parcel of land, situate in the City of Virginia Beach, State of Virginia, being known, numbered and designated as Parcel Y-2, on the plat entitled "Subdivision of Parcel `Y', Subdivision of Part of Tract `A' and Part of Tract B', Property of George P. Treynor (D.B. 2801, Page 633) Princess Anne Borough Virginia Beach, Virginia Scale: 1" = 100'", dated April 4, 1990, which is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 207, at Page 81, reference to said plat is hereby made for a more particular description of said tract. GPIN: 2425-45-3375 CONDITIONALREZONE/ PLATINUMHOMES / PROFFER 9 W-YA Item K.S. PLANNING ITEM # 53993 Upon motion by Councilman Schmidt, seconded by Councilman Reeve, City Council ADOPTED an Ordinance upon application of FRONTIER DEVELOPMENT, L.L.C. for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF FRONTIER DEVELOPMENT, L.L.C. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM CONDITIONAL I-1 LIGHT INDUSTRIAL DISTRICT TO CONDITIONAL B-2 ZO5051226 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application ofFrontier Development, L.L. C. for a Change of Zoning District Classification from Conditional I-1 Light Industrial District to Conditional B-2 Community Business District on property located at 5824 Northampton Boulevard (GPIN 14589838430000). The Comprehensive Plan designates this site as being part of the Northampton Boulevard Corridor Area, recommended for corporate, industrial and associated uses consistent with thepolicies ofthe Comprehensive Plan. The purpose of the zoning change is to develop the site for restaurant and retail uses. DISTRICT 4 — BAYSIDE The following condition shall be required: An Agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-fourth of May, Two Thousand Five Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 In Reply Refer To Our File No. DF -6107 TO: Leslie L. Lilley (�� FROM: B. Kay Wil4t CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: April 19, 2005 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Frontier Development, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on May 24, 2005. I have reviewed the subject proffer agreement, dated December 27, 2004, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/nlb Enclosure cc: Kathleen Hassen FRONTIER DEVELOPMENT, L.L.C., a Mississippi limited liability company ABSOLUTE HOSPITALITY, INC., a Virginia corporation TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 27th day of December, 2004, by and between FRONTIER DEVELOPMENT, L.L.C., a Mississippi limited liability company, party of the first part, Grantor; ABSOLUTE HOSPITALITY, INC., a Virginia corporation, party of the second part, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the third part, Grantee. WITNESSETH: WHEREAS, the party of the second part is the owner of a certain parcel of property located in the Bayside District of the City of Virginia Beach, containing approximately 1.06 acres which is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel is herein referred to as the "Property"; and WHEREAS, the party of the first part, being the contract purchaser of the Property has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from Conditional I-1 Industrial District to Conditional B-2 Community Business District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and GPIN: 1458-98-3843 PREPARED BY: SYK£S. ROURDON, AMN & LEVY. P.C. 1 PREPARED BY: SYKES, BOURDON. AHERN & LEVY. P.C. WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the Grantor's proposed rezoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, its successors, personal representatives, 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 or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and. hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. When the Property is developed, it shall be developed substantially as shown on the exhibit entitled "SITE NAME - STARBUCKS"; "SITE ADDRESS - 5824 NORTHAMPTON BLVD. VA. BEACH, VA 23455", dated 8/28/04, prepared by Lewis White & Associates, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Site Plan"). 2 PREPARED BY: On SYKES. $OURDON. 21 AHERN & LEVY. P.0 2. When the Property is developed, the exterior of the building depicted on the Site Plan, including its exterior building materials and colors, shall be substantially as depicted on the exhibits entitled "STARBUCKS & SHOPPES Virginia Beach, Virginia, Frontier Development", dated 10.28.04, pages 1 and 2, prepared by Maxwell Johanson Maher Architects, which have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning (hereinafter "Starbucks Elevations"). 3. All outdoor lighting shall be shielded, deflected, shaded and focused to direct light down onto the premises and away from adjoining property. 4. Further conditions may be required by the Grantee during detailed Site Plan 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 B-2 District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, 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 Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or 3 PREPARED BY. SYKES, BOURDON, JA AHERN & LEVY. P.0 resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees 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 and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions 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 these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances 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 they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 2 WITNESS the following signature and seal: GRANTOR: Frontier Development, L.L.C. a Mississippi limited liability company By: (SEAL) 'Ames Leach, Member STATE OF FLORIDA CITY/COUNTY OF C�4& e , to -wit: The foregoing instrument was acknowledged before me this o� 7 i� day of December, 2004, by James Leach, Member of Frontier Development, L.L.C., a Mississippi limited liability company, Grantor. 1p(/M Wrv-W0.0 M 1 , M_ I S� � � My Commission Expires: 60 oar P Alan J. Miller ?:Commission # DD34M a` Ezpires: JULY 22, 2008 �o„;�� AARONNOTARY.com PREPARED BY. umSYKPS. $OURDON. AHERN & LEVY. P.0 WITNESS the following signature and seal: GRANTOR: Absolute Hospitality, Inc., a Virginia corporation By: . • (SEAL) antifal Barot, Prgsident STATE OF VIRGINIA CITY/ COUNTY OF to -wit: The foregoing instrument was acknowledged December, 2004, by Jayantiyal Barot, President of Virginia corporation, Grantor. My Commission Expires: before me thisday of Absolute Hospitali , Inc., a C:7 PREPARED BY: SYKES, BOURDON. loll■ UERN & LEVY. P.0 EXHIBIT "A" X11 that certain piece or parcel of land lying and being in the City of Virginia Beach, Arginia, designated as Parcel 2A-2 on that certain plat made by MSA, P.C., dated kugust 15, 2001, entitled, "RESUBDIVISION PLAT OF PARCEL `IA' AND PARCEL 1B' RESUBDIVISION PLAT OF PARCELS 1, 2 AND 3 AS SHOWN ON RESUBDIVISION PLAT OF PROPERTY OF MANUELITO O. 8v M.A. AURORA V. CALAYO BURTON STATION ROAD (MD 205, PG 80) (MB 254, PG 84) AND PROPERTY OF FRANK T. WILLIAMS, LOT A, RECORDED IN DB 4309, PG 1788 VIRGINIA BEACH, VIRGINIA" recorded in the Clerk's Office, Circuit Court, City of Virginia Beach, Virginia, in Map Book 301, pages 70 and 71, reference to which plat is hereby made for a more particular description. TOGETHER WITH a non-exclusive easement in common with Parcel 2A-1 for the purposes of ingress and egress and passage by commercial and other vehicles and by pedestrians over Parcel 2A-1 as more fully described in that certain Declaration made by Absolute Hospitality, Inc., dated November 21, 2001, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 4583, Page 2 10 1. GPIN: 1458-98-3843 CONDITIONALREZONING / FRONTIERDEVELOPMENT/ NORTHAMPTON/ PROFFER VA i Item V -L.1. APPOINTMENTS ITEM # 53994 BY CONSENSUS, City Council RESCHEDULED: FRANCIS LAND HOUSE BOARD OF GOVERNORS HEALTH SERVICES AD VISOR Y B OARD INVESTMENT PARTNERSHIP ADVISORY COMMITTEE OPEN SPACE SUBCOMMITTEE PERFORMING ARTS THEATRE ADVISORY COMMITTEE TOWING ADVISORY BOARD May 24, 2005 -41 - Item V -L.2. APPOINTMENTS ITEM # 53995 Upon NOMINATION by Council Lady McClanan, City Council REAPPOINTED: Russell E. Brubaker G. Garland Payne 3 -year term 07/01/05 - 06/30/08 BEACHES AND WATERWAYS COMMISSION Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 Item V -L.3. APPOINTMENTS -42 - ITEM # 53996 Upon NOMINATION by Council Lady McClanan, City Council APPOINTED: Dr. Randolph J. Gould REAPPOINTED: William D. Sessoms, Jr. 3 -year term 07/01/05 - 06/30/08 EASTERN VIRGINIA MEDICAL SCHOOL Voting: 9-0 Council Members Voting Aye.- Harry ye: Harry E. Diezel, Robert M. Dyer, McClanan, Richard A. Maddox, Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Vice Mayor Louis R. Jones, Reba S. Jim Reeve, Peter W. Schmidt, Ron A. Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 Item V -L.4. ' ' IZ101►u'/A/061 -43 - lylh/us"S111A Upon NOMINATION by Council Lady McClanan, City Council REAPPOINTED: Robert M. Dyer James K. Spore 2 -year term 07/01/05 - 06/30/07 HAMPTON ROADS PLANNING DISTRICT COMMISSION Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, McClanan, Richard A. Maddox, Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Vice Mayor Louis R. Jones, Reba S. Jim Reeve, Peter W. Schmidt, Ron A. Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 Item V L. S. APPOINTMENTS ITEM # 53998 Upon NOMINATION by Council Lady McClanan, City Council REAPPOINTED: Carolyn R. Lincoln 4 -year term 07/01/05 - 06/30/09 SOCIAL SERVICES BOARD Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 -45 - Item 45 - Item T- L. 6. APPOINTMENTS ITEM # 53999 Upon NOMINATION by Council Lady McClanan, City Council REAPPOINTED: Dorcas T. Helfant 4 -year term 07/01/05 - 06/30/09 TIDEWATER COMMUNITY COLLEGE BOARD Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 girds Item V -L. 7. APPOINTMENTS ITEM # 54000 Upon NOMINATION by Council Lady McClanan, City Council REAPPOINTED: Bruce E. Bright 4 -year term 07/01/05 - 06/30/09 TIDEWATER REGIONAL GROUP HOME COMMISSION Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay.- None ay: None Council Members Absent: Mayor Meyera E. Oberndorf and James L. Wood May 24, 2005 -47 - Item V -M.1. UNFINISHED BUSINESS ITEM # 54001 Anthony Crawford, 2253 London Street, Phone: 498-0601, represented Cheltingham Square, Gatewood Park, Nottingham Estates and thanked City Council for removing "eminent domain "from the Joint Land Use recommendation. May 24, 2005 i Item V -O. II�alIZ/ 7�qu1�11�-SWA SiAff/00A Vice Mayor Louis R.. Jones DECLARED the City Council Meeting ADJOURNED at 6:50 P.M. D.%✓�i� Cd�.,,,�------------ ------ ------------------ Beverly O. Hooks, CMC Louis R. Jones Chief Deputy City Clerk Vice Mayor uth Hodges mith, MMC Meyera E. Oberndorf City Clerk Mayor City of Virginia Beach Virginia May 24, 2005