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MAY 22, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBFIINI JOIII-: A/.I.arge VICE MAYOR LOUIS R. JONliS. HaVHJe . D/s/ml -I WILLIAM R. DeSTEPH, AI./~arge HARRY E. DIEZEL, Kempsville. D/s/rleI 2 ROBERT M. DYER" CenlervJlle . Dlslrlcl I BARBARA M. HENLEY, Princess Anne j)jslrlCl" REBA S. McCLANAN, Rose Hall. D/s/rlCI 3 JOHN E. UHRIN, Beach /)lSIrlC/ (, RON A. VILLANUEVA, AI.I.arge ROSEMARY WILSON, A/.I.ur;;e JAMES L. WOOD, Lynnhuven ./)/s/r/(I 5 CITY COUNCIL AGENDA CITY MANAGER. JAMES K. SPI Jill;" CITY ATTORNEY - LESUF I. UI.LFY ClTYCLERK - RUTH HOIXifiS FIIASli/l. IvlMI' 22 MAY 2007 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com I. CITY COUNCIL BRIEFINGS - Conference Room - 3:30 PM A. VB 2007 FINAL REPORT Mac Rawls, Chairman B. EMPLOYEE BENEFITS REVIEW TASK FORCE Retiree Health Care Recommendations Robert Schleh, Chairman II. CITY COUNCIL COMMENTS III. REVIEW OF AGENDA IV. INFORMAL SESSION - Conference Room - 4:30 PM A. CALL TO ORDER -- Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION - Council Chamber- 6:00 PM A. CALL TO ORDER - Mayor Meyera E, Oberndorf B. INVOCATION: Reverend Clarence McPherson Pastor, Agapae International 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 15, 2007 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 1. LEASE OF CITY-OWNED PROPERTY Rosemont Commerce Center at Sentara Way and A venue A I. PUBLIC COMMENT 1. TEN-YEAR PLAN FOR HOMELESSNESS 1. CONSENT AGENDA K. RESOLUTION/ORDINANCES 1. Resolution to AUTHORIZE the issuance of Public Facility Revenue Bonds not to exceed $100,354,000 and $4,025,000 Taxable Public Facility Bonds re a Plan of Financing with the Virginia Beach Development Authority. 2. Ordinance to AUTHORIZE the City Manager to execute a lease of City-owned property at Sentara Way and Avenue A with ROSEMONT INTERSTATE CENTER, L.L.c., to be used as an ingress and egress point and provide parking for the adjacent property. 3. Ordinance to ACCEPT and APPROPRIATE $530,259 to the Clerk ofthe Circuit Court's FY 2006-07 Technology Trust Fl1Dd re the redaction of private information on public documents. L. PLANNING 1. Application of MARY K. AGRUSO for an enlargement of a nonconforming use at 103- B 57 l;2 Street re the construction of a sunroom. DISTRICT 6 - BEACH RECOMMENDATION APPROV AL 2. Application of HARRY R. PURKEY, JR., for the discontinuance, closure and abandonment of a portion of an unimproved alley at 736 Surfside Avenue re property line extension. DISTRICT 6 - BEACH RECOMMENDA TlON APPROVAL 3. Applications for extensions of timr to satisfy conditions re the discontinuance. abandonment and closure at Jersey Avenue and Virginia Beach Boulevard re reservation for future development (approved by City Council on June 21, 2001, June 22, 2004, and May 23, 2006): DISTRICT 2- KEMPSVILLE a. LOPE and MERCY PILE b. CORNELIUS F. and ANTONINA BOYNTON RECOMMENDA TlON APPROV AL 4. Variance to S5(b) of the Site Plan Ordinance that requires all newly created lots meet the requirements of the Floodplain Regulations for GLENN H. GETTlER, JR., at 493 Goodspeed Road re a master bedroom addition. AICUZ is less than 65 dB Ldn (Princess Anne Hills). DISTRICT 5 - LYNNHA VEN RECOMMENDA TION APPROV AL 5. Variance to S4.4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for EDWARD A. and KATHLEEN T. KURPIEL at 2184 Princess Anne Road re the creation ofa flag lot designed for a future single-family dwelling. DISTRICT 7 - PRINCESS ANNE RECOMMENDA TION DENIAL 6. Applications of VALUE PLACE REAL ESTATE SERVICES, LLC, at 1357 Diamond Springs Road DISTRICT 4 -- BA YSIDE a. Modification of Proffers to allow a change of use from an office/warehouse facility to the development of a hotel (Conditional Change of Zoning approved on February 28, 2006) b. Conditional Use Permit: 12I-unit limited service hotel DEFERRED RECOMMENDA TlON March 13, 2007 and March 27, 2007 APPROV AL 7. Application of SOUTH INDEPENDENCE ACQUISITION, L.L.c., for a Change of Zoning District Classification from R-5D and R-I 0 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay at South Independence Boulevard, Princess Anne Road and 1632 Salem Road, "Spence Farm," re 103 single-family dwellings, 347 townhomes, and 230 twin townhomes and Senior Housing. DISTRICT 1 - CENTERVILLE and DISTRICT 7 - PRINCESS ANNE RECOMMENDA TION DEFERRAL 8. Applications of CONNIE ONE, L.L.C., re thirteen (13) buildings with four (4) units each at Connie Lane, Connie Way and Baker Road: DISTRICT 4 - BA YSIDE and DISTRICT 2 - KEMPSVILLE a. Discontinuance, closure and abandonment of an unimproved portion of Connie Lane to incorporate the lane; into the adjoining parcels b. Change of Zoning District Classification from R-7.5 Residential District and 1-1 Light Industrial District to Conditional A-I2 Apartment District RECOMMENDA TION APPROV AL M. APPOINTMENTS OPEN SPACE ADVISORY COMMITTEE N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT CITYWIDE TOWN MEETINGS June 19 Virginia Beach Convention Center -7:15 pm Shaping our Community and Ourselves to Protect our Waterways September 18 Time and Location to be Announced FY 2008-2010 Budget November 20 Green Run Homeowners Association Building -7:15 pm SwrmwarerPwnsandFundmg * * * * * * * * * If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Hearing impaired. call: Virginia Relay Center at 1-800-828-1120 * * * * * * * * * * * Agenda 05/17/2007mb www.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia May 22, 2007 Mayor Meyera E Oberndorf called to order the City Council Workshop re the VB 2007 FINAL REPORT in the City Council Conference Room, City Hall, on Tuesday, May 22,2007, at 3:35 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Absent: John E. Uhrin [Attending: International Economic Development Council "If You Build It" Conference - Kansas City) James L. Wood [Attending Economic Development International Shopping Center Conference) May 22, 2007 - 2 - CITY COUNCIL BRIEFING VB 2007 FINAL REPORT 3:35 P.M. ITEM # 56436 Mac Rawls, Chairman, Virginia Beach 2007, presented the Virginia Beach 2007 Final Report commencing with a First Landing reenactment video, Mr. Rawls expressed appreciation for their unselfish dedicated efforts to Charles Meyer - Chief Operating Officer, Ron Kuhlman - Convention and Visitors Bureau, Linda S. Minner, Diane Roche - City Manager's Media and Communications Group, Lynn Clements - Director, Museums, Mark Reed - Department of Museums, Bill Kelly - Beach Events, Mike Eason - Resort Program Coordinator, Richard Smith - Police, Amy Woodson - Parks and Recreation and Carolyn Barkley - Libraries. Virginia Beach 2007 Events: Getting Involved and Getting the Word Out . Participation with Jamestown - Virginia Beach was one of the original Jamestown 2007 community organizations which participated in Jamestown planning and promotions. . Cooperative Marketing/Public Relations - VB 2007, First Landing State Park, Virginia Beach Convention & Visitors Bureau, Barkley Campbell Farley Advertising Agency, BeachEvents, Contemporary Art Center of Virginia and the City Manager's Office pooled media resources and efforts to promote Virginia Beach 2007 . Community Connections - Virginia Beach 2007 consisted of a planning group with approximately seventy (70) members that met periodically over a period of four years. By April2007, more than one hundredfifty (150) local organizations had been involved in VB 2007 events . City Committee - For nearly two years, multiple city department representatives met to assist in the planning and implementation of the events to ensure availability and efficient use of resources . Audience of 40-MILLION -As a result of the ongoing public relations efforts for Virginia Beach 2007, thefull weekend of events secured an advertising equivalency value of more than $J.2-MILLION and reached a total audience of more than 40-MILLION in readers and viewers . One hundred seventy-four (174) Media Outlets -To date, the Virginia Beach 2007 events- including the First Landing Reenactments, Magna Carta exhibit, Boardwalk History Festival and the Raising of the Cross - were featured in seventy (70) local, regional and national print publications and one hundredfour (104) local, regional and national broadcast outlets Happenings in Honor of 2007 . VB 2007 Lecture Series . 400 Historical Facts About Virginia Beach . Preservation Priority List of 50 Most Historical Structures in Virginia Beach . Community Roots Program . Virginia Beach School Board VB 2007 Resolution May 22, 2007 - 3 - CITY COUNCIL BRIEFING VB 2007 FINAL REPORT ITEM # 56436 (Continued) Happenings in Honor of 2007 (Continued) . Virginia Beach Schools Curriculum Packages . Virginia Beach First Landing Student Art Exhibit . Virginia Beach Legends Walk . Virginia Beach 2007 Legacy Projects . Lynnhaven River 2007 . Adam Thoroughgood House Renovations . The Virginia Beach Convention Center . Facility improvements at First Landing State Park . The Sandler Center for Performing Arts . 100th Anniversary Celebration of Town of Virginia Beach . By Our Heirs Forever Contemporary Art Center Exhibit . Lynnhaven River Student Essay Contest By Others: . Discover the New World by VB Libraries . The Virginia Beach 2007 Craft Market . Virginia Beach Historic Garden Tour 2007 . The First Landing Film by CBN/Regent University . The Assembly Boardwalk Program of Prayer and Services . Historic Villages of Cape Henry by Cape Henry Foundation . First Landing Outdoor Drama by Cape Henry Foundation Virginia Beach 2007 Core Events Magna Carta and the Four Foundations of Freedom March 30 - June 18: Exhibition at the Contemporary Art Center of Virginia showcasing the Magna Carta, an early broadside of the Declaration of Independence, notes from the first drafting of the U.S. Constitution and the Virginia Declaration of Rights April 26: The First Landing at First Landing State Park - SOLD OUT 2500 SEATS FOR BOTH PERFORMANCES April 27: Lynnhaven River Exploration Educational Programs and Luncheon First Landing Reenactment for Schools at First Landing State Park - SOLD OUT - 2500 SEATS FOR BOTH PERFORMANCES April 28: Virginia Beach 2007 Boardwalk History Festival - An estimated 50,000 people get involved in a mile of Virginia Beach history on the boardwalk with programs, performances and more than 150 exhibits. Council Lady Barbara Henley was the energy behind this event. April 29: Cape Henry Commemoration Ceremony - The old cross is remembered and one for the future is raised. May 22, 2007 - 4 - CITY COUNCILBRIEFING VB 2007 FINAL REPORT ITEM # 56436 (Continued) Mr. Rawls displayed photographic depiction of the events. Mayor Oberndorf presented Mac Rawls with a memento in appreciation of his efforts "First Landing Cross at Cape Henry". May 22, 2007 - 5 - CITY COUNCIL BRIEFING EMPLOYEE BENEFITS REVIEW TASK FORCE 4:04 P.M. ITEM # 56437 Mayor Oberndorf introduced Robert Schleh, Chair - Employee Benefits Review Task Force, to present information re Retiree Health Care recommendations. Mayor Oberndorf referenced correspondence from the Virginia Beach Retirement Association, John W Herzke, Chair, delivered to the City Council Members expressing concern and requesting the opportunity to be heard Said correspondence is here by made a part of the record Robert Schleh, Chair - Employee Benefits Review Task Force, acknowledged the members of the Task Force for their diligence and commitment. The Task Force is comprised of a cross section of residents of the City, two (2) members of City Council, two (2) employee representatives, two (2) business representatives, and three (3) Human Resources and Employee Benefits Professionals. The Task Force will be presenting a number of recommendations to the City Council of Virginia Beach. These recommendations reflect City Council's desire to balance the City's need to attract and retain high- quality employees with the community's ability to support the cost of the benefits. The recommendations presented here relate primarily to the Retiree Healthcare Plan and its funding. Employee Benefits Review Task Force Chair Robert Schleh Human Resource and Employee Benefits Professional Council Member William (Bill) R. DeSteph Council Member Harry E. Diezel Susan Walston Chief of Staff Human Resource and Employee Benefits Professional C. Paulette Braithwaite Employee Representative Norrie Hoff Business Professional Attorney Glen A. Huff Business Professional Kerry C. Jordan Human Resource and Employee Benefits Professional Sheriff Paul Lanteigne Employee Representative William M. Lechler Business Professional May 22, 2007 - 6 - CITY COUNCIL BRIEFING EMPLOYEE BENEFITS REVIEW TASK FORCE ITEM # 56437 (Continued) The Task Force has extensively reviewed the healthcare benefits offered to City Retirees as well as the associated funding requirements that the City now faces under current regulations of the Government Accounting Standards Board (GASB). The Task Force has compared the City's benefits to those of other cities in Hampton Roads, to government plans regionally and across the nation and to plans in private industry. It has concluded that offering Retirees healthcare benefits is a competitive practice that should be continued in order to attract and retain high-quality employees. At the same time, the Task Force believes it is crucial to fund these benefits to help ensure that they will continue into the future. In the past, the City paid only for the actual cost of current coverage. Under that scenario, the unfunded liability of future Retiree healthcare benefits has grown tremendously and is currently estimated to be approximately $ 150-MILLION for City employees (over $330-MILLION for the City and Schools combined). To fully fund this Retiree healthcare liability, the City will need to make Annual Required Contributions. The first contribution is due June 30,2008, and is estimated to be $12- MILLION ($28, 7-MILLION for the City and Schools combined). The following recommendations were established to help meet all these objectives. The recommended changes should maintain a competitive, well-balanced plan and help the City meet its funding requirements by reducing both the current costs and future unfunded liability. The Task Force believes that taking this action is fiscally responsible and is in the best interest of the City, its employees, and its taxpayers: . Funding the liability helps ensure that this very important benefit for City employees continues and that the City meets its financial obligations associated with the benefit. Not funding it leaves the benefits at risk of future reduction or termination as future costs increase and the pool of retirees expands . Funding the liability means that the benefits are paid for while employees are working for the City and serving the community, Not funding it will force future taxpayers to pay for a benefit that is accruing today . Funding the liability will keep the cost as low as possible and prevent the liability from causing a deficit position on the books. Not funding it will greatly increase the cost that must be recognized on the City's books under new government accounting regulations (GASB 45), resulting in an estimated deficit position by 2012 Funding the liability will help ensure a continued high bond rating and low interest costs. Not funding it will put the City's bond rating in jeopardy according to rating agencies. May 22, 2007 - 7 - CITY COUNCIL BRIEFING EMPLOYEE BENEFITS REVIEW TASK FORCE ITEM # 56437 (Continued) Recommendations Take steps to reduce the unfunded Retiree healthcare liability and, to the extent practical, fund the Annual Required Contribution as determined by the plan actuaries. Reaffirm the City's commitment to providing Retiree health care to qualified Retirees and disabled employees (per the 1992 resolution), but allow for plan changes and the flexibility to meet Retiree's special needs. Provide access to the Retiree Healthcare Plan for City employees with at least ten (10) years of City service and who meet Virginia Retirement System (VRS) retirement. subsidize a portion of the premium cost using a graduated formula to reward those with longer service within the City. Provide access to healthcare coverage for dependents of Retirees. Charge the full actuarial cost of dependent coverage for future Retirees and consider reducing, over time, the Implicit Subsidy provided to the dependents of current Retirees. Restrict the practice of adding dependents after retirement to improve future claims experience. Eliminate the provision of free health care for single subscribers by charging single-subscriber Retirees and employees 5% of their annual healthcare premium. The Task Force believes the City should reaffirm its policy of providing Retiree healthcare, but it should be explicit about allowing for plan changes so that provisions of the retiree plan will not remain frozen, but will track those for active employees as they may need to change. In addition, the City should be allowed to provide special features for Retirees as it deems appropriate, such as giving better network coverage to Retirees who move out of the area. Under current practice, these Retirees are offered healthcare coverage at a premium rate that requires a City subsidy, even though no such coverage or subsidy was included in the 1992 Resolution. In other words, if City practice followed the 1992 Resolution verbatim, no subsidy would be provided at all. The Task Force believes the City should continue to offer coverage to these Retirees with at least ten years of service, but that the subsidy should be structured in a way that increases with employee length of service. Doing so should reduce the aggregate cost of the subsidy by at least 50%. The Task Force has reviewed several alternatives that meet these criteria. Reducing the subsidy will decrease both the City's annual cost and the Retiree's healthcare unfunded liability. The Task Force urges the City to use the savings resulting from this change to help fund the liability, thereby further supporting Recommendation 1. May 22, 2007 - 8 - CITY COUNCIL BRIEFING EMPLOYEE BENEFITS REVIEW TASK FORCE ITEM # 56437 (Continued) Under current practice, the City is providing a subsidy for dependent coverage, even though no such coverage or subsidy was included in the 1992 Resolution. In other words, if City practice followed the 1992 Resolution, verbatim, no coverage would be provided at all. The Task Force believes the City should continue to provide access to healthcare coverage for dependents of Retirees, but that the full cost of dependent coverage should be paid for by future Retirees. In addition, restricting Retirees from adding dependents (except for certain life events) will help moderate future claims experience by preventing the enrollment of potentially high-risk and otherwise uninsurable individuals. Eliminating the subsidy for future Retirees and moderating future claims risk will help support Recommendation 1 by reducing the current and future Retiree healthcare liability and Annual Required Contributions (ARC). The Task Force compared the City's plan to those of our neighboring cities, to government plans in general, and to plans of corporate sponsors. They believe introducing this cost-sharing will bring the plan in line with prevailing practice while maintaining a competitive benefit for attracting high-quality employees. If healthcare costs continue to rise in the future, the Task Force believes that the City can consider raising this nominal rate of cost-sharing for both employees and Retirees to help cover those increases, while still maintaining a competitive plan. In an effort to promote employee acceptance of these recommendations, the Task Force suggests that senior City executives with negotiated benefit packages lead by example through adjusting their benefits in the same fashion as recommended for other City employees. The Task Force urges the City to use the savings resulting from these employee and Retiree contributions to help fund the Retiree healthcare liability, thereby further supporting Recommendation 1. Adopting the Task Force recommendations can help ensure the continuation of this very important plan for City Retirees by reducing its costs and unfunded liability. The 5% employee cost sharing is estimated to reduce the City's annual premium contributions by $700,000 (based on current premium rates), which is assumed to be applied toward the Annual Required Contribution (ARC). The 5% Retiree cost sharing combined with the reduction in subsidy for Retirees with less than 25 years of service will reduce the annual City's costs and the ARC. Assuming that the savings is applied toward the Annual Required Contribution (ARC), the combined effect is estimated to be $800,000. The reduction in subsidy for dependent coverage of Retirees is estimated to reduce the Annual Required Contribution (ARC) by $1.I-MILLION The total dollar impact of these Task Force recommendations (assuming all savings are applied toward the Annual Required Contribution (ARC) is $2.6-MILLION The Task Force urges the City to fully fund the ARC. In the estimation of the Task Force, if the City chooses to leave the plan unfunded, costs would rise considerably putting the future of the plan at risk. The total unfunded liability of the current plan would rise to $149.1-MILLION from the $87.9- MILLION shown in the table and the City's books would need to accrue a liability of $16. 7-MILLION on June 30, 2008, in contrast to funding the $1-MILLION Annual Required Contribution (ARC) (these amounts were determined by the plan's actuary). May 22, 2007 - 9 - CITY COUNCIL BRIEFING EMPLOYEE BENEFITS REVIEW TASK FORCE ITEM # 56437 (Continued) Financial Impact of Recommendations Remaining 2008 Annual Remaining Action Required Contribution 1 Unfunded Liability 2 (Cumulative) (Cumulative) Current Plan $12.0 M $87.9 M 5% Employee Cost Sharing 3 $11.3 M $87.9 M 5% Retiree Cost Sharing 3 AND $10.5 M $80.9 M Reduce Subsidy for < 25 years of service Reduce Subsidy for $9.4M $68.9 M Dependent Coverage Total Help from $2.6M $19.0 M Recommendations 1 The estimated Annual Required Contribution after each action is taken Is shown assuming full funding; amounts that must be reported by the City would be significantly higher if left unfunded. 2 The estimated unfunded liability after each action is taken is shown assuming full funding; the unfunded liability is significantly higher if left unfunded or partially funded. 3 Single-subscriber cost sharing of $261 per year, based on 2007 premium rates 7 The Task Force has only completed one portion of its assignment. Vice Mayor Jones inquired whether HRA's were reviewed as an alternative method to future liability of future employees. An HRA is a fund which is funded by an employer to assist in the costs of current health care programs. Chairman Schleh was not sure the concept of HRA directly relates to funding the Retiree Liability, but does relate to an alternative plan for current benefits. Due to its urgency, the Task Force has focused primarily on the Retiree plan and its liability and has not completed a full review of the active plan or prepared any recommendations. HRA's have not been discussed as a possibility of this plan. Vice Mayor Jones requested the Task Force examine the possibility of an HRA as he has read the legislation and he is almost positive for new hirees, HRA's can be utilized and the liability can start being funded on an HRA basis, thus reducing this liability significantly. Chair Schleh advised the health care program, in general, (active and retired employees) has increased 107%from 2002 to 2007. May 22, 2007 - 10 - CITY COUNCIL COMMENTS 4:43 P.M. ITEM # 56438 Councilman Dyer referenced the Resolution ESTABLISHING a Blue-Ribbon T~ FEE and SPENDING TASK FORCE to study means of reducing the City's dependence on the real estate tax as a revenue source (ADOPTED by City Council on April 3, 2007). Councilman Dyer requested the Appointments be scheduled for this Task Force. A copy of the adopted Resolution with the membership and proposed concept was distributed. Establish a Task Force charged with research means and methods re: Reducing the City's Dependence on the Real Estate Tax as a Revenue Source Subcommittees Local Tax/Free Structures Local Spending Goal: to study the City's revenue sources and taxing structure and recommend alternative tax and fee funding sources designed specifically to reduce the City's dependency on real estate tax revenues. Goal: The development of spending policies and strategies supported and defined by spending ratios and measures that guide and! or control spending within sustainable levels. This "BLUE-RIBBON" Task Force shall be comprised of two (2) Council Members, two (2) local business leaders, two (2) members of the Council of Civic Organizations, two (2) members of the General Assembly, two (2) citizen Members (one of whom has a military has a military background), and a Chairperson selected by the City Council with leadership skills and knowledge of local government.. The Task Force is to commence June 1, 2007, and conclude the study on November 30, 2007. The City Manager, and City Attorney and their staffs shall be available to the Task Force to provide research, data and guidance, as requested. Councilman Dyer discussed the concept with Attorney General Robert F. McDonnell, who concurred and advised his willingness to supply his staff support. Councilman Villanueva referenced Attorney General McDonnell's participation will be beneficial as he had assisted with the JLARC Study re taxation in Virginia. Councilman DeSteph advised attending one of the Civic League Association meetings with Council Members Wilson and Wood. This Task Force was discussed and there were two (2) individual members who were interested in being appointed. One was a dynamic Auditor for one of the local Certified Public Accountant firms in Virginia Beach. May 22, 2007 - 11 - CITY COUNCIL COMMENTS ITEM # 56439 Council Lady Henley referenced the Citywide Town Meeting scheduled for June 19, 2007, 7:30 P.M at the Virginia Beach Convention Center, re Shaping our Community and Ourselves to Protect our Waterways. Last Wednesday, May 16, 2007, a meeting was held at Creeds re the Total Maximum Daily Load (TMDL) study concerning the Southern Rivers (Nanney's Creek, West Neck Creek and Mill Dam Creek). Council Lady Henley expressed confusion re this process. Representatives of the Hampton Roads Planning District Commission and the Departmental of Environmental Quality advised the only requirement was to develop a Total Maximum Daily Load (TMDL) Plan. However, the City did not have to implement this Plan. Council Lady Henley believed once this TMDL Plan was ADOPTED, someone would amend and require implementation. The data re E. coli was questionable. Land use data from the mid 1990 's was utilized to run the models. Samples were taken in 2003. There is a tremendous swing in the minimums and maximums. All of the variables do not exist to know what might have caused the swing. When City projects are being completed, water quality must be a major concern. Priorities should be completion of the drainage projects in the older neighborhoods. Council Lady Henley expressed concern re the reason the Lynnhaven River must be "no discharge ". Why are not all waterways "no discharge ". A critical item is the manner in which the Stormwater funds are expended. This is the third year of a rate increase. There are many issues involving water quality. Water quality is a broad concept. Real specific testing should be involved. not just utilizing computer models, Charles Meyer, Chief Operating Officer, advised the focus of the Citywide Town Meeting will start to address the connections between stormwater runoff and water quality of the various bodies of water. Mr, Meyer advised the City wishes to make sure the citizens understand the connection between the residents, their behaviors in managing their properties and water quality. Mayor Oberndorf requested information be provided relative the meaning of the Total Maximum Daily Load (TMDL) Plan and its affect on the neighborhoods so the citizens will understand the benefits. ITEM # 56440 Mayor Oberndorf advised on Saturday, May 19, 2007, the dedication of the Performing Stage at 3rt Street was gifted to the City of Virginia Beach. This Stage equated to a value of $600,000 and one of the most generous gifts receivedfrom the private sector. ITEM # 56441 The 2007 Washington RedSkins Beach Blitz Weekend occurred May 18-20, 2007, and was a tremendous successful family event. May 22, 2007 - 12 - AGE N DA REV IE W S E S ION 5:14 P.M ITEM # 56442 1 Resolution to AUTHORIZE the issuance of Public Facility Revenue Bonds not to exceed $100,354,000 and $4,025,000 Taxable Public Facility Bonds re a Plan of Financing with the Virginia Beach Development Authority. A speaker has registered relative this item. ITEM # 56443 BY CONSENSUS, the following shall compose the CONSENT AGENDA: J. RESOLUTION/ORDINANCES 2. Ordinance to A UTHORIZE the City Manager to execute a lease of City-owned roperty at Sentara Way and Avenue A with ROSEMONT INTERSTATE CENTER, L.L.C., to be used as an ingress and egress point and provide parkingfor the adjacent property. 3. Ordinance to ACCEPT and APPROPRIATE $530,259 to the Clerk of the Circuit Court's FY 2006-07 Technology Trust Fund re the redaction of private information on public documents. May 22, 2007 - 13 - AGE N DA REV IE W S E S ION ITEM # 56444 5. Variance to S4,4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for ED WARD A. and KATHLEEN T. KURPIEL at 2184 Princess Anne Road re the creation of a flag lot designedfor afuture single-family dwelling. DISTRICT 7 - PRINCESS ANNE This item will be discussed during the Formal Session. Denial has been recommended for this application by the Planning Commission. ITEM # 56445 7. Application of SOUTH INDEPENDENCE ACQUISITION, L.L.C.,for a Change of Zoning District Classification from R-5D and R-I0 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay at South Independence Boulevard, Princess Anne Road and 1632 Salem Road. "Spence Farm," re 103 single-family dwellings, 347 town homes, and 230 twin townhomes and Senior Housing. DISTRICT 1 - CENTERVILLE and DISTRICT 7 - PRINCESS ANNE The applicant has requested DEFERRAL until the City Council Session of June 12, 2007. A speaker has registered in OPPOSITION. ITEM # 56446 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA K. PLANNING 1. Application of MARY K. AGRUSO for an enlargement ofa nonconforming use at 103- B 57 Y2 Street re the construction of a sunroom DISTRICT 6 - BEACH 2. Application of HARRY R. PURKEY, JR., for the discontinuance, closure and abandonment of a portion of an unimproved alley at 736 Surfside Avenue re property line extension. DISTRICT 6 - BEACH 3. Applications for extensions of time to satisfY conditions re the discontinuance, abandonment and closure at Jersey Avenue and Virginia Beach Boulevard re reservation for future development (approved by City Council on June 21, 2001, June 22, 2004, and May 23, 2006): DISTRICT 2 - KEMPSVILLE a. LOPE and MERCY PILE b. CORNELIUS F. and ANTONINA BOYNTON May 22, 2007 - 14- AGE N DA REV IE W S E S ION ITEM # 56446 (Continued) 4. Variance to ~5(b) of the Site Plan Ordinance that requires all newly created lots meet the requirements of the Floodplain Regulations for GLENN H. GETTlER, JR., at 493 Goodspeed Road re a master bedroom addition. AICUZ is less than 65 dB Ldn (Princess Anne Hills). DISTRICT 5 - LYNNHA VEN 6. Applications of VALUE PLACE REAL ESTATE SERVICES, LLC, at 1357 Diamond Springs Road DISTRICT 4 - BAYSIDE a. Modification of Proffers to allow a change of use from an office/warehouse facility to the development of a hotel (Conditional Change of Zoning approved on February 28, 2006) b. Conditional Use Permit: 12l-unit limited service hotel 7, Applications of CONNIE ONE, L.L.c., re thirteen (13) buildings withfour (4) units each at Connie Lane, Connie Way and Baker Road: DISTRICT 4 - BAYSIDE and DISTRICT 2 - KEMPSVILLE a. Discontinuance, closure and abandonment of an unimproved portion of Connie Lane to incorporate the land into the acijoin ing parcels b. Chanfle of Zoning District Classiticationfrom R-7,5 Residential District and I- 1 Light Industrial District to Conditional A-I2 Apartment District Council Lady McClanan shall vote a VERBAL NAY on Item 6 (VALUE PLACE REAL ESTATE) and Item 8 (CONNIE ONE, L.L.C.) THERE WAS NO CLOSED SESSION. City Council RECESSED FOR DINNER: 5:30 P.M. - 6:00 P.M. May 22, 2007 - 15 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL May 22, 2007 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, May 22, 2007, at 6:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Absent: John E. Uhrin [Attending: International Economic Development Council "If You Build It" Conference - Kansas City) James L. Wood [Attending Economic Development International Shopping Center Conference) INVOCATION: Reverend Clarence McPherson Pastor, Agapae International Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial'') purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council, Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm 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 will prepare 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 a part of the record. May 22, 2007 - 16 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL (Continued) 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 this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. May 22, 2007 - 17 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56447 A CLOSED SESSION was NOT NECESSARY. May 22, 2007 - 18 - Item V-F.I. MINUTES ITEM #56448 Upon motion by Councilman Dyer, seconded by Councilman DeSteph, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of May 15,2007. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 - 19 - Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56449 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION May 22, 2007 - 20- Item V-G 2. PRESENTATION ITEM 56450 Mayor Oberndorf introduced the Princess Anne High School Government Class of Diana Watson and presented each member with a City Seal. May 22, 2007 - 21 - Item V-G 3. ITEM 56451 PRESENTATION Mayor Oberndorf recognized the following Boy Scouts in attendance to fulfill requirements for his Communications and Citizenship badge. Troop 419 Alex Boykins David Wright Mayor Oberndorf presented the Scouts with a City Seal pin from the City of Virginia Beach. May 22, 2007 Item V-H.i. PUBLIC HEARING - 22- ITEM #56452 The Mayor DECLARED A PUBLIC HEARING: LEASE OF CITY-OWNED PROPERTY Rosemont Commerce Center at Sentara Way and Avenue A There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING May 22, 2007 - 23 - Item V-I.l. PUBLIC COMMENT ITEM #56453 Mayor Oberndorf INVITED PUBLIC COMMENT: TEN-YEAR PLAN FOR HOMELESSNESS Andy Friedman, Director of Housing and Neighborhood Preservation, advised the context of the Ten- Year Plan for Homelessness is the City is committed to good housing and neighborhoods for all the citizens. The United States Housing and Urban Development (HUD), as a major funding source, strongly urges the City to have a Ten-Year Plan in order to qualify for funding. . Virginia Beach has funded Homeless programs since 1984 using Federalfunds . The Lighthouse Center was established in 1995 using Federal and City funding . The community receives approximately $1-MILLION annually in Federalfundingfor homeless programs - these funds go directly to non-profits including Judeo-Christian Outreach, Samaritan House and other non-profits. . Homelessness is not contained within City boundaries . Regional cooperation on key issues is more cost effective and more effective overall. . We need a strong Virginia Beach system as part of the regional effort. . This Plan was developed in partnership with Virginia Beach's Homeless Advocacy and Resource Partnership (VBHARP) - a coalition of City agencies, non-profits and community stakeholders who work together to develop our annual plan for homelessness and to continually enhance our system. Development and implementation of the City's plan. combined with participation in regional initiatives, will help make great progress toward ending homelessness. There were approximately 453 individuals identified as "homeless". Another 400 individuals have been identified as homeless, but not meeting the Housing and Urban (HUD) definition. Carolyn McPherson, 2620 Southern Boulevard, Phone: 631-0710, Executive Director - Samaritan House, and Chair - Virginia Beach Homeless Advocacy and Resources Partnership, spoke in SUPPORT. The Advocacy and Resources Partnership is the local organization charged with helping to allocate HUD dollars and work on programs for the Homeless in the City. There being no further speakers, the Mayor CLOSED the PUBLIC COMMENT. May 22, 2007 - 24- Item v.J. RESOLUTIONS/ORDINANCES ITEM #56454 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Ordinances 2 and 3 of the CONSENT AGENDA Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 - 25 - Item v'K.1. RESOLUTION/ORDINANCES ITEM #56455 John McMullen, 504 Benhogan Dive, Phone: 499-3799, registered in OPPOSITION Patricia Phillips, Director of Finance, advised the Public Facility Revenue Bond Program has been established for over five (5) years and finances projects including the Sandler Center for the Performing Arts, the Convention Center, Open Space Program, The Aquarium Parking, rjh Street Garage, as well as several garages at Town Center, This issue of$104-MILLION is the last portion of the authorization and is the third issue of this Series, Bonds were issued in 2003, 2005 and with this last portion (2007). The Public Facility Revenue Bonds are issued by the Virginia Beach Development Authority through a support agreement with the City of Virginia Beach. Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to AUTHORIZE the issuance of Public Facility Revenue Bonds not to exceed $100,354,000 and $4,025,000 Taxable Public Facility Bonds re a Plan of Financing with the Virginia Beach Development Authority Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 RESOLUTION APPROVING A PLAN OF FINANCING WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, APPROVING CERTAIN DOCUMENTS PREPARED IN CONNECTION WITH SUCH FINANCING AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE SAME WHEREAS, the City of Virginia Beach, Virginia (the "City"), desires to undertake, in connection with the City of Virginia Beach Development Authority (the "Authority"), the financing of various public facilities from time to time, including, the replacement of the Convention Center, the construction of The Sandler Center for the Performing Arts, a pedestrian bridge and the Block 7 Conference Center, Open Space Site acquisition, the construction of the Town Center Block 7 and 10 garages, and the acquisition of a Revenue Assessment and Collection System, a City/School Human Resources Payroll System and an Automatic Vehicle Locator System (collectively, the "2007 Projects"); and WHEREAS, the Authority, pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"), under which it is created, is authorized to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance such facilities, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, in furtherance of the purposes of the Act, the City requests the Authority to undertake the 2007 Projects for the benefit of the City and to issue its Public Facility Revenue Bonds, Series 2007 A(the "Series 2007 A Bonds"), and its Taxable Public Facility Revenue Bonds, Series 2007B (the "Series 2007B Bonds" and, together with the Series 2007 A Bonds, the "Bonds"), in the maximum aggregate principal amount not to exceed $104,370,000 to finance costs incurred or to be incurred in connection with the 2007 Projects and the costs of issuing the Bonds; and WHEREAS, there have been presented to this meeting drafts of the following documents (the "Documents"), proposed in connection with the undertaking of the 2007 Projects and the issuance and sale of the Bonds: (a) Third Supplemental Agreement of Trust draft dated May 9, 2007 (the "Third Supplemental Agreement"), supplementing the Agreement of Trust dated as of September 1, 2003, as previously supplemented, including the form the Bonds (collectively, the "Trust Agreement"), all between the Authority and u.S. Bank National Association (successor to Wachovia Bank, National Association), as successor trustee (the "Trustee"), pursuant to which the Bonds are to be issued and which is to be acknowledged and consented to by the City; (b) Second Supplemental Support Agreement draft dated May 9, 2007, supplementing and amending the Support Agreement dated as of September 1, 2003, as previously supplemented and amended (the "Support Agreement"), all between the Authority and the City pursuant to which the City will make annual payments to the Authority in amounts sufficient to pay the principal of and interest on the Bonds; (c) Preliminary Official Statement draft dated May 9, 2007, of the Authority relating to the public offering of the Bonds (the "Preliminary Official Statement"); and (d) Continuing Disclosure Agreement draft May 9, 2007, pursuant to which the City agrees to undertake certain continuing disclosure obligations with respect to the Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The following plan for financing the 2007 Projects is hereby approved. The Authority will issue the Bonds in a maximum aggregate principal amount not to exceed $104,370,000. The Authority will use the proceeds of the Bonds to finance the costs of the 2007 Projects and the costs of issuing the Bonds. Pursuant to the Support Agreement, the City will make Annual Payments and Additional Payments (as each is defined in the Support Agreement) to the Authority in amounts sufficient to amortize the Bonds and to pay the fees or expenses of the Authority and the Trustee. The obligation of the Authority to pay principal of and premium, if any, and interest on the Bonds will be limited to annual payments and additional payments received from the City. The Bonds will be secured by an assignment of the Annual Payments and certain Additional Payments due under the Support Agreement, all for the benefit of the holders of the Bonds. The undertaking by the City to make Annual Payments and Additional Payments will be subject to the City Council making annual appropriations in amounts sufficient for such purposes. The plan of financing for the 2007 Projects shall contain such additional requirements and provisions as may be approved by the City. 2. The City Council, while recognizing that it is not empowered to make any binding commitment to make appropriations beyond the current fiscal year, hereby states its intent to make annual appropriations in future fiscal years in amounts sufficient to make all payments due under the Support Agreement and hereby recommends that future City Councils do likewise during the term of the Support Agreement. 3. The City Manager is hereby authorized and directed to execute the Documents (except for the Preliminary Official Statement), which shall be in substantially the forms submitted to this meeting, which are hereby approved, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager, his execution to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 4. (a) In making completions to the Support Agreement, the City Manager, in collaboration with Government Finance Associates, Inc. and ARD Government Finance Group, the City's financial advisors (the "Financial Advisors"), shall provide for Annual Payments in amounts equivalent to the payments on the Series 2007 A Bonds and the Series 2007B Bonds, which shall be sold to the purchaser thereof on terms as shall be satisfactory to the City Manager; provided that the Annual Payments shall be equivalent to (i) the Series 2007 A Bonds maturing in 2 installments ending not later than in 2027; having a true or "Canadian" interest cost not exceeding 6.50% (taking into account any original issue discount); and being sold to the purchaser thereof at a price not less than 99% of the aggregate principal amount thereof (without taking into account any original issue discount or premium) and (ii) the Series 2007B Bonds maturing in installments ending not later than in 2027; having a true or "Canadian" interest cost not exceeding 7.25% (taking into account any original issue discount); and being sold to the purchaser thereof at a price not less than 99% of the aggregate principal amount thereof (without taking into account any original issue discount or premium). The City Manager is also authorized to approve the principal amount of the Series 2007 A Bonds, which shall be the tax- exempt portion of the Bonds, and the principal amount of the Series 2007B Bonds, which shall be the taxable portion of the Bonds as the City Manager shall determine to be in the best interest of the City. The City Manager is further authorized to approve the maturity schedules, including serial maturities and term maturities, for each of the Series 2007 A Bonds and Series 2007B Bonds as the City Manager shall determine to be in the best interest of the City. (b) The Bonds shall be sold by competitive bid in the principal amount determined by the City Manager, in collaboration with the Financial Advisors, and the City Manager shall receive bids for the Bonds and award the Bonds to the bidder providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in the paragraph above. Following the sale of the Series 2007 A Bonds and the Series 2007B Bonds, the City Manager shall file a certificate with the City Clerk setting forth the final terms of the Series 2007 A Bonds and the Series 2007B Bonds. The actions of the City Manager in approving the terms of the Series 2007 A Bonds and the Series 2007B Bonds shall be conclusive, and no further action shall be necessary on the part of the City Council. 5. The Preliminary Official Statement in the form presented to this meeting is approved with respect to the information contained therein pertaining to the City. The purchaser or purchasers of the Bonds is authorized to distribute to prospective purchasers of the Bonds the Preliminary Official Statement in form deemed to be "near final," within the meaning of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"), with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager. Such distribution shall constitute conclusive evidence that the City has deemed the Preliminary Official Statement to be final as of its date within the meaning of the Rule, with respect to the information therein pertaining to the City. The City Manager is authorized and directed to approve such completions, omissions, insertions and other changes to the Preliminary Official Statement that are necessary to reflect the terms of the sale of the Bonds, determined as set forth in paragraph 4, and the details thereof and that are appropriate to complete it as an official statement in final form (the "Official Statement") and distribution thereof by the purchaser or purchasers of the Bonds shall constitute conclusive evidence that the City has deemed the Official Statement final as of its date within the meaning of the Rule. 6. The City covenants that it shall not take or omit to take any action the taking or omission of which shall cause the Series 2007 A Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations thereunder, or otherwise cause interest on the Series 2007 A Bonds to be includable in the gross income for Federal income tax purposes of the registered owners thereof under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision 3 of law that may require the City at any time to rebate to the United States of America any part of the earnings derived from the investment of the gross proceeds of the Series 2007 A Bonds. The City shall pay from its legally available general funds any amount required to be rebated to the United States of America pursuant to the Code. 7. Any authorization herein to execute a document shall include authorization to deliver it to the other parties thereto and to record such document where appropriate. 8. All other acts of the City Manager, the Director of Finance and other officers of the City that are in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds and the undertaking of the 2007 Projects are hereby approved and ratified. 9. This Resolution shall take effect immediately. ADOPTED: May 22, 2007 4 EXHIBIT A DESCRIPTION OF SERIES 2007 PROJECTS The following sets forth brief descriptions of the Series 2007 Projects to be financed in whole or in part with the proceeds of the Series 2007 Bonds: Convention Center Replacement - This project provides for the replacement and relocation of the existing pavilion convention center on the same site. It will provide for approximately 150,000 square feet of exhibit hall, 25,000 square feet of meeting rooms and 32,000 square feet of ballroom space. The cost of this project is approximately $206,844,513. The Sandler Center for the Performing Arts - This project provides for the replacement and demolition of the former Pavilion Theatre, and the acquisition of land at the Town Center development for the new performing arts center. The cost of this project is approximately $46,700,000. Town Center Garage Block 10 - This project is for the construction of an approximate 851 space parking garage located in the Town Center district of the City. The cost of this project is approximately $14,145,245. Town Center Garage Block 7 - This project is for the construction of an approximate 947 space parking garage located in the Town Center district of the City, of which 735 parking spaces will be used by the City. The cost ofthis project is approximately $17,751,060. Block 7 Conference Center - This project is for the construction of a conference center on Town Center Block 7. The conference center will be approximately 24,000 square feet, which includes a 9,000 square foot ballroom. Total estimated cost of this project is approximately $8,645,604. Pedestrian Bridge - This project is for the construction of a pedestrian bridge to connect the public parking garage located on Town Center Block 12 to the public parking garage located on Town Center Block 7 and will span across Columbus Street. The bridge is 130 feet long and 10 feet wide. Total estimated cost ofthis project is approximately $1,805,000. Open Space Site Acquisition - This project provides for the acquisition of land for preservation and/or recreational purposes. Acquisition may include areas to remain in a natural state, land to be improved as parks and active recreation facilities, land to preserve flood plains and/or act as storm water management facilities and land to use for right-of-way to improve as trails. The cost of this project is approximately $49,494,757. Revenue Assessment and Collection System - This project provides for a comprehensive, fully integrated tax system to replace the computer systems currently used to support tax revenue assessment and collection. The cost of this project is approximately $11,480,900. City/School Human Resources Payroll System - This project replaces the City's ten year old payroll system with a new information system utilizing current network infrastructure. The cost of this project is approximately $9,648,061. Automatic Vehicle Locator System - This project will provide for hardware and software to be installed in the Emergency Communications Center and a GPS device to be installed in each first responder's public safety vehicle, which will report the vehicle's location to the Emergency Communications Center. The cost of this project is approximately $1,313,500. SECOND SUPPLEMENTAL SUPPORT AGREEMENT between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and CITY OF VIRGINIA BEACH, VIRGINIA Dated as of June 1,2007 NOTE: THIS SECOND SUPPLEMENTAL SUPPORT AGREEMENT HAS BEEN ASSIGNED TO, AND IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE UNDER AN AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, A SECOND SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF MAY 1,2005, AND A THIRD SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF JUNE 1,2007, WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT RICHMOND, VIRGINIA. TABLE OF CONTENTS Page Parties......................................................................................................................... ......................1 Recitals...................................................................................................................... .......................1 Granting Clauses....................................................................................................................... .......1 ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions....................................................................................................................2 Section 1.2 Rules of Construction. ................ ........................... .............................. ............. ...........3 ARTICLE II REPRESENTATIONS Section 2.1 Representations by Authority. ........ .............. ........................ ................ .......................3 Section 2.2 Representations by City. ..... ............. ................................ ...................... ........... ...........4 ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2007 Bonds. ......................................................................5 ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable. ........................................................................................................5 ARTICLE V PREP A YMENT AND REDEMPTION Section 5.1 Prepayment and Redemption. .. ............. ....................... ............. ............. .................. ....5 ARTICLE VI SERIES 2007 ARBITRAGE REBATE FUND Section 6.1 Series 2007 Arbitrage Rebate Fund. ............................................................................6 Section 6.2 Rebate Requirement. ....................................................................................................6 Section 6.3 Calculation and Report of Rebate Amount. .................................................................6 Section 6.4 Payment of Rebate Amount. ........................... ................................................... .......... 7 Section 6.5 Reports by Trustee. ...................................................................................................... 7 Section 6.6 Disposition of Balance in Series 2007 Arbitrage Rebate Fund. ..................................7 (i) ARTICLE VII MISCELLANEOUS Section 7.1 Private Activity Covenants. .. .... ............................................. ................. ................. ....8 Section 7.2 Severability.................................................................................................................. 8 Section 7.3 Successors and Assigns... ................. .............................. .................... ..................... .....8 Section 7.4 Counterparts................................................................................................................. 8 Section 7.5 Governing Law. ...........................................................................................................8 Signatures..................................................................................................................... ....................9 Receipt....................................................................................................................... ....................10 Exhibit A - Schedule of Payments............................................................................................. . A-I Exhibit B - Description of Series 2007 Projects ..........................................................................B-l (ii) THIS SECOND SUPPLEMENTAL SUPPORT AGREEMENT dated as of June 1, 2007, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision ofthe Commonwealth of Virginia (the "City"), provides: W I I N .E .s. .s. .E I H: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Act authorities the Authority to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance and lease facilities for use by, among others, a city, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, the City desires to undertake a program of financing or refinancing the acquisition, construction and equipping of various public facilities that the City determines to undertake from time to time; and WHEREAS, in furtherance of the purposes of the Act, the City has requested the Authority to undertake one or more series of Projects (as defined in the Support Agreement, as hereinafter defined), and the Authority has determined to issue from time to time pursuant to the terms of an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), between the Authority and U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as successor trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, and a Third Supplemental Agreement of Trust dated as of June 1, 2007, all between the Authority and the Trustee (collectively, the "Agreement of Trust"), its public facility revenue bonds and to loan the proceeds thereof to the City to finance or refinance costs incurred in connection with such Projects and costs of issuing such bonds; and WHEREAS, in furtherance of the purposes of the Act, the Authority and the City have entered into a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005 (the "Master Support Agreement"), pursuant to which the Authority has agreed to loan from time to time such proceeds to the City, and the City has agreed to repay such loans, subject to appropriation by the City Council from time to time of sufficient moneys for such purpose; and WHEREAS, within the limitations and in compliance with the Agreement of Trust, the City has requested the Authority to issue two series of Bonds in the aggregate principal amount of $ (the "Series 2007 Bonds") and to loan such proceeds to the City to finance the costs of the Series 2007 Projects (as hereinafter defined) pursuant to the terms of this Second Supplemental Support Agreement; and WHEREAS, all acts, conditions and things required by law to happen, exist and be performed precedent to and in connection with the execution of and entering into this Second Supplemental Support Agreement have happened, exist and have been performed in regular and due time and in form and manner as required by law, and the parties hereto are now duly empowered to execute and enter into this Second Supplemental Support Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other valuable consideration, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions. Unless otherwise defined in this Second Supplemental Support Agreement, all words used herein shall have the meanings assigned to such terms in the Agreement of Trust or the Master Support Agreement. The following words as used in this Second Supplemental Support Agreement shall have the following meanings unless a different meaning clearly appears from the context: "Agreement of Trust" shall mean the Agreement of Trust dated as of September 1, 2003, as previously supplemented, and as further supplemented by the Third Supplemental Agreement of Trust. "Basic Agreements" shall mean the Agreement of Trust and the Support Agreement. "First Supplemental Support Agreement" shall mean the First Supplemental Support Agreement dated as of May 1,2005, between the Authority and the City, which supplements the Master Support Agreement. "Master Support Agreement" shall mean the Support Agreement dated as of September 1, 2003, between the Authority and the City. "Second Supplemental Support Agreement" shall mean this Second Supplemental Support Agreement dated as of June 1, 2007, between the Authority and the City, which supplements the Master Support Agreement. "Series 2007 Bonds" shall mean the Series 2007 A Bonds and the Series 2007B Bonds. "Series 2007 Projects" shall mean the financing of the acquisition, construction and equipping of all or a portion of the projects as set forth on Exhibit B. "Series 2007 A Arbitrage Rebate Fund" shall mean the fund established in Section 6.1. 2 "Series 2007A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds, Series 2007 A, authorized to be issued pursuant to the Third Supplemental Agreement of Trust. "Series 2007B Bonds" shall mean the Authority's $ Taxable Public Facility Revenue Bonds, Series 2007B, authorized to be issued pursuant to the Third Supplemental Agreement of Trust. "Support Agreement" shall mean the Master Support Agreement as previously supplemented and amended and as supplemented and amended by this Second Supplemental Support Agreement. "Third Supplemental Agreement of Trust" shall mean the Third Supplemental Agreement of Trust dated as of June 1, 2007, between the Authority and the Trustee, which supplements the Agreement of Trust. Section 1.2 Rules of Construction. The following rules shall apply to the construction of this Second Supplemental Support Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Bonds shall not be deemed to refer to or connote the payment of Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Second Supplemental Support Agreement. (d) The headings herein and Table of Contents to this Second Supplemental Support Agreement herein are solely for convenience of reference and shall not constitute a part of this Second Supplemental Support Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Bonds are references to payment of principal of and premium, if any, and interest on the Bonds. ARTICLE II REPRESENTATIONS Section 2.1 Representations by Authority. The Authority makes the following representations: (a) The Authority is a political subdivision of the Commonwealth of Virginia duly created under the Act; 3 (b) Pursuant to the Act, the Authority has full power and authority to enter into the Basic Agreements and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements. (c) The execution, delivery and compliance by the Authority with the terms and conditions of the Basic Agreements will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the Authority, or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or other restriction of any kind to which the Authority or any of its assets is subj ect; (d) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the Authority with the terms and conditions of the Basic Agreements, except that no representation is made as to the applicability of any Federal or state securities laws; and (e) There is no litigation at law or in equity or any proceeding before any governmental agency involving the Authority pending or, to the knowledge of the Authority, threatened with respect to (1) the creation and existence of the Authority, (2) its authority to execute and deliver the Basic Agreements, (3) the validity or enforceability of the Basic Agreements, or the Authority's performance of its obligations thereunder, (4) the title of any officer of the Authority executing the Basic Agreements, or (5) the ability of the Authority to issue and sell its bonds. Section 2.2 Representations by City. The City makes the following representations: (a) The City is a political subdivision ofthe Commonwealth of Virginia; (b) The City has full power and authority to enter into the Basic Agreements to which it is a party and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements; (c) The City is not in default in the payment of the principal of or interest on any of its indebtedness for borrowed money and is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in an event of default thereunder; (d) The City is not in default under or in violation of, and the execution, delivery and compliance by the City with the terms and conditions of the Basic Agreements to which it is a party will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the City or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or 4 restriction of any kind to which the City or any of its assets is subject, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in such a default or violation; (e) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the City with the terms and conditions of the Basic Agreements to which it is a party; and (t) There is no litigation at law or in equity or any proceeding before any governmental agency involving the City pending or, to the knowledge of the City, threatened with respect to (1) the authority of the City to execute and deliver the Basic Agreements to which it is a party, (2) the validity or enforceability of the Basic Agreements or the City's performance of its obligations thereunder, (3) the title of any officer of the City executing the Basic Agreements, or (4) the ability of the City to undertake the Series 2007 Projects. ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2007 Bonds. The Authority shall contemporaneously with the execution and delivery hereof proceed with the issuance and sale of the Series 2007 Bonds bearing interest, maturing and having the other terms and provisions set forth in the Agreement of Trust. ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable. The Master Support Agreement is hereby amended to replace in its entirety the Exhibit A attached thereto with the new Exhibit A attached hereto. Pursuant to Article IV of the Master Support Agreement and subject specifically to the limitation of Section 4.4 thereof, the City shall pay to the Authority or its assignee the Annual Payments specified in Exhibit A attached hereto on or before the due dates set forth in such exhibit. The Annual Payments shall be payable without notice or demand at the designated corporate trust office of the Trustee. ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1 Prepayment and Redemption. The City shall have the option to prepay any Annual Payment at the times and in the amounts as necessary to exercise its option to cause the Series 2007 Bonds to be redeemed as set 5 forth in such Series 2007 Bonds. Such prepayments of Annual Payments shall be made at the times and in the amounts as necessary to accomplish the optional redemption of the Series 2007 Bonds as set forth in the Series 2007 Bonds. The Series 2007 Bonds shall be prepaid or redeemed in the manner and at the times set forth in the Series 2007 Bonds. Upon the exercise of such option, the City shall also pay as Additional Payments, the amounts necessary to pay the premium, if any, due on such Series 2007 Bonds on the date or dates of their redemption. The City shall give the Trustee notice of any redemption of such Series 2007 Bonds at least 15 days prior to the latest date that notice of redemption may be given pursuant to Section 402 of the Master Agreement of Trust. Such notice to the Trustee shall specify the redemption date, the principal amount of Series 2007 Bonds to be redeemed, the premium, if any, and the section of the Agreement of Trust pursuant to which such redemption is to be made. ARTICLE VI SERIES 2007 A ARBITRAGE REBATE FUND Section 6.1 Series 2007 A Arbitrage Rebate Fund. There is hereby established the City of Virginia Beach, Virginia, Series 2007 A Public Facility Revenue Bond Arbitrage Rebate Fund (the "Series 2007 A Arbitrage Rebate Fund") to be held by or on behalf of the City. Subject to the limitation in Section 4.4 of the Master Support Agreement, the City shall deposit moneys in the Series 2007 A Arbitrage Rebate Fund from time to time for payment of the rebate obligations under the Code (the "Rebate Amount"). The City may establish separate accounts in the Series 2007 A Arbitrage Rebate Fund for such payments. Section 6.2 Rebate Requirement. Except with respect to earnings on funds and accounts qualifying for exceptions to the rebate requirement of Section 148 of the Code, the City shall pay, but solely from amounts in the Series 2007A Arbitrage Rebate Fund, the Rebate Amount to the United States of America, as and when due, in accordance with Section 148(f) of the Code, as provided in this Article, and shall retain records of all such determinations until six years after payment of the Series 2007 A Bonds. Section 6.3 Calculation and Report of Rebate Amount. (a) The City selects July 15 as the end of the bond year with respect to the Series 2007 A Bonds pursuant to Treasury Regulation Section 1.148-1. (b) Within 30 days after the initial installment computation date which is the last day of the fifth bond year, unless such date is changed by the City prior to the date that any amount with respect to the Series 2007 A Bonds is paid or required to be paid to the United States of America as required by Section 148 of the Code, and at least once every five years thereafter, the City shall cause the Rebate Amount to be computed and shall deliver a copy of such computation (the "Rebate Amount Certificate") to the Authority and the Trustee. Prior to any payment of the Rebate Amount to the United States of America as required by Section 148 of the Code, a Rebate Amount Certificate setting forth such Rebate Amount shall be prepared or approved by (1) a 6 person with experience in matters of governmental accounting for Federal income tax purposes or (2) a bona fide arbitrage rebate calculation reporting service. Section 6.4 Payment of Rebate Amount. Not later than 60 days after the initial installment computation date, the City shall pay solely from amounts in the Series 2007 A Arbitrage Rebate Fund to the United States of America at least 90% of the Rebate Amount as set forth in the Rebate Amount Certificate prepared with respect to such installment computation date. At least once on or before 60 days after the installment computation date that is the fifth anniversary of the initial installment computation date and on or before 60 days after every fifth anniversary date thereafter until final payment of the Series 2007A Bonds, the City shall pay to the United States of America not less than the amount, if any, by which 90% of the Rebate Amount set forth in the most recent Rebate Amount Certificate exceeds the aggregate of all such payments theretofore made to the United States of America pursuant to this Section. On or before 60 days after final payment of the Series 2007 A Bonds, the City shall pay to the United States of America the amount, if any, by which 100% of the Rebate Amount set forth in the Rebate Amount Certificate with respect to the date of final payment of the Series 2007 A Bonds exceeds the aggregate of all payments theretofore made pursuant to this Section. All such payments shall be made solely from amounts in the Series 2007 A Arbitrage Rebate Fund. Notwithstanding any provision of the Support Agreement to the contrary, no such payment shall be made if the City receives and delivers to the Trustee and the Authority an opinion of Bond Counsel to the effect that (a) such payment is not required under the Code in order to prevent the Series 2007 A Bonds from becoming "arbitrage bonds" within the meaning of Section 148 of the Code or (b) such payment should be calculated and paid on some alternative basis under the Code, and the City complies with such alternative basis. The Authority covenants that, if so requested by the City, it shall execute any form required to be signed by an issuer of tax-exempt bonds in connection with the payment of any Rebate Amount (including Internal Revenue Service Form 8038-T) based on information supplied to the Authority by the City. The City shall supply all information required to be stated on such form and shall prepare such form. Except for the execution and delivery of such form upon timely presentation by the City, the Authority shall have no responsibility for such form or the information stated thereon. Section 6.5 Reports by Trustee. The Trustee shall provide the City within 10 days after each July 15 and within 10 days after the final payment of the Series 2007 Bonds with such reports and information with respect to earnings of amounts held under the Agreement of Trust as may be requested by the City in order to comply with the provisions of this Article. Section 6.6 Disposition of Balance in Series 2007 A Arbitrage Rebate Fund. After each payment required in Section 6.4 is made and any additional amount necessary to pay the full rebate obligation is retained, the remaining amount in the Series 2007 Arbitrage Rebate Fund shall be retained by the City and used for any lawful purpose. 7 ARTICLE VII MISCELLANEOUS Section 7.1 Private Activity Covenants. The City covenants not to permit the proceeds of the Series 2007 A Bonds to be used in any manner that would result in (a) 5% or more of such proceeds or the facilities financed with such proceeds being used in a trade or business carried on by any person other than a governmental unit, as provided in Section 141 (b) of the Code, (b) 5% or more of such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water), within the meaning of Section 141 (b)( 4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(c) of the Code; provided, however, that if the City receives an opinion of Bond Counsel that any such covenants need not be complied with to prevent the interest on the Series 2007 A Bonds from being includable in the gross income for Federal income tax purposes under existing law, the City need not comply with such covenants. Section 7.2 Severability. If any provision of this Second Supplemental Support Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. Section 7.3 Successors and Assigns. This Second Supplemental Support Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 7.4 Counterparts. This Second Supplemental Support Agreement may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute but one and the same instrument. Section 7.5 Governing Law. This Second Supplemental Support Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. 8 IN WITNESS WHEREOF, the parties have caused this Second Supplemental Support Agreement to be duly executed by their duly authorized representatives as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By: Chairman CITY OF VIRGINIA BEACH, VIRGINIA By: City Manager Seen and agreed to: U.S. BANK NATIONAL ASSOCIATION, as successor Trustee By Title 9 RECEIPT Receipt of the foregoing original counterpart of the Second Supplemental Support Agreement dated as of June 1,2007, between the City of Virginia Beach Development Authority and the City of Virginia Beach, Virginia, is hereby acknowledged. U.S. BANK, NATIONAL ASSOCIATION, as successor Trustee By Title 10 < -I ~ ~ ~ ~ ~ e = ~ ~ ~ ~ ~ ~ 00 ~ ~ ~ 0 t ~ ~ ~ = ~ ~ ~ ~ ~ ~ J 00 ; 'C ~ ~ 00 ~ ~I =~ ~~ ... J ~ ~ = 00 ~ ~ z 00 ~ ~ ~ ~ ~ ~ 0 t < ~ ~ ~ ~ < = ~ ~ ~ 0 ~ ~ ~ ~ J 00 ~ ; ~ Q ~ ~ 'C = 00 ~ u 00 ~ ~I =~ ~~ ... 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It will provide for approximately 150,000 square feet of exhibit hall, 25,000 square feet of meeting rooms and 32,000 square feet ofbalIroom space. The cost of this project is approximately $206,844,513. The Sandler Center for the Performing Arts - This project provides for the replacement and demolition of the former Pavilion Theatre, and the acquisition of land at the Town Center development for the new performing arts center. The cost of this project is approximately $46,700,000. Town Center Garage Block 10 - This project is for the construction of an approximate 851 space parking garage located in the Town Center district of the City. The cost of this project is approximately $14,145,245. Town Center Garage Block 7 - This project is for the construction of an approximate 947-space parking garage located in the Town Center district of the City, of which 735 parking spaces will be used by the City. The cost of this project is approximately $17,751,060. Block 7 Conference Center - This project is for the construction of a conference center on Town Center Block 7. The conference center will be approximately 24,000 square feet, which includes a 9,000 square foot ballroom. Total estimated cost of this project is approximately $8,645,604. Pedestrian Bridge - This project is for the construction of a pedestrian bridge to connect the public parking garage located on Town Center Block 12 to the public parking garage located on Town Center Block 7 and will span across Columbus Street. The bridge is 130 feet long and 10 feet wide. Total estimated cost of this project is approximately $1,805,000. Open Space Site Acquisition - This project provides for the acquisition of land for preservation and/or recreational purposes. Acquisition may include areas to remain in a natural state, land to be improved as parks and active recreation facilities, land to preserve flood plains and/or act as storm water management facilities and land to use for right-of-way to improve as trails. The cost ofthis project is approximately $49,494,757. Revenue Assessment and Collection System - This project provides for a comprehensive, fully integrated tax system to replace the computer systems currently used to support tax revenue assessment and collection. The cost of this project is approximately $11,480,900. City/School Human Resources Payroll System - This project replaces the City's ten year old payroll system with a new information system utilizing current network infrastructure. The cost ofthis project is approximately $9,648,061. B-1 Automatic Vehicle Locator System - This project will provide for hardware and software to be installed in the Emergency Communications Center and a GPS device to be installed in each first responder's public safety vehicle, which will report the vehicle's location to the Emergency Communications Center. The cost of this project is approximately $1,313,500. B-2 22764.000272 RICHMOND 2010794v4 THIRD SUPPLEMENTAL AGREEMENT OF TRUST between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and U.s. BANK NATIONAL ASSOCIATION, as successor Trustee Dated as of June 1, 2007 TABLE OF CONTENTS Parties......................................................................................................................... ..................... 1 Recitals...................................................................................................................... .......................1 Granting Clause......................................................................................................................... .......1 ARTICLE I THIRD SUPPLEMENTAL AGREEMENT Section 3-101. Authorization of Third Supplemental Agreement. ..................................................2 Section 3-102. Definitions....... ...... .... ............. ......................... ................................ ....... ........ ..........2 Section 3-103. Rules of Construction. ........... ......................... .... .............................. ............. ..........3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2007 BONDS Section 3-201. Authorization of Series 2007 Bonds and Series 2007 Projects................................3 Section 3-202. Details of Series 2007 Bonds...... .......................... ...... ........................ ...... ..... ..... .....3 Section 3-203. Form of Series 2007 Bonds....... ............................ ............... ..... ....................... ..... ...5 Section 3-204. Securities Depository Provisions. ........................... ........... ....... .................... ...........5 Section 3-205. Delivery of Series 2007 Bonds. ...............................................................................6 ARTICLE III REDEMPTION OF SERIES 2007 BONDS Section 3-301. Redemption Date and Price. ................. .... .... ................ ........................... ................6 Section 3-302. Selection of Series 2007 Bonds for Redemption. ....................................................6 Section 3-303. Notice of Redemption. ..... ......... ....... ....................... ........... ....... .......... ......... ......... ...6 ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2007 BONDS Section 3-401. Application of Proceeds of Series 2007 Bonds........................................................ 7 ARTICLE V ESTABLISHMENT OF ACCOUNT Section 3-501. Series 2007 A Project Account. ................................................................................8 Section 3-502. Series 2007B Project Account. ................... ................................................. ....... .....8 (i) ARTICLE VI SECURITY FOR SERIES 2007 BONDS Section 3-601. Security for Series 2007 Bonds................................................................................8 ARTICLE VII MISCELLANEOUS Section 3-701. Limitations on Use of Proceeds. ..............................................................................8 Section 3-702. Limitation of Rights. ............ ......................... ........................ ........................... ..... ...9 Section 3 - 703. Severability. .............................................................................................................9 Section 3-704. Successors and Assigns.......... ..................... .................. ...... ................ ........... ....... ...9 Section 3-705. Applicable Law. ........... ......... ....................... ................ .......... ............. .......... ....... ....9 Section 3-706. Counterparts. .......................... ....................... .................... ....... ...... ...... ....... ..... ..... ...9 Signatures...................................................................................................................... .................10 Exhibit A - Form of Series 2007 A Bond .................................................................................... A-I Exhibit B - Form of Series 2007B Bond.... ........... .......... .......................... ......... ............ ....... .......B-l (ii) This THIRD SUPPLEMENTAL AGREEMENT OF TRUST dated as of June 1, 2007, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and U.s. BANK NATIONAL ASSOCIATION (as successor to Wachovia Bank, National Association), a national banking association, having a corporate trust office in Richmond, Virginia, as trustee (in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Authority and the Trustee have entered into an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, and a Second Supplemental Agreement of Trust dated as of May 1,2005, pursuant to which the Authority has agreed to issue from time to time public facility revenue bonds or notes and use the proceeds thereof to finance costs incurred in connection with certain Projects (as hereinafter defined) for the benefit of the City of Virginia Beach, Virginia (the "City"); and WHEREAS, within the limitations of and in compliance with the Master Agreement of Trust, the City has requested the Authority to issue two series of public facility revenue bonds to finance the costs of the Series 2007 Projects (as hereinafter defined); and WHEREAS, the Authority has agreed to issue the Series 2007 Bonds (as hereinafter defined) in the aggregate principal amount of $ , secured by a pledge of the revenues and receipts derived from a Support Agreement dated as of September 1,2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005, and a Second Supplemental Support Agreement dated as of June 1,2007 (the "Support Agreement"), between the Authority and the City, and the City has agreed, subject to the annual appropriation by the Council of the City, to make annual payments that will be sufficient to pay the principal of and premium, if any, and interest on such public facility revenue bonds as the same shall become due; and WHEREAS, the Authority has taken all necessary action to make the Series 2007 Bonds, when authenticated by the Trustee and issued by the Authority, valid and binding limited obligations of the Authority and to constitute this Third Supplemental Agreement a valid and binding agreement authorizing and providing for the details of the Series 2007 Bonds; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows: ARTICLE I THIRD SUPPLEMENTAL AGREEMENT Section 3-101. Authorization of Third Supplemental Agreement. This Third Supplemental Agreement is authorized and executed by the Authority and delivered to the Trustee pursuant to and in accordance with Articles In and X of the Master Agreement of Trust. All terms, covenants, conditions and agreements of the Master Agreement of Trust shall apply with full force and effect to the Series 2007 Bonds and to the holders thereof, except as otherwise provided in this Third Supplemental Agreement. Section 3-102. Definitions. Except as otherwise defined in this Third Supplemental Agreement, words defined in the Master Agreement of Trust are used in this Third Supplemental Agreement with the meanings assigned to them in the Master Agreement of Trust. In addition, the following words shall have the following meanings unless a different meaning clearly appears from the context: "Letter of Representations" shall mean the Blanket Letter of Representations dated July 11, 1997, from the Authority to the Securities Depository and any amendments thereto or successor agreements between the Authority and any successor Securities Depository with respect to the Series 2007 Bonds. Notwithstanding any provision of the Master Agreement of Trust, including Article X regarding amendments, the Trustee may enter into any such amendment or successor agreement without the consent of Bondholders. "Project" or "Projects" shall have the meaning set forth in the Support Agreement. "Securities Depository" shall mean The Depository Trust Company, a corporation organized and existing under the laws of the State of New York, and any other securities depository for the Series 2007 Bonds appointed pursuant to Section 1.204, and their successors. "Series 2007 Bonds" shall mean the Series 2007 A Bonds and the Series 2007B Bonds. "Series 2007 Projects" shall mean have the meaning set forth in the Support Agreement. "Series 2007A Bonds" shall mean Authority's $ Public Facility Revenue Bonds, Series 2007 A, authorized to be issued pursuant to this Third Supplemental Agreement. "Series 2007 A Project Account" shall mean the Series 2007 A Project Account established in Section 3.501 ofthis Third Supplemental Agreement. "Series 2007B Bonds" shall mean Authority's $ Taxable Public Facility Revenue Bonds, Series 2007B, authorized to be issued pursuant to this Third Supplemental Agreement. "Series 2007B Project Account" shall mean the Series 2007B Project Account established in Section 3.502 of this Third Supplemental Agreement. 2 "Third Supplemental Agreement" shall mean this Third Supplemental Agreement of Trust between the Authority and the Trustee, which supplements and amends the Master Agreement of Trust. Section 3-103. Rules of Construction. The following rules shall apply to the construction of this Third Supplemental Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Series 2007 Bonds shall not be deemed to refer to or connote the payment of Series 2007 Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Third Supplemental Agreement. (d) The headings herein and Table of Contents to this Third Supplemental Agreement herein are solely for convenience of reference and shall not constitute a part of this Third Supplemental Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Series 2007 Bonds are references to payment of principal of and interest on the Series 2007 Bonds. ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2007 BONDS Section 3-201. Authorization of Series 2007 Bonds and Series 2007 Projects. There are hereby authorized to be issued the Series 2007 A Bonds in an aggregate principal amount of $ and the Series 2007B Bonds in an aggregate principal of $ to (a) finance the Cost of the Series 2007 Proj ects and (b) finance costs incident to issuing the Series 2007 Bonds, in accordance with Article IV hereof. Section 3-202. Details of Series 2007 Bonds. (a) The Series 2007 A Bonds shall be designated "Public Facility Revenue Bonds, Series 2007A," shall be the date oftheir delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be numbered R-l upward. The Series 2007A Bonds shall bear interest at rates, payable semiannually on each January 15, and July 15, beginning January 15,2008, and shall mature in installments on July 15 in years and amounts, as follows: Year Amount Rate Year Amount Rate 3 (b) The Series 2007B Bonds shall be designated "Taxable Public Facility Revenue Bonds, Series 2007B," shall be the date of their delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be numbered R-l upward. The Series 2007B Bonds shall bear interest at rates, payable semiannually on each January 15, and July 15, beginning January 15, 2008, and shall mature in installments on July 15 in years and amounts, as follows: Year Amount Rate Year Amount Bm (c) Each Series 2007 Bond shall bear interest (a) from its date, if such Series 2007 Bond is authenticated prior to the first interest payment date, or (b) otherwise from the interest payment date that is, or immediately precedes, the date on which such Series 2007 Bond is authenticated; provided, however, that if at the time of authentication of any Series 2007 Bond payment of interest is in default, such Series 2007 Bond shall bear interest from the date to which interest has been paid. Interest shall be calculated on the basis of a 360-day year of twelve 30- day months. (d) Principal of the Series 2007 Bonds shall be payable to the registered holder(s) upon the surrender of Series 2007 Bonds at the corporate trust office of the Trustee in Richmond, Virginia. Interest on the Series 2007 Bonds shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Trustee on the first day of the month of each interest payment date; provided, however, if the Series 2007 Bonds are registered in the name of a Securities Depository or its nominee as registered holder or at the option of a registered holder( s) of at least $1,000,000 of Series 2007 Bonds, payment shall be made by wire transfer pursuant to the wire instructions received by the Trustee from such registered holder(s). If the nominal date for making any payment on the Series 2007 Bonds is not a Business Day, the payment may be made on the next Business Day with the same effect as 4 if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest shall be payable in lawful money of the United States of America. Section 3-203. Form of Series 2007 Bonds. The Series 2007 A Bonds shall be in substantially the form set forth in Exhibit A and the Series 20007B Bonds shall be in substantially the form set forth in Exhibit B, with such appropriate variations, omissions and insertions as are permitted or required by the Master Agreement of Trust and this Third Supplemental Agreement. Section 3-204. Securities Depository Provisions. Initially, one certificate for each maturity of each Series of the Series 2007 Bonds will be issued and registered to the Securities Depository, or its nominee. The Authority has entered into a Letter of Representations relating to a book-entry system to be maintained by the Securities Depository with respect to the Series 2007 Bonds. In the event that (a) the Securities Depository determines not to continue to act as a securities depository for the Series 2007 Bonds by giving notice to the Trustee and the Authority discharging its responsibilities hereunder or (b) the Authority, at the direction of the City, determines (1) that beneficial owners of Series 2007 Bonds shall be able to obtain certificated Series 2007 Bonds or (2) to select a new Securities Depository, then the Trustee shall, at the direction of the Authority, attempt to locate another qualified securities depository to serve as Securities Depository or authenticate and deliver certificated Series 2007 Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Exhibit A or Exhibit B, as applicable; provided, however, that such form shall provide for interest on the Series 2007 Bonds to be payable (i) from , 2007, if it is authenticated prior to January 15, 2008, or (ii) otherwise from the January 15 or July 15 that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case interest on such Series 2007 Bonds shall be payable from the date to which interest has been paid). In delivering certificated Series 2007 Bonds, the Trustee shall be entitled to rely conclusively on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Series 2007 Bonds will be registrable, transferable and exchangeable as set forth in Sections 204 and 205 of the Master Agreement of Trust. So long as there is a Securities Depository for the Series 2007 Bonds (A) it or its nominee shall be the registered holder(s) of the Series 2007 Bonds, (B) notwithstanding anything to the contrary in this Third Supplemental Agreement, determinations of persons entitled to payment of principal and interest, transfers of ownership and exchanges and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (C) the Authority and the Trustee shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (D) references in this Third Supplemental Agreement to registered holder(s) of the Series 2007 Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the 5 Series 2007 Bonds and (E) in the event of any inconsistency between the provisions of this Third Supplemental Agreement, other than those set forth in this paragraph and the preceding paragraph, and the provisions of the Letter of Representations such provisions of the Letter of Representations shall control. Section 3-205. Delivery of Series 2007 Bonds. The Trustee shall authenticate and deliver the Series 2007 Bonds when there have been filed with or delivered to it all items required by Section 303 of the Master Agreement of Trust. ARTICLE III REDEMPTION OF SERIES 2007 BONDS Section 3-301. Redemption Date and Price. The Series 2007 Bonds may not be called for redemption by the Authority except as follows. The Series 2007 Bonds maturing on or after July 15, 2018, may be redeemed by the Authority, at the direction of the City, on or after July 15,2017, in whole or in part at any time (in increments of $5,000), at a redemption price of 100% of the principal amount, or portion thereof, of Series 2007 Bonds to be redeemed plus interest accrued to the redemption date. Section 3-302. Selection of Series 2007 Bonds for Redemption. If less than all of the Series 2007 Bonds are called for redemption, the Series 2007 Bonds to be redeemed shall be selected by the Securities Depository or any successor securities depository pursuant to its rules and procedures or, if the book -entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Series 2007 Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Series 2007 Bonds for redemption, each Series 2007 Bond shall be considered as representing that number of Series 2007 Bonds which is obtained by dividing the principal amount of such Series 2007 Bond by $5,000. If a portion of a Series 2007 Bond shall be called for redemption, a new Series 2007 Bond in principal amount equal to the unredeemed portion thereof shall be issued to the registered owner upon the surrender thereof. Section 3-303. Notice of Redemption. The Trustee, upon being satisfied as to the payment of its expenses and upon receiving the notice of redemption from the Authority not less than 45 days prior to the redemption date, shall send notice of the call for redemption, identifying the Series 2007 Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, (a) by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the holder of each Series 2007 Bond to be redeemed at his address as it appears on the registration books kept by the Trustee, (b) by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to all organizations registered with the Securities and Exchange Commission as securities depositories and (c) to each nationally recognized municipal securities information repository designated as such by the Securities and Exchange Commission. In preparing and delivering such notice, the Trustee shall take into account, to the 6 extent applicable, the prevailing tax -exempt securities industry standards and any regulatory statement of any federal or state administrative body having jurisdiction over the Authority or the tax-exempt securities industry, including Release No. 34-23856 of the Securities and Exchange Commission or any subsequent amending or superseding release. Failure to give any notice specified in (a) above, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Series 2007 Bond with respect to which no such failure or defect has occurred. Failure to give any notice specified in (b) or (c) above, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Series 2007 Bonds with respect to which the notice specified in (a) above is correctly given. Any notice mailed or provided herein shall conclusively be presumed to have been given whether or not actually received by any Series 2007 Bondholder. In the case of an optional redemption, the notice may state that (l) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later than the redemption date or (2) the Authority, as directed by the City, retains the right to rescind such notice on or prior to the scheduled redemption date (in either case, a "Conditional Redemption"), and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded as described herein. Any Conditional Redemption in (2) above may be rescinded at any time prior to the redemption date if the Authority delivers a written direction to the Trustee directing the Trustee to rescind the redemption notice and any funds deposited with the Trustee in connection with such rescinded redemption shall be returned to the City. The Trustee shall give prompt notice of such rescission to the affected Series 2007 Bondholders. Any Series 2007 Bonds subject to Conditional Redemption where redemption has been rescinded shall remain Outstanding, and the rescission shall not constitute an Event of Default. Further, in the case of a Conditional Redemption, the failure of the Authority to make funds available on or before the redemption date shall not constitute an Event of Default, and the Trustee shall give immediate notice to all organizations registered with the Securities and Exchange Commission as securities depositories or the affected Series 2007 Bondholders that the redemption did not occur and that the Series 2007 Bonds called for redemption and not so paid remain outstanding. ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2007 BONDS Section 3-401. Application of Proceeds of Series 2007 Bonds. (a) The proceeds of the Series 2007 A Bonds ($ ) shall be paid to the Trustee and shall be transferred to the City for deposit into the Series 2007 A Project Account in the Project Fund. (b) The proceeds of the Series 2007B Bonds ($ ) shall be paid to the Trustee and shall be transferred to the City for deposit into the Series 2007B Project Account in the Project Fund. 7 ARTICLE V ESTABLISHMENT OF ACCOUNT Section 3-501. Series 2007 A Project Account. There shall be established within the Project Fund a special account entitled "Series 2007 A Project Account." The portion of the proceeds of the Series 2007 A Bonds specified in Section 3.401(a), together with the $ good faith deposit previously paid to the City, shall be deposited by the City in the Series 2007 A Project Account. Money in the Series 2007 A Project Account shall be used in accordance with the provisions of Section 503 of the Master Agreement of Trust. Section 3-502. Series 2007B Project Account. There shall be established within the Project Fund a special account entitled "Series 2007B Project Account." The portion of the proceeds of the Series 2007B Bonds specified in Section 3.401(b), together with the $ good faith deposit previously paid to the City, shall be deposited by the City in the Series 2007B Project Account. Money in the Series 2007B Project Account shall be used in accordance with the provisions of Section 503 of the Master Agreement of Trust. ARTICLE VI SECURITY FOR SERIES 2007 BONDS Section 3-601. Security for Series 2007 Bonds. The Series 2007 Bonds shall be equally and ratably secured under the Master Agreement of Trust with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, and its $9,000,000 Taxable Public Facility Revenue Bonds, Series 2005B, and any other series issued pursuant to Article In of the Master Agreement of Trust, without preference, priority or distinction of any Bonds over any other Bonds, except as provided in the Master Agreement of Trust. ARTICLE VII MISCELLANEOUS Section 3-701. Limitations on Use of Proceeds. The Authority intends that interest on the Series 2007 A Bonds shall be excluded from gross income for Federal income tax purposes. The Authority covenants with the holders of the Series 2007 A Bonds not to take any action that would adversely affect, and to take all action within its power necessary to maintain, the exclusion of interest on all Series 2007 A Bonds from gross income for Federal income taxation purposes. 8 Section 3-702. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Third Supplemental Agreement or the Series 2007 Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of Series 2007 Bonds any legal or equitable right, remedy or claim under or in respect to this Third Supplemental Agreement or any covenants, conditions and agreements herein contained since this Third Supplemental Agreement and all of the covenants, conditions and agreements hereof are intended to be and are for the sole and exclusive benefit of the parties hereto and the holders of Bonds as herein provided. Section 3-703. Severability. If any provision of this Third Supplemental Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this Third Supplemental Agreement shall be construed and enforced as if such illegal provision had not been contained herein. Section 3-704. Successors and Assigns. This Third Supplemental Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 3-705. Applicable Law. This Third Supplemental Agreement shall be governed by the applicable laws of the Commonwealth of Virginia. Section 3-706. Counterparts. This Third Supplemental Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. 9 IN WITNESS WHEREOF, the Authority and the Trustee have caused this Third Supplemental Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By: Chairman u.s. BANK NATIONAL ASSOCIATION, as successor Trustee By: Title: Acknowledged and Consented To: CITY OF VIRGINIA BEACH, VIRGINIA, By: Title: 10 EXHIBIT A Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R-l $ UNITED STATES OF AMERICA COMMONWEAL TH OF VIRGINIA CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Public Facility Revenue Bond, Series 2007 A INTEREST RATE MATURITY DATE DATED DATE CUSIP % July 15,_ , 2007 92774G REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon on each January 15 and July 15, beginning January 15, 2008, at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from ,2007, if this bond is authenticated prior to January 15,2008, or (b) otherwise from the January 15 or July 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the first day of the month of each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), A-I payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. If the nominal date for making any payment on this bond a Business Day (as hereinafter defined), the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest are payable in lawful money of the United States of America. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by law to close in the city in the Commonwealth of Virginia in which the Trustee has its principal corporate trust office. Notwithstanding any other provision hereof, this bond is subject to book-entry form maintained by The Depository Trust Company ("DTC"), and the payment of principal and interest, the providing of notices and other matters shall be made as described in the Authority's Letter of Representations to DTC. This bond is one of an issue of $ Public Facility Revenue Bonds, Series 2007 A (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of September 1,2003, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, and a Third Supplemental Agreement of Trust dated as of June 1, 2007 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns to the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1,2005, and a Second Supplemental Support Agreement dated as of June 1, 2007 (collectively, the "Support Agreement"), each between the Authority and the City of Virginia Beach, Virginia (the "City"), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, its $9,000,000 Taxable Public Facility Revenue Bonds, Series 2005B, and its $ Taxable Public Facility Revenue Bonds, Series 2007B (the "Parity Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to (a) finance the acquisition, construction and equipping of various capital improvements for the City and (b) pay costs incurred in issuing the Bonds. Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of and interest on the Bonds as the same shall become due in accordance with their A-2 terms and the provisions and the terms of the Agreement of Trust. The undertaking by the City to make payments under the Support Agreement constitutes a current expense of the City, subject to annual appropriation by the Council of the City. The undertaking by the City to make payments under the Support Agreement does not constitute a debt of the City within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the City beyond any fiscal year for which the City has appropriated moneys to make such payments. THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in his individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or before July 15, 2017, will not be subject to optional redemption before their respective maturity dates. The Bonds maturing on or after July 15,2018, may be redeemed prior to their respective maturities on or after July 15, 2017, at the option of the Authority, at the direction of the City, in whole or in part at any time at a redemption price of 100% of the principal amount, or portion thereof, of Bonds to be redeemed plus interest accrued to the redemption date. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any A-3 successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the corporate trust office of the Trustee in Richmond, Virginia, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the Trustee may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Trustee shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that A-4 interest payments shall be made to the person shown as holder on the first day of the month of each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) By Chairman Attest: Secretary A-5 CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Series 2007 A Bonds described in the within mentioned Agreement of Trust. U.s. BANK NATIONAL ASSOCIATION, as Trustee By Authorized Officer A-6 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. A-7 EXHIBIT B Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R-l $ UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Taxable Public Facility Revenue Bond, Series 2007B INTEREST RATE MATURITY DATE DATED DATE CUSIP 0/0 July 15, _ , 2007 92774G REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon on each January 15 and July 15, beginning January 15, 2008, at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from ,2007, ifthis bond is authenticated prior to January 15,2008, or (b) otherwise from the January 15 or July 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the first day of the month of each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), B-1 payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. If the nominal date for making any payment on this bond a Business Day (as hereinafter defined), the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest are payable in lawful money of the United States of America. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by law to close in the city in the Commonwealth of Virginia in which the Trustee has its principal corporate trust office. Notwithstanding any other provision hereof, this bond is subject to book-entry form maintained by The Depository Trust Company ("DTC"), and the payment of principal and interest, the providing of notices and other matters shall be made as described in the Authority's Letter of Representations to DTC. This bond is one of an issue of $ Taxable Public Facility Revenue Bonds, Series 2007B (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of September 1,2003, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, and a Third Supplemental Agreement of Trust dated as of June 1, 2007 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns to the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005, and a Second Supplemental Support Agreement dated as of June 1, 2007 (collectively, the "Support Agreement"), each between the Authority and the City of Virginia Beach, Virginia (the "City"), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, its $9,000,000 Taxable Public Facility Revenue Bonds, Series 2005B, and its $ Public Facility Revenue Bonds, Series 2007 A (the "Parity Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to (a) finance the acquisition, construction and equipping of various capital improvements for the City and (b) pay costs incurred in issuing the Bonds. Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of and interest on the Bonds as the same shall become due in accordance with their B-2 terms and the provisions and the terms of the Agreement of Trust. The undertaking by the City to make payments under the Support Agreement constitutes a current expense of the City, subject to annual appropriation by the Council of the City. The undertaking by the City to make payments under the Support Agreement does not constitute a debt of the City within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the City beyond any fiscal year for which the City has appropriated moneys to make such payments. THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in his individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or before July 15, 2017, will not be subject to optional redemption before their respective maturity dates. The Bonds maturing on or after July 15,2018, may be redeemed prior to their respective maturities on or after July 15, 2017, at the option of the Authority, at the direction of the City, in whole or in part at any time at a redemption price of 100% of the principal amount, or portion thereof, of Bonds to be redeemed plus interest accrued to the redemption date. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any B-3 successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the corporate trust office of the Trustee in Richmond, Virginia, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the Trustee may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Trustee shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that B-4 interest payments shall be made to the person shown as holder on the first day of the month of each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) By Chairman Attest: Secretary B-5 CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Series 2007B Bonds described in the within mentioned Agreement of Trust. U.s. BANK NATIONAL ASSOCIATION, as Trustee By Authorized Officer B-6 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. B-7 - 26- Item V, J. 2. RESOLUTION/ORDINANCES ITEM #56456 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute a lease of City- owned property at Sentara Way and Avenue A with ROSEMONT INTERSTATE CENTER, L.L.C., to be used as an ingress and egress point and provide parking for the adjacent property. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 1 AN ORDINANCE AUTHORIZING THE CITY MANAGER 2 TO EXECUTE A LEASE FOR FIVE YEARS WITH 3 ROSEMONT INTERSTATE CENTER, L.L.C., FOR 4 0.15 ACRES OF CITY OWNED LAND LOCATED AT 5 SENTARA WAY AND AVENUE A IN THE CITY OF 6 VIRGINIA BEACH 7 8 9 WHEREAS, the City of Virginia Beach (the "Ci ty") is the 10 owner of that certain parcel of land located at Sentara Way 11 and Avenue A in the City of Virginia Beach (the "Premises")as 12 shown on Attachment A; 13 14 WHEREAS, Rosemont Interstate Center, L.L.C., a Virginia 15 limited liability company, has agreed to lease the Premises 16 from the City for five years with an annual lease payment of 17 $1,186.56 for the first year, escalating by four (4%)percent 18 each remaining year. 19 20 WHEREAS, Rosemont Interstate Center, L.L.C. has leased 21 the Premises from the City since 2002; 22 23 WHEREAS, Rosemont Interstate Center, L.L.C. would like to 24 enter into a new lease arrangement wi th the City for the 25 Premises for a term of five (5) years; 26 27 WHEREAS, the Premises will be utilized as an 28 ingress/egress point and for providing parking for an 29 office/flex building for the adjacent property owned by 30 Rosemont Interstate Center, L.L.C., and for no other purpose; 31 32 THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 33 OF VIRGINIA BEACH, VIRGINIA: 34 35 That the City Manager is hereby authorized to execute a 36 lease for the term of five (5) years, between Rosemont 37 Interstate Center, L.L.C. and the City, for the Premises in 38 accordance with the Summary of Terms attached hereto and such 39 other terms, conditions or modifications as may be 40 satisfactory to the City Manager and the City Attorney. 41 42 Adopted by the Council of the Ci ty of Virginia Beach, 43 Virginia on the 22nd day of Mny , 2007 CA10163 V: lapplicat ions'city lawprod',cycom32', W pdocs\DO 14 P002 \00028299. DOC R-1 May 11, 2007 APPROVED AS SUFFICIENCY City Attorney APPROVED AS TO CONTENT ~~L/f 1>~.( /-h-t.c..: ( .+. ~~ M-J-f. Department i:l ~~~~ I ~ ~ r~~~~ ~ ~i~l ~ I !~~~ ~; ~~d~ . ;ll-lil >'~il ~~~~~ ~8 11l i:l il!~ c ~ il ~~g~l S,i.i3. "~i ~ili r . 8 \!, ~ ~ ",'i! ~~~~ . 1;111 ~ i:'~ ~ ~"'!:l.~;l ~!:'~; ~U!;lI llgH ~i '"~;:::a I ~h if ~ ~ t<l.. ~:~~ =: '" i~:'fUl Iii~~ili"'~>:zp~t'" ii~~.~)o ;:J1Il\l2<'l~/l~~1!:5!:l eh~r gB i~" ~..~~i ~ .. "~g ~ -'lI"~ ?!iig"<j q H~: ~ ~ ;~~~~ 'er~ ~ <'l'">:::~ iid \:j ;P~'i!" " ~ -~>~~ :;;p~!:l >:~StJ 'c~ Attachment A ~ ~ ~ JI ~~ h ~l ~ll~i;l~~ ~~l;~~~ ~~~~~~ "'l~~~~ ~d~~ U~i;l~ ~~~~~ ~~~~~ ~:~l1~ !ii"R~~ ~~h~ ~""t""t:a.l. ~~u~ i;l~~l; ~~~~~ ~ ..~'" ~ ~~ ~h :.or~'l' "'~~ ~ 'RrJA/J(IIO'~ saJlN = PC g6) VTRGlNIA STATE PlANE COORDINATE: SYsTEM SOUTH ZONE NAO 83/Be ~ ~ .~ ;r;~ ~ :!4'tJ: 13~~~ ~o~J, I 'I~ , ~ "~ll .. II ~!Sll ~Sll 'oS! SUMMARY OF TERMS LEASE FOR THE USE OF 0.15 ACRES OF CITY REAL PROPERTY LESSOR: City of Virginia Beach LESSEE: Rosemont Interstate Center, L.L.c. PREMISES: Approximately 0.15 acres of City property located at Sentara Way and Avenue A in the City of Virginia Beach TERM: July 1, 2007 through June 30, 2012 RENT: Rent shall be $1,186.56 for the first year and escalated by four percent (4%) each remaining year. Rent shall be payable either in an annual lump sum or in equal monthly installments. RIGHTS AND RESPONSIBILITIES OF ROSEMONT INTERSTATE CENTER, L.L.C.: . Will use the Premises for ingress and egress and providing parking for an adjacent office/flex building owned by Rosemont Interstate Center, L.L.C. and no other purposes. . Will keep, repair, and maintain the Premises at its expense and will do so in a workmanlike manner. . Will maintain commercial general liability insurance coverage 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. Lessee shall provide a certificate evidencing the existence of such insurance. . 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, including City Code Section 23-59. RIGHTS AND RESPONSIBILITIES OF THE CITY: . Will have access to the Premises at any time, without prior notice, in the event of an emergency. . Will have the right to require Rosemont Interstate Center, L.L.C. to surrender possession and control of the Premises to the City upon forty-eight (48) hours notice in the discharge of its powers, purposes, or responsibilities. . Will have the right to grant easements and rights of way across, in, under and through the Premises for streets, alleys, public highways, drainage, and other similar purposes. TERMINATION: The City may terminate the Lease anytime prior to June 30, 2012 upon providing sixty (60) days written notice to Rosemont Interstate Center, L.L.C. V: \applicat ions\citylawprod\cycom32\ Wpdocs\D009\P002\00029603. DOC OJ c: o .~ a ~ ..s - 27 - Item V, J. 3. RESOLUTION/ORDINANCES ITEM #56457 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE $530,259 to the Clerk of the Circuit Court's FY 2006-07 Technology Trust Fund re the redaction of private information on public documents. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE 2 $530,259 TO THE CLERK OF THE CIRCUIT 3 COURT'S FY 2006-07 TECHNOLOGY TRUST FUND 4 5 WHEREAS, the State of Virginia Compensation Board has modified it's 6 reimbursement format for the Clerk of the Circuit Court's Technology Trust Fund. 7 8 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 9 VIRGINIA BEACH, VIRGINIA: 10 11 That $530,259 in additional State revenue is hereby appropriated to the Clerk of 12 the Circuit Court's FY 2006-07 Technology Trust Fund to cover the cost of courtroom 13 technology, with State revenue increased accordingly. 14 15 Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd day 16 of May ,2007. Approved as to Content: Approved as to Legal Sufficiency: ~2lr M'anage ent ervices ;Z;~ City Attorney's OffiCr CA 10392 V: \applications \citylawprod\cycom32\Wpdocs\D008\P004 \00032900. DOC R-1 May 8, 2007 Item V-L. PLANNING 1. MARY K. AGRUSO 2. HARRY R. PURKEY, JR. 3. LOPE and MERCY PILE CORNELIUS F. and ANONINA BOYNTON 4. GLENN H. GETTTIER, JR. 5. EDWARDA. andKATHLEENT. KURPIEL 6. VALUE PLACE REAL ESTATE - 28 - ITEM #56458 7. SOUTH INDEPENDENCE ACQUISITION, L.L.C. 8. CONNIE ONE, L.L.c. NONCONFORMING USE STREET CLOSURE EXTENSIONS OF TIME STREET CLOSURES VARIANCE VARIANCE MODIFICATION OF PROFFERS (Conditional Change of Zoning approved 2/28/06) CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING STREET CLOSURE CONDITIONAL CHANGE OF ZONING May 22, 2007 - 29 - Item V-L. PLANNING ITEM #56459 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Items 1, 2. 3a.b. (Extension of Time for compliance of conditions) 4, 6 and 8 of the PLANNING BY CONSENT AGENDA. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood Council Lady McClanan voted a VERBAL NAY on Items L.6 (VALUE PLACE REAL ESTATE SERVICES) and L.8. (CONNIE ONE, L.L.C.). May 22, 2007 - 30 - Item V-L.l. PLANNING ITEM # 56460 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the application of MARY K. AGRUSO for an enlargement of a nonconforming use at 103-B 57 Y2 Street re the construction of a sunroom. Resolution authorizing the enlargement of a nonconforming use on property located at 103 B 57 Y2 Street, DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The proposed sunroom addition shall substantially conform to the submitted Conceptual Site layout dated March 1, 2007, Said plans have been exhibited to the Virginia Beach City Council are onfile in the Virginia Beach Planning Department. 2. Exterior building materials shall be similar to the existing structure. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 1 2 3 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING USE ON PROPERTY LOCATED AT 103 B 57 % STREET, IN THE L YNNHAVEN DISTRICT 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 36 37 38 WHEREAS, Mary K. Agruso (hereinafter the "Applicant"), has made application to the City Council for authorization to enlarge a nonconforming use with the addition of a sunroom on a single-family dwelling on a certain lot or parcel of land having the address of 103 B 57 % Street, in the R-5R Residential Resort District; and WHEREAS, the said use is nonconforming, as there are two single-family dwellings on the single subject lot, and more than one dwelling on a single lot is not allowed at this time. These dwellings were constructed when two dwellings on a single lot was permissible; and WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the enlargement of a nonconforming use is unlawful in the absence of a resolution of the City Council authorizing such action upon a finding that the proposed use, as enlarged, will be equally appropriate or more appropriate to the zoning district than is the existing use; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council hereby finds that the proposed use, as enlarged, will be equally appropriate to the district as is the existing use. BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the proposed enlargement of the existing single-family dwelling is hereby authorized, upon the following conditions: 1. The proposed sunroom addition shall substantially conform to the submitted Conceptual Site Layout dated March 1, 2007. Said plans have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 2. Exterior building materials shall be similar to the existing structure. Adopted by the Council of the City of Virginia Beach, Virginia, on the 7. 7.ndday of May, 2007. , APP,R. OVED. AS TO.. L. EGAL!. SUlF~~ CY: ~ffi}tt - i j 'n"l t1/ / "V- OiA-l , l City Attorney's Office CA 10391 V:\applications\citylawprod\cycom32\Wpdocs\D009\P002\00032991. DOC R-1 May 9,2007 MARY K.AGRUSO May 22, 2007 City Council Meeting Staff Planner: Karen Prochilo REQUEST: Enlaraement of a Nonconformina Use to add a sunroom to an existing single-family dwelling. ADDRESS I DESCRIPTION: Property located 103 B 57 Y2 Street. GPIN: 24198131000002 COUNCIL ELECTION DISTRICT: 5-LYNNHAVEN SITE SIZE: 213 square foot (SF) addition to a 794 SF single-family home located on a 7,496 SF lot SUMMARY OF REQUEST The applicant requests approval to construct a sunroom to the front of an existing single-family structure. The use is nonconforming because there are two single-family dwellings on the same zoning lot. The R- 5R Residential Resort District permits a single-family dwelling or a duplex on one lot. A duplex is defined as two dwellings within a single building. The existing dwellings are not within a single building, and are, therefore, considered nonconforming. The approval of the City Council is required before any modification to a nonconformity may occur. The applicant's dwelling is located on the rear of the subject parcel, facing 57Y2th Street. The proposed addition will not encroach into the side yards any further than the existing structure. The proposed sunroom will extend 12.5 feet into the yard area facing 57Y2th Street. The required yard setback for this portion of the parcel is 20-feet. Even with the addition of the sunroom, the setback will be 28.8 feet, 8.8 feet in excess of what is required. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Two single-family dwellings occupy the site. MARY K. AGRUSa May 22, 2007 City Council Meeting Page 1 SURROUNDING LAND USE AND ZONING: North: South: . Duplex I R-5R Residential Resort District . Hotel and associated parking and facilities I B-2 Community Business District . Duplex I R-5R Residential Resort District . Single-family I R-5R Residential Resort District East: West: NATURAL RESOURCE AND CULTURAL FEATURES: There are no significant natural resources or cultural features associated with this site. AICUZ: The site is in an AICUZ of Less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES There are no impacts to city services. EVALUATION AND RECOMMENDATION Staff recommends approval of this request subject to the conditions below. The proposed enlargement is reasonable, will have a minimal impact, and should be as appropriate to the district as the existing non-conforming use. The proposed addition will not extend beyond the sides of the existing house and will be within the setback requirements for the yard adjacent to 57%th Street. The proposed sunroom addition will tie into the existing gable roof line of the front fagade of the cottage and extend 12'-6" toward 57%th Street. In keeping with the cottage style, double-hung windows are grouped together on the three sides of the addition to insure open views and good ventilation. The siding below the windows shall be similar in style and color to the siding on the existing structure. The R-5R Residential Resort district permits 35% lot coverage, 60% impervious coverage, and 200% floor area expressed as a percentage of the permitted lot coverage. The total proposed lot coverage that will result from the sunroom addition of 213 square feet is 26%, which is less than the permitted lot coverage. The proposed impervious coverage has not changed. The neighborhood is an eclectic mix of single-family bungalows and cottages, and two and three-story duplexes. The addition of a sunroom to enhance the dwelling is in keeping with the mix of buildings existing in this R-5R district. The proposed architecture will blend in with the existing structure, and the residential use will remain the same. The request, therefore, is acceptable as submitted, subject to the conditions below. MARY K. AGRUSa May 22, 2007 City Council Meeting Page 2 CONDITIONS 1. The proposed sunroom addition shall substantially conform to the submitted Conceptual Site Layout dated March 1, 2007. Said plans have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 2. Exterior building materials shall be similar to the existing structure. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. MARY K. AGRUSa May 22, 2007 City Council Meeting Page 3 AERIAL OF SITE LOCATION MARY K. AGRUSa May 22, 2007 City Council Meeting Page 4 ---.-----..- /5' LANE PINt..} 250' TO ATLANTIC AVE " 5' ~ ..; ... ~ p(,~(ul . ? 57 TH (40' R/W) STREET - ---- 57Yzth Street )to l31 Fenc. (Enero) --0.5' IEnero) f~( LEGEND o Area Composing Unit A' (;SJ Area Composing Unit '8' o Common ArQa 4;:Li~ ; ''-:;-'4$. ~ ''\, ;- ~. 1j..~ J~ ~ ~ 3 BRUtE 8. SALW ;,... ,;,~ . J ~) .44to~u;r"'i6 CONDOMINIUM PLAT /03 JI' -/03 '8' 57TH STREET A COIIIDOMINIUM PROPOSED SITE PLAN MARY K. AGRUSa May 22, 2007 City Council Meeting Page 5 .;it' ....-.-. 41 II 41 "II f PHOTOGRAPH OF EXISTING BUILDING PROPOSED ADDITION FRAMING MARY K. AGRUSa May 22, 2007 City Council Meeting Page 6 M :p L-4 M KA a arv ll!TUSO MClP Not, 'to Scole . - ---~,\ '''''\,I'.,~ ~~l ~ ~ ~ 01 ~~ ~~0c9 01 ~ I\. ~ ~ ~ ~<:Q -' .~~ ?- ~~l\\ ~ ';>. ~ ~ d~- l~:y~ :; ~ ..' ... ... ~~\\ 0 ~ - ._^ I.b"~~ \~, ~ "" P :r ... t<> ~~ ~ C~,\ ti .. \;:I. ~-- ~'jQ'~ ~ . ~ ~ f:l '~I\~~~ ~ ~'i 'g;::::.. ~ ~~\ \~, C\()Q ~\ \\\. o!tIf. ,e. (j\ ~~~~ \~\,,\-:;~.t" \f:\~~' V \ 9 u%~ ...... ~4 ( I' ~ . ~ ~ 'O'Iolr:~ ~ =-'~ \. _t:~ ~ I~"'~ GO Q ~~\.\ :\~ :.1. '::\ ~". \] ~~ _L.I- 't to l ... ~~ ~ ~~ ~~O ~ ~ . ~-' ~ ~~ if~ l~(@MIiJ ~ ~ ~ ~ I ~~ ~ ~ 'Xi ~~X..3'~~ ~~ ~ ~ 0.1\. \~ ~\r Q 0 ~ :n:'\' \'" ~~i~\~~~\\1 ~~,~ Non Conforming Use I 1 I Granted I 07/18/06 [ Subdivision Variance ZONING HISTORY MARY K. AGRUSa May 22, 2007 City Council Meeting Page 7 NOI1VJIlddV aSfl ~NINHOdNOJ.NON too Z W ~ W too oei too (/) W 0:: ::) (/) o ..J U lJl is t)~ ?~ ~ " ~~- ~.~ j' tfJ-V fj ~ ~ ~ ~ .:Ii Q '0 CJ (}, ;; 9 Q 0 ;:;- -"'2 (i a; ~!~i :;);:."" (/) ,5 ~ H g '~~ ~ (,.)~-Ir. !e::gi3 ~E]~ ~ ~ ~'@ o l<'l U D Eg-Gfu Oil c c ~, ~~~i~ ~8-&; ~!~~ U Qi Q) U ~ ~ '2 g b~~~ c cr .:i.'X'Vl ~ ~ "~ ~to~~ ...J __ i,f).J-, ~ "' c ~~ ; ~ ~ EE~ ; ~ ~ ~ ..:..,~ ~8~ j~~ ~~~ ~ E 5 ! [~ ~' ~~ ~ ,:,; ~ -~ Q:I n ~ 7e ~ g i~ 2 s ,;. l':: >- iii ~~,8 5~,~ 2 ;;: "':l C " 2' ';: ~ ~,', :~ c .~ ~ -~I, ~r; c,' bJ '2 .~1 in E ~ ~ ~ 15 "? ~ - '.:.'..J '" ~ ;. :.., ~ ,j; ,j :~ ~ :~ ~ i ;;, D '/, ~ -- ~: .c ~ ~ ... ~ 0 ~ <: :-:: ~'J ? ~ j > '" 2 3. ~ 0. ''-2 (S -:;; ,~ ~:? v c:o ('"" ;;, m 1) ~ - , ~ ~ u- .~ ~ 1 - D - ~ .:l ~ 0 - El ~ ~ IWli~111 l!HU ,,) 'l-' <..1 ~ ~ t t~ 0 O~ ~~:~_..~.' '0 "' = ~ ~ ~ c.;. V; ; iJ f! I a:~'" If ~ - , ~ ~ ::: f ::! :: ~, i~ '~ gj~'j ',;, ;: ~ 2 2. i!~~i 0~~r- ~ - ;::. ~ ~ ~ '5 HH ~~lg too Z W I~ W too oei too lJl W 0:: ::) lJl o ..J U lJl o 'JJ (J ~ i c ~ c $ ~ f v ~. if. ~ ~ '.~ ~ g '" o.c :, d E -~' I '" ",", i i5 Co. '2 ... i: -. ~,~ -s~ u c :J~ Q,a. c.. < ~ ~ 2::D ;..~ ~*~~ c:; 3. ~ ~;' ~ 8 ~~ 2 (V II ~ ~~ 0. .c .. . , ::: i z ~ 0' j ~;,~ " ~ ~ E ~5 ~ ~ ~ ;z: n D ~ - ;... ~c ~ ~~ 9:: ~i '" ~ -E~ ~~ ~ ~ ~~' :: c H is!:: ,~ ;.;. ~- ('j :~ 2 NOI1VJIlddV aSfl ~NINHOdNOJ.NON DISCLOSURE STATEMENT MARY K. AGRUSa May 22, 2007 City Council Meeting Page 8 Map IA Marv K. Avruso ~~'L' ~\\ \~~~ ~ \ ~,Fc09% J .~, L~.~ j Y \J -~M -~!- ,~~~\\\ ~ 1 ~,~~t\~ ~\ ~S1;,..~, ~tIC\ ~ \~ ~r. ~f~~J~\ ~~I'.\\~'~~~.~?' . ~;A'~ ~A~ ,v~nOOOd ~ ~;s:J .J~~~{J,ll.lca , .,,\')O ~.;. ~~~~\: :.w""~ ~ 1ooo""'~~'Q .nt.U_~\d~ ~~ ~ \{\ ~ ~B~:;~~ ld.\,~.>> ;to. ~~ I",I_\~ ~ ::1 H~ \-.! ~ \ ~ ~ r\ ~ ~. : .'(j~..t~~\.?,~ \ .\~.~ ~( ~~O? ~ ~~~\~~ ~~ t\\%" l~~_ ~ \' l ~_ ~~~.\r... ~~ \~OO .f5~ . ~ ~ c ~ ~WJ{ffi}MID '~<;,~\~:'fJ:3'"--~(~~~ Q ~~~ ~ ~ ~ IF\ =-~ ll' = \ /i.,g ~ ~ \\~..--- ;:;?\ l.,\\,:: ~ .;:6 ~ \"I:L? 1[' \- ';> S' ~ ... ('> o ('> '" ~ ,,/ Non Conforming Use - 31 - Item V-L.2. PLANNING ITEM # 56461 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinance upon application of HARRY R. PURKEY, JR., for the discontinuance, closure and abandonment of a portion of an unimproved alley at 736 Surfside Avenue: Ordinance upon application of HARRY R. PURKEY, JR., in the matter of closing, vacating and discontinuing a portion of that certain unimproved alley designated as the cross-hatched area and described as "indicates portion of alley to be closed (375 sq. ji./0.009 acres)" as shown on that certain plat entitled "plat showing portion of 15' alley adjacent to Lot I, Block 16, Croatan Beach, m.b. 24 p. 37 to be closed, Virginia Beach, Virginia "_DISTRICT 6 - BEACH The following conditions shall be required: 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 plat must be submitted and approved for recordation prior to final street closure approval. Said plat must include a drainage easement over the entire property for future use as deemed necessary by the City of Virginia Beach. 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. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within one (1) year of approval by City Council (May 21, 2008). If all conditions noted above are not in compliance and the final plat is not approved within one (1) year of the City Council vote to close the street, this approval will be considered null and void. 5. The approval isfor the western half of the I5joot wide alley, being seven (7) feet and six (6) inches by fifty (50) feet (7.5' x 50 '), adjoining the rear of Lot I, Block 16, Croatan Beach. May 22, 2007 - 32 - Item V-L.2. PLANNING ITEM # 56461 (Continued) Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 1 IN THE MATTER OF CLOSING, VACATING AND DISCONTINUING A PORTION OF THAT CERTAIN UNIMPROVED ALLEY DESIGNATED AS THE CROSS-HATCHED AREA AND DESCRIBED AS "INDICATES PORTION OF ALLEY TO BE CLOSED (375 SQ. FT.IO.009 ACRES)" AS SHOWN ON THAT CERTAIN PLAT ENTITLED "PLAT SHOWING PORTION OF 15' ALLEY ADJACENT TO LOT 1, BLOCK 16 CROATAN BEACH M.B. 24 P. 37 TO BE CLOSED VIRGINIA BEACH, VIRGINIA" 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 36 37 38 39 40 41 42 43 44 45 WHEREAS, Harry R. Purkey, Jr. (the "Applicant"), 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 closed and vacated, or before one (1) ordinance: hereinafter described street be discontinued, subject to certain conditions being met on year from City Council's adoption of this All that certain piece or parcel of land situate, lying and being in the City of Virginia Beach, virginia, designated as the cross-hatched area and described as "INDICATES PORTION OF ALLEY TO BE CLOSED (375 SQ. FT. 10.009 ACRES" as shown on that certain plat entitled: "PLAT SHOWING PORTION OF 15' ALLEY ADJACENT TO LOT 1, BLOCK 16 CROATAN BEACH M.B. 24 P. 37 TO BE CLOSED VIRGINIA BEACH, VIRGINIA" Scale: 1"= GPIN: 2426-37-4977 1 46 20', dated November 20, 2006, prepared by Gallup 47 Surveyors & Engineers, Ltd., a copy of which is 48 attached hereto as Exhibit A. 49 50 SECTION II 51 52 The following conditions must be met on or before one 53 (1) year from City Council's adoption of this ordinance: 54 55 1. The City Attorney's Office will make the final 56 determination regarding ownership of the underlying fee. The 57 purchase price to be paid to the City shall be determined 58 according to the "Policy Regarding Purchase of City's Interest 59 in Streets Pursuant to Street Closures," approved by City 60 Council. Copies of said policy are available in the Planning 61 Department. 62 63 2. The applicant shall resubdivide the property and 64 vacate internal lot lines to incorporate the closed area into 65 the adjoining parcels. The plat must be submitted and approved 66 for recordation prior to final street closure approval. Said 67 plat must include a drainage easement over the entire property 68 for future use as deemed necessary by the City of Virginia 69 Beach. 70 71 3. The applicant shall verify that no private 72 utilities exist within the right-of -way proposed for closure. 73 Preliminary comments from the utility companies indicate that 74 there are no private utilities within the right-of-way proposed 75 for closure. If private utilities do exist, the applicant shall 76 provide easements satisfactory to the utility companies. 77 78 4. Closure of the right-of-way shall be contingent 79 upon compliance with the above stated conditions within one (1) 80 year of approval by City Council. If all conditions noted above 81 are not in compliance and the final plat is not approved within 82 one (1) year of the City Council vote to close the street, this 83 approval will be considered null and void. 84 85 5. The approval is for the western half of the 15- 86 foot wide alley, being seven (7)feet and six (6)inches by fifty 87 (50) feet (7.5' x 50'), adjoining the rear of Lot 1, Block 16, 88 Croatan Beach. 2 89 SECTION III 90 91 1. If the preceding conditions are not fulfilled on 92 or before May 21, 2008, this Ordinance will be deemed null and 93 void without further action by the City Council. 94 95 2. If all conditions are met on or before May 21, 96 2008, the date of final closure is the date the street closure 97 ordinance is recorded by the City Attorney. 98 99 3. In the event the City of Virginia Beach has any 100 interest in the underlying fee, the City Manager or his designee 101 is authorized to execute whatever documents, if any, that may be 102 requested to convey such interest, provided said documents are 103 approved by the City Attorney's Office. 104 105 SECTION IV 106 107 A certified copy of this Ordinance shall be filed in 108 the Clerk's Office of the Circuit Court of the City of Virginia 109 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA 110 BEACH as "Grantor" and HARRY R. PURKEY, JR. as "Grantee." 111 112 Adopted by the Council of the City of Virginia Beach, 113 Virginia, on this 22nd day of May , 2007. CA10290 V:lapplicationslcitylawprodlcycom321 WpdocslDO 181POO 1 100031829 .DOC R-1 April 18, 2007 3 APPROVED AS TO LEGAL SUFFICIENCY: !f!I!!;t~/:!!!tJbJ ).. 'tl '1-..,>", ~ ~ . . u o 0> o o ~Z ::Ii << lI..[ 0", z" ~~ "'0 ~trJ ",'3 i"u <<w uen 00 "'~ ~ I U 4: ~: ~ z" 4:N ~<ri 4:", o 0:: U " g ]I ~ << ~ "- << " Exhibit A MARYLAND AVENUE (50' R/W) M.B. 24 P. 37 " '" 0: ;::: " N ai ::i OS' " '" ,,- >-",0 W.l:t -'''-0 -' ~ <(~~ incri~ ..-~2 N ~~ ai ::i S 8S'4S'45H W l07.50'(total) 100.00' w w '" z => ~~g -....<<u "'u" c..:>~""""" z '" ~~6 ><:00- W~=> " " 0> " ~~ ~ ~ Z 0: " ,aO'OOL (IOiOl),Oc;"LOi 3 ,,<.;v,<;17,l;8 N " '" n: N " N ai ::i lD ~ gI 0 <.:l ffi~ W ZIJ..>-.W"Vl ~OW~tIl"'O oz::ll- n:...J :I:o....OZ U (f)~.............I<~ 1-00::. 01- ai~ <( 1.01-4:"'..... ~a..~I-O 0 Zo:: ~ ~u <( ..., o <( " ~ "- 0:: '0--:- 1.O'5! '-"'<:( ~ w~a: ::>~ Z~~ ~~~ <( g:2 W o en u... 0:: ::> Vl ~~ '" " o <( z (3 '" 5 I o <( w (D <( z (3 '" 5 <0 o ~ fj i5 en " '5! ~ " o '" ~~;; viON ","'<< (L~~~~ ::::J15zoc((J =l~~5_~ 0~~~~ l/lVlw\i""; ~g::~ ~~~ "'''''' ~ ~ 'g II ~ u '" :~ :1 REQUEST: Discontinuance. closure and abandonment. of the western 7.5 feet portion of a 15 feet wide alley adjacent to 736 Surfside Avenue HARRY R. PURKEY, JR. Agenda Item 7 April 11, 2007 Public Hearing Staff Planner: Karen Prochilo ADDRESS I DESCRIPTION: Property located at western 7.5 feet of an unimproved, unnamed alley adjacent to the rear property line of 736 South Surfside Avenue (Lot 1 Block 16). COUNCIL ELECTION DISTRICT: 6-BEACH SITE SIZE: 375 square feet SUMMARY OF REQUEST The applicant requests the closure of this unimproved alley for the purpose of extending the rear property line to the east by 7.5 feet, incorporating that property into the existing single-family parcel. LAND USE AND ZONING INFORMATION EXISTING LAND USE: The portion of the alley proposed for closure is part of an undeveloped alleyway that runs north to south along the entire block between Aqua Lane and South Maryland Avenue. SURROUNDING LAND USE AND ZONING: North: South: East: . Single-family dwelling / R-10 Residential District . Across South Maryland Avenue, single-family dwelling / R-10 Residential District . Across unimproved alley, single-family dwelling / R-10 Residential District . Across South Surfside Avenue, multi-family / A-12 Apartment District West: HARRY R. PURKEY, JR. Agenda Item 7 Page 1 NATURAL RESOURCE AND CULTURAL FEATURES: The site does not have any significant historical, cultural or environmental features. AICUZ: The site is in an AICUZ of 65 dB Ldn to 70 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES WATER AND SEWER: There are no objections from Public Utilities regarding the proposed street closure. PRIVATE UTILITIES: Preliminary comments from private utility companies indicate that there are no private utilities within the area proposed for closure. STORMWATER MANAGEMENT: A private drainage easement shall be retained for Block 16, Lots 1 through 20 of Croatan Beach Sub-division to insure proper drainage of these lots. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the conditions below. Evaluation: Evaluation of this request, as in any street closure application is primarily based on current and future need for the right-of-way for vehicular, pedestrian or public infrastructure purposes. The portion of the alley proposed for closure is part of an undeveloped alleyway that runs north to south along the entire block. The Street Closure Viewers Committee recommends approval of this request, as it was determined that there will be no public inconvenience from the closure and abandonment of this right-of-way, subject to the conditions listed below. City Council has adopted a policy aimed at disposing of right-of-way to adjoining property owners in the Croatan community. Funds generated from the closure are deposited into an account dedicated to the purchase of beach access in the Croatan area. CONDITIONS 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 the policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area HARRY R. PURKEY, JR. Agenda Item 7 Page 2 into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. Said plat must include a drainage easement over the entire property for future use as deemed necessary by the City of Virginia Beach. 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, easements satisfactory to the utility company must be provided. 4. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council. 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. 5. The approval is for the western half of the 15-foot wide of the alley, being seven (7)-feet and six (6)- inches by fifty (50) feet (7.5'x50'), adjoining the rear of Lot 1, Block 16 Croatan Beach. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes and Standards. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. HARRY R. PURKEY, JR. Agenda Item 7 Page 3 AERIAL OF SITE LOCATION HARRY R. PURKEY, JR. Agenda Item 7 Page 4 - CRQATAN BEAat 104.8. 2+ P. 37 'Ql.OCK 16 12 IU. '-.. p, 37 11 M.a. 2+ P. 37 15' ALlEY 1.1,9. 24 P. 37 (UNDE\'tLCPED) 2 >l.a. 2~ P.:sl J ~ ...: ~ W1 llPIN: 242&-37-4977 ",g ~- ~ III :z H Q4'f4'1$' VI SURFSlDE AWNUE (SO" R,IW) (l"QIWEIll..Y lAAt AIlE.) l.4.8. 24 p, 37 '" ~ ~ ~;E 80 ~ ? a: v ~D f\'\] INOlOATES POOTlCN or AlUY ~ 1'0 liE ClOSSO (375 Iq. ft.;O.ooo _u) I c::) ~~ ~! ~,.., !:I- ~ ~ 0' 20' ~- 4()' 00' I SURVEY OF AREA TO BE CtOSED HARRY R. PURKEY, JR. Agenda Item 7 Page 5 Street Closure (Alley) 1 02/27/07 Street Closure Granted 2 1 0/24/04 Street Closure Granted 3 09/23/03 Street Closure Granted 4 08/13/91 Street Closure Granted ZONING HISTORY HARRY R. PURKEY, JR. Agenda Item 7 Page 6 0 (; I ('~ d i '4 -c ~ Vi '" q; ~ ~~ J ~~ " ~ ,,"1 '" I ~ % E ~ -~ ~ 4- 8 % ~ ~ d ~~ 'l1 :It ,~ m .t; '$ 8 ;4) 5- 0 '0 * " V I ? 9 ~. 1i "" ~ 1E :g B om: ... ~:: i g c n m N: ~ 'hi" e ~ u '" '1& IT' w % Q if ~ I * 1 )0<, -0 '*-' % if E 19 " ]! 6:. iJ :fl 'W g d rt: 11 ,n 2! 1; ~ ",i '? 0 -w I N X 'B P B .E "}:-. '@ '" ~- ~- 5 Ih .K ",J ~ IIt il ! .t+ 1:1 '" ~ t: 'a NOIIV3IlddV IDIOS01J It[ DISCLOSURE STATEMENT HARRY R. PURKEY, JR. Agenda Item 7 Page 7 Item #7 Harry R. Purkey, Jr. Discontinuance, closure and abandonment of a portion of a I5-foot wide alley located adjacent to 736 Surfside Avenue, Lot 1, Block 16, Croatan District 6 Beach April 11, 2007 CONSENT Janice Anderson: The next matter is agenda item 7. That is the application of Harry R. Purkey, Jr. It is a request for a discontinuance, closure and abandonment of a portion of a I5-foot wide alley in the Croatan Section located at 736 Surfside Avenue in the Beach District. Mr. Bourdon. Eddie Bourdon: Thank you again Madame Secretary. Mr. Chairman, Mr. Secretary, Eddie Bourdon, for the record, representing the application. It is a privilege to represent Mr. Purkey today. We appreciate this item being placed on the consent agenda. Janice Anderson: Thank you. Is there any objection to this matter being placed on the consent agenda? Kathy Katsias will review this one for us. Kathy Katsias: Good afternoon. This is a request for discontinuance, closure and abandonment ofthe western 7.5 feet portion of a I5-foot wide alley adjacent to 736 Surfside Avenue. The applicant requests the closure of this unimproved alley for the purpose of extending the rear property line to the east by 7.5 feet, incorporating that property into the existing single-family parcel. The staff recommends approval and we agree with the staff. Therefore, we placed it on the consent agenda. Thank you. Mr. Chairman, I make a motion to approve the following item 7. Barry Knight: Thank you. There is a motion on the floor by J an Anderson and seconded by Don Horsley. I'll call for the question. AYE 10 NAY 0 ABSO ABSENT 1 ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY AYE KATSIAS AYE KNIGHT AYE LIVAS AYE REDMOND AYE STRANGE WOOD AYE ABSENT Ed Weeden: By a vote of 10-0, the Board has approved item 7 for consent. Street Closure (Alley) - 33 - Item V-L.3.a. PLANNING ITEM # 56462 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED EXTENSION OF TIME FOR COMPLIANCE TO AUGUST 22, 2007, on an Ordinance upon application of LOPE and MERCY PILE for extensions of time to satisfy conditions re the discontinuance, abandonment and closure at Jersey Avenue and Virginia Beach Boulevard re reservation for future development (approved by City Council on June 21,2001, June 22,2004, and May 23,2006), Ordinance upon Application of Lope B. Pile & Mercy Pile for the discontinuance, abandonment and closure of a portion of Jersey Avenue beginning on the south side of Virginia Beach Boulevard and extending approximately 107.90 feet in a southerly direction. DISTRICT 2 - KEMPSVILLE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 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 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 AN ORDINANCE EXTENDING THE DATE FOR SATISFYING CONDITIONS IN THE MATTER OF THE CLOSING, VACATING AND DISCONTINUING OF A PORTION OF JERSEY AVENUE, UPON THE APPLICATION OF LOPE B. PILE AND MERCY PILE WHEREAS, on May 23, 2006, the Council of the City of Virginia Beach acted upon the application of the Lope B. Pile and Mercy Pile for the closure of portion of Jersey Avenue; WHEREAS, on May 23, 2006 the Council adopted an Ordinance to close the aforesaid street, subject to certain conditions being met on or before May 22, 2007; and WHEREAS, on April 25, 2007, extension of time to satisfy the aforesaid street closure. the applicants requested an conditions attached to the NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the date for meeting conditions of closure as stated in the Ordinance adopted on May 23, 2006, upon application of the Lope B. Pile and Mercy Pile, is extended to August 22, 2007. City of Virginia , 2007. Beach, Council of day of May the Adopted by the Virginia, on the 22nd CA-10308 V:lapplications\citylawprod\cycom32\ WpdocsID027\POO2\00032238.DOC Date: April 27, 2007 R1 APPROVED AS TO LEGAL SUFFICIENCY: ft!!f:tt~fice GPIN: 1467-85-8624-0000 and 1467-85-6657-0000 CORNELIUS & ANTONINA BOYNTON AND LOPE B. & MERCY PILE Agenda Items # 14 & 15 April 11, 2006 Public Hearing Staff Planner: Stephen J. White REQUEST: 14) Discontinuance, abandonment and closure of a portion of Jersey Avenue beginning on the south side of Virginia Beach Boulevard and extending approximately 155.67 feet in a southerly direction. 15) Discontinuance, abandonment and closure of a portion of Jersey Avenue beginning on the south side of Virginia Beach Boulevard and extending approximately 107.90 feet in a southerly direction. COUNCIL ELECTION DISTRICT: 2 -- KEMPSVILLE The applicants intend to purchase the two halves of Jersey Avenue to incorporate it into their adjoining properties. SITE SIZE: 8,gg8 &El~arc feet 2)5'"2- .\-ntal- 5.uO':l- G~ SUMMARY OF REQUEST This street closure was previously approved by City Council on June 12, 2001 and again on June 22, 2004. In both cases, however, the applicants failed to follow-through on the conditions of closure and the approvals were voided. >:: ,.-..'.'....- .,',. .-:",",> Bq~~...ON....8t Agenda 1!~1)'l$#14 LAND USE AND ZONING INFORMATION SURROUNDING LAND USE AND ZONING: North: South: East: West: . Virginia Beach Boulevard . Jersey Avenue . Pile property / B-2 Community Business District . Auto sales / B-2 Community Business NATURAL RESOURCE AND CULTURAL FEATURES: The area proposed for closure is paved. AICUZ: The site is in an AICUZ of less than 65 dB Ldn surrounding NAS Oceana. IMPACT ON CITY SERVICES WATER: There are no water lines in the area proposed for closure. SEWER: There are no sewer lines in the area proposed for closure. STORMWATER: There are stormwater drainage facil ities within the area requested for closure. A satisfactory easement must be provided over these facilities. PRIVATE UTILITIES: Virginia Natural Gas has facilities within the area requested for closure. A satisfactory easement over these facilities must be provided. COMPREHENSIVE PLAN The Comprehensive Plan identifies this site as being in the West Pembroke Strategic Growth Area. This strategic growth area consists of many tracts of land that differ widely with respect to type, intensity, character and value of land use. The West Pembroke Area is located between Witchduck Road, Independence Boulevard, Virginia Beach Boulevard and 1-264. Many of these properties have greater, long-term potential to be transformed from a land use pattern that is predominantly low intensity commercial and industrial to one that achieves a compatible mix of urban land uses and higher economic investment potential than exists today. EVALUATION AND RECOMMENDATION Staff, just as it has twice before, recommends approval of this request. Previous approvals have not been followed-through on by the applicants. It is Staff's sincere hope that this current recommendation for approval will result in the applicants fulfilling the conditions below and finalizing this closure. The Viewers Committee has determined there is no future need for the right-of-way except for drainage purposes. A satisfactory drainage easement must be provided within this area as a condition of the street closure. The area of the street closure will be incorporated into adjacent properties, and thus improving the desirability of the sites for future commercial redevelopment consistent with the existing zoning of B-2 Community Business District. Staff, therefore, recommends approval of this request with the conditions below. CONDITIONS The following conditions apply to both closure requests: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The City Attorney's Office will review any prior payments made to the City by the applicants to determine if they are in compliance with 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 applicants shall 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. A public drainage easement satisfactory to the Department of Public Works shall be provided on the final plat. 4. The applicant shall verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility com pan ies 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. 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. 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. NOTE: Further conditions may be required during the administration of applicable City Ordinances. Plans submitted with this rezoning application may require revision during detailed site plan review to meet all applicable City Codes. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (CPTED) concepts and strategies as they pertain to this site. AERIAL OF SITE Agenda -"."'~"";::':',:XA NOTES: ME~;_;Y i".~'; ~' '....',:;::'::.:-';::~?';::_::-'1;_ :-:',>-:>:~;:?'::,-,:::':::::}?:::::::::::':.:':: ,.: .':';:.;'- : : B/..sUY ':IN PL/\ r i~r.-COfl) to !. ;-\\'C!\dt: TO ~:F Ci.CSt,1.'); '431," ",(X 1 :'81 J. ARE",A- 1)1. A-,..''FNUr iO BE CLOSED ~~ 5..607 SC:UAm ("L-r/O.J2~ ,ACRE. HilS Dui' ,<or If< ;'WOf'D TO 51-'01'1 NH U..SLMf.NTS Ok "d'/SICAt f'EA TURfS Ho'" r MA) AFFTCrlHtS PROPER ~y_ 5. THIS PLI",T DOE.; NOT CONSro,l)l'[ .., SUl!I_W.J'SION .')1 tANO \ 6. IHiS Pi.A T DRfYAR[() WI'iHOI)f THE flENcrl1 or A TIT~f REPOP,! - ~~G'~ '. (S_>, , ~ &. ~ '>( I.", ,:;..... ~/:.'c;:;~:l7z.~ $(1 PI^. ~ (0/1'. C .o~a 'Dl'N --:'VC/J _ I , , ~1;fo<.il('c.,. ~.-1sJ'"""~b_ ! 8:7.t!.1.' ~ ~/lf<vvS8 "'fQ 4, LOT 2 -/. /// . .._.- -...-.----- .---.. ---- .-' LOT 3 LOT 4 @) '" @ LOT ::, ... N <0 00 I .., '? LOt 3 .... <0 .... l.OT 6 4 LOT ? Ell.OCK . 25, EUCliD (M,fl, .4,. P, 63) OPIN' 1467-.a~..64t7 SURVEY OF AREA TO BE BO~NTON& Agendart~ri1$..#14 & Pile bJ Dooo g B I]] DATE 1 11/13/90 2 06/09/92 3 09/28/99 03/14/00 03/14/00 4 06/12/01 5 07/13/93 6 07/11/88 03/14/95 7 12/12/83 I REQUEST Conditional Use Permit (auto sales) Conditional Use Permit (rec vehicle sales and storage) Conditional Use Permit (auto sales) Conditional Use Permit (auto sales expansion) Street Closure (Jersey Avenue) Street Closure (Jersey Avenue) Conditional Use Permit (auto rental) Street Closure (Dorsett Avenue) Conditional Use Permit (auto sales and repair) Conditional Use Permit (auto paint shop) I ACTION Approved Approved Approved Approved Approved Approved Approved Approved Approved Approved ZONING HISTORY N(JI1V:>I1ddV HlIfl.S01Jltl3lJ;S ~t6 Pc> III <1l:;t ~o.cn q aJi "_e OF fgsg ltlsg .~:tr~- E,%t ~ tIl o.jLQ w;s:;;;: ~~g~ ~~g~ ..l_~_0)$ 0-,;:,; g tIl_~._ o~t!~13 :i",;;:~~ % '" 'i!" sai,;,illg !;;: ,S; "'.. 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Bq~~:rON.~ Agenda Il~ri1s# 14 Item #14 & 15 Boynton & Pile Discontinuance, abandonment and closure of a portion of Jersey A venue beginning on the south side of Virginia Beach Boulevard and extending approximately 155.67 feet in a southerly Direction Discontinuance, abandonment and closure of a portion of Jersey A venue beginning on the south side of Virginia Beach Boulevard and extending approximately 107.90 feet in a southerly Direction District 2 Kempsville April 12, 2006 CONSENT Barry Knight: Our next two items to be placed on consent agenda are Items #14 and 15, Boynton and Pile. An Ordinance upon Application of Cornelius F. Boynton, Jr. and Antonina Boynton for the discontinuance, closure and abandonment of a portion of Jersey A venue beginning on the south side of Virginia Beach Boulevard and extending approximately 155.67 feet in a southerly direction, and an Ordinance upon Application of Lope B. Pile and Mercy Pile for the discontinuance, closure and abandonment of a portion of Jersey Avenue beginning on the south side of Virginia Beach Boulevard and extending approximately 107.90 feet in a southerly direction in the Kempsville District with five conditions. Eddie Bourdon: Mr. Chairman, again, Eddie Bourdon for the record. We are in accord with all the conditions and I ensure the Commission that this street closure will not come back again. It will be finalized. Barry Knight: Thank you. Eddie Bourdon: Thank you very much. Barry Knight: We've seen it about three times before. Anyone present today that objects to putting agenda Item #14 & 15 on the consent agenda? If not, Mr. Livas. Henry Livas: This request is a closure of a portion of Jersey Avenue at the south side of Virginia Beach Boulevard, and the applicants intend to purchase the two halves of Jersey Avenue to incorporate it into their adjoining properties. As far as the background is concerned, you may have just heard that the street closure was previously approved by City Council on June 12,2001 and also on June 22, 2004. However, in both cases the applicants failed to follow through on the conditions of closure and the approvals were subsequently voided. We recommend that this closure be approved since there is no need Item #14 & 15 Boynton & Pile Page 2 for the right-of-way except for drainage. We also recommend approval of the request along with five conditions. One of the conditions would address the drainage issue. Therefore, we put this on the consent agenda. Barry Knight: Thank you Henry. Do I hear a motion? There is a motion to approve by Kathy Katsias. Ronald Ripley: Second. Barry Knight: A second by Ron Ripley. Any discussion? Call for the question. ANDERSON BERNAS CRABTREE HENLEY KA TSIAS KNIGHT LIV AS RIPLEY STRANGE WALLER WOOD AYES ABSO NOO ABSENT 3 ABSENT AYE AYE AYE AYE AYE AYE AYE AYE ABSENT ABSENT Ed Weeden: By a vote of 8-0, the Board has approved Items #14 & 15 for consent. NOllS: EXHIBIT A ~AERiDi;l!J SOURcE BASlO ON P' .TCClRDED IN DEED BOOK 2431 F-'.A.GF 15, 2. PDRTiON 01' JE RS[:A.\i[NUE. fO CI.CSE.D: l::~-~~--='=Z~~l . ' -, .3 AREA C)'~ .JU:SE:Y AVENUr TO BE. CUJSFD= 5,607 SQUARE FEET/O,129 ACRE. .~ HilS D;A T ,c; NOT INTUmu; TO ~')H()N P{r U.SEMENTS OF! PHYSICAL FEATURES fHA T MAT Af'FtCT :H15 PF?OPEfHI - TH!:,: PLAf [)OCS NO' CONSTiTUTe A SUf3DI\!iSiO~J 0> :.A.Nf). ! C. iHIS Pi.A T ~)qEP.hJ?[J vl'n+~)'~'T THE f3FM'-iT OF .~ TiT:_E REPORT, .,! \/;)1"1 r -i- p i ~;,; S. OLD l1,l')"" II ::JC5 .(/ v, 8.n()'34~ t NAiL (',... Irl.>lt\t1 . ~.~J' .,", 2989' ~ 1.,/'4, .~! '-4 ~~ !? :-0(.. ",'J <;>. ' .;- '''''-? Q'(,;'"" I i} Q ,,', . ~:~~ .51..9__:~ f]<t"j ~/i/G.YJr.'/""&lf'-4CJy ~ I' ~ ~ i)RILL LOT! 'u, 11<f.' 1;707, :.t,o~ I1rDl'/y Q'OU' I o ~j(ilE__"'__""__'_h__ 1.: .ff. <~;SOJJf'Cr 1i'/Jt:J~k4~ : ~ ~ '<, &> . ~ ~ Ir/,,/OS& 'r'D J &- ~ 1.0 r ~) ,.' ,./ , / / >~.' /, ./. /'/ .//" .. , .' ,,'. ,/.' ,/' ,'./- """J ' . '. 0 ('-I .' ......:............ /' ~/ r-r) . /f-/ . ~. .. 1'" / :::r w /L!'J L!'J " .lJ.. /f /~ Ol .--- ----.- -"---.-- --------'.- --'--'-,---.-- ---..---- /,.' Lu // t w" ,,/.'" /' 0':' r").o./ n:: /' -: ,/ ~ r:; ~ / ~/ , r-- .' 0 / 0 r, 0 /:" ~ / lfl" o;:? /lfl / 3: ~,1) ,'1.1.1 /.0 ,/' C'J.'/ tel' - . Ol' " , r- ".,.' 0/ / Z.' ;r) ./!"J " ;rj / / c-J ,/ ~ . / .':/ 0 /" ,,/ /' /'0 ./ .../ //' ,,' // (J1 / ,/ / ,/ ,/ / ,/ /' Z.' ,./ / /;' ,./ ,,'. --.--- ---.-.., ----.--- ----.- ._-- ~-_.- // ,// / /'/// /'/ C> , / // ~==25.36'.<: /. .I"', / /~'b R = 38.0~ /~ . t::. = , 08'01'12" ;;> /(.,"" '- A = 71.64' l,. ----. ---.--.-- ""--- --,,- ------ ----,,- - 'r T = 52.32' <f(j) C ::-~ 61.49' . 0 C8 = S 53045'4'" W o. , LOT 3 LOT 4 ~;;:)) ,__'J. -- ~. ~: :;:: ------- -lQ .--....:-- ~ . ! ul :.0 Uj ~I :.r I . 1- ro.. 0 1.fj. a ~ ~ LOT 5 '<t C'l co co I 10 ~ LOT 3 r-- LD '<t !..cn 6 z Cl '" LOT 4 I f\ T -7 LV I I "1 <0 ." W"'-' _, =>~ 10 Z n:: LO L.tJI';;:)~ >~'<o., <9 l~ ~ n:;::; >- ~ ..f ;t ~ ~ a:i a:i O::~~ci W>"-'''-' -;) ''-'" l!) ~- o -..I S 89"45'05~ W l..c)T B. BLDCK :?~'j, [UCL!D PL..\CE (M.B. 4, P. 63) {;Plt-l i4b7..-8!)-6427 lD ' ~- () -..I EXHIBIT PLAT SHOWING A. PORTiON OF JERSEY AVENUE TO BE CLOSED ADJ~CENT TO LOTS 1 THRU 7, INCLUSIVE, BLOCK 25 AND LOTS 3 AND 4, BLOCK 26, EUCLID PLACE O.Hl. 4, P tU) VIPGINr,l\ UEn.CH. \/if~'.--;INI A, SCAi.E: i "~n2S' AUCUST .3. 1999 to "t ('.J Ld. -.. ~ ::.::: Ur") Q) U 4. to 1 O--,.U) (LQ Q) _J I CD c. -.t: r-- - to - _J . '<t 1", urn r' ~~ ~l~~# ~ ,..I L~ EVI':;m NOv. 12, 1999 JOHN Eo SIRINE AND ASSOCIATES, LTD. SURVEiORS. tNGINETRS' Pl_ANNlRS 4317 BONNEY ROA.D V:RG!NLL\ mACH, VIRGINiA 23452 C'l" ",07"-, H)O Ff-TT l=:.===:-- ..~~- ~'J "'_._:~~~~--.-: '~~~'~1 GR.A.PI-IIC SCALE SHEET 1 OF 1 & Pile ~ g 8 - 34 - Item V-L.3.b.. PLANNING ITEM # 56462 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED EXTENSION OF TIME FOR COMPLIANCE TO AUGUST 22, 2007, on an Ordinance upon application of CORNELIUS F. and ANTONINA BOYNTON for extensions of time to satisfy conditions re the discontinuance, abandonment and closure at Jersey Avenue and Virginia Beach Boulevard re reservation for future development (approved by City Council on June 21,2001, June 22,2004, and May 23, 2006). Ordinance upon Application of Cornelius F. Boynton, Jr. & Antonina Boynton for the discontinuance, abandonment and closure of a portion of Jersey Avenue beginning on the south side of Virginia Beach Boulevard and extending approximately 155.67 feet in a southerly direction. DISTRICT 2 - KEMPSVILLE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 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 36 37 38 39 40 41 42 43 44 45 46 47 48 49 AN ORDINANCE EXTENDING THE DATE FOR SATISFYING CONDITIONS IN THE MATTER OF THE CLOSING, VACATING AND DISCONTINUING OF A PORTION OF JERSEY AVENUE, UPON THE APPLICATION OF CORNELIUS F. BOYNTON, JR. AND ANTONIA S. BOYNTON WHEREAS, on May 23, 2006, the Council of the City of Virginia Beach acted upon the application of the Cornelius F. Boynton, Jr. and Antonia Boynton for the closure of portion of Jersey Avenue; WHEREAS, on May 23, 2006 the Council adopted an Ordinance to close the aforesaid street, subject to certain conditions being met on or before May 22, 2007; and WHEREAS, on April 25, 2007, extension of time to satisfy the aforesaid street closure. the applicants requested an conditions attached to the NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the date for the Ordinance adopted Cornelius F. Boynton, August 22, 2007. meeting conditions of closure as stated in on May 23, 2006, upon application of the Jr. and Antonia Boynton, is extended to Adopted by Virginia, on the the Council 22rdl3.y of of the May City of Virginia , 2007. Beach, CA-10309 V :lapplicationslcitylawprodlcycom321 Wpdocs\D027\POO2100032252.DOC Date: April 27, 2007 R1 TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Ut~tj.W~ City Attorney's Office GPIN: 1467-85-8624-0000 and 1467-85-6657-0000 - 35 - Item V-LA. PLANNING ITEM # 56464 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED, Variance to 95(b) of the Site Plan Ordinance that requires all newly created lots meet the requirements of the Floodplain Regulations for GLENN H. GETTlER, JR., at 493 Goodspeed Road re a master bedroom addition. Application of Glenn H Gettier, Jr. for a Variance to Section 5B of the Site Plan Ordinance, Floodplain Regulations on property located at 493 Goodspeed Road (GPIN 24/9411128). AICU2 is Less than 65 dB Ldn. DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. A site plan shall be submitted to the Planning Department, Development Services Center, for review and approval under all applicable City ordinances [this condition has been satisfied, as approval of the site plan was recently granted). 2. The proposed addition shall be constructed as depicted on the site plan and shall be constructed at the elevation of the existing dwelling of 6,26 feet or higher. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 - 36 - Item V-L.5. PLANNING ITEM # 56465 Attorney James W. Lam, 2425 George Mason Drive, represented the applicant, advised the intent is to downsize. The Kurpiel's wish to build a single-family dwelling which is not a detriment to the adjacent properties. Attorney Lam is not aware of any opposition. Kathleen Kurpiel, the applicant, advised they wish to build a small brick ranch, which would be a retirement home, Her husband, because of his knees, requires a one-story home. Upon motion by Council Lady Henley, seconded by Councilman Villanueva, City Council DENIED the Variance to 94.4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for EDWARD A. and KATHLEEN T. KURPIEL at 2184 Princess Anne Road re the creation of a flag lot designed for a future single-family dwelling Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Edward A. Kurpiel, Jr. and Kathleen T. Kurpiel. Property is located at 2184 Princess Anne Road (GPIN 2414059787). DISTRICT 7 - PRINCESS ANNE Voting: 5-3 Council Members Voting Aye: Robert M Dyer, Barbara M Henley, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: William R. "Bill" DeSteph, Harry E. Diezel, Reba S. McClanan, Council Members Abstaining: Vice Mayor Louis R. Jones Council Members Absent: John E. Uhrin and James 1. Wood Vice Mayor Jones ABSTAINED as he owns property on the same side of this road, only separated by the Church. May 22, 2007 - 37 - Item V-L.6. PLANNING ITEM # 56466 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon application of VALUE PLACE REAL ESTATE SERVICES, LLC, re a Modification of Proffers to allow a change of use from an office/warehouse facility to the development of a hotel (Conditional Change of Zoning approved on February 28,2006) and a Conditional Use Permit to allow a 121-unit limited service hotel ORDINANCE UPON APPLICATION OF VALUE PLACE REAL ESTATE SERVICES, L.L.C FOR A MODIFICATION OF PROFFERS (CONDITIONAL CHANGE OF ZONING APPROVED BY CITY COUNCIL ON FEBRUARY 28, 2006) Z05071280 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Value Place Real Estate Services, L.L.C for a Modification of Proffers (Conditional Change of Zoning approved by City Council on February 28, 2006.) Property is located at 1357 Diamond Springs Road (GP IN 1469009994). DISTRICT 4 - BA YSIDE AND, ORDINANCE UPON APPLICATION OF VALUE PLACE REAL ESTATE SERVICES, L.L.C FORA CONDITIONAL USE PERMIT FOR A HOTEL R050734226 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Value Place Real Estate Services, L.L.C for a Conditional Use Permit for a hotel on property located at 1357 Diamond Springs Road (GP IN 1469009994). DISTRICT 4 - BA YSIDE 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. The building elevation has been revised to include areas of brick that serve to break up the expanse of Hardiplank 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-second of May Two Thousand Seven May 22, 2007 - 38 - Item V-L.6. PLANNING ITEM # 56466 (Continued) Voting: 8-1 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf Ron A, Villanueva and Rosemary Wilson Council Members Voting Nay: Reba S. McClanan Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6623 FROM: DATE: May 11, 2007 Leslie L. Lille~ DEPT: City Attorney B. Kay Wilso DEPT: City Attorney TO: RE: Conditional Zoning Application: Value Place Real Estate Services, LLC (Tank Lines, Inc.) The above-referenced conditional zoning application is scheduled to be heard by the City Council on May 22,2007. I have reviewed the subject proffer agreement, dated May 10, 2007 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/ks Enclosure '. cc: Kathleen Hassen TANK LINES, INC., a Virginia Corporation TO (AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia. THIS SECOND AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS ("Amendment") made this 10th day of May 2007, by and between TANK LINES. INC., a Virginia corporation, its successors in interest or title and its assigns, ("Owner" and "Grantor") (Grantor for indexing purposes), VALUE PLACE REAL ESTATE SERVICES. LLC, its successors in interest or title and its assigns, ("Grantor") (Grantor for indexing purposes), (Tank Lines, Inc. and Value Place Real Estate Services, LLC hereinafter are collectively referred to as "Grantors") and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia ("Grantee") (Grantee for indexing purposes), provides and states as follows: WITNESSETH: WHEREAS, Owner is the oWner of a parcel of real property located in the City of Virginia Beach, Virginia, containing 2.399 acres ofland commonly referred to as 1357 Diamond Springs Road, Virginia Beach, Virginia, GPIN NO: 1469-00-9994 (formerly GPIN 1469-10- 0907), more particularly described in Exhibit A, attached hereto and incorporated herein by reference ("Property"); WHEREAS, on August 29, 2005 Grantors executed an Agreement of Proffered Covenants, Restrictions and Conditions, which was recorded March 8, 2006 as Instrument Number 20060308000354540 in the Clerk's Office of the City of Virginia Beach, Virginia (the "Proffered Conditions"); and WHEREAS, Grantors and Grantee desire to amend the Proffered Conditions as herein provided in order to allow for the design and development of the Property in accordance with a new conceptual site plan and building elevation. NOW, THEREFORE, the Grantors, its successors, assigns, grantees and other successors in title or interest, voluntarily and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following amendment to the Proffered Conditions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree that this Amendment 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 Grantors, its successors, assigns, grantees and other successors in interest or title: GPIN: 1469-00-9994 (formerly GPIN 1469-10-0907) Prepared by: LeClair Ryan, A Professional Corporation 999 Waterside Drive, Suite 2525 Norfolk, Virginia 23510 1. With respect to the existing Proffered Covenants, Restrictions and Conditions ("Proffer") set forth in an Agreement by and between Tank Lines, Inc., a Virginia corporation, and the City of Virginia Beach, a municipal corporation of the Commonwealth of Virginia, dated August 29, 2005 and recorded in the Clerk's Office of the Circuit Court of Virginia Beach, Virginia as Instrument Number 20060308000354540 on March 8, 2005, Proffer 1 as set forth in page 2 of the Agreement is terminated and the remaining Proffers as set forth in the Agreement shall remain. 2. A four-story hotel facility shall be constructed on the site as shown on the site plan ("Site Plan") attached hereto and made a part hereof as Exhibit A and will not exceed sixty-five (65) feet in height. In addition, the front yard of the hotel will be landscaped with a fountain and plantings. 3. The architectural design elements shall be generally as shown on the elevation rendering prepared by Howard & Helmer attached hereto and made a part hereof as Exhibit B. The hotel facility shall be constructed with brick and hardi-plank fayade on all four sides of the building and will include shutters on all windows with faux balconies as shown on the rendering. The rear elevation shall be similar to the front elevation with articulation of the walls and includes an entrance with a canopy. The side elevations shall include single door secured entrances. Materials are depicted on the Materials Board prepared by Howard & Helmer. Elevations and materials will be subject to review and approval by Director of Planning. 4. The site will have a single entrance as shown on the Site Plan. 5. A ten foot (10') landscape buffer will be constructed on the sides of the hotel which borders the real property now owned by CRM, LLC and Tank Lines, Inc. and a twenty foot (20') landscape buffer will be constructed on the back of the hotel which borders the real property now owned by J&E of V A, LTD. The Applicant will preserve all existing trees to the extent possible. All green areas, including the area around the fountain, will be well landscaped with mature deciduous shade trees and shrubs, and will include native plants like dogwoods, pines, and hollies (but not including crepe myrtles), and maintained on a regular basis. The existing trees in the area to be developed that become diseased or die shall be replaced with healthy trees, subject to review and approval by the Director of Planning. 6. The Applicant shall cause the installation and operation of video equipment with recording devices and capability sufficient to include date and time that recording is made (the "Equipment"). The video equipment shall provide high quality surveillance coverage encompassing the entrance to the facility and the parking lot as well as other building interior locations. The Applicant shall maintain the Equipment 2. to provide for the required surveillance coverage. The Equipment will be maintained on a regular basis in an effort to provide clear and sharp images and the Applicant will regularly replace tapes that become damaged and defective. The Equipment and recordings made thereby shall be subject to periodic inspection by the Police Department at reasonable times and acceptance of the conditions of this permit shall constitute consent for such inspections. The surveillance tapes or recorded data must be maintained in a condition permitting review of the information stored or recorded therein or thereon for a period of time no less than thirty days after the date that the recording or surveillance is made. 7. Two (2) employees of the Applicant will be present and available on site to serve customers, to oversee day to day operations, and to provide security. Applicant will provide on site security 24 hours daily. Applicant will utilize the Safe Program which in part, mandates that hotel guests will sign a waiver and release which allows Applicant to share the hotel guests' name and identification number with the Police Department. 8. The Applicant agrees that no hotel room shall be rented for less than a seven (7) day period and no guest shall be permitted to occupy a room for a period exceeding thirty (30) consecutive days. 9. The Applicant agrees that there shall be no more than four guests permitted to occupy a room designed to accommodate four guests. Similarly, no more than two guests will be permitted to occupy a room designed to accommodate two guests. 10. Interior and exterior lighting will be provided to the maximum extent allowed by the Virginia Beach Zoning Ordinance and will include lighting at all security camera locations. Grantors further covenant and agree that: The above amendment having been proffered by Grantors and allowed and accepted by Grantee as part of the amendment to the Zoning Ordinance shall continue in full force and effect until a subsequent amendment changes and 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 Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of Grantee, after a public hearing before Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 3. 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. Grantors 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, Grantors 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 Grantors and Grantee. [SIGNATURES ON FOLLOWING PAGES] 4. WITNESS the following signature and seal: GRANTOR: (SEAL) COMMONWEALTH OF YIRGINIA CITY OF AltP>f~ Ie , to wit: The foregoing instrument was a~knowledge before me this /O+laaYOf MI.JLL , 2006 by ChfA-VR-S ?5.l1JtltliDK JI2. , as HR&:~.J- of ~, INC., a Virginia corporation, on behalf of said corporation. My Commission Expires: CJ /3lJ ) OJ / / Notary ID#: .....?{) ri..f4-~ 5. By: Name: Title: VALUE PLACE REAL ESTATE SERVICES, LLC J~bell Manager of Development (SEAL) Services STATE OF ~(\n. eOUNTY/CI F ~folk .. , to wit: The foregoing instrument was acknowledge before me this IOftt day of May 2007, by Jon ~rbe.\ \ ,as ~ of:)eudq>fl\erd-~fValue Place Real Estate Services, LLC, on behalf of said corporation. Notary 10#: J '0'1'-\-0 My Commission Expires: <1'-~~ '2Ll\O 6 EXHIBIT A PROPERTY DESCRIPTION ALL TIlAT certain 1ract, piece or parcel of land, lying, situate and being in the City. of Virginia Beach, VirgirUa, de~~ as -PARCEL XlJV-B., on that certain plat entitled "RESUBDMSION OF PARCEL XLIV, AIRPORT INDUSTRIAL PARK - BAYSIDE (MB 116, PO 25) AND THE PROPERTY OF CLARA S. MALSON (InstrnTVent No. 200310170169982) VIrginia Beach, VIrginia-, prepared by Engineering Services, Inc., and duly reco1ded in the Clerk's office of the Circuit Court of the City of VzrgLnia Beach, Vuginia, as Instrument # 2005121500200 1950. 7. - 39 - Item V-L.7. PLANNING ITEM # 56467 Attorney R. J. Nutter, 222 Central Park Avenue, represented the applicant and requested DEFERRAL until the City Council of June 12, 2007, in order to meet with the three (3) Civic Leagues affected. Upon motion by Councilman Dyer, seconded by Councilman DeSteph, City Council DEFERRED until the City Council Session of June 12, 2007, Ordinance upon application of SOUTH INDEPENDENCE ACQUISITION, L.L.e., for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF SOUTH INDEPENDENCE ACQUISITION, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-5D AND R-10 TO CONDITIONAL A-36, CONDITIONAL B-4 AND CONDITIONAL A-12 WITH A PD-H2 o VERLA y Ordinance upon application of South Independence Acquisition, L.L. C. for a Change of Zoning District Classification from R-5D and R-10 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay on property located on the southeast and southwest corners of South Independence Boulevard and Princess Anne Road and 1632 Salem Road (GPINs 1485050352; 1485251012; 1475856017). DISTRICT 1 - CENTERVILLE & DISTRICT 7 - PRINCESS ANNE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 - 40- Item V-L.8. PLANNING ITEM # 56468 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon application of CONNIE ONE, L.L.c. for the discontinuance, closure and abandonment of an unimproved portion of Connie Lane and Conditional Change of Zoning: Ordinance upon application of Connie One, L.L.c., a Virginia Liablity Company, in the matter of closing, vacating and discontinuing a portion of that certain street known as "Connie Lane - var. width r/w" as shown on that certain plat entitled "exhibit plat proposed street closure of a portion of Connie Lane Virginia Beach, Virginia" DISTRICT 4 - BAYSIDE AND DISTRICT 2 - KEMPSVILLE The following conditions shall be required: 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 provide all the required easements requested by the City of Virginia Beach Public Utilities Department. 4. The applicant shall verify that no private utilities exist within the right-ofway proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-ofway proposed for closure. If private utilities do exist, the applicant shall provide easements satisfactory to the utility companies. 5. The applicant shall provide access for the single-family dwelling, known as 5448 Connie Lane, located directly north of the proposed right-ofway closure. 6. Closure of the right-of way shall be contingent upon compliance with the above stated conditions within one (1) year of approval (May 21, 2008) by City Council. If all conditions noted above are not in compliance and the final plat is not approved within one (1) year of the City Council vote to close the street, this approval will be considered null and void. AND, May 22, 2007 - 41 - Item V-L.8. PLANNING ITEM # 56468 (Continued) ORDINANCE UPON APPLICATION OF CONNIE ONE, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-7.5 RESIDENTIAL DISTRICT AND 1-1 LIGHT INDUSTRIAL DISTRICT TO CONDITIONALA-12 Z05071281 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Connie One, L.L.c. for a Change of Zoninz District Classification from R-7.5 Residential District and 1-1 Light Industrial District to Conditional A-12 Apartment District on property located on the north side of Connie Lane, approximately 124.18 feet east of Connie Way and on the south side of Connie Lane at its intersection with Baker Road (GPINs 1468507212; 1468505086; 1468503176). DISTRICT 4 - BAYSIDE AND DISTRICT 2 - KEMPSVILLE 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. These Ordinances 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-second of May Two Thousand Seven Voting: 8-1 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: Reba S. McClanan Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 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 36 37 38 39 40 41 42 43 44 45 46 47 48 IN THE MATTER OF CLOSING, VACATING AND DISCONTINUING A PORTION OF THAT CERTAIN STREET KNOWN AS "CONNIE LANE VAR. WIDTH R/W" AS SHOWN ON THAT CERTAIN PLAT ENTITLED "EXHIBIT PLAT PROPOSED STREET CLOSURE OF A PORTION OF CONNIE LANE VIRGINIA BEACH, VIRGINIA" WHEREAS, Connie One, L.L.C., a Virginia limited liability company, (the "Applicant") 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 closed and vacated, or before one (1) ordinance: hereinafter described street be discontinued, subj ect to certain conditions being met on year from City Council's adoption of this All that certain piece or parcel of land situate, lying and being in the City of Virginia Beach, Virginia, designated and described as "CONNIE LANE - VAR. WIDTH R/W" and also described as "STREET CLOSURE AREA = 33,830 SQ. FT. - 0.777 ACRE i" shown as the hatched area on that certain plat entitled: "EXHIBIT PLAT PROPOSED STREET CLOSURE OF A PORTION OF CONNIE LANE VIRGINIA BEACH, VIRGINIA" Scale: 1" = 50', dated August 10, 2006, prepared by The Spectra Group, a copy of which is attached hereto as Exhibit A. GPINS: 1468-50-3176, 1468-50-4334, 1468-50-4484, 1468- 50-5086, 1468-50-7212, 1467-59-9982 and 1467-79-2977 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 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 resubdi vide vacate internal lot lines to incorporate the the adjoining parcels. The resubdivision submi tted and approved for recordation prior closure approval. the property and closed area into plat shall be to final street 3. The applicant requested by the Department. shall City provide all of Virginia the required Beach Public easements Utilities 4. The applicant shall verify that no private utili ties exist wi thin 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. 5. The applicant shall provide access single-family dwelling, known as 5448 Connie Lane, directly north of the proposed right-of-way closure. for the located 6. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within one (1) year of approval by City Council. If all conditions noted above are not in compliance and the final plat is not approved within one (1) year of the City Council vote to close the street, this approval will be considered null and void. 2 90 SECTION I I I 91 92 1. If the preceding conditions are not fulfilled on 93 or before May 21, 2008, this Ordinance will be deemed null and 94 void without further action by the City Council. 95 96 2. If all conditions are met on or before May 21, 97 2008, the date of final closure is the date the street closure 98 ordinance is recorded by the City Attorney. 99 100 3. In the event the City of Virginia Beach has any 101 interest in the underlying fee, the City Manager or his designee 102 is authorized to execute whatever documents, if any, that may be 103 requested to convey such interest, provided said documents are 104 approved by the City Attorney's Office. 105 106 SECTION IV 107 108 A certified copy of this Ordinance shall be filed in 109 the Clerk's Office of the Circuit Court of the City of Virginia 110 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA 111 BEACH as "Grantor" and CONNIE ONE, L.L.C., as "Grantee." 112 113 Adopted by the Council of the City of Virginia Beach, 114 Virginia, on this 22nd day of May , 2007. 115 116 117 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE-FOURTHS OF 118 ALL COUNCIL MEMBERS ELECTED TO COUNCIL. CA10173 v :\applications\citylawprod\cycom32\ Wpdocs\DO 16\P002\00031646.DOC R-1 April 18, 2007 3 CONTENT: en APPROVED AS TO LEGAL SUFFICIENCY: c~~ ,t~'991 (9~1 'd 'Llt '8'0) .-/ SS]~~3 ONY SS]~~N/ .-/mn ~OJ lN31'13S'13 ~O M/~ ,O~ ..../ R . "':5 ~C5~ <=E~ ~~~ ~~iEo: -~~;f ~8~ .<tiitti e. ~ ~ ~ ~- ol'l ~~ ~9 "'" >-~O> "'o~ "''''0 ~@@ :~~ ~~~ ~-~ ,,-,,-, g~~ "'''-''- ... ~ ~ '" '"- ~~~ ,,'" . >1"'''- lli~~ '" '" .. 'i""'''' ~ cci ~ ~~ S;~ "'''' ~~ ~~ ",!i' "'8 ~~ ",,,, ~ "" \;; ~ ~ 3 ~ ~ 8 :;; ~-'" u'" ~ Lu~;;; ~,,->l ~ ~ 'f ... ~ ~ ~ g, Exhibit A ~~ i o ~ ~ i ~ 8 ; 8~~ ~~~ "-,,, g ~ 'f ... ~ ~ ~ ~ '" '" ~L'l61 . ~~'60~ V) f6A:''''6'"h ~ . io ~ ...... ~ cPJ' ~- - __ \5~ ~~ ~-..... ..... ~ ~ ~o...: Lu~ ~ ~ ~ ~ ~a: ~~.g:g ~i :e.~ 0: '" 8 i::' ~~;;~~~ ~ f:5~r-.,~lil'~ :~:Sa.:a.:Q;~ gtj~~~~~a.:~ ~~~~~-:~:! ~~~gj~~ ~~e-ctj& ~~ </' r.; 't-~,,>~ ~ ~~ f- ~.... ~..:r ~ 0..... ~.~ ,'C"'~ ~l! ~ ,p.~ " O</' '" , l" ~ ~; .. ~ ~ :2 .... 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NOWSOd JO lno (J):JNO:J NI N/d lE I ~ -~iQ'~....: ~ t1~~-1.I... ~",i!s~o:",:~5(~ ~ ~::;, .o.:?~'<t: g~~~ro.:~"1." ~~~-~~:!~~ 2ll:Q..~q;j '. He ~ LO'tr~ ,~nr CONNIE WAY - 50' JflDTH Rjr (D.B. 2703, P. 1373) q,y) \'Jfb'1. " ~. ~1\\' ~~. D"~"<';' #9 ,,,,<."'~ :>- ~ G";;; [5{g~~~ ~~~o.:~ ~~~ ~.~ oQ ""'J_ 3t5:~cri~ ~ ~ Q:: e.~ .....r:-~.lT ~~ ~ -<~"-Z ....4dO~ 0... t:;:j is ....4 ~WFS -"'''' >--0 i=Q (J)Cl.~ ~8< (J),,- ~oO ~~ U Cl. c o 10w VJ -' " ~o uU'} - " iE~ " 0'" C) 10 '" ~ w '-' o ,., 5t 01;;r-- ~Ii~ (1j ~ 'c~ H ~.;;- ~;ft2 (j) a3 >;; ~ ~l~~ ,,!I; ~ 6 ~ t!)~ 5- 3L... -I ~Q '-' - ~.I t Ow 0<( V"J:c I ~ ~ ~ CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6572 DATE: May 9,2007 FROM: Leslie L. LiUey ~ B. Kay WiISO~ DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application: Connie One, LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on May 22, 2007. I have reviewed the subject proffer agreement, dated January 17, 2007 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/als Enclosure cc: Kathleen Hassen Prepared BylReturn To: Troutman Sanders LLP 222 Central Park A venue, Suite 2000 Virginia Beach, Virginia "23462 AGREEMENT TillS AGREEMENT (the "Agreement") is made as of this 17th day of January, 2007 by and between CONNIE ONE. L.L.C., a Virginia limited liability company (the "Grantor"), the current owner of that certain property located along Connie Lane, in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property") and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNES SETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from R-7.5 and I-I to Conditional A-12; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for residential 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 subject Property and at the ~ame time to recognize the effects of the 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 A-12 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 part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing A-12 districts by the existing City's Zoning Ordinance (CZO), 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 new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and GPINs: 1468-50-7212; 1468-50-5086; 1468-50-3176 WHEREAS, said conditions having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself, it's successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of Quid pro QUO for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, it's heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: I. When developed, the Property shall be developed in substantial conformance with the exhibit titled "Connie Manor Preliminary Site Plan", dated 11/30/2006, and prepared by the Spectra Group, Inc., a copy of which has been exhibited to the City Council and is on file with City Planning Department (the "Conceptual Plan"). Page 2 2. When developed, Grantor shall install landscaping and a fence, each in accordance with the Category IV requirements of the City's Landscape Guide, along the northwestern boundary of the Property north of Connie Lane, as shown on the Conceptual Plan. 3. When developed, the residential buildings constructed on the Property shall be constructed in substantial conformance with the building elevations titled "Connie Manor Building Elevation I" and "Connie Manor Building Elevation II", which elevations have been exhibited to the City Council and are on file in the Planning Department of the City of Virginia Beach (the "Elevations"). A. Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The 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, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing oflegal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Page 3 Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. [Remainder of Page Left Intentionally Blank; Signature Page Follows] IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: CONNIE ONE, L.L.C., a Virginia limit liability company By: Name: LY\ . ~ Woe.&.. Title: t\\c..nc'A.~; ~ ~V'\. W COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing ins~ent ~a~ aci20wledged before me this 11-t'V'\ day of ),AtJVM->l , 200~ by C "'(',S l.J UvY , in his/her capacity as managing member of CONNIE ONE, L.L.C., a Virginia limited liability company, on behalf of the company. My Commission Expires: ~WJlJ2A~ / Notary Public Oc.ro&L- 3 ( 2J:J l () I 320550 Page 4 Exhibit A PARCEL ONE: ALL THAT certain lot, piece or parcel of land, lying, situate and being in the Bayside Borough of the City of Virginia Beach, Virginia, and known as Lot 28 of Newsome Fann, on the plat recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 59 at page 48, and bounded and described as follows: Beginning at a point in the west side of Connie Lane separating the property herein described from that now or formerly of W.e. Johnson; thence S. 36 degrees 58' W 250.83 feet to a pin; thence S. 69 degrees 26'10" E 734.57 feet to a pin; thence N. 26 degrees 53' E 44.06 feet to a pin in the western side of Connie Lane, thence along the western side of Connie Lane N 53 degrees 02' W 697.05 feet to the point of beginning. For a more particular description of said property, reference is made to plat entitled, "Survey of Tract No. 28 Plat of Newsome Fann, Property of Jerry Poole Est." made by Chewning, Goodwin and Hoggard, dated June 21, 1967. Less and except that portion conveyed to Tidewater Industries, Inc., a Virginia corporation, in Deed Book 1059, at page 90. Less and except that portion conveyed to City of Virginia Beach in Deed Book 2810, at page 2157. IT BEING the same property conveyed to Charles W. Hutchinson, Jr. and Virginia W. Hutchinson and Charles W. Hutchinson, Jr. by deed from Louise E. Baker, widow dated March 14, 1968 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 1049, at page 272. Virginia W. Hutchinson died testate on July 3, 1987 and by operation oflaw property passed to Charles W. Hutchinson, Jr., her husband. PARCEL TWO: ALL THA T certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, known, numbered and designated as Parcel "A", Tidewater Industries, as shown on that certain plat entitled, "subdivision of number 28, plat of Newsome Fann, for C.W. and V.W. Hutchinson, Bayside Borough - Virginia Beach, Virginia, 11 April 1968, Scale: 1" = 100', Freeman and Johnson, Engineers and Surveyors," which said plat is to be duly recorde d in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 1059, at page 92. Less and except that portion conveyed to City of Virginia Beach in Deed Book 2810, at page 2152. Page 5 Less and except that portion conveyed to City of Virginia Beach in Deed Book 3707, at page 1366. IT BEING the same property conveyed to Tidewater Industries, Inc. by deed from Charles W. Hutchinson, Jr. and Virginia W. Hutchinson, dated April 24, 1968 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 1059, at page 90. PARCEL THREE: ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, near Davis Corner, and described on a certain plat of survey entitled, "Property of David R. Copeland, located near Davis Corner, Princess Anne County, Virginia," made by W.B. Gallup, County Surveyor, dated September 22, 1953, and duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 340, at page 471, and being more particularly described as follows: Beginning at a pin on the northern side of Newsome Fann Road, which pin is S. 53 degrees 02' E 473 feet from the northeastern corner of Newsome Fann Road and a 15 foot road designated as B Road, and from said point of beginning running thence N 36 degrees 00' E 209 feet to a pin; thence turning and running S. 53 degrees 02' E 417 feet to a pin; thence turning and running S. 36 degrees 00' W 209 feet to a pin in the northern line of Newsome Road; thence turning and running along the northern side of Newsome Fann Road N 53 degrees 02' W 417 feet to the point of beginning. LESS AND EXCEPT that portion of the property, being 3234 sq. ft., which was conveyed to the City of Virginia Beach for road widening as recorded in the aforesaid Clerk's Office in Deed Book 2750 at page 1941, and as shown on the plat recorded in Deed Book 2720, at page 383. Page 6 City of Virgir1ia Beach JAMES L. WOOD COUNCILMAN - DISTRICT 5 - L YNNHAVEN PHONE: FAX: (757) 340-8411 (757) 340-2082 May 17,2007 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Fraser: Re: Abstention Pursuant to Section 2.2-31 15(E), Code of Virginia Pursuant to the Virginia Conflict oflnterests Act, Section 2.2-3115(E), Code of Virginia, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on applications of Connie One, L.L.C. for (1) the discontinuance, closure and abandonment of a portion of Connie Lane beginning on the east side of Connie Way to the west side of Baker Road; and (2) Change of Zoning District Classification from R -7.5 Residential District and I-I Light Industrial District to Conditional A -12 Apartment District on property located on the north side of Connie Lane, approximately 124.18 feet east of Connie Way, and on the south side of Connie Lane at its intersection with Baker Road (GPINs 1468507212; 1468505086; 1468503176). 2. I am a member of Connie One, L.L.C., which is located at 208 Ash Ave Suite 101 23452, and I therefore have a personal interest in the corporation. 3. I wish to disclose this interest and abstain from voting on this matter. Accordingly, I respectfully request that you record this declaration in the official records of City Council. 3778 PRINCE ANDREW LANE, VIRGINIA BEACH, VA 23452 Mrs. Ruth Hodges Smith -2- Re: Abstention Pursuant to Section 2.2-3II5(E), Code of Virginia Thank you for your assistance in this matter. JL W /RRI May 17,2007 - 42- Item v'M.1. APPOINTMENTS ITEM # 56469 BY CONSENSUS, City Council RESCHEDULED: OPEN SPACE ADVISORY COMMITTEE May 22, 2007 - 43 - Item v'M.2. ADD-ON ITEM # 56470 Upon motion by Councilman Dyer, seconded by Councilman DeSteph, City Council ADDED and CANCELLED: City Council Session - August 7, 2007 (National Night Out Against Crime) Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: John E. Uhrin and James L. Wood May 22, 2007 - 44- Item V-O. ADJOURNMENT ITEM # 56471 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:03 P.M. Q~_a_~~_~_~ Beverly 0. Hooks, CMC Chief Deputy City Clerk uth Hodges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia May 22, 2007