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HomeMy WebLinkAboutJANUARY 26, 1999 MINUTESCity of Virginia Beach "WORLD'S LARGEST RESORT CITY" CITY COUNCIL MAYOR MEYERA E OBERNDORF At Large VICE MAYOR WILLIAM D SESSOMS JR At Large LINWOOD 0 BRANCH III Dtstrtct 6 Beach MARGARET L EURE Dtstrtrt l-Centervtlle WILLIAM W HARRISON JR Dtstrtct 5 Lynnhaven HAROLD HEISCHOBER At-Large BARBARA M HENLEY Dtstrtct 7-Prtnces$ Anne LOUIS R JONES Dtstrtct 4-Baystde REBA S McCLANAN Dtstrtct 3 Rose Itall NANCY K PARKER At Large A M (DON) WEEKS Dtstrwt 2 Kempsvdle JAMES K SPORE Ctty Manager LESLIE L LILLEY, Ctly Attorney RUTH HODGES SMITH CMC/AAE Cay Clerk CITY COUNCIL AGENDA · .e OUR CITY HALL BUILDING I 2401 COURTHOUSE DRIVE VIRGINIA BEACH VIRGINIA 23456 9005 PttONE (757) 427 4~0~ FAX (757) 426 5669 ['-MAIL CTYCNCI~)CITY VIRGINIA BEACH VA US January 26, 1999 I. CITY MANAGER'S BRIEFINGS - Conference Room - 3:00 PM , AMPHITHEATER SOUND STUDY Mark Wawner, Department of Economic Development FERRELL PARKWAY PHASES II AND V Clarence Wamstaff, Director of Public Utilities & Acting Director of Public Works II. REVIEW OF AGENDA ITEMS III. CITY COUNCIL COMMENTS IV. INFORMAL SESSION - Conference Room - 5:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO EXECUTIVE SESSION V. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. INVOCATION: Reverend Robert E. Cooper Charity United Methodist Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF EXECUTIVE SESSION F. MINUTES 1. INFORMAL & FORMAL SESSIONS January 12, 1999 Go AGENDA FOR FORMAL SESSION The Consent Agenda wdl be determined during the Agenda Review Session and constdered in the or&nary course of business by City Council to be enacted by one motion. H. PUBLIC HEARINGS 1. AGRICULTURAL PRESERVATION PROGRAM (ARP) (District 7 - Princess Anne) 2. LEASE OF CITY-OWNED REAL ESTATE - Great Neck District Park ORDINANCES/RESOLUTION . Ordinance to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations (PRINCESS ANNE - DISTRICT 7): Luther E. Gilbert, Jr. - 159.95 Acres - $ 443,813 Installment Purchase Agreement No. 1999-24 . Ordinance to authorize the five-year lease of an 11.7 acre parcel in the Great Neck District Park to GNBL (Great Neck Baseball League), Inc. . Ordinance to APPROPRIATE $1,000,000 from General Obligation Bonds to CIP Project #2-278, TCC Site Improvements; ADJUST CIP ProJect #1-208, Technical Education Center; and, estimated revenue from the proceeds of General Obligation Bonds be increased accordingly. . Ordinance to ACCEPT and APPROPRIATE $121,731 from the Virginia Department of Medical Assistance Services to the FY 1998-1999 Operating Budget of the Department of Social Services re providing the Children's Medical Security Insurance Program locally; and, estimated revenue from the state government be increased accordingly. 5, Ordinance to ACCEPT and APPROPRIATE a $19,350 Grant from the V~rgima Coastal Resources Management Program to the FY 1998-1999 Operating Budget of the Department of Museums re providing an educational program about the protection of marine species to owners and operators of recreational marine vessels, with required match of $21,625 available within existing FY 1998-1999 appropriations; and, estimated revenue from the state government be increased accordingly. . Resolution of Endorsement to the Commonwealth Transportation Board for the Norfolk Avenue Trail as a proposed Transportation Enhancement Project. 7. CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY: James Taxi Service Marquis Limousine, Inc. Regal Limousine, Inc. Top Hat Limousines, Inc. 8. REFUNDS: a. License- $ 77,539.92 b. Tax - $ 1,166.02 J. PUBLIC HEARING- PLANNING PLANNING BY CONSENT - To be determined dunng the Agenda Review Session. o . , . o . . NON-ACTION ITEM DEFERRED BY PLANNING COMMISSION January 13, 1999 a. Application of HOME DEPOT U.S.A., INC., for a Change of Zoning District Classification fi.om R-5D Residential Duplex District to Conditional B-2 Communi _ty Business District at the Southeast intersection of Princess Anne Road and South Independence Boulevard, containing 23.08 acres (CENTERVILLE - DISTRICT 1) Application of BUDDHIST ASSOCIATION OF HAMPTON ROADS for a Modification of Conditions attached to the approved December 9, 1997, application to clarify the design and building materials for the Monk's residence, which will be constructed prior to the Temple at 4915 Bonney Road, containing 2.44 acres (KEMPSVILLE - DISTRICT 2) Recommendation: APPROVAL Application of ASSOCIATION FOR RESEARCH & ENLIGHTENMENT, INC., for an enlargement of the nonconforming existing use at the Northwest comer of Atlantic Avenue, 67th Street and Seashore State Park to enlarge existing facilities (LYNNHAVEN - DISTRICT 5). Deferred: July 14, 1998 August 4, 1998 November 10, 1998 November 24, 1998 Recommendation: APPROVAL Application of SUE D. FRANCE for an enlargement of a nonconforming use to demolish an existing building and construct a new one at 1741 London Bridge Road, containing 1.51 acres (BEACH - DISTRICT 6) Deferred: Deferred Indefinitely: September 22, 1998 October 6, 1998 Recommendation: DENIAL Application of JOHN S. GEORGHIOU for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires newly created lots meet all requirements of the City Zoning Ordinance (CZO) at the Northeast comer of Independence Boulevard and Cullen Road (BAYSIDE- DISTRICT 4) Recommendation: APPROVAL Application of PRINCESS HOUSE, L.L.C., for a Conditional Use Permit for housing for the aged on the East side of Princess Anne Road, 180 feet North of Baxter Road, containing 5.014 acres (KEMPSVILLE - DISTRICT 2) Recommendation: APPROVAL Application of MANORHOUSE RETIREMENT CENTERS, INC., for a Conditional Use Permit for an assisted living facility on the South side of Wesleyan Drive beginning at a point 760 feet more or less West of Broad Meadows Boulevard, containing 4.770 acres more or less (BAYSIDE - DISTRICT 4) Recommendation: APPROVAL . . 10. 11. 12. 13. 14. 15. Application of DARLENE McNEICE CASTELLANO for a Conditional Use Permit for a home occupation (housing for the aged) on Lot 3, Block 3, Section 3, Lake Shores (5249 North Lake Road), containing 20,000 square feet (BAYSIDE - DISTRICT 4) Staff Recommendation: APPROVAL Planning Comm. Recommendation: DENIAL Application of ROCK CHURCH for a Conditional Use Permit for a child care education center in a church at the Northeast intersection of Kempsville Road and Manor Drive (580 Kempsville Road), containing 7.72 acres (KEMPSVILLE - DISTRICT 2) Recommendation: APPROVAL Application of MOTIVA ENTERPRISES, L.L.C. for a Conditional Use Permit for an automobile service station on Lots 4 & 5, Diamond Lake Estates (5793 Northampton Boulevard), containing 40,000 square feet (BAYSIDE - DISTRICT 4) Staff Recommendation: DEFERRAL Planning Comm. Recommendation: APPROVAL Application of S AND R PROPERTIES for Conditional Use Permit for a bingo hall on the South side of Cleveland Street beginning at a point 250 feet more or less West of Aragona Boulevard, containing 4.81 acres (KEMPSVILLE- DISTRICT 2) Staff Recommendation: APPROVAL Planning Comm. Recommendation: DENIAL Application of BARRY BEHRMAN for a Conditional Use Permit for an expansion of a commercial recreational facility (family billiards) on the East side of Princess Anne Road, South of Parliament Drive (5610 Princess Anne Road), containing 9.96 acres (KEMPSVILLE- DISTRICT 2) Recommendation: APPROVAL Application of the CITY OF VIRGINIA BEACH for a Conditional Use Permit for a line- of-sight relay device (wireless communication antennae) at the Northern extremity of Chantry Drive (701 Chantry Drive), containing 15,000 square feet of a 9.08 acre parcel (ROSE HALL- DISTRICT 3) Recommendation: APPROVAL Application of ARMADA/HOFFLER HOLDING COMPANY for a Change of Zoning District Classification from R-10 Residential District to Conditional B-2 Communi_ty Business District at the Southeast corner of Wesleyan Drive and Diamond Springs Road, containing 12.8753 acres (BAYSIDE - DISTRICT 4). Recommendation: APPROVAL Application of GEE-CEE CONSTRUCTION GROUP L.L.C. for a Change of Zoning District Classification from R-7.5 Residential District and A-12 Apartment District to Conditional A- 12 Apartment District at the Northern extremity of North Garnett Point Road, containing 15.205 acres (KEMPSVILLE- DISTRICT 2) Recommendation: APPROVAL K. APPOINTMENTS HUMAN RIGHTS COMMISSION PENDLETON PROJECT MANAGEMENT BOARD REVIEW AND ALLOCATION COMMITTEE (COIG) L. UNFINISHED BUSINESS M. NEW BUSINESS PROPOSED FY 1999-2000 OPERATING BUDGET & C I P SCHEDULE DATE EVENT TIME LOCATION Tuesday, March 30 Presentation of Budget/CIP Noon Councd Chambers Tuesday, April 6 Workshop 10 AM - Noon Council Conference Room Tuesday, April 13 Workshop 10 AM - Noon Council Conference Room Thursday, April 15 Public Hearing 7 PM Princess Anne High School Tuesday, April 20 Workshop 4 PM - 6 PM Council Conference Room Tuesday, April 27 Workshop 3 PM - 5 PM Council Conference Room Tuesday, May 4 Workshop 10 AM - Noon Council Conference Room Tuesday, May 4 Public Hearing 2 PM Council Chambers Thursday, May 6 Reconciliation Workshop 3 PM - 5 PM Council Conference Room Tuesday, May 11 Adoption of FY 1999-2000 Operating Budget & Capital Program 2PM Council Chambers N. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) 01/22/99BAP AGENDA\01-26-99 www.virginia-beach.va.us OUR MINUTES VIRGINIA BEACH CITY COUNCIL V~rg~n~a Beach, V~rginia January 26, 1999 Mayor Meyera E Oberndorf called to order the CITY MANAGER'S BRIEFINGS tn the Counctl Conference Room, Ctty Hall Butldtng, on January 26, 1999, at 3. O0 P M Counctl Members Present Ltnwood 0 Branch, III, Margaret L Eure, William W. Harrtson, Jr, Harold Hetschober, Barbara M. Henley, Louts R Jones, Reba $ McClanan, Mayor Meyera E Oberndorf, Nancy K Parker, Vice Mayor Wtlham D Sessoms, Jr and A M "Don" Weeks Counctl Members Absent. None -2- CITY MANAGER'S BRIEFING AMPHITHEATER SOUND STUD Y 3:00 P.M. ITEM # 44518 Mark Wawner, Department of Economic Development, recognized Fred Schafer - F C Schafer Consulting and Dr Noel Stewart - Stewart Acoustical Consultants, who were contracted to perform the study of sound in communities near the Amphltheater "A Study of Sound in Communities Near the GTE- Virginia Beach Amphitheater with Options for Control" is hereby made a part of the record Mr Schafer advised the original scope of work was to identify the changes to reduce the sound in the Amphitheater, the potential cost and the benefits. Mr Schafer described the basics of sound The effect perceived by the ear as sound is a very small and rapid change in air pressure The variations are very slightly above and below the barometric pressure The percelved loudness of a sound corresponds primarlly to the size of the variation in pressure. The ear is very sensitive and can detect, at some frequencies, variations less than 3 billionths of apoundper square inch (psO. Variations greater than 0.001-. O1 psi can cause pain or discomfort For humans to hear the sound, these alrpressure variations must be rapid. They must complete a cycle at least 20 times per second and not more than 20, 000 times per second. The repetition rate of these cycles is called the frequency of the sound It has units of Hertz (Hz) where one Hz corresponds to one cycle per second The base sounds in music are low-frequency and the treble sounds are high- frequency Because of the wide range of sound pressures encountered, a special scale, the decibel scale, has been developed The sound level mcreases by 3 dB (or decibels) when the actual sound energy present is doubled Conversely, 'half the sound energy must be eliminated to reduce the level 3 dB A six decibel change ln&ces four times as much sound, and a 10 decibel change 10 times the sound However, the ear does not perceive these changes to be so large Most people find a 3 dB change barely noticeable. A 6 dB change is clearly noticeable, and a 10 dB change is perceived as a doubling or halving of loudness This is very important It means that 90% of a given sound energy must be eliminated before most people wall judge a sound 'half as loud People do not hear very low-frequency and high-frequency sounds as well as they hear sounds in the middle speech frequencies A special electronic filter is used in sound meters to simulate this characteristic of the ear For many environmental sounds it gives a simple, single-number descriptive level that correlates with the way peoplejudge the loudness of the sound This measure is called the A-weighted sound level The units are usually written dBA or Db(A) In the simplest idealized model, the sound level outdoors decreases 6 decibels for each doubling of dlstance from the source Noise is unwanted sound. Mr Schafer referenced Page 20 of said report entitled "Comparison of GTE Amphitheater and Walnut Creek Amphitheater" and Pages 35 - 3 7 regarding amphitheater treatment Any decision to implement controls to reduce the sound reaching the neighboring communities should consider the changing conchtions in the communities. The increased noise due to operational changes at Oceana Naval Air Station will strongly affect the communities, especially the closerportions of Landstown It is possible that those people very sensitive to noise may be replaced by others more tolerant within a few years Changes are possible to reduce the sound escaping the amphitheater by 3-5 dB while leaving the perimeter of the pavilion mostly open The acoustical materials to do this would cost in the range of $120,000-$150,000. Installation cost would depend on the degree of structural reinforcement needed Some structural evaluation and possible changes must be done to assure safety including resistance to wind storms After reducing the sound escaping the pavlhon, loudspeakers with better directional control on the lawn are advisable. The increase in yearly rental cost for this is estimated to be thirty to fifty percent over current costs This would primarlly reduce the clarity of sound reaching neighbors A barrier wall near the closest Salem Lakes homes and selective improvement of home windows could be considered A barrier would provide 5-10 dB reduction for the nearest homes along the boundary at a cost of $160,000 to $320,000. A reduction of about 5-10 dB inside homes couM be achieved at a cost of a few hundred dollars per window with glass replacement or storm windows. A reduction of l O-20 dB using special acoustical windows would cost a few thousand dollars per window. Mr Schafer advised they were not involved in the design phase; however, they do see differences between this design and the Amphitheater at Walnut Creek. The lease should be examined relative structural changes and how this may impact the tenant's revenue stream The tenant may have rights which cannot be overlooked January 26, 1999 -3- CITY MANA GER 'S BRIEFING AMPHITHEATER SOUND STUD Y ITEM # 44518 (Continued) Dr Stewart advised tn the two main communities of concern, Landstown and Salem Lakes, prtmardy that portion of Salem Lakes which ts very close to the Amphttheater, sound levels when the wtnd ts tn the rtght chrection are betng seen tn the 50 to 60 dB range Netther of these communtttes ts recetvtng sound whtch exceeds the level described in the adopted ordtnance The levels durtng the louder concerts are tn the mtd 50's. Dr Stewart advtsed the consultants were gtven a hst of all the complaints through August Sixth This list was reviewed and chscussed tn the report One particular concert drew more than ~ of the total complatnts, however, thts was a band that was parttcularly loud and may not have comphed wtth the gutdance from the amphitheater. Also, atmosphertc conditions were parttcularly strong that ntght The Ctty Manager advised a Staff recommendation will be provtded, as well as a recommended source of funcltng The exact number of concerts involving excesstve norse wtll be provtded. January 26, 1999 -4- CITY M/IN/I GER 'S PRESENTATION FERRELL PARKW/I Y PH/ISES H AND V 4:00 P.M. ITEM # 44519 Clarence Warnstaff, Director of Public Utthttes and Acttng Dtrector of Pubhc Works, advtsed Ferrell Parkway Phases H and V are two segments of the roadway tncluded tn the City's Master Transportatton Plan Ferrell Parkway Phase H is proposed to be a 4-1ane parkway from Dam Neck Road to the Municipal Complex, with approximately 2.2 miles in length. Ferrell Parkway Phase Vis proposed to be a four-lane divided roadway from the Municipal Complex to General Booth. Both of these are Vtrgtnta Department of Transportation projects and are tn the location study phase. The total esttmated cost of Ferreil Parkway Phase His $21.6-MILLION of which the City's forecasted cost share is approximately $2.3-MILLION; and, Ferrell Parkway Phase Vis $25.2-MILLION with the City's participation being over $2-MILLION. At thts time, the current schedule forecasts completion of Phase II tn October 2005 VDOT has identtfied two corridors (500feet in width) for Ferrell Parkway Phase H and three corridors (400feet in width) for Phase V. This ts a Roadway Corridor study and does not tmply the rtght-of-way needed for the design and construction of the roadway ts gotng to be that wide. However, thts gtves VDOT, worMng with the vartous regulatory agenctes, an opportunity to examine vartous requtred alternattves and to recommend the best alternative The City Counctl has impact on selected routes Mr Warnstaff displayed the route of proposed Phase II Theproposed Corrtdor 1 tsprtnctpallyfollowtng along Prtncess Anne Road, whtch extsts today Corrtdor lIts very stmtlar, and just south of Wtnterberry Lane, there ts an alignment shtft to the north for some &stance and comes back tnto the extsttng Prtncess Anne Road, just a btt north of Curry Comb Court Mr Warnstaff advtsed the particular segment of Ferrell Parkway Phase V has already been constructed to provtde access to the Prtncess Anne Recreatton Center For the portton of the Ferrell Parkway ProJect, three corrtdors have been tdenttfied Corrtdor III begtns at the tntersectton of Judictal Boulevard and Prtncess Anne Road, follows a path along Prtncess Anne Road, adjacent to the Muntctpal Complex and at thts tntersectton follows the extsttng Prtncess Anne Road corrtdor through General Booth Corridor IV begins at the same location, Juchctal Boulevard and Princess Anne Road and follows the rtght- of-way the City has prevtously acqutred for that roadway segment as identtfied in the Master Transportatton Plan Corrtdor V, as Ctty Counctl notes, ts very stmtlar to Corrtdor IV, except just beyond the Rolltngwood Subchvtston, tt continues straight on and crosses West Neck Creek at a 90 degree angle as opposed to the greater than 90 degree angle crossing for Ferrell Parkway on Corrtdor IV then extends back tnto the extsttng City rtght-of-way Those are the three corridors that have been developed At thts ttme Corridor I ts the City Staff preferred corrtdor for Ferrell Parkway Phase II That is also the preferred corrtdor by VDOT As noted Corrtdor I ts slightly shorter than Corridor II. Corrtdor I would requtre less purchase of right-of-way than Corrtdor II This corrtdor has shghtly less tmpact on the wetlands In examtntng Corrtdor I versus Corridor II, one of the tssues VDOT is required to examtne ts impact on other properttes For Corridor I, the number of homes displaced was tdenttfied tn this Corridor Study as 23. For Corrtdor II, the number of homes to be displaced was tdenttfied as 11. In terms of the number of businesses tmpacted, Corrtdor I tmpacted two. Corridor II impacted 5 bustnesses There were no churches chsplaced on Corridor I, however, one church was displaced on Corrtdor II The ulttmate right-of-way requtrements for this Corrtdor would not be 500feet, but around 250feet Regarding Ferrell Park Phase V, Corridor IV ts the preferred staff alternative. Of course, tt ts almost tdentical to Corridor V Corridor IV is slightly shorter than Corrtdor V and substanttally shorter than Corrtdor III Corrtdor III tmpacts 12 homes and 10 bustnesses The impact agatnst homes and bustnesses of Corrtdor IV and V has been tdentt, fied as zero Corrtdor IV would requtre less rtght-of-way to be purchased by the Ctty. A cittzen tnformatton meettng was held on June 11, 1997 The majortty who parttctpated tn this process preferred the recommended Corrtdor Alignments I and IV. A locatton Publtc Hearing was conducted on April 23, 1998. The ctttzens and residents who parttctpated tn that process preferred Corridors I and IV. There have been ongoing discussions between VDOT and the Army Corps of Engtneers Mr Warnstaff belteves VDOT wtll be successful tn acqutrtng the necessary permtts for Corridor I. At thts potnt, the Corps of Engtneers appears to be leamng towards Corrtdor III, however, the staff believes thetr concerns regardtng the impacts on wetlands as a result of crosstng West Neck Creek can be approprtately addressed by the City Staff and by VDOT. One of the soluttons may be to build a greater length of brtdge across the Parkway Of course, the purpose of the bridge would be to mlntmtze the tmpact on the wetlands tn West Neck Creek January 26, 1999 -5- CITY MANAGER'S PRESENTATION FERRELL PARKWAY PHASES H AND V ITEM # 44519 (Continued) As VDOThas not obtained the consensus they have been seelang, the Ctty staff beheves wtth the Ctty Councd taking the staff's recommended actton wtll factlttate tn bringing closure to these tssues If Ctty Councd decides to select Corridor l and lV next week, this wouM be an authortzatton or signal to VDOT to proceed wtth the engtneering destgn The prtncipal element tn thts engtneertng design ts to obtatn the necessary permtts for Corrtdors I and IV The Ctty staff ts conducttng a Princess Anne Corridor Study for thts segment from Dam Neck Road to the Muntctpal Complex The purpose of the study ts to develop a concept for the roadway design that focuses on aesthettcs and the design ttself The staff will be in a posttton to provtde thts comment to VDOT tn about stx or seven months The goal ts to give VDOT a complete, concept destgn package whtch would describe the land status, the rtght-of-way reqmrements, the roadway centerhne, the verttcal geometry of the roadway, traffic operations, a typical crosssectton, landscaptng, and site tmprovements By doing thts Corridor study and tdenttfytng all of the issues involved, the City staff beheves they can provide extremely beneficial tnput to VDOT which would be tncorporated tnto t,hetr design A Brtefing relattve the ranlang of the Ctty's roadprojects tn VDOT's six-year program will be provided This Resolutton tdentifying the preferred Corridors for Ferrell Parkway Phases H and V will be SCHEDULED for the Ctty Council Sesston of February 2, 1999 January 26, 1999 -6- AGENDA RE VIE W SESSION 4:23 P.M. ITEM # 44520 12. Ordtnance to authorize the.five-year lease of an 11 7 acre parcel tn the Great Neck District Park to GNBL (Great Neck Baseball League), Inc As this ttem ts SCHEDULED for a Public Heartng at which time there wdl bepubhc comment, Councilman Harrtson requested thts item be on the CONSENT AGENDA . ITEM # 44521 1 7 CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY: James Taxi Servtce Marquts Limoustne, Inc Regal Ltmoustne, Inc Top Hat Ltmoustnes, Inc. Counctl Lady McClanan tnquired relative the Certtficates of Public Convenience and parlang for the ltmoustnes. The Ctty Manager wtll advise prtor to the meettng ITEM # 44522 BY CONSENSUS, the following ttems shall compose the CONSENT AGENDA ' ORDINANCES/RES OL UTION I1 Ordinance to authortze the acqutsttton of Agricultural Land Preservation Easements (ARP) and the tssuance by the City of tts contract obhgattons (PRINCESS ANNE - DISTRICT 7). a LutherE. Gilbert, Jr. - 159 95 Acres - $ 443,813 Installment Purchase Agreement No. 1999-24 12 Ordinance to authortze the five-year lease of an 11.7 acre parcel tn the Great Neck Dtstrtct Park to GNBL (Great Neck Baseball League), Inc 13. Ordinance to APPROPRIATE $1,000,000 from General Obhgatton Bonds to CIP Project #2-278, TCC Site Improvements, ADJUST CIP Project #1-208, Technical Educatton Center; and, estimated revenue from the proceeds of General Obligation Bonds be tncreased accordingly 14 Or&nance to A CCEPT and APPROPRIA TE $121, 731from the Vtrgtnia Department of Medtcal Asststance Services to the FY 1998-1999 Operatmg Budget of the Department of Soctal Services re providing the Children's Medical Security Insurance Program locally, and, esttmated revenue from the state government be tncreased accor&ngly 15 Or&nance to ACCEPT and APPROPRIATE a $19,350 Grant from the Vtrginia Coastal Resources Management Program to the FY 1998-1999 Operating Budget of the Department of Museums re provtdtng an educational program about the protection of marine species to owners and operators of recreational marine vessels, with requtred match of $21,625 available wtthm extsttng FY 1998-1999 approprtattons, and, esttmated revenue from the state government be mcreased accordingly. January 26, 1999 -7- AGENDA RE VIE W SESSION ITEM # 44522 (Continued) 1 6 Resolutton of Endorsement to the Commonwealth Transportatton Board for the Norfolk Avenue Trail as a proposed Transportation Enhancement ProJect 1 7 CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY: James Taxi Service Marquis Ltmoustne, Inc. Regal Limousine, Inc Top Hat Limoustnes, Inc 1 8 REFUNDS: License - $ 77,539.92 Tax - $ 1,166.02 Council Lady McClanan will vote a VERBAL NAY on Item I. 1. January 26, 1999 -8- AGENDA RE VIE W SESSION ITEM # 44523 J 2 Application of BUDDHIST ASSOCIATION OF HAMPTON ROADS for a Modtficatton of Conditions attached to the approved December 9, 1997, apphcation to clartfy the design and budding matertals for the Monk's residence, whtch will be constructedprtor to the Temple at 4915 Bonney Road, contammg 2.44 acres (KEMPSVILLE- DISTRICT 2) Council Lady Parker expressed concern relattve the metal budding, Karen Laslie, Planmng Co-or&nator, advised the front of the building and the two sides wtll be dressed up with stucco and split faced block ITEM # 44524 J. 3. Apphcation of ASSOCIATION FOR RESEARCH & ENLIGHTENMENT, INC., for an enlargement of the nonconforming existing use at the Northwest corner of Atlanttc Avenue, 67~n Street and Seashore State Park to enlarge extstmg facthttes (L YNNHA VEN- DISTRICT 5) Councilman Harrtson advised Attorney Mike Inman ts requesting WITHDRAWAL; however, would like to make a one mtnute presentation to City Council concerning their reasons for WITHDRA WAg, ITEM # 44525 J 4. Applicatton of SUE D. FRANCE for an enlargement of a nonconforming use to demolish an extsttng butldtng and construct a new one at 1741 London Bridge Road, contatmng 1 51 acres (BEACH-DISTRICT 6) Thts item will be &scussed during the Formal Sesston, as it is recommended for DENIAL ITEM # 44526 J 6 Apphcatton of PRINCESS HOUSE, L.L.C., for a Condittonal Use Permit for houstng_for the aged on the East side of Prtncess Anne Road, 180feet North of Baxter Road, contatmng 5.014 acres (KEMPSVILLE- DISTRICT 2) Councilman Weeks had concerns relattve thts ttem Counctl Lady McClanan wtshed to see the approved stte plan relative the location of the elevators. ITEM # 4452 7 J 7 Applicatton of MANORttOUSE RETIREMENT CENTERS, INC.,for a Condittonal Use Permit for an assisted hvtng_facdt _ty on the South stde of Wesleyan Drtve beginning at apoint 760feet more or less West of Broad Meadows Boulevard, contatntng 4 770 acres more or less (BA YSIDE - DISTRICT 4) AND, ,114 Application of ARMADA/HOFFLER HOLDING COMPANY for a Change of Zoning District Classification from R-lO Residential District to Conditional B-2 Community Business Dtstrtct at the Southeast corner of Wesleyan Drtve and Dtamond Sprmgs Road, containing 12.8 753 acres (BA YSIDE - DISTRICT 4) Vtce Mayor Sessoms and Councdman Jones referenced the request of Attorney R J Nutter advtstng the two applicattons are for the same parcels of land and are owned by the same property owners. These two appltcants have worked together to coordtnate thetr developments throughout the revtew and approval process with the City. The applicant requests these items be considered at the same time. Armada/Hoffler wtll be moved forward on the agenda January 26, 1999 -9- AGENDA RE VIE W SESSION ITEM # 44528 J 8. Apphcatton of DARLENE McNEICE CASTELLANO for a Condtttonal Use Permit for a home occupation (housmg for the a~zed) on Lot 3, Block3, Sectton 3, Lake Shores (5249North Lake Road), containing 20, 000 square feet (BA YSIDE - DISTRICT 4) Vtce Mayor Sessoms referenced the request of the apphcant for WITHDRAWAL Councdman Jones admsed he had no problem wtth the WITHDRAWAL, but has not spoken wtth the commumty Council Lady Parker advised this ts a larger issue which should be addressed There ts a major dtfference cost-wtse tf one can stay in someone's home versus gomg to a facthty Council Lady Henley appreciated the concerns of the netghborhood but thts ts far less obtrustve than a child care center Thts ts a needed service Counctl Lady Henley requested Staff look at the need for thts type of care factlity and areas they recommend for locattng them ITEM # 44529 JlO Application of S AND R PROPERTIES for Condtttonal Use Permit for a bingo hall on the South stde of Cleveland Street begtnntng at a potnt 250 feet more or less West of Aragona Boulevard, contatmng 4.81 acres (KEMPSYILLE- DISTRICT2) Thts ttem will be discussed durtng the Formal Sesston Counctlman Harrtson will be ABSTAINING on this item ITEM # 44530 B Y CONSENSUS, the following items shall compose the PLANNING BY CONSENTAGENDA. J 2 Apphcation of BUDDHIST ASSOCIATION OF HAMPTON ROADS for a Mod~ficatton of Condtttons attached to the approved December 9, 1997, applicatton to clartfy the design and building materials for the Monk's restdence, whtch wdl be constructedprtor to the Temple at 4915 Bonney Road, contammg 2. 44 acres (KEMPSVILLE- DISTRICT 2) J 5 Apphcatton of JOHNS. GEORGHIOUfor a Vartance to Section 4.4(b) of the Subdtviston Ordtnance whtch reqmres newly created lots meet all requirements of the Ctty Zomng Ordinance (CZO) at the Northeast corner of Independence Boulevard and Cullen Road (BA YSIDE - DISTRICT 4 J9. Apphcatton of ROCK CHURCH for a Conchttonal Use Permit for a chtld care educatton center tn a church at the Northeast tntersection of Kempsvtlle Road and Manor Drtve (580 Kempsvtlle Road), containing 7.72 acres (KEMPSVILLE - DISTRICT 2) JlO Apphcatton of MOTIVA ENTERPRISES, L.L.C. for a Condittonal Use Permit for an automobde service station on Lots 4 & 5, Dtamond Lake Estates (5 793 Northampton Boulevard), contatmng 40, 000 square feet (BA YSIDE - DISTRICT 4) Apphcatton of BARRY BEHRMAN for a Condtttonal Use Permtt for expansion of a commerctal recreational facdt_ty (famtly bilhards) on the East side of Princess Anne Road, South of Parhament Drive (5610 Prtncess Anne Road), contatntng 9 96 acres (KEMPSVILLE- DISTRICT 2) January 26, 1999 -10- .4 GENDA RE VIE W SESSION ITEM # 44530 (Continued) J13 Application of the CITY OF VIRGINIA BEACH for a Conditional Use Permtt for a hne-of-stght relay device (wireless communication antennae) at the Northern extremtty of Chantry Drive (701 Chantry Drive), contatn tng 15,000 square feet ora 9. 08 acre parcel (ROSE HALL - DISTRICT 3) J15 Apphcation of GEE-CEE CONSTRUCTION GROUP L.L.C. for a Change qf Zomng Dtstrtct Classification from R-7.5 Restdenttal Dtstrict and A-12 Apartment Dtstrict to Condttional A-12 Apartment District at the Northern extremtty of North Garnett Point Road, contatmng 15.205 acres (KEMPSVILLE - DISTRICT 2) January 26, 1999 -11- CITY COUNCIL COMENTS 4:35 P.M. ITEM # 44531 Mayor Oberndorf referenced the regular six-month Ctty Counctl Retreat wtth Lyle Sumek B Y CONSENSUS, the Retreat shall be SCHEDULED for Tuesday, March 16, 1999. ITEM # 44532 Mayor Oberndorf referenced her visit to CECIL FIELD, Jacksonville, Florida re FA 18'S transfer to Oceana Naval ~4ir Station Upon arrtval, there seemed to be a tension in the atr The personnel seemed to belteve that the citizens of Virgtnia Beach did not want them here Mayor Oberndorf satd "No ", they look forward to welcoming them wtth open arms. Someone had taken the time to send the the Cectl Fteld personnel every negattve article whtch has appeared tn print They had been tnformed the traffic was "bumper to bumper" The Mayor spoke of the improvements to Dam Neck and Oceana Roads. There will be adequate housing The Navy ts worktng wtth existing apartments for set astde houstng whtch wtll accept the allotment from the government There are a number of major apartments whtch have become a part of thts program Captatn Eric Bensen, Commanding Officer of Oceana, and his Executtve Officer Smtth were there the enttre week and avatlable to assist wtth all aspects of housing etc re Oceana N~4S The Ctty ts very lucky to have the partnership of these great men. Representatives of the Virgima Beach Pubhc School System, Chamber of Commerce and Pohce, as well as representatives from Old Domtmon University, Ttdewater Commumty College and others were in attendance to respond to any concerns. Representattves of TAR (Ttdewater Realtors Assoctatton) were tn Orange Park conducttng VHDA Workshops for the personnel The Mayor advtsed she wtll be returntng tn May, as the last group will be leavtng Cectl Fteld ITEM # 44533 Mayor Oberndorf inquired t. f the Task Force for Virginia Beach/Chesapeake re the Southeastern Parkway and Greenbelt has been established. The Ctty Manager advtsed the Task Force has been establtshed, but has not met Counctl Members Hetschober and Eure will be the Ctty Counctl Liatsons The Ctty Manager has destgnated three staff members The Task Force will be meettng on Frtday mormng, January 29, 1999 ITEM # 44534 Counctl Lady Parker referenced the matntenance of landscaped areas by private enterprise; and, in exchange for the servtce, the enterprise is allowed to place tts stgn on the property. Counctl Lady Parker expressed concern. Council Lady McClanan satd the emphasis should be on low matntenance planttng tn the medians The maintenance should be relatively simple Mayor Oberndorf suggested very small, tasteful monument type stgns Councd Lady McClanan satd they uttltze 4" or 5" high signs in New Orleans to destgnate thts type of servtce Counctl Lady Parker said there is a certain amount of rotation in the landscaping (t.e pansies in summer) in certatn areas which are the front door to the Ctty She concurred with Counctl Lady McClanan the majortty of the areas should be low matntenance. Council Lady Eure advtsed on In&an River Road, the section from Kempsvtlle Road down to the Interstate, that planting has made a tremendous difference to brtng beauty tn that area. ~4 Briefing shall be scheduled relative thts item ITEM # 44535 Counctlman Branch referenced the Y2K Briefing by Davtd Sullivan, Director -Informatton Technology on January 19, 1999 A ctttzen advtsed afier watching the Briefing he was very reassured the City seemed to be on top of the problem, however, the ctttzen expressed concerns relattve publtc utthttes The Ctty Manager advised ora vertfication process from all the City supphers, parttcularly pubhc uttlities, relative a Y2K Plan The city staff ts planmng notifications to the pubhc The Ctty Manager wtll also respond to that particular citizen's concerns. Mayor Oberndorf referenced the City Newsletter and expressed apprectatton to the Ctty Manager January 26, 1999 - 12- ITEM # 44536 Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Councd Conference Room, City Hall Butldtng, on Tuesday, January 26, 1999, at 5'00 PM Council Members Present: Ltnwood O. Branch, III, Margaret L Eure, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vtce Mayor Wtlltam D Sessoms, Jr. and A M. "Don" Weeks Council Members Absent' None January 26, 1999 -13- ITEM # 4453 7 Mayor Meyera E Oberndorf entertained a motton to permtt Ctty Council to conduct tts EXECUTIVE SESSION, pursuant to Sectton 2 1-344, Code of Vtrgmta, as amended, for the following purpose. PERSONNEL MA 7TERS Discussion or constderatton of or intervtews of prospective candidates for employment, assignment, appotntment, promotton, performance, demotton, salaries, chsctphning, or restgnatton of spec~c pubhc officers, appointees, or employees pursuant to Sectton 2 1-344 (A) (1) To Wit: Boards and Commtsstons' Human Rights Commtsston Pendleton Project Management Board Revtew and Allocation Committee PUBLICLY-HELD PROPERTY. Discussion or constderation of the condition, acquisition, or use of real propertyfor public purpose, or of the disposition of pubhcly-held property, or of plans for the future of att tnstitutton which could affect the value of property owned or destrable for ownership by such tnstitution pursuant to Sectton 2.1-344(A)(3) To-Wtt Social Services Butldtng- Parktng Area Southeastern Parkway and Greenbelt - Right-of-Way Acqutsttton Bendix Road Property LEGAL MATTERS' Consultatton with legal counsel or brtefings by staff members, consultants, or attorneys pertaining to actual or probable htigat~on, or other spectfic legal matters requesttng the provtston of legal advice by counsel pursuant to Section 2 1-344(A)(7) To- Wit' FLSA Cases Upon motton by Vtce Mayor Sessoms, seconded by Councd Lady Parker, City Council voted toproceed tnto EXECUTIVE SESSION. Vottng 11-0 Council Members Vottng Aye' Ltnwood 0 Branch, III, Margaret L. Eure, Wtlham W Harrtson, Jr., Harold Hetschober, Barbara M Henley, Louts R Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vtce Mayor William D Sessoms, Jr and A M. "Don" Weeks Councd Members Voting Nay. None Counctl Members Absent' None January 26, 1999 - 14- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL January 26, 1999 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 Butldtng, on Tuesday, January 26, 1999, at 4 55 P M Councd Members Present Linwood O. Branch, III, Margaret L Eure, Wtlham W Harrtson, Jr., Harold Heischober, Barbara M Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E Oberndor)5, Nancy K Parker, Vtce Mayor Wtlliam D Sessoms, Jr and A M "Don" Weeks Counctl Members Absent: None INVOCATION Reverend Robert E Cooper Chartty Umted Methochst Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Sessoms, being a Corporate Officer of Wachovia Bank, disclosed there were no matters on the agenda tn whtch he has a "personal tnterest", as defined tn the Act, etther tnchvtdually or tn hts capacity as an officer of Wachovta Bank The Vtce Mayor regularly makes this Disclosure as he ma~, not know of the Bank's tnterest tn any apphcation that may come before City Council Vtce Mayor Sessoms' letter of January 4, 1999, is hereby made apart of the record. January 26, 1999 ~em ~E - 15- CER TIFICA TION OF EXECUTIVE SESSION ITEM # 44538 Upon motton by Vtce Mayor Sessoms, seconded by Councilman Hetschober, City Councd CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only pubhc business matters lawfully exempted from Open Meettng requtrements by Vtrginta law were chscussed tn Executtve Sesston to whtch this certtficatton resolutton apphes, AND, Only such public bustness matters as were tdentified tn the motton convemng the Executtve Session were heard, dtscussed or constdered by Vtrginta Beach Ctty Council Voting 11-0 Counctl Members Voting Aye Ltnwood O. Branch, III, Margaret L. Eure, Wtlltam W Harrtson, Jr., Harold Hetschober, Barbara M. Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K Parker, Vtce Mayor Wilham D Sessoms, Jr and A. M "Don" Weeks Council Members Voting Nay: None Counctl Members Absent' None January 26, 1999 CERTIFICATION OF EXECUTIVE SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION, pursuant to the affirmative vote recorded in ITEM # 44537, Page 13, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the governing body that such Executive Session was conducted in conformity with V~rginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which th~s certification resolution applies; and, Co) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by V~rginia Beach City Council. ~9~h H6~lges~x~i~h, CMC/AAE ~City Clerk January 26, 1999 -16- Item V-F.I MINUTES ITEM # 44539 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Eure, City Council APPROVED the Mtnutes of the INFORMAL AND FORMAL SESSIONS of January 12, 1999. Voting 11-0 Councd Members Voting Aye Ltnwood 0 Branch, III, Margaret L. Eure, William W Harrison, Jr., Harold Heischober, Barbara M. Henley, Louts R Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vtce Mayor William D Sessoms, Jr and A M "Don" Weeks Council Members Vottng Nay None Counctl l Members Absent None January 26, 1999 Item V-G. 1. -17- ADOPT AGENDA FOR FORMAL SESSION ITEM it 44540 BY CONSENSUS, Ctty Councd ADOPTED: AGENDA FOR THE FORMAL SESSION January 26, 1999 Item V-G. 2. -18- ANNOUNCEMENT ITEM # 44541 Mayor Oberndorf recognized the following Boy Scouts tn attendance to earn their mertt badges. TROOP 443 Church of Jesus Christ of Latter Day Saints Scout Master Mark GoodeH Senior Patrol Leader Lehi Petersen Mark Fike Zach Andersen Eric Jenson Jesse Meisner Mark Goodell Kevin Meisner Chuck Baber TROOP 99 Resurrection United Methodist Church Scoutmaster Chip Russell Committee Chairman Mike Miller E. J. Coakley Garrett Foster Justin Robbins Nick Russell Stephen Brickhill Ben Koch TROOP 12 Providence Presbyterian Church Scout Master Joe Carrillo Assistant Scout Leader Craig Cuninghame Cain Cuninghame CUB SCOUT PAK 447 St. Andrews United Methodist Church Cole Cuninghame January 26, 1999 Item V-H.L - 19- PUBLIC HEARING ITEM # 44540 Mayor Oberndorf DECLARED ,4 PUBLIC HEARING: A GRICUL TURAL PRESERV,4TION PROGRAM (,4RP) (District 7- Princess ,4nne) There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. .lanuary 26, 1999 - 20- Item V-H.2. PUBLIC HEARING ITEM # 44541 Mayor Oberndorf DECLARED A PUBLIC HEARING: LEASE OF CITY-OWNED REAL ESTATE - Great Neck District Park The following registered to speak tn SUPPORT W. Kevtn Hunt, 1304 Welhngton Court, Phone. 481-1191, Prestdent of the Great Neck Baseball League The followtng registered tn OPPOSITION' Davtd L. Hayden, 2556 Shorehaven Drtve Donna Grove, 2548 Shorehaven Drtve, Phone 496-3141 Eleanor Arm, Prestdent- Riverhaven Ctvtc League There betng no further speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. January 26, 1999 Item V-I. - 21 - ORDINANCES/RES OL UTION ITEM Il 44542 Upon motion by Vtce Mayor Sessoms, seconded by Councilman Hetschober, Ctty Councd APPROVED IN ONE MOTION, Ordinances/Resolutton 1, 2, 3, 4, 5, 6, 7 and 8. Voting: 11-0 Council Members Voting Aye. Ltnwood 0 Branch, III, Margaret L Eure, Wilham W Harrison, Jr, Harold Hetschober, Barbara M Henley, Louts R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K Parker, Vtce Mayor Wdham D. Sessoms, Jr. and,4 M "Don" Weeks Council Members Vottng Nay' None Councd Members Absent: None Councd Lady McClanan voted a VERBAL NAY on ttem I 1 January 26, 1999 Item V-I. 1. ORDINANCES/RES OL UTIONS - 22 - ITEM ii 44543 Upon motton by Vtce Mayor Sessoms, seconded by Councilman Heischober, Cay Councti ADOPTED: Ordinance to authortze the acquisttton of Agrtcultural Land Preservation Easements (ARP) and the tssuance by the City of tts contract obhgations (PRINCESS ANNE - DISTRICT 7)' Luther E. Gilbert, Jr. - 159.95 Acres - $ 443,813 Installment Purchase Agreement No. 1999-24 Vottng 10-1 (By Consent) Counctl Members Voting Aye Linwood O. Branch, III, Margaret L Eure, Wdliam W. Harrison, Jr, Harold Hetschober, Barbara M Henley, Louts R. Jones, Mayor Meyera E Oberndorf, Nancy K Parker, Vtce Mayor Wtlliam D Sessoms, Jr and A. M "Don" Weeks Counctl Members Vottng Nay Reba S McClanan Council Members Absent. None January 26, 1999 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATI ON EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF' $443,813 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $443,813; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 5.0% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 6.25% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects mn title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The C~Lty Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 64 constitutes the indebtedness a contractual obligation bearing the full faith and credit of the City. 65 66 Adopted by the Council of the City of Virginia Beach, Virginia, on this 26 day of January , 1999. 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 7O 71 72 73 CA-98-7234 wmm\ arp[purchase ~gi lbert R-1 December 29, 1998 74 75 76 77 APPROVED AS TO CONTENT: - Depar~ent APPROVED AS TO LEGAL SUFFICIENCY: Law Department 78 CERTIFIED AS TO AVAILABILITY OF FUNDS: 79 8O Director of Finance LUTHER E. GILBERT, JR., the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "C~ty" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1999-24) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Pace -- RECITALS ........................................................... 1 AGREEMENTS ........................................................ 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions .............................................. 2 Rules of Construction .................................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Pdghts ........... 4 Delivery of Deed of Easement ............................. 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price .............................. 5 Registration and Transfer of th~s Agreement .................. 5 Mutilated, Lost, Stolen or Destroyed Agreement ............... 6 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City .................... 7 Representations and Warranties of the Seller ................. 7 ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of City ...................... 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction .............................. 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ................................. 9 Ownership of Agreement .................................. 9 Removal of Registrar and Appointment of Successor Registrar .................................... 10 Qualifications of Successor Registrar ....................... 10 Successor by Merger or Consolidation ...................... 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ...................................... 10 Parties in Interest ....................................... 10 Binding Effect ......................................... 11 Severabflity ........................................... 11 Prior Agreements Cancelled; No Merger ..................... 11 Amendments, Changes and Modffications ................... 11 No Personal Liability of City Officials ...................... 11 Governing Law ........................................ 11 Notices ............................................... 11 Hohdays .............................................. 12 Signatures and Seals .................................................... 13 EXHIBIT A- EXHIBIT B - EXHIBIT C - EXHIBIT D - EXHIBIT E - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assigmnent Transfer of Agreement - Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1999-24) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the~ day of ,199_ between LUTHER E. GILBERT, JR. (the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virgima (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virgima of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Pdghts (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the C~ty has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows. ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. As used in tins Agreement, the following terms have the following meamngs, unless the context clearly indicates a d~fferent meaning: "Agricultural Use" means 0) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (i0 the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the V~rg~nia Beach City Code, and (fii) accessory uses directly related to agricultm'al activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach Ctty Zoning Ordinance. The term does not include the processing of agricultural, sdmcultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "C~ty" means the C~ty of V~rgima Beach, V~rginia, a body politic and corporate and a political subdivision created and emst~ng under and by virtue of the Constitution and laws of the State, its successors and assigns. "C~ty Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Pdghts to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Pdghts" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development R~ghts shall include, but not be hmlted to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabhng Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virgima of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's fights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Datc" means June 1 and December 1 in each year, commencing , 199_. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, contmning approximately 159.95 acres, and more p~articularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the C~ty Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to t~me. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any port~on thereof hereafter approved, ~n writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, pubhc body or other entity. "Purchase Price" means $443,813, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the prinmpal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books mmntained by the Registrar. "Registrar" means First Union National Bank or any other person hereafter appointed by the City to act as Registrar and paying agent for thru Agreement. "Seller" means Luther E. Gilbert, Jr. "State" means the Commonwealth of Virg~ma. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or femimne gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery_ of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the C~ty on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ., 202_ [25-year maturity date]. The Purchase Price ~s . (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and ~ncluding ,202_, at the rate of % per annum. Interest shall be calculated on the bas~s of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the t~me of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the C~ty on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the C~ty mmntained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the pnncipal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall mmntain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final pnnclpal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, dehvered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller ~s the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized ~n writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax ~dentificat~on number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there ~s any conflict between the ~nformat~on set forth in Exhibit E hereto and the registration books mmntained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiwng payment of, or on account of, the Purchase Price and ~nterest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon h~s order shall be valid and effectual to satisfy and d~scharge the liability upon th~s Agreement to the extent of the sum or sums so paid, and neither the C~ty nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be prod with respect to such exchange or transfer, which sum or sums shall be prod by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutdated, Lost, Stolen or Destroyed Agreement. In the event that this Agreement is mutdated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintmned by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutdated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with ~ndemnity satisfactory to each of them in their sole discretion. The C~ty and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, ~f any, in th~s connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement 0n heu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom ~t was delivered or any other person who receives dehvery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The C~ty makes the following representations and warranties: the State. (a) The City is a body pohtic and corporate and a political subdivision of (b) The City has the necessary power and authority to acquire the Development Pdghts, to enter ~nto this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of th~s Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the C~ty, and is enforceable against the City in accordance w~th its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warrant~es: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if reqmred, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no htigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, wall materially adversely affect the authority of the Seller to enter into, or the validity or enforceabihty of, this Agreement or the Deed of Easement. (d) There ~s (0 no provision of any ex~sting mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of th~s Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There ernst no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development R~ghts to be conveyed thereby. (f) The Seller ~s not a nonresident alien of the United States of America for purposes of federal ~ncome taxation. (g) The Social Security Number of the Seller is 227-52-4340. The representations in subsections (f) and (g) above are made under penalties of perjury and the information contmned therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under th~s Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the C~ty shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross income of the Seller for federal ~ncome tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Comphance Agreement to be executed and delivered by the City on the date of delivery of th~s Agreement and is otherwise limited ~n accordance with its terms. The Seller acknowledges that Seller has made Seller's own ~ndependent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certffies that the Seller has not looked to or relied upon the City or any of ~ts officials, agents or employees, or to Bond Counsel, w~th respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. F~rst Union National Bank is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in good faith buy, sell, own and hold this Agreement, and may join ~n any action which any Registered owner may be entitled to take w~th like effect as ~f it did not act as Registrar hereunder. The Registrar, in its ~ndividual capacity, either as principal or agent, may also engage, or have an interest, in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any t~me by fihng with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar's duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Part~es ~n Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or lmphed is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered 10 Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being ~ntended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be dlegal or invalid, such illegality or lnvahd~ty shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained here~n or therein. SECTION 7.5 Prior Agreements Cancelled; No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In addition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments, Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart of any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal L~ability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountabihty by reason of the ~ssuance thereof. SECTION 7 8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. 11 SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mmled by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Mumc~pal Center Virginia Beach, VA 23456 Seller: Luther E. Gilbert, Jr. 5679 Blackwater Road Virginia Beach, Virginia 23457 Registrar: First Union National Bank Corporate Trust/Bond Administration 7 North 8th Street Pochmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in th~s Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date prowded in this Agreement, and ~n the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals 'of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy C~ty Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this __ day of ,19 , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach, Virginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by (SEAL) My Commission Expires: Notary Public 14 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 15 This instrument was prepared by V~rginia Beach City Attomey's Office EXHIBIT A Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(c)(n) DEED OF EASEMENT THIS DEED OF EASEMENT is made this ~ day of ,1999, by and between LUTHER E, GILBERT, JR. and [marttal status?] (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of V~rginia (the "C~ty") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, T~tle 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern port~on of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has estabhshed the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor ~s the owner in fee simple of certain agricultural real property located in the City and more partmularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Pdghts (hereinafter defined) ~n the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1388-87-1505 and 1388-907-5757 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the pohcy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetmty; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the recmpt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and ~ts successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and ~n furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS, COVENANTS, CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the C~ty, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, ~t being the ~ntent~on of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, runmng w~th the Land and all portions thereof as an incorporeal and nonpossessory interest there~n, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, hmitations and restrictions contained herein are tntended to limit the use of the Land as herein set forth. B. The part~es, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used ~n this Deed of Easement the term "Agricultural Use" means 0) the bona fide production of crops, ammal or fowl, including, but not hmited to, the production of frmts, vegetables, honey, grains, meat, poultry and dairy products, the raising of hvestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural acttvity, (n) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the C~ty Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important ~ndustry within the City, (ii) preserve the rural character of the southern part of the City, (in) conserve and protect enwronmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the C~ty and the expenditure of pubhc funds for such improvements, (v) preserve open spaces, and (v0 assist in shaping the character, direction and timing of community development. (6) In the event of a v~olation or attempted violation of any of the provisions hereof, the City and ~ts successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. it{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND ., execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and rights set forth herein. GRANTOR: Luther E. Gilbert, Jr. .(SEAt,) (SEAt,) APPROVED AS TO FORM AND ACCEPTED ON BEHALF OF THE CITY OF VIRGINIA BEACH CITY ATTORNEY COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before ., Virginia, this __ day of by Luther E. Gilbert, Jr. and , his wife, Grantor. me in the City of ,1999, (SEAL) My Commission Expires: Notary Public EXHIBIT A PARCEL ONE: ALL THAT certain tract of land situated in the City of Virginia Beach (formerly Pungo, then Blackwater Magisterial District of Princess Anne County), Virginia, bounded and described as follows: on the North by Blackwater River, on the East by Lot "A" on the plat hereinafter mentioned, on the South by the road in common through the Hillary E. Simmons Tract, and on the West by Lot "D" on said plat, it being the Northern port~on of Lot "C" on the plat ofHillary E. Simmons tract, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly County aforesaid), Virginia, in Map Book two (2), at page twenty-three (23). PARCEL TWO:. ALL THAT certain tract of land, with the buildings and ~mprovements thereon, situated in the City of Virginia Beach (formerly Pungo, then Blackwater Magisterial District of Princess Anne County), Virginia, containing one hundred (100) acres, more or less, and bounded on the North by Blackwater River, on the East by the lands of Sorey and Mansfield and the Public Road, on the South by the road in common through the Hillary E. Simmons Farm and on the West by Lot "C" on the plat of said Farm, and being Lot "A" on the plat of said farm recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly Princess Anne County), Virginia, in Map Book two (2), at page twenty-three (23). LESS AND EXCEPT the burying ground or cemetery in the Northern Portion of the above tract and just Northwest of the dwelling house reserved to John F. Simmons, et als, their he,rs and assigns, in a certain deed dated September 19, 1913, duly recorded in the aforesaid Clerk's Office in Deed Book 82, at page 225, with full right of ingress and egress to and fi.om said burying ground over Parcel Two described above. LESS AND EXCEPT that portion of the above described property conveyed by deed dated August 30, 1939, duly recorded in the aforesaid Clerk's Office in Deed Book 198, al page 293, by deed dated October 2, 1947, duly recorded in the aforesaid Clerk's Office in Deed Book 247, at page 499, and by deed dated September 9, 1966, recorded in the aforesaid Clerk's Office in Deed Book 978, at page 60. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "ti" as shown on that certain plat entitled: "ti", Scale ti" = ti', dated ti, prepared by ti, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property a fifty percent (50%) interest in which was conveyed to Luther E. Gilbert from W. Arthur Gilbert, et ux, et al, by deed dated July 8, 1936, duly recorded in the aforesaid Clerk's Office in Deed Book 183 at page 366, and a fifty percent (50%) interest in which was devised to Luther E. Gilbert, a/k/a Luther Gilbert, by T. J. Gilbert pursuant to his will duly recorded in the aforesaid Clerk's Office in Will Book 9, at page 40. Upon the death of Luther E. Gilbert, testate, on April 20, 1985, the above-described property was devised to Luther Edward Gilbert, Jr., pursuant to h~s will duly recorded in the aforesaid Clerk's Office in Will Book 68, at page 2098, said Luther E. Gilbert having been predeceased by his wife Nellie Gilbert who died November 12, 1983. EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 16 EXHIBIT B PARCEL ONE: ALL THAT certain tract of land situated in the City of Virginia Beach (formerly Pungo, then Blackwater Magisterial District of Princess Anne County), Virginia, bounded and described as follows: on the North by Blackwater River, on the East by Lot "A" on the plat hereinafter mentioned, on the South by the road in common through the Hillary E. Simmons Tract, and on the West by Lot "D" on said plat, it being the Northern portion of Lot "C" on the plat ofHillary E. Simmons tract, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly County aforesaid), Virginia, in Map Book two (2), at page twenty-three (23). PARCEL TWO: ALL THAT certain tract of land, with the buildings and improvements thereon, situated in the City of Virginia Beach (formerly Pungo, then Blackwater Magisterial District of Princess Anne County), Virginia, containing one hundred (100) acres, more or less, and bounded on the North by Blackwater River, on the East by the lands of Sorey and Mansfield and the Public Road, on the South by the road in common through the Hillary E. Simmons Farm and on the West by Lot "C" on the plat of said Farm, and being Lot "A" on the plat of said farm recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly Princess Anne County), Virginia, in Map Book two (2), at page twenty-three (23). LESS AND EXCEPT the burying ground or cemetery in the Northern Portion of the above tract and just Northwest of the dwelling house reserved to John F. Simmons, et als, their heirs and assigns, in a certain deed dated September 19, 1913, duly recorded in the aforesaid Clerk's Office in Deed Book 82, at page 225, with full right of ingress and egress to and from said burying ground over Parcel Two described above. LESS AND EXCEPT that portion of the above described property conveyed by deed dated August 30, 1939, duly recorded in the aforesaid Clerk's Office in Deed Book 198, at page 293, by deed dated October 2, 1947, duly recorded in the aforesaid Clerk's Office in Deed Book 247, at page 499, and by deed dated September 9, 1966, recorded in the aforesaid Clerk's Office in Deed Book 978, at page 60. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "It" as shown on that certain plat entitled: "#", Scale #" = #', dated ti, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property a fifty percent (50%) interest in which was conveyed to Luther E. Gilbert from W. Arthur Gilbert, et ux, et al, by deed dated July 8, 1936, duly recorded in the aforesaid Clerk's Office in Deed Book 183 at page 366, and a fifty percent (50%) interest in which was devised to Luther E. Gilbert, a/k/a Luther Gilbert, by T. J. Gilbert pursuant to his will duly recorded ~n the aforesaid Clerk's Office in Will Book 9, at page 40. Upon the death of Luther E. Gilbert, testate, on April 20, 1985, the above-described property was devised to Luther Edward Gilbert, Jr. , pursuant to his will duly recorded in the aforesaid Clerk's Office in Will Book 68, at page 2098, said Luther E. Gilbert having been predeceased by his wife Nellie Gdbert who died November 12, 1983. EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 17 EXHIBIT "C" PERMITTED ENCUMBRANCES o Taxes for the fiscal year 1999/2000 and any/all stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. o Easement granted Virginia Electric and Power Company over the subject property, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 698, Page 586, variable in width along and east of the lane and perpendicular to front lot line. , Easement granted to Norfolk and Carolina Telephone and Telegraph, by instrument recorded in Deed Book 353, at page 159, variable in width along the front lot line. ° Location and rights of others in and to the cemetery and ingress and egress to same as to Parcel Two. o Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment 15 attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to hereto in every particular, without alteration or enlargement or any change whatever. 18 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. lo Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar , o , o o 19 Item V-L2 - 23 - ORDINANCES/RES OL UTIONS ITEM # 44544 The following registered to speak tn SUPPORT W Kevtn Hunt, 1304 Wellington Court, Phone 481-1191, Prestdent of the Great NeckBaseball League The following registered in OPPOSITION. Davtd L. Hayden, 2556 Shorehaven Drive Donna Grove, 2548 Shorehaven Drtve, Phone 496-3141 Eleanor Arm, President - Rtverhaven Civic League Upon motion by Vtce Mayor Sessoms, seconded by Councilman Hetschober, Ctty Councd ADOPTED: Ordinance to authorize the five-year lease of an 11.7 acre parcel tn the Great Neck Distrtct Park to GNBL (Great Neck Baseball League), Inc Voting: 11-0 (By ConsenO Council Members Voting Aye Linwood O. Branch, III, Margaret L. Eure, Willtam W Harrison, Jr, Harold Heischober, Barbara M Henley, Louts R. Jones, Reba S McClanan, Mayor Meyera E Oberndo~ Nancy K Parker, Vice Mayor Wtlliam D Sessoms, Jr and A M. "Don" Weeks Council Members Vottng Nay: None Counctl Members Absent' None January 26, 1999 AN ORDINANCE TO APPROVE A LEASE BETWEEN THE CITY OF VIRGINIA BEACH AND GNBL, INC., f/k/a GREAT NECK BASEBALL LEAGUE, FOR A PORTION OF GREAT NECK DISTRICT PARK WHEREAS, GNBL, Inc., formerly known as the Great Neck Baseball League, has requested the C~ty of V~rgima Beach to execute a new lease for a portion of Great Neck D~strlct Park ~n the C~ty of Virginia Beach that will authorize the GNBL to construct and ~nstall alterations, ~mprovements, or additions to the leased Premises at the sole cost and expense of the GNBL; WHEREAS, V~rg~ma Code Section 15.2-1800 requires that C~ty Council approve all leases of C~ty property; WHEREAS, City staff recommends approval of the attached lease between the City of Virglma Beach and GNBL, Inc. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 10 VIRGINIA BEACH, VIRGINIA: 11 That the attached lease between the City of V~rglma Beach and GNBL, Inc. Is hereby 12 approved and the C~ty Manager ~s duly authorized to execute it on behalf of the City. 13 Adopted by the Council of the City of Vlrglma Beach, V~rg~ma, on the 26th day of January, 14 1999. APPROVED AS TO CONTENT: SARA HEN~LEY ~fl Acting D~rector of Parks and Recreation APPROVED AS TO LEGAL SUFFICIENCY: Assistant C~ty Attorney 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 51 52 53 54 55 56 LEASE BETWEEN THE CITY OF VIRGINIA BEACH AND GNBL, INC. f/k/a GREAT NECK BASEBALL LEAGUE FOR A PORTION OF GREAT NECK DISTRICT PARK THIS AGREEMENT OF LEASE, that shall supersede all previous agreements of lease, is hereby made and entered into as of the 1st day of Agri-} 1997g February_ 1999, for the specified term, by and between the City of Virginia Beach, a municipal corporation of the Commonwealth of Virginia, hereinafter referred to as "Lessor", and GNBL, Inc., f/k/a the Great Neck Baseball League, a Vlrglma corporation, hereinafter referred to as "Lessee", with address at P. O. Box 3004, Virginia Beach, Virginia, 23454. WITNESSETH: That for and in consideration of the stun of one dollar ($1.00) paid by the Lessee to the Lessor upon execution of this lease agreement, receipt of which is hereby acknowledged; and other valuable consideration given by Lessee, the Lessor does hereby lease to the Lessee and the Lessee does hereby lease from the Lessor, subject to the terms and conditions provided in this lease agreement, that parcel of land hereinafter referred to as "Premises" described as follows: All that certain piece or parcel of land, lying and situated in the City of Virginia Beach, Virginia, containing 11.77 acres and designated on that certain plat entitled: "Sketch of Ballfield Lease Area for Great Neck Baseball League, Inc., Lynnhaven Borough; Vtrginia Beach, Vtrgtnta, Survey Bureau; Engtneertng Dtvtston; Department of Pubhc Works; City of Virginia Beach, Vtrgtnta; Date: March 13, 1998; Scale: 1" = ! 00'. "A copy of said plat is attached hereto and marked "Exhibit A''o This lease agreement shall be subject to all easements and restrictions of record and shall be subject to such terms and conditions as follows: TERM: The initial term of this lease shall commence upon the full execution of this lease agreement and ,,~,,o 1999. shall terminate on December 31, l,,,~ EXTENSION OF TERM: Except for the initial term as specified above, it is expressly agreed that this lease agreement shall be considered a year-to-year lease from January 1st through December 31st of each calendar year. It is also expressly agreed that this lease agreement shall automatically and without further action on the part of either party be extended from calendar year to calendar year for a maximum of four(4) additional calendar year terms terminating on December 31, 2002 2003, unless and until one of the parties shall give to the other party thirty(30) calendar days written notice of non-renewal prior to the end of the then current calendar year term. USE OF PREMISES: Lessee shall not use the Premises for any purpose other than hereinafter set forth; nor shall the Lessee commit or permit any nuisance to be created or maintained on the Premises; nor operate or knowingly permit the operation of any illegal acts thereon. It is expressly understood and agreed that all activities on the Premises will be solely that of the Lessee and that Lessee in no way represents or acts on behalf of the Lessor or any department thereof especially with respect to authorizing a third party use of the Premises without the expressed prior written consent of the Lessor. The Lessee shall comply with all laws, rules and regulations of the City of Virginia Beach and all other governmental authorities respecting the use of any operations and activities on the premises, and shall not make, suffer, or permit any unlawful, improper, or offensive use of such premises or permit any nuisance thereon. 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 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 NOISE: In accordance with the provisions of Chapter 23, Section 23-47, of the City of Virginia Beach City Code regarding loud, disturbing, and unnecessary noise, no loudspeaker, speakers, microphone of any kind, megaphone, "Kanoke" microphone, siren, bell, horn, drum, amphfier, radio, cassette player or CD player or other noise making instrument or device are permitted to be used on the Premises by the Lessee or its members, guests, invitees, or Great Neck Baseball League participants, relatives, or attendees. Electronic scoreboards may be used on the Premises by the Lessee provided that all such electronic scoreboards are silent at all times. SPECIAL TERMS AND CONDITIONS: Lessee shall not use the Premises or allow the Premises to be used between the hours of 8:00 p.m. and 8:00 a.m. daily but not earlier than 11:00 a.m. on Sundays. Lessee shall not perform grass cutting or other maintenance work on the Premises between the hours of 8:00 p.m. and 8:00 a.m. daily but not earlier than 11:00 a.m. on Sundays. Lessor hereby authorizes the Lessee to construct and maintain one tcrnparm'7 conccaaion permanent concession/restrooms building on the leased Premises to be known as the Great Neck Baseball League Concession Facility. Said building shall be located at the center of the four ballfield ' ............ Access md use of this concession hcility shall coincide with use of the ballfields as pe~ltted t~ough the City of Vlrg~nm Beach, Depament of P~ks ~d Recreation, Athletics Unit. Lessee shall use the concession facfll~ only for the pr~ation ~d retml sale of food ~d non- alcoholic beverages ~d sun~ items ~d for the storage of related supphes ~d equipment. Use of the concession facility for the prep~at~on of food ~s subject to the condition that the Great Neck Baseball League shall obtain and maintain a vahd food se~ice pe~it ~om the Virginia Beach Dep~ent of Health, Office of Enviromental Health in accord~ce with the roles ~d regulations of the Bo~d of Health, Co~onwealth of V~rglma. No items offered for sale shall be packaged ~n a gl~s container. All proceeds ~om the operation of the concession facility shall be retained by the Great Neck B~eball League. The cost of all operating expenses ~ well ~ all necess~ m~nten~ce ~d repairs to the concession facility shall be the sole responsibility of the Lessee. Lessor hereby authorizes the Lessee to construct and maintain one temporary storage building on the leased Premises to be known as the Great Neck Baseball League Storage Building. Said building shall remain in place atler construction on the Premises throughout the term of this lease agreement for the sole purpose of storage ofballfield maintenance equipment and supplies. Access and use of this storage facility shall coincide with use of the ballfields as permitted through the City of Virginia Beach, Department of Parks and Recreation, Athletics Unit. The cost of all necessary mmntenance and repairs to the storage building shall be the sole responsibility of the Lessee. Lessee shall annually repair all damages to the grounds of the Premises caused by pedestrian traffic to the satisfaction of the Lessor at Lessee' sole cost and expense. Lessee shall initiate written notification dunng the month of March of each calendar year to the coaches and parents of all participants in the league that parking In the parking lots of the Great Neck Community Recreation Center and the parking lots located inside the entrance gates of Great Neck District Park to attend league practices and games is not permitted. Said written notification shall also direct the coaches and parents of all participants in the league to park only in the parking lot immediately adjacent to the ballfields and the parking lot of Cox High School. A copy of smd written notification shall also be provided to the Parks Administrator of the City of Virginia Beach. Following said written notification, Lessee shall initiate whatever actions become necessary to ensure that the coaches and parents of league participants do, in fact, comply with said parking restrictions at all times. Lessee shall ensure that players and spectators do not sit or stand on the berm located between the Premises and Shorehaven Drive at anytime. 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 Lessee shall ensure that cars, trucks, tractor trailers, and other licensed vehicles are not driven on the Premises at anytime. .L/."l /C~ ~'..L.:L:4. A \ ~4. 4.L~ T ..... '~ ~1 .... + ~.1 ........ T ...... 'L.~11 ~1~ L^ ......1~1 .......... 1,,.1~ .g'~ TRASH COLLECTION AND DISPOSAL: Less°° shall It shall be The sole responsibility of the Lessee to police the grounds of the Premises daily to ensure that all trash from the use of the Premises is placed in the trash containers that shall b p id d by the L ' ...... '--" pty~11 4.--~.1.. .... -' ..... L_ ]~_~__-' ....... l,m-- L .... e rov e essor..~,~oo,.,x 0.... cm ....o. ' ..... ...~. ,~o~,,~o,, ,~· ,.. ~..~.~ ,.~. ~..~., ~. ~ ~.~. It shall also be the sole responsl of the Lessee to provide plastic ~ash bags for all trash containers placed on the Premises by the Lessor at the Lessee's sole cost ~d expense and to empty all trash containers on the Premises on a regul~ basis and to properly dispose of all filled plastic trash bags from the Premises in the Great Neck D~stnct P~k ~ash dumpsters that shall be provided by the Lessor at Lessor'sole cost ~d expense. ALTERATIONS, IMPROVEMENTS, OR ADDITIONS: All alterations, improvements, or additions to the Premises shall comply with all applicable building codes, zoning codes, and other laws, ordinances, and regulations. Lessee shall submit a written request to construct any alterations, improvements, or additions to the Premises to the Lessor and must receive the prior written authonzaUon from the Lessor prior to the commencement of any construction work. Any such alteraUons, ~mprovements, or additions shall be at the sole expense of the Lessee and Lessee shall indemnify Lessor from any expense related to the repair of any damage to the Premises caused by said construction work. Lessor hereby authorizes the Lessee to make alterations, improvements, and additions to the Premises subject to the following terms and cond~nons: 1. All expenses shall be at the sole expense of the Lessee. 2. All materials shall be of similar quality as currently exists on the Premises. . All workmanship will be performed by professional, licensed contractors and shall comply with all apphcable C~ty bmld~ng codes, zoning codes, and all other City laws, ordinances, and regulations. · l~,llllO~'O ~gll%.g &.~llUl%.,llCg¥ %.,11 A..~'ll V 9 ~l.i. ~gll~V i.llll%.,. A 11 .... --1. -L^11 1.. ..... 1~+~.,1 --~+ 1-+~-- 4-L--- T .... ~ ~ I ~0 6:. 4. Scope of work shall be limited to the following specified alterations, improvements, and additions as shown on attached Exhibit B: A, Lessee may construct two(2) additional T-ball ballfields with solid dirt ~nfields and team benches on both s~des of the infields within the existing outfield fencing of ballfield//3. (See #1 on Attached Exhibit B). 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 Bo Lessee may construct two(2) pitching warm up areas (bull pens) on existing ballfields #1, #2, and #4 to allow players a safe space to throw without endangering spectators or other players. (See #2 on Attached Exhibit B). Co Lessee may NOT construct a batting practice safety cage of any kind or as shown on Exhibit B between the outfield fencing of ballfield #1 and the berm. (See #4 on Attached Exhibit B). D. Lessee may install one small set of spectator bleachers adjacent to each of the two new ballfields. (See #5 on Attached Exhibit B). Eo Lessee may construct a thirty foot(30') wide by ten foot(10') high backstop on each of the two new ballfields. (See #6 on Attached Exhibit B). F. Lessee may construct two new dugouts on each of the four existing ballfields. Each dugout shall be six feet(6') high and twenty feet(20') long and shall be constructed of chain link fencing with a shed roof that is eight feet(8') high in the front and seven feet(T) high in the rear. All dugouts shall be compatible with the architectural style of existing park structures. (See #7 on Attached Exhibit B). Go Lessee may modify existing fencing on ballfield #3 to install one new personnel entrance gate on each of the two new ballfields adjacent to the new spectator bleachers to give players convenient access to the new ballfields. (See #9 on Attached Exhibit B). Lessee may remove or demolish the existing temporary concession building on the Premises subject to the condition that said relocation or demolition shall be at the Lessee's sole cost and expense. Ingress/Egress to the construction site shall be determined by the Lessor and all damages to the grounds of the Premises caused by said construction work shall be repmred by the Lessee to the Lessor's satisfaction at the sole expense of the Lessee. Lessee may construct a new permanent, one story_, brick concession and restroom building, that shall not exceed 1,150 square feet, as specified by floor plans submitted by the Lessee and approved by the Lessor entitled Great Neck Baseball Concession/Restroom Building; G.L. Wilson Building Company; September 8, 1998; Scale: 1/4" = 1'. Ingress/Egress to the construction site shall be determined by the Lessor and all damages to the grounds of the Premises caused by said construction work shall be repaired by the Lessee to the Lessor's satisfaction at the sole expense of the Lessee. (See Attachments C and C1). BUSINESS OPERATION: Lessor hereby grants Lessee authonzatlon to operate concession facilities on the Premiseso~,~,j,,,,% of retail sale of food and sundry items and non-alcoholic beverages and for the storage of all related concession supplies and equipment. The operation of a concession facili _ty is subject to the condition that all food, sundry_ items, and non-alcohohc beverages sold by the Lessee are of pure and good quality, that all prices charged by the Lessee are reasonable and at the fair market value, and that under no circumstances will items offered for sale be packaged in glass containers. In addition, the use of the concession facility for the preparation of food is subject to the condition that the Great Neck Baseball League shall obtain and malntmn a valid food service permit from the Virgima Beach Department of Health, Office of Environmental Health ~n accordance with the rules and regulations of the Board of Health, Commonwealth of Virginia. 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 UTILITIES: Lessee agrees to pay the cost of all electricity, gas, water, sewage disposal and all other utilities used upon the Premises. Any easements granted by the Lessor to the Lessee for such utilities shall terminate immediately upon the termination of this lease agreement. NOTIFICATION OF OFFICERS: Lessee shall provide the names, mailing addresses, business phone number, and home phone number of all officers on the Executive Committee of the Lessee's association in writing to the Lessor at the time this lease agreement is executed and not later than October 31 st of each calendar year term thereafter. NOTIFICATION OF PRACTICE, GAME, AND TOURNAMENT SCHEDULES: Lessee shall provide to the Lessor a written schedule of all practice and game schedules of all teams who will utilize the Premises at the time this lease agreement is executed and not later than March 31st of each calendar year term thereafter. Lessee shall also provide to the Lessor a written schedule of all post season tournament practices and games to be held on the Premises within 72 hours of the scheduling of such post season tournament practices and games. ANNUAL MEETING WITH LESSOR: All officers on the Executive Committee of the Lessee's association shall meet with representatives of the Lessor at the time this lease agreement is executed and not later than April 30th of each calendar year term thereafter on a date and time mutually agreed upon by the representatives of the Lessor and Lessee. TREE REMOVAL: Lessee shall not cut, trim, damage, deface, or remove any tree, shrub, or other vegetation upon the Premises or to cause, procure, or direct the cutting, trimming, damaging, defacing or removal of any such tree, shrub, or other vegetation without the prior written authorization of the Lessor In accordance with Section 23-39.1 of the City Code. If Lessee shall commit any of the acts prolubited in Section 23-39.1 of the City Code upon more than one tree or shrub, Lessee shall be guilty of a Class 1 misdemeanor with respect to each such tree or shrub. REPAIRS AND MAINTENANCE: The Lessee has examined the premises and found them acceptable and in satisfactory condition and adequate for the purposes of the Lessee as of the date of execution of this lease agreement. The Lessee agrees that at all times dunng the terms of this lease agreement, the Lessee shall maintain and keep the premises and property in a safe, clean, and sanitary condition, and that the Lessee shall surrender the premises in as good condition as received, reasonable wear and tear excepted. All personal property belonging to the Lessee shall be maintained in good condition dunng the term oftlus lease agreement. The Lessee agrees that the personal property belonging to the Lessor shall not be removed from the premises at anytime during the term of this lease agreement and shall be surrendered to the Lessor at the end of the term in good condition, reasonable wear and tear excepted. Additionally, the Lessee shall keep such personal property in good repair at the expense of the Lessee during the term of this lease agreement. The Lessee shall be responsible for maintaining all utilities connected to the tcl.-npora,-y building known as the Great Neck Baseball League Concession Faclhty at its sole expense during the term of this lease agreement. The Lessee shall be responsible for maintaining in good, safe, and working condition the temporary building known as the Great Neck Baseball League Concession Facility at tts the Lessee's sole cost and expense during the term of this lease agreement. 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 INDEMNIFICATION: Except as otherwise provided herein, Lessee shall indemnify Lessor against all liabilities, expenses, and losses incurred by Lessor as a result of: 1) failure by Lessee to perform any covenant required to be performed by the Lessee hereunder; and 2) any accident, ~njury, or damage which shall happen in or about the leased Premises or appurtenances thereto or resulting from the condition, mmntenance or operation of the leased Premises. Lessee further agrees to defend, indemnify, and hold harmless the Lessor, its employees, agents, and volunteers from any and all liability and damages for injuries to persons or damage to property arising out of the acts or omissions of the Lessee, Lessee's agents or employees under this lease agreement. INSURANCE: Lessee, at its expense, shall maintain in full force and effect dunng each calendar year term of this lease agreement, a general liability insurance pohcy including products habihty coverage at a m~nimum limit of $1,000,000 combined single limit (CSL) to cover all liablhty arising out of the terms of th~s lease agreement. Lessee shall prowde a written declaration of this insurance policy from the Lessee's insurance company to the Lessor at the t~me this lease agreement is executed and dunng the month of January of each calendar year term. ALCOHOLIC BEVERAGES: This agreement expressly prohibits the sale of any alcoholic beverages on the Premises or the holding of any ABC license by the Lessee. In addition, Lessee shall ensure that no alcoholic beverages are consumed on the Premises at any time by the Lessee or its members, guests, invltees, or the relatives or attendees of Httlc baseball league participants. FIRE OR CASUALTY: Except as otherwise provided herein, in the event that the buildings or improvements on the Premises or any part thereof are damaged or destroyed by fire or other casualty, Lessor shall have no obligation to reconstruct the same. Lessee may, at ~ts sole option, reconstruct or repair any such improvements to the extent it chooses provided such reconstruction or repair has the prior written authorization of the Lessor and ~s in accordance w~th all apphcable City building and zoning codes, and all other City codes, ordinances, and regulations. Lessee shall bear all expenses for all aforementioned reconstruction or repair. LESSOR'S RIGHT OF USE: Except as otherwise provided here~n, Lessee agrees that all fields and concession and restroom facilities will be made available to Lessor or its permittees upon request providing the requested dates do not interfere with prior scheduled games or activities of the Lessee. Requests for field use by Lessor or its permittees must be made at least ten(10) days ~n advance. In addition, Lessor and ~ts permittees shall have the right to use all concession and restroom facilities on the Premises for the benefit of the pubhc whenever such faciht~es are open to Lessee or its permittees. Lessor retains the right of ingress and egress for itself, its agents and employees to all areas. Lessor shall have the right to enter into and upon said Premises, streets, or areas adjacent thereto. Lessee further agrees that if future development of the property herein leased is undertaken by Lessor, Lessee agrees to release the necessary property to allow for the development. TERMINATION: In the event the Lessee shall be adjudicated bankrupt or insolvent or take the benefit of any reorganization of composition proceedings or ~nsolvency law; or make an assignment for the benefit of creditors; or if the interest of the Lessee under this lease agreement shall be levied upon the Premises or attempted to be sold under any execution or process of law; or ~f a Receiver is appointed for the Lessee, then and thereafter, the Lessor shall have the right and option to terminate this lease agreement irrespective of whether or not default exists hereunder. Said termination shall be effective ~mmedlately upon the Lessor's exercise of such option. 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 DEFAULT OR ABANDONMENT: In the event the Lessee breaches or fails to perform any agreements herein; or abandons the premises, the Lessor shall have the option to terminate this lease agreement if the Lessee fails to cure such breach or default within ten(1 O) calendar days of the receipt of written notice thereof. The Lessor may resume possession and relet the premises for the account of the Lessee. In addition hereto, the Lessor may pursue such other remedies as are provided by law in the event of any breach, default or abandonment by the Lessee. SURRENDER OF PREMISES: Upon the termination or expiration of this lease agreement, Lessee shall surrender the premises to the Lessor in as good order and condition as at the commencement of the term (ordinary wear and tear excepted) and any improvements made to the property by the Lessee shall become the property of the Lessor. SEVERABILITY: Should any section, paragraph, sentence, or clause of this lease agreement be declared invalid for any reason, the remainder of said lease agreement shall not be affected and shall remain in full force and effect. APPLICABLE LAW: This lease agreement shall be deemed to be a Commonwealth of Virginia contract and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this contract shall be deemed to have been delivered and accepted by the parties in the City of Virginia Beach, Virginia. COMPLIANCE WITH ALL LAWS: Lessee shall comply with all Federal, State, and City statutes, ordinances, and regulations now in effect or hereafter adopted in the performance of the terms of this contract as set forth herein. Lessee represents that it possesses all necessary licenses and permits required to conduct its business and will acquire any additional licenses and permits necessary for performance of the terms of this contract prior to the initiation of work. VENUE: Any and all suits for any claims or for any and every breach or dispute arising out of this contract shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. ENVIRONMENTAL LIABILITY: Any costs associated with violations of the law Including, but not limited to, remediations, clean up costs, fines, administrative or civil penalties or charges, and third party claims Imposed on the City of Virginia Beach by any regulatory agency or by any third party as a result of the noncompliance with Federal, State, or City environmental laws and regulations or nuisance statutes by the Lessee or its members or invatees or by subcontractors, consultants, sub-consultants, or any other persons, corporations, or legal entities retained by the Lessee for this contract, shall be paid by the Lessee. ASSIGNMENT OR SUBLETTING: Lessee covenants not to assign, mortgage, or encumber tins lease agreement nor sublet, or suffer or permit the Premises, or any part thereof, to be used by others w~thout the prior written authorization of the Lessor. 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 SIGNS & ALTERATIONS: Lessee shall not place or suffer to be placed or maintained on the Premises, any sign or advertising matter or other thing of any kind without the prior written authorization of the Lessor. MODIFICATION: There shall be no modification of this lease agreement, except in writing, executed by the authorized representatives of the Lessor and the Lessee. IN WITNESS WHEREOF, the Lessor and the Lessee have duly executed this agreement effective as of the date first written above. CITY OF VIRGINIA BEACH a Virginia Municipal Corporation ATTEST: BY: C. ORAL LAMBERT Chief of Staff Authorized Designee Of The City Manager RUTH HODGES SMITH City Clerk City of Virginia Beach GNBL, INC., f/k/a Great Neck Little League, a Virginia corporation, ATTEST: By: President Secreatary STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me th~s day of ., 1999 by C. Oral Lambert, Authorized Designee of the City Manager, of the City of Virginia Beach, V~rginia, a mummpal corporation, on behalf of the CITY OF VIRGINIA BEACH, Virginia. Notary Public My commission expires: 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 5O8 509 510 511 512 513 514 515 516 517 518 519 520 521 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-w~t: The foregoing instrument was acknowledged before me this day of ,1999 by Ruth Hodges Smith, C~ty Clerk of the C~ty of V~rg~ma Beach, Virgima, a mumc~pal corporation, on behalf of the CITY OF VIRGINIA BEACH, Virgima. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-w~t: The foregoing instrument was acknowledged before me this day of ,1999 by , President of GNBL, Inc., f/k/a the Great Neck Baseball League, a V~rg~ma corporation. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,1999 by ., Secretary of GNBL, Inc., f/k/a the Great Neck Baseball League, a Virgima corporation. Notary Public My commission expires: A \LEASE GN3 .. I I ' -- ' 'J-' { ~ ' -. '-. // , , , r--, , __. . ' ".. '-. II ,' '--~ C ~ .---' ..'.,-(' ...... ', "-. I I '~ ,-, _.--- - '.-"5,/' L--- ,' '- "-..-'".-. -' ' '-- ,' ~ 1-"---~---- ......... --~"~ ~~,,',\ ,, , ' :~------'~---" _._~--, ; '.~ , . '-. I/ ,:-"---__-~::~--.-__. - . . ,-'-" _- ,-..~-'~. ~ .. ' ,' ' "~~7"----_ ---- ', ~ ~___ ~,¢-...~ ,,\ -- ,' ,' ~' ,' LL '~'4eK/~ ,; .. i ,~ _ ' .' .' '~~ r, -'"" AREA ' FOR ',...~ "..'" ~'"'""'""-,.--~ - . .. , I . \ , / F/EI.~ $ ?/EI..~ 2 _ Toe of' Berm I 55~ SKETCH OF BALLFIELD LEASE AREA FOR 6REAT NECK BASEBALL LEAGUE. INCo LYNNHAVEN BOROUGH -- VIRGINIA BEACH, VIRGINIA SURVEY BUREAU ENGINEERING DIVISION DEPARTMENT OF PUBUC WORKS crn, o~' WR~ ~. WR;~.~ IOATE, UARC. I3. t~ Ilsc,~-, r. I~ ]IDRAWN BY, JAL IIFIELD BOOK;"N"97 IIF/LE, I I I leo d;\.loyce~dgnXl;#nkpl(tzign EXHIBIT "B" "IF EXHIBIT "C" EXHIBIT "C-I" Item V-I. 3 - 24 - ORDINANCES/RES OL UTIONS ITEM # 44545 Upon motton by Vice Mayor Sessoms, seconded by Councdman Hetschober, Ctty Council ADOPTED: Ordinance to APPROPRIATE $1,000,000 from General Obhgatton Bonds to CIP Project #2-278, TCC &te Improvements, ADJUST CIP Project #1-208, Techntcal Education Center; and, estimated revenue from the proceeds of General Obligation Bonds be mcreased accor&ngly Vottng. 11-0 (By Consent) Councd Members Vottng Aye: Ltnwood O. Branch, III, Margaret L Eure, William tV. Harrtson, Jr., Harold Hetschober, Barbara M. Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vtce Mayor Wdham D. Sessoms, Jr. and A. M "Don" Weeks Counctl Members Voting Nay: None Council Members Absent' None January 26, 1999 AN ORDINANCE TO APPROPRIATE $1,000,000 TO CIP PROJECT #2-278, "TCC SITE IMPROVEMENTS" WHEREAS, The City's CIP program contains a $13,000,000 5 allocation for FY 1999-00 within CIP project #1-208, "Technical 6 Education Center," for the City of Virginia Beach's share of 7 development and construction expenses for a technical center to be 8 located on the Virginia Beach campus of Tidewater Community 9 College; 10 WHEREAS, $1,000,000 of the $13,000,000 is needed in FY 11 1998-99 for site improvements associated with the project, with the 12 remaining $12,000,000 needed in FY 1999-00 for actual construction 13 and associated facility costs; 14 WHEREAS, CIP project #2-278, "TCC Site Improvements," has 15 been previously established to fund site improvements for Tidewater 16 Community College; 17 WHEREAS, neither the Schools nor Roadways sections of the 18 capital improvement program contain funds in the amount of 19 $1,000,000 that could be directed to this immediate need; and 20 WHEREAS, general obligation bonds are available for this 21 purpose from bonds authorized in 1998 that have not yet been 22 appropriated. 23 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That $1,000,000 from general obligation bonds is hereby appropriated to CIP project #2-278, "TCC Site Improvements," in FY 1998-99. 2. That City staff are hereby directed to work with School staff to adjust CIP project #1-208, "Technical Education Center," in the FY 1999-00/2004-05 budget submission so that the Item V-I. 4. ~ 25 - ORDINANCES/RES OL UTIONS ITEM # 44546 Upon motton by Vice Mayor Sessoms, seconded by Councilman Heischober, Ctty Council ADOPTED: Ordinance to A CCEPTandAPPROPRIA TE $121, 73 l from the Vtrgtnta Department of Me&cal Asststance Servtces to the FY 1998-1999 Operating Budget of the Department of Soctal Servtces re provtdmg the Children's Medical Security Insurance Program locally, and, esttmated revenue from the state government be increased accordingly ~ttng: 11-0 (By ConsenO Counctl Members Voting Aye' Linwood O. Branch, III, Margaret L. Eure, Wdliam W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louts R. Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vtce Mayor Wilham D. Sessoms, Jr and A M. "Don" Weeks Councd Members Voting Nay: None Counctl Members Absent None January 26, 1999 1 2 3 4 5 6 7 8 9 10 AN ORDINANCE TO ACCEPT AND APPROPRIATE ADDITIONAL REVENUES IN THE AMOUNT OF $121,731 FROM THE VIRGINIA DEPARTMENT OF MEDICAL ASSISTANCE SERVICES TO THE FY 1998/99 OPERATING BUDGET OF THE DEPARTMENT OF SOCIAL SERVICES FOR THE PURPOSE OF PROVIDING THE CHILDREN'S MEDICAL SECURITY INSURANCE PROGRAM LOCALLY 11 WHEREAS, Title XXI of the Social Security Act was 12 approved in 1997 to provide medical coverage for children age 19 13 and under whose parents have income up to 185% of the federal 14 poverty level; 15 WHEREAS, the General Assembly in 1998 approved funding 16 for the State Children's Medical Security Insurance Program as 17 required by Title XXI; and 18 WHEREAS, this program may serve 16,000 children in 19 Virginia Beach. 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 22 1. That additional revenues in the amount of $121,731 23 are hereby accepted from the Virginia Department of Medical 24 Assistance Services and appropriated to the FY 1998/99 Operating 25 Budget of the Department of Social Services to fund additional 26 staff, overtime, workstations, equipment and supplies necessary to 27 administer the Children's Medical Security Insurance Program 28 locally. 29 2. That estimated revenue from the state government are 30 hereby increased in the amount of $ 121,731. 31 32 33 Requires an affirmative vote by a majority of the members of City Council. 34 35 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26 day of January , 1999. 36 37 38 39 CA-7244 DATA/ORDIN/NONCODE/SS-INSUR.ORD JANUARY 14, 1999 R2 40 41 42 43 APPROVED AS TO CONTENT: MANAGEMENT SERVES APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTOR~~ Item V-L5. -26- ORDINANCES/RES OL UTIONS ITEM # 44547 Upon motion by Vtce Mayor Sessoms, seconded by Councdman Hetschober, Cay Councd ADOPTED: Ordtnance to ACCEPT and APPROPRIA TEa $19,350 Grant from the Vtrgtnta Coastal Resources Management Program to the FY 1998-1999 Operating Budget of the Department of Museums re providtng an educational program about the protection of marine species to owners and operators of recreational marine vessels, with required match of $21,625 available wtthin extsttng FY 1998-1999 appropriattons, and, esttmated revenue from the state government be increased accordingly Vottng. 11-0 (By ConsenO Counctl Members Voting Aye. Linwood O. Branch, III, Margaret L Eure, Wdliam W Harrison, Jr, Harold Hetschober, Barbara M. Henley, Louts R Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vtce Mayor Wdliam D. Sessoms, Jr. and A M. "Don" Weeks Council Members Voting Nay: None Counctl Members Absent None January 26, 1999 AN ORDINANCE TO ACCEPT AND APPROPRIATE A GRANT IN THE AMOUNT OF $19,350 FROM THE STATE COASTAL RESOURCES MANAGEMENT PROGRAM TO THE FY 1998-99 OPERATING BUDGET OF THE DEPARTMENT OF MUSEUMS FOR THE PURPOSE OF EDUCATING OWNERS AND OPERATORS OF RECREATIONAL MARINE VESSELS ABOUT THE PROTECTION OF MARINE SPECIES 10 WHEREAS, the Virginia Coastal Resources Management 11 Program has awarded the Virginia Marine Science Museum a $19,350 12 grant to develop and provide an educational program about the 13 importance of protecting marine species in the coastal and 14 estuarine waters of Virginia Beach to owners and operators of 15 recreational marine vessels; and 16 WHEREAS, this grant requires an "in-kind" match 17 equivalent to $21,625, and resources for this match are currently 18 available in the Marine Science Museum's FY 1998-99 Operating 19 Budget. 20 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 21 OF VIRGINIA BEACH, VIRGINIA: 22 1. That a grant in the amount of $19,350 is hereby 23 accepted from the Virginia Coastal Resources Management Program and 24 appropriated to the FY 1998-99 Operating Budget of the Department 25 of Museums for the purpose of providing an educational program 26 about the protection of marine species to owners and operators of 27 recreational marine vessels, with the required match .of $21,625 28 being available within existing FY 1998-99 appropriations to the 29 Department of Museums. 30 2. That estimated revenue from the State government is 31 hereby increased by $19,350. 32 Requires an affirmative vote by a majority of the members 33 of City Council. 34 35 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26 day of January , 1999. CA-7205 ORDIN\NONCODE\MARINE. ORD DECEMBER 7, 1998 R-4 APPROVED AS TO CONTENT: APPROVED AS LEGAL SUFFICIENCY: Management Services"' City Attorney sk~ffice / ~ CAW-G \DATA\ORDIN\NONCODE\M~INE ORD Item V-I 6. -27- ORDINANCES/RES OL UTIONS ITEM # 44548 Upon motion by Vice Mayor Sessoms, seconded by Counctlman Heischober, Ctty Council ADOPTED: Resolutton of Endorsement to the Commonwealth Transportatton Board for the Norfolk Avenue Trail as a proposed Transportation Enhancement Project Vottng' 11-0 (By ConsenO Councd Members Voting Aye' Ltnwood 0 Branch, III, Margaret L Eure, Wtlham W Harrtson, Jr., Harold Hetschober, Barbara M Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker, Vice Mayor Wdham D Sessoms, Jr and A M. "Don" Weeks Council Members Voting Nay. None Counctl Members Absent' None danuary 26, 1999 RESOLUTION OF ENDORSEMENT TO THE COMMONWEALTH TRANSPORTATION BOARD FOR NORFOLK AVENUE TRAIL AS A PROPOSED TRANSPORTATION ENHANCEMENT PROJECT WHEREAS, the Virginia Department of Transportation, along with the Virginia 5 Department of Rail and Public Transportation and the Federal Highway Administration, has 6 announced the availability of Transportation Enhancement Funds for qualified projects; and WHEREAS, approximately 18 million dollars may be available to Virginia localities for 8 transportation enhancement projects during the 1999-2000 fiscal year, and WHEREAS, the City Council has been advised that projects funded by this program require 10 a local match, either in-kind or cash, of twenty percent, and 11 WHEREAS, the City Council has been further advised and acknowledges that in the event 12 the City elects to cancel a project funded by this program prior to its completion, the City shall 13 be required to reimburse the Virginia Department of Transportation for funds expended for such 14 project, and 15 WHEREAS, the Metropolitan Planning Organization has endorsed the City's proposed 16 transportation enhancement project; and 17 WHEREAS, in accordance w~th Commonwealth Transportation Board construction 18 allocation procedures, a resolution of endorsement must be recmved from the City Council 19 before the Virginia Department of Transportation will program an enhancement project ~n the 20 applicant's locality; and 21 WHEREAS, the City Council recognizes the importance of transportation enhancement 22 projects as a way of integrating transportation into our commumty and natural environment. 23 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 24 VIRGINIA BEACH, VIRGINIA That the Council hereby endorses to the Commonwealth 25 26 27 Transportation Board the Norfolk Avenue Trail as a proposed transportation enhancement project. ADOPTED by the Council of the C~ty of Virginia Beach, Virginia, this 26 day of 28 January ,1999 COMMONWEALTH OF VIRGINIA TRANSPORTATION ENHANCEMENT GRANT NORFOLK AVENUE TRAIL - SUMMARY Applicant: The City of Virginia Beach - Department of Parks and Recreation, Building//21, Municipal Center, Virginia Beach, Virginia 23456 Enhancement Activity Th~s project, the Norfolk Avenue Trail addresses three of the categories of enhancement act~vmes as listed below · Item 1 - Provision of faclht~es for pedestrians and b~cycles · Item 4 - Landscaping or other scenic beautfficatlon Item 7 - Preservanon of abandoned railway corridors 0nclud~ng the conversion and use thereof for pedestrian or b~cycle trails) Project Location and Description The Norfolk Avenue Trail is planned to be a ten foot wide multi- purpose pedestrian/bicycle trail placed along Norfolk Avenue in the old Norfolk Southern Raft Road right of way and Norfolk Avenue right of way from B~rdneck Road to Pacffic Avenue ~n the City of V~rg~ma Beach The trail ~s planned to be a total length of approximately 7,110 hnear feet w~th 5,910 linear feet in the old railroad right of way and 1,200 linear feet ~n the Norfolk Avenue right of way All property/right of ways are owned by the C~ty of V~rg~ma Beach Priority Number Tins project is the only apphcation/request by the City of V~rginia Beach for this year and is Priority #1 Public Meetings Th~s project has had an extensive public involvement process Two pubhc meetings were held on October 13 and 27, 1998 Project Schedule If the project funding ~s approved at the end of October 1999, the Planning and Design portion of the project would start ~n February 2000. A summary of the schedule ~s listed below. Beg~n Design Begin Construction Esttmated Completion Date of the Project February 2000 October 2000 November 2001 Project Costs The project IS estimated to cost $568,000 as hsted below Planmng and Design Construction & Implementation Total/Full ProJect Cost $ 48,000 $520,000 ($418,000 requested from Federal) $568,000 Non-Federal Funding Sources: Fundtng tn the amount of $150, 000 ts proposed from the City of Vtrgtnta Beach Parks and Recreation Capttal Improvement Program The source of funding within the Capital Improvement Program is from the Open Space Initiative which is generated from seven tenths of a cent of the C~ty's real estate tax This funding ~s anticipated and planned for a new CIP project for FY 1999-2000 Actual funding is planned to be avatlable ~n July 1999 Norfolk Avenue Trad Norfolk Avenue Trail - Site Location Map (No Scale) Item V-I 7. - 28 - ORDINANCES/RES OL UTIONS ITEM # 44549 Upon motton by Vice Mayor Sessoms, seconded by Councdman Hetschober, City Council APPROVED: CER TIFICA TES OF PUBLIC CONVENIENCE AND NECESSITY: James Taxi Service Marquis Limousine, Inc. Regal Limousine, Inc. Top Hat Limousines, Inc. Vottng 11-0 (By Consent) Council Members Votmg Aye: Ltnwood 0 Branch, IIL Margaret L Eure, William W Harrison, Jr, Harold Heischober, Barbara M Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vtce Mayor William D. Sessoms, Jr. and A M "Don" Weeks Counctl Members Voting Nay: None Council Members Absent None January 26, 1999 Item Vd. 8 - 29- ORDINANCES/RES OL UTION ITEM # 44550 Upon motion by Vtce Mayor Sessoms, seconded by Councdman Heischober, Cay Counctl ADOPTED: REFUNDS License - $ 77,539.92 Tax - $ 1,166.02 Vottng: 11-0 (By ConsenO Councd Members Vottng Aye' Ltnwood O. Branch, III, Margaret L. Eure, Wdham W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louts R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vtce Mayor Wtlham D Sessoms, Jr. and A M "Don" Weeks Councd Members Vottng Nay' None Counctl Members Absent None January 26, 1999 AN ORDINANCE AUTHORIZING TAX REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE TREASURER FOR PAYMENT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for tax refunds upon certification of the Treasurer are hereby approved' Tax Type Ticket Exoneration Date NAME Year of Tax Number Number Paid Penalty Kucharski, Ronald & Joan 1999 Rose, Nell L. 1999 Countrywide Tax Service 1998 Glenwood Seasons Owners Assoc. 1998 Tate Terrace Realty Investors, Inc 1998 lmpervento, Charles J 1997 Impervento, Charles J. 1997 lmpervento, Charles J. 1996 lmpervento, Charles J 1996 Munden, Phyllis L. 1998 Wentz, Charmaine 1997 Wentz, Charmaine 1997 Wentz, Charmalne 1996 Wentz, Charmaine 1996 Wentz, Charmaine 1998 Wentz, Charmame 1998 Wentz, Charmalne 1998 TOTAL: Dog Lic. 02471 11/18/98 Dog Llc. 16312 12/22/98 RE(2/2) 98-131441-3 05/21/98 RE(2/2) 98-119797-8 06/04/98 RE(2/2) 98-119795-0 06/04/98 RE(I/2) 97-059096-5 11/18/96 RE(2/2) 97-059096-5 05/19/97 RE(I/2) 96-058354-5 11/24/95 RE(2/2) 96-058354-5 05/17/96 RE(2/2) 98-086886-1 06/15/98 101.82 RE(I/2) 97-128771-0 12/05/96 RE(2/2) 97-128771-0 06/05/97 RE(I/2) 96-127486-9 12/05/95 RE(2/2) 96-127486-9 06/05/96 RE(I/2) 98-129591-5 12/05/97 RE(2/2) 98-129591-5 06/04/98 RE(2/2) 98-132547-4 09/02/98 57 41 Int. Total 10 00 10 00 441 94 77 21 77 21 44 67 44 67 43 74 43 74 8 96 110.78 28 62 28.62 18.09 18 09 45 51 45.51 20 21 77.62 $1,166.02 This ordinance shall be effective from date of adoption. The above abatement(s) totaling were approved by the Counc~f the City of Virginia Beach on the day of January 1999 Ruth Hodges Smith City Clerk Ap ,n T (t~tk~nso~, ~asurer )roved as to form L%gfie-l'. Lille~,-C~W.~A~mey _~ FORM NO C A B REV AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA. That the following apphcabons for hcense refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE INTEREST TOTAL YEAR PAID DUDLEY ARCHIE WNELMA J EASTON SCOTT A HOWELL PHILLIP R MELTON RAY W JR ROSE & KRUETH REALTY CORP TOTAL REHAB INC WOMBLE REALTY INC 1996-1998 AUDIT 5 27 I 36 6 63 1997-1998 AUDIT 61 62 I 11 62 73 1996-1998 AUDIT 168 12 7 01 175 13 1995-1998 AUDIT 10 00 0 67 10 67 1996-1998 AUDIT 16,739 74 64 87 16,804 61 1997 AUDIT 470 13 135 96 606 09 1996-1998 AUDIT 27,650 35 1,81874 29,469 09 Th~s ordinance shall be effecbve from date of adopbon. The above abatement(s) totahng City of V~rg~nia Beach on the $47,134 95 26 'Philip ~ Ke[l~"m'" - - CommIssioner of the Revenue Approved as to form. City Attorney were approved by the Council of the Januar~ 99 day of ,19 Ruth Hodges Smith C~ty Clerk FORM NO C A 8 REV 3186 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following apphcat~ons for license refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE INTEREST TOTAL YEAR PAID ANDERSON RICHARD CANNON JEFF N CARE CONVENIENT INC DLD PLUMBING CONTRACTORS INC DROLL GIBBONS B FAMILY DOLLAR STORES INC #3593 GALLOWAY ANGELO GOODMAN MORRIS P JESSE C. WASSERMAN CPA PC JOHN B MCCRAW MD PC LEWIS JANICE SCHULER MANTECH SYSTEMS ENGINEERING CORP MCMICAN & COMPANY INC MCPHERSON JAMES B MEMBER OPTIONS INC MILLER KATHERINE MOLLETTES CONSTRUCTION INC MOORE JOHN R NATIONAL EDUCATIONAL PROGRAMS RELIABLE STORES INC 1996-1998 AUDIT 39 33 0 00 39 33 1996-1998 AUDIT 15 13 4 91 20 04 1996-1998 AUDIT 34 86 1 62 36 48 1996-1998 AUDIT 261 52 27 73 289 25 1997-1998 AUDIT 553 44 36 88 590 32 1998 12/21/98 50 00 0 00 50 00 1995-1998 AUDIT 11 83 2 37 14 20 1996-1997 AUDIT 1 28 0 33 I 61 1996-1998 AUDIT 843 63 52 35 695 98 1995-1998 AUDIT 0 00 29 21 29 21 1996-1998 AUDIT 10 00 0 67 10 67 1996-1998 AUDIT 1,386 67 143 43 1,530 10 1996-1998 AUDIT 10 00 0 00 10 00 1995-1998 AUDIT 30 67 7 84 38 51 1997-1998 12/29/98 192 23 0 00 192 23 1996-1998 AUDIT 236 35 38 32 274 67 1996-1998 AUDIT 313 31 0 00 313 31 1995-1998 AUDIT 30 00 0 00 30 00 1996-1998 AUDIT 26 39 3 16 29 55 1996-1998 AUDIT 6,180 32 579 85 6,760 17 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling C~ty of V~rgima Beach on the "Philip J.~Kella'~'''~ - Commissioner of the Revenue Approved as to form. $10,955 63 were approved by the Councd of the 26 January 99 day of ,19 Ruth Hodges Smith C~ty Clerk FORM NO C A 8 REV 3/~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following apphcat~ons for hcense refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE INTEREST TOTAL YEAR PAID BELK OF VIRGINIA INC BISEK & COMPANY INC DAUGHERTY GUY E JR ELLE INC HOUSEHOLD RECOVERY SERV CORP LAM YEN THI MCCLAIN GARY L NEVILLE CYNTHIA JEAN NGUEYN KY NOACK ROGER H & JEAN NORDWALL MARYANN OLEARY SHIRLEY M OPUS DRUMS INC PAPPAS ROBERT D RGM ENTERPRISES INC TRIM DESIGNS LTD WOOLDRIDGE EUGENE H 1997-1998 AUDIT 16,913 60 1,268 01 18,181 61 1999 01/08/99 50 00 0 00 50 00 1999 12/16/98 10 00 0 00 10 00 1998 AUDIT 42 01 2 45 44 46 1997-1998 10/30/01 669 03 112 38 781 41 1999 01/08/99 10 00 0 00 10 00 1996-1997 AUDIT 20 00 0 00 20 00 1996-1998 AUDIT 4 69 0 75 5 44 1999 01/07/99 10 00 0 00 10 00 1996-1998 AUDIT 78 18 2 48 80 68 1995-1998 AUDIT 65 00 0 00 65 00 1996-1998 AUDIT 10 87 0 00 10 87 1996-1998 AUDIT 10 00 0 00 10 00 1996-1998 AUDIT 6 00 0 00 6 00 1996-1998 AUDIT 39 99 0 00 39 99 1996-1998 AUDIT 31 89 8 23 40 12 1996-1998 AUDIT 72 24 11 54 83 78 Th~s ordinance shall be effective from date of adoption. The above abatement(s) totaling City of Virginia Beach on the $1 9,449.34 26 C~rtlfled as to pj~ym.~l;~ ~ Ph~l~l~Keil~f~'-,~ Commissioner of the Revenue Approved as to form ~_~e~f,e L L'ill~y'- / C~ty Attorney ~ were approved by the Councd of the day of January ,19 99 Ruth Hodges Smith C~ty Clerk Bem V-J. - 30- PUBLIC HEARING ITEM # 44551 PLANNING Mayor Meyera E. Oberndorf DECLARED a PUBLIC HEARING on PLANNING 2. BUDDHIST ASSOCIATION OF HAMPTON ROADS MODIFICATION OF CONDITIONS (APPROVED 12/9/9 7) 3. ASSOCIATION FOR RESEARCH & ENLIGHTENMENT, INC. ENLARGEMENT OF A NON-CONFORMING EXISTING USE 4. SUE D. FRANCE ENLARGEMENT OF A NON-CONFORMING USE 5. JOHN S. GEORGHIOU VARIANCE 6. PRINCESS HO USE, L.L., C. CONDITIONAL USE PERMIT 7. MANORHO USE RETIREMENT CENTERS, INC. CONDITIONAL USE PERMIT 8. DARLENE McNEICE CASTELLANO CONDITIONAL USE PERMIT 9. ROCK CHURCH CONDITIONAL USE PERMIT 10. MOTIVA ENTERPRISES, L.L.C. CONDITIONAL USE PERMTI 11. S AND R PR OPER TIES CONDITIONAL USE PERMIT 12. BARR YBEHRMAN CONDITIONAL USE PERMIT 13. CITY OF VIRGINIA BEA CH CONDITIONAL USE PERMIT 14. ARMADA/HOFFLER HOLDING COMPANY CONDITIONAL CHANGE OF ZONING 15. GEE-CEE CONSTRUCTION GROUP, L.L. C. CONDITIONAL CHANGE OF ZONING January 26, 1999 Item PUBLIC HEARING PLANNING -31 - ITEM # 44552 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, Ctty Council APPROVED tn one morton Items 2, 9 (90-Day Deferral), 10, 13 and 15 of the PLANNING BY CONSENT Item 9 will be DEFERRED, BY CONSENT, until the City Council Session of Apri127, 1999. Vottng: 11-0 Councd Members Vottng Aye. Linwood O. Branch, III, Margaret L Eure, William W Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba $. McClanan, Mayor Meyera E. Oberndo~ Nancy K. Parker, Vice Mayor Wtlliam D. Sessoms, Jr and ,~ M "Don" Weeks Counctl Members Voting Nay' None Counctl Members Absent' None January 26, 1999 Item V-J. 1 - 32 - PUBLIC HEARING ITEM # 44553 PLANNING NO-ACTION was required on this item: Applicatwn of HOME DEPOT U.S.A., INC., for a Change of Zoning Dtstrtct Clasm_ficattonfrom R-SD Residential Duplex Dtstrict to Conditional B-2 CommunitF Business District at the Southeast intersectton of Prtncess Anne Road and South Independence Boulevard, contatning 23 08 acres (CENTER VILLE- DISTRICT 1) This item was DEFERRED B Y PLANNING COMMISSION on January 13, 1999 January 26, 1999 Item V-J. 2. - 33 - PUBLIC HEARING ITEM # 44554 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council MODIFIED CONDITIONS tn the apphcation of Ordinance upon apphcation of BUDDHISTASSOCIATION OF HAMPTON ROADS for a Conchtional Use Permit: ORDINANCE UPON APPLICA TION OF B UDDHIST ASSOCIA TION OF HAMPTON ROADS FOR A CONDITIONAL USE PERMIT FOR A CHURCH R012972154 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Buddhist Association of Hampton Roads for a Conditional Use Permit for a church on the south side of Bonney Road, east of Kenley Road Said parcel is located at 4915 Bonney Road attd contains 2.44 acres KEMPSVILLE BOROUGH Conchtlon No 2 has been modified The Temple to be constructed on the property shall be substantially similar in design, colors and materials to those depicted in the submitted photographs, dated May 12, 1992, and onfile with Planning Department The first phase of the project will be the hbrary/Monk 's residence. The library~Monk's residence will be in keeping with the elevation entitled, "Phuoc-son Pagoda," by G M Frech attd Associates and on file with the Planning Department It is understood that a temporary waiver to standard parkmg lot improvements will be requested through the admlmstratlve process Development of the site will be substantially in keeping with the rewsed site plan entitled, Preliminary Site Plan for "Phuoc-Son Pagoda, "by Miller-Stephenson and Associates, dated January 6, 1999, and on file with the Planning Department. Landscaping and the berm will be installed as shown on the site plan with the construction of the hbrary/Monk's residence Other conditions approved December 9, 199 7 shah apply Voting. 11-0 (By Consent) Council Members Votlng Aye' Ltnwood O. Branch, III, Margaret L. Eure, William W Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vice Mayor Wdham D Sessoms, Jr and A. M "Don" Weeks Councd Members Voting Nay None Councd Members Absent None January 26, 1999 Item V-K.$. - 34 - PUBLIC HEARING PLANNING ITEM # 44555 Attorney Mike Inman, 2840 South Lynnhaven Road, represented the apphcant and requested WITHDRAWAL Upon motion by Councdman Harrison, seconded by Vice Mayor Sessoms, Ctty Counctl ALLOWED WITHDRAWAL of the Application of ASSOCIATION FOR RESEARCH & ENLIGHTENMENT, INC for an enlargement of the nonconforming existing use at the Northwest corner of Atlantic Avenue, 67'n Street and Seashore State Park to enlarge extsttng facthttes (L YNNHA VEN- DISTRICT 5) Resolution authoriztng the enlargement ora nonconformtng use on property located at the northwest corner of Atlantic Avenue and 67tn Street and Seashore State Park. DISTRICT 5 - LYNNHA VEN Voting 11 '0 Counctl Members Voting Aye' Ltnwood 0 Branch, III, Margaret L. Eure, William Vet Harrison, Jr, Harold Hetschober, Barbara M Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K. Parker, Vice Mayor Wtlliam D Sessoms, Jr. and A M "Don" Weeks Counctl Members Vottng Nay None Counctl Members Absent None January 26, 1999 Item V-K. 4. PUBLIC HEARING PLANNING - 35 - ITEM # 44556 Btlly Garrington, 471 Southstde Road, Phone: 428-4245, represented the apphcant and requested WITHDRAWAL. Upon motton by Councilman Branch, seconded by Vtce Mayor Sessoms, Ctty Councd ALLOWED WITHDRAWAL of the Ordtnance upon apphcatton of SUE D. FRANCE for an enlargement ora non- conforming use at 1741 London Brtdge Road re the demohtton, relocatton and enlargement of one of two non-conformtng, single-family dwelh'ngs on one lot, contatmng 1.51 acres (DISTRICT 6- BEACH) Resolutton authortzing the relocatton and enlargement of a nonconforming use on property located at 1741 London Brtdge Road DISTRICT 6 - BEA CH. Vortng' 11-0 Council Members Voting Aye Linwood 0 Branch, III, Margaret L Eure, Wdham W Harrison, Jr, Harold Hetschober, Barbara M Henley, Louts R Jones, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K Parker, Vtce Mayor Wdham D Sessoms, Jr. and ,4 M "Don" Weeks Counctl Members Vottng Nay. None Counctl Members Absent None January 26, 1999 Item V-K. 5. - 36- PUBLIC HEARING ITEM # 4455 7 PLANNING Upon motton by Vice Mayor Sessoms, seconded by Counctlman Branch, Ctty Council ADOPTED AN Ordinance upon applicatton of JOHNS. GEORGHIOU for a Variance to Section 4 4(b) of the Subdiviston Or&nance which requires newly created lots meet all requtrements of the City Zoning Or&nance (CZO) : Appeal to Decisions of Admtntstrative Officers tn regard to certain elements of the Sub&vtston Or&nance, Sub&vision for John S. Georghtou. Property is located at the northeast corner of Independence Boulevard and Cullen Road. DISTRICT 4 - BA YSIDE The followtng condition shall be required. 1 The applicant shall submit a resubdivision plan to the Development Services Center for revtew and recordation. Vottng: 11-0 (By Consent) Councd Members Voting Aye' Ltnwood 0 Branch, III, Margaret L. Eure, William W Harrtson, Jr, HaroldHeischober, Barbara M Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E Oberndo~ Nancy K. Parker, Vtce Mayor Wtlltam D Sessoms, Jr. and A. M. "Don" Weeks Counctl Members Voting Nay' None Counctl Members Absent' None January 26, 1999 Item V-K. 6. -37- PUBLIC HEARING ITEM # 44558 PLANNING Attorney Michael Levenson, represented the apphcant Richard Grimstead, Architect for the project Robert Kellum, Engineer for the project Upon motion by Councilman Weeks, seconded by Counctlman Harrtson, City Councd DENIED an Ordinance upon apphcation of PRINCESS HOUSE, L.L.C. for a Condittonal Use Permit: ORDINANCE UPON APPLICA TION OF PRINCESS HOUSE, L.L C FOR A CONDITIONAL USE PERMIT FOR HOUSING FOR THE AGED Ordinance upon application of Princess Anne House, L L C for a Condittonal Use Permit for housing for the aged on certa~n property located on the east s~de of Princess Anne Road, 180feet north of Baxter Road Smd parcel contatns 5.014 acres DISTRICT 2 - KEMPSVILLE Vottng. 7-4 Council Members Voting Aye: Margaret L Eure, Wilham W Harrison, Jr., Barbara M Henley, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K. Parker and A M "Don" Weeks Council Members Voting Nay. Ltnwood O. Branch, III, Harold Heischober, Louis R. Jones and Mayor William D. Sessoms, Jr. Vice Counctl Members Absent: None January 26, 1999 City of Virginia Beach LOUIS R JONES COUNCILMAN - BAYSIDE BOROUGH (804) 583-0177 1008 WITCH POINT TRAIL VIRGINIA BEACH VIRGINIA 23455 January 26, 1999 Mrs. Ruth Hodges Smith, CMC/AAE City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs Smith: Re: Disclosure Pursuant to Section 2.1-639 14(G), Code of V~rg~ma Pursuant to the Virginia Conflict of Interests Act, Section 2 1-639.14(G), Code of Virginia, I make the following declaration: o The transaction for which I am executing this written disclosure is City Council's consideration of the application of Armada Hoffier Holding Company ("Armada Hoffier") for rezonIng of a parcel of property located at the southeast comer of Wesleyan Drive and Diamond Spnngs Road . The nature of my personal interest is that I have an ownership ~nterest in Resource Bank which exceeds 3% of the asset value of the bank, and that Armada Hoffier has an existing loan with Resource Bank. However, the loan IS not secured by the subject property, and Resourse Bank has not provided, and will not provide, financing to Armada Hoffier for either the subject property or any improvements to be constructed thereon. ° Although the City Attorney has advised me that I am not required to disclose this interest as it does not meet the criteria of a personal interest in the transaction under the Conflict of Interests Act, I wish to disclose this interest and declare that l am able to participate in this transaction fmrly, objectively, and in the public interest Mrs. Ruth Hodges Smith, CMC/AAE 2 January 26, 1999 Accordingly, I respectfully request that you record this declaration ~n the official records of the City Council. I have enclosed an opinion letter from Leslie L. Lllley, City Attorney, which addresses this same matter. Thank you for your assistance and cooperation in this matter. Sincerely, Councilmember LRJ/sat Enclosure LESLIE L LILLEY CITY ATTORNEY In Reply Refer To Our File No 575 MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9004 (757) 427-4531 FAX (757) 426-5687 TDD (757) 427-4305 January 26, 1999 Councilmember Louis R. Jones Vtrginia Beach City Council Mumctpal Center Virginia Beach, Virginia 23456 Re: Request for Conflict of Interests Act Op~mon Dear Councilmember Jones: I am writing in response to your request for an opinion as to whether you may participate in City Council's discussion of, and vote on, the application of Armada Hoffler Holding Company ("Armada Hoffler") for rezoning of a parcel of property located at the southeast comer of Wesleyan Drive and Diamond Spnngs Road. SUMMARY CONCLUSION Based upon the facts presented, and an apphcation of the State and Local Government Conflict of Interests Act to those facts, it is my opinion that you do not have a "personal ~nterest" in the above-referenced application and that, therefore, you may participate in City Council's discussion of, and vote on, the application without restriction. FACTS PRESENTED At ~ts meeting on January 26, 1999, City Council is scheduled to d~scuss, and vote on, the apphcation of Armada Hoffier Holding Company ("Armada Hoffier") for rezomng of a parcel of property located at the southeast comer of Wesleyan Drive and D~amond Spnngs Road. You have advised that your concern, and reason for requesting th~s opinion, ~s that you have an ownership interest in Resource Bank which exceeds 3% of the asset value of the bank, and that Armada Hoffier Councilmember Louis R. Jones 2 January 26, 1999 has an existing loan with Resource Bank.~ You have further advised, however, that the loan ~s not secured by the subject property, and that Resource Bank has not provided, and will not prowde, financing to Armada Hoffier for e~ther the subject property or any ~mprovements to be constructed thereon. ISSUED PRESENTED Are you permitted to partimpate in City Council's discussion of, and vote on, the apphcat~on Armada Hoffler Holding Company ("Armada Hoffler") for rezomng of a parcel of property located at the southeast comer of Wesleyan Drive and Diamond Springs Road? DISCUSSION/CONCLUSION The State and Local Government Conflict of Interests Act ~s set forth ~n § 2 1-639 1 et seq of the Code of Virginia (1950), as amended. The primary focus of the Act ~s on the personal interests of an officer or employee of state or local government in the transactions of, and contracts w~th, the governmental or advisory agency of whmh he or she is a member. In this case, you have a "personal interest" in Resource Bank by virtue of your ownerslup interest in the bank which exceeds 3% of its asset value. The critical inqmry, therefore, is whether or not you have a "personal interest" in the above-referenced application due to the fact that Armada Hoffier has an existing loan with Resource Bank. A "personal interest in a transaction," as defined ~n the Act, exists when an officer or employee or a member of his immediate family has a personal interest in property or a business, or represents any individual or business and such property, business or represented individual or business (i) is the subject of the transaction or (ii) may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction. Based upon the facts presented, Resource Bank is not the subject of the transaction. Furthermore, because (i) Armada Hoffier's loan with Resource Bank is not secured by the subject property, and (i0 Resource Bank has not provided, and will not provide, financing for e~ther the subject property ~The loan m questton xs tn the name of Armada Hoffier Investment ProperUes II, and, as of the date of th~s optmon, the premse nature of the relattonslup between that entaty and the apphcant, Armada Hoffier Holdxng Company, m not known However, based upon the facts presented, the nature of the relatuonsh~p between the two enuues would not have any bearing on the conclusxon set forth here~n Councilmember Louis R. Jones 3 January 26, 1999 or any improvements to be constructed thereon, it ~s not reasonably foreseeable that Resource Bank would realize a direct or indirect benefit or detriment as a result of any action taken by C~ty Council with respect to the application for rezomng. Therefore, in my opinion, you are permitted to participate in City Council's discussion of, and vote on, the application without restriction. As a final note, the Conflict of Interests Act deals with the types of influences upon a pubhc officer's judgment which are clearly improper. The law does not, however, protect against all appearance of improper influence. In that respect, the Act places the burden on the ~nd~v~dual officer to evaluate whether the facts presented create an appearance of ~mpropnety which ~s unacceptable or which could affect the confidence of the pubhc in the officer's ability to be impartial. I have opined that you may participate in this transaction w~thout restriction. However, if you are concerned that your participation in this transaction without disclosure could create an unacceptable appearance, there are two options available to you which may diffuse any perception problems that may arise: 1. You may disclose the facts as presented herein and participate ~n the transaction, or , You may disclose the facts as presented herein and abstain from participating ~n the transaction. Should you decide to declare your interest and participate, a proposed disclosure letter which complies with § 2.1-639.14(G) is enclosed for your convenience. Should you decide, in the alternative, to declare your interest and abstain, a proposed disclosure letter which complies with § 2.1-639.14(E) is also enclosed. If you choose to declare your interest in the transaction, you may either make the declaration orally, which will be recorded in the written minutes of the City Council, or you may file a signed written declaration with the City Clerk, who shall make the declaration available for public ~nspection for a period of five years from the date of recording or receipt. Please contact me should you desire any additional information. Very truly yours, il City Attorney RMB/sat Enclosures G \USERSLSTSIOUTS~WI~WORKXRESOURSE COl Item V-K. 8. - 40- PUBLIC HEARING ITEM # 44560 PLANNING Ira L. Whtte, 1924 Horseshoe Bend, Phone. 464-4439, regtstered tn OPPOSITION, but advtsed his netghbors &d not have opposttton to the WITHDRAWAL Upon motion by Councilman Jones, seconded by Vice Mayor Sessoms, Ctty Councd ALLOWED WITHDRAWAL of an Ordinance upon application of DARLENE McNEICE CASTELLANO for a Conditional Use Permit ORDINANCE UPON APPLICATION OF DARLENE McNEICE CASTELLANO FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (housing for the aged) Ordinance upon apphcatton of Darlene McNetce Castellano for a Condtttonal Use Permit for a home occupatton (houstng for the aged) on Lot 3, Block 3, Sectton 3, Lake Shores Satd parcel is located at 5249 N Lake Road and contains 20, 000 square feet DISTRICT 4 - BA YSIDE Vottng. 11-0 Counctl Members Voting Aye. Linwood 0 Branch, III, Margaret L. Eure, Wdham W Harrison, Jr, HaroM Heischober, Barbara M Henley, Louts R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker, Vtce Mayor Wtlham D Sessoms, Jr and A. M. "Don" Weeks Council Members Voting Nay' None Counctl Members Absent None January 26, 1999 - 41 - 7 HEARING ITEM # 44561 ~NG. tton by Vice Mayor Sessoms, seconded by Councilman Branch, City Council DEFERRED UNTIL 7 CITY COUNCIL MEETING the Application of ROCK CHURCH for a Con&ttonaI Use Permit ORDINANCE UPON APPLICATION OF ROCK CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHILD CARE EDUCATION CENTER Ordinance upon applicatton of Rock Church for a Conchtional Use Permtt for a chtld care education center tn a church at the northeast tntersectton of Kempsville Road and Manor Drive Said parcel is located at 580 Kempsvtlle Road and contains 7. 72 acres. DISTRICT 2 - KEMPSVILLE. 11-0 (By ConsenO embers Voting Aye Linwood O. Branch, III, Margaret L. Eure, Wilham W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E Oberndo~ Nancy K. Parker, Vice Mayor Wdham D Sessoms, Jr and A. M "Don" Weeks nbers Vottng Nay: None 'bers Absent: None January 26, 1999 Item V-K. I O. - 42 - PUBLIC HEARING ITEM # 44562 PLANNING. Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Councd ADOPTED an Ordinance upon Application of MOTIVA ENTERPRISES, LL.C. for a Condtttonal Use Permtt ORDINANCE UPON APPLICATION OF MOTIVA ENTERPRISES, LLC FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOBILE SER VICE STATION RO1992246 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Mottva Enterprises, LLC for a Con&ttonal Use Permit for an automobde service station on Lots 4 & 5, Diamond Lake Estates. Satdparcel is located at 5 793 Northampton Boulevard and contains 40, 000 square feet DISTRICT 4 - BA YSIDE The following con&tions shall be required, This stte must be developed in accordance with the stte plan entitled "Equiva Services "dated October 1 O, 1998, submttted and on file in the Planning Department. . The existing vegetation along the southern property hne must be preserved as much as possible, where the site adjoins a residential chstrtct. Thts Or&nance shall be effective tn accordance wtth Section 107 (f) of the Zomng Ordinance Adopted by the Council of the City of Vtrginia Beach, Vtrginia, on the Twen~-sixth of Janua~_ . Nineteen Hundred and Ntnety-N~ne Voting: 11-0 (By ConsenO Counctl Members Vottng Aye. Ltnwood O. Branch, III, Margaret L. Eure, William W Harrtson, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E Oberndorf, Nancy K Parker, Vtce Mayor Wilham D. Sessoms, Jr and A M. "Don" Weeks Councd Members Voting Nay: None Council Members Absent' None January 26, 1999 Item V-K. 11. PUBLIC HEARING - 43 - ITEM # 44563 PLANNING. The followtng spoke in SUPPORT of the apphcation' Attorney Edward Bourdon, , Pembroke One, fifth Floor, Phone: 499-8971, represented the apphcant Pat Roenker, 560 Jacquehne Avenue, Phone. 497-4378, Dennts Free, 2346 Huckleberry, Phone: 427-5464 Edward S Adams, 436 Constttutton Drive Walter E Bassford, 491 North Lynnhaven Road, Phone 431-9317 Jams Dryer, 1149 New Mtll Drive, Chesapeake, Phone 548-0049 The following spoke in OPPOSITION' Attorney John Rtchardson, 2101 Parks Avenue, represented Papco Od, Asphalt Roads and Phillips Olds Thomas A. Ltndsey, 4564 Bob Jones Drtve, Phone 467-0439 Davtd Lindsey, 5368 Provtdence Road, Phone: 424-2210 Damon Booth, 5393 Greenville Circle, Phone' 4 74-9672 Bud Burton, 4949 Virgtnta Beach Boulevard, Phone' 499-3771 Tucker Beaman, Asphalt Roads and Matertals, 4901 Cleveland Street, Sutte 2, Phone. 497-3591 Upon motton by Councdman Weeks, seconded by Councd Lady McClanan, City Councd ADOPTED an Ordinance upon Apphcatton ors AND R PROPERTIES for Con&ttonal Use Permtt ORDINANCE UPON APPLICATION OF S AND R PROPERTIES FOR A CONDITIONAL USE PERMIT FOR A BINGO HALL R01992247 Ordinance upon application ors and R Properaes for a Conchttonal Use Permtt for a bingo hall on certatn property located on the South side of Cleveland Street begtnntng at apotnt 250feet more or less West of Aragona Boulevard. Satd parcel contatns 4 81 acres (KEMPSVILLE - DISTRICT2) The followtng condtttons shall be requtred: o The project must be developed in substanttal conformance wtth the submttted site plan entitled "Bingo at Cleveland Street for S & R Properties ", sheets 1 and 2, plans dated 11/19/98. The project must be developed tn substanttal conformance wtth submitted rendertngs entitled "Btngo at Pembroke Hall", dated 9/4/98 The proposed bingo operattons must be operated in strtct comphance wtth rules and regulations estabhshed by the Commonwealth of Virgtnta's Charitable Gamtng Commtsston as tt pertalns to the operatton of bingo halls. The Bingo Games shall be limtted to two (2) "Sessions "per day on Tuesday, Thursday and Frtday and no more than three (3) Sessions on Monday The .first Monday Sesston must be a Midnight Session begmning at 12:01 a m. The playing of Btngo durtng the "Daytime Session "shall not commence prtor to 10 O0 a m. nor later than 11 O0 a m and shall not be scheduled to conclude prtor to 1 '30p. m. nor later than 3'30p m. The playtng of Bingo during the "Evening Session "shall not commence prtor to 6 O0 p m 5. On any day when Bingo Sesstons are scheduled tn one Hall, the other Hall shall NOT be open to the pubhc 6 The Assembly Halls shall not be uahzed a. to host firearms trade shows or exhibits commonly referred to as Gun Shows b. for a flea market, community yard sale or similar enterprtse January 26, 1999 Item V-K. 11. - 44 - PUBLIC HEARING ITEM # 44563 (Continued) PLANNING. This Ordinance shall be effecttve in accordance wtth Sectton 107 (1) of the Zomng Or&nance Adopted by the Council of the Ctty of Vtrgtma Beach, Vtrgtnta, on the TwenN-stxth of Janua~, Ntneteen Hundred and Ntnet¥-Ntne Voting. 6-4 (By ConsenO Councd Members Vottng Aye. Ltnwood O. Branch, IIL Louts R. Jones, Reba S McClanan, Mayor Meyera E Oberndorf Nancy K Parker. and A M "Don" Weeks Councd Members Voting Nay' Margaret L Eure, Harold Hetschober, Barbara M Henley and Vtce Mayor William D Sessoms, Jr Council Members Abstatmng: Willtam W Harrtson, Jr Councd Members Absent None Councdman Harrison ABSTAINED as hts law firm represented the apphcant January 26, 1999 Item V-K. 12. - 45 - PUBLIC HEARING ITEM # 44564 PLANNING. Barry Behrman, apphcant, represented htmself Upon motton by Counctlman Weeks, seconded by Councilman Harrison, City Counctl ADOPTED an Ordtnance upon Apphcatton of BARRY BEHRMAN for Conditional Use Permtt ORDINANCE UPON APPLICATION OF BARRY BEHRMAN FOR A CONDITIONAL USE PERMIT FOR AN EXPANSION OF A COMMERCIAL RECREATIONAL FA CILITY (FAMILY BILLIARDS) R 01992248 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordtnance upon apphcatton of Barry Behrman for a Conditional Use Permit for an expansion of a commercial recreattonal factlity OCamtly bilhards) on the east stde of Prtncess Anne Road, south of Parliament Drtve Satd parcel ts Located at 5610 Prtncess Anne Road and contains 9 96 aces DISTRICT 2 - KEMPSVILLE The followtng conditions shah be requtred 1. No customer parking shall be allowed behind the facility 2 The establishment is to be closed at 2 O0 AM. 3. Parking lot securtty ts to be provtded for a mtnimum of one (1) hour after clostng Thts Or&nance shall be effective in accordance wtth Sectton 107 (.f) of the Zomng Ordtnance Adopted by the Council of the City of Virgtnia Beach, Vtrgtnta, on the Twen~_ -sixth of Janua~_ , Ntneteen Hundred and Nine~_ -Nine Vottng. 11-0 Councd Members Voting Aye' Ltnwood O. Branch, III, Margaret L. Eure, WtHiam W Harrtson, Jr., Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vice Mayor Wtlham D Sessoms, Jr. and A M "Don" Weeks Counctl Members Vottng Nay None Counctl Members Absent None January 26, 1999 Item V-K.I$. PUBLIC HEARING PLANNING. - 46- ITEM ii 44565 Upon motion by Vice Mayor Sessoms, seconded by Councdman Branch, Ctty Counctl ADOPTED an Ordinance upon Applicatton of the CITY OF VIRGINIA BEACH for a Conchttonal Use Permtt ORDINANCE UPONAPPLICA TION OF THE CITY OF VIRGINIA BEA CH FOR A CONDITIONAL USE PERMIT FOR A LINE-OF-SIGHT RELAY DEVICE R01992249 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordtnance upon applicatton of the City of Vtrgtnta Beach for a Conchttonal Use Permit for a hne-of-stght relay devtce (wtreless communicatton antennae) on property located at the northern extremtty of Chantry Drtve Saidparcel is located at 701 Chantry Drtve and contains 15, 000 square feet ora 9 08 acre parcel DISTRICT 3 - ROSE HALL The followtng conchttons shall be requtred, The proposed antenna placement and support butldtng must be developed in substanttal accordance wtth the stte plan entttled "Exhibit for Conchttonal Use Permit, Rosemont Road Water Tower"prepared by Lewts White and Assoctates, dated 11/2/98 A copy oftheplan waspresented to the City Counctl and ts onfile tn the Planning Department. The support building for the project must be destgned to accommodate equipment for a mintmum of three wtreless providers, have a gabled roof and a brick veneer extertor fintsh The proposed antenna placement must meet or exceed structural crtteria outlined tn the Ctty Zoning Ordtnance Antennas on the tower must be flush mounted at or near the elevatton shown on the submtttedplan All antennas as, well as cable extenstons, must be painted the same color as the water tank . Prtor to constructton, any provtder estabhshing a cell site at this location shall provide city staff wtth a letter from a hcensed structural engineer stating that the planned antenna arrays meet, or exceed, all structural standards estabhshed by the Electronics Industry Assoctatton The provtder must also provtde a letter from a hcensed radto frequence engmeer noting that the cumulattve non-tontztng electromagnettc radiatton emitted from the antenna arrays placed on the tower will not exceed the apphcable standards estabhshed by the federal government or the Amertcan Nattonal Standards Instttute. Prior to final site plan approval, the Department of Public Utthties must revtew and approve all relevant techntcal aspects of plactng antennas on the water tank This Or&nance shall be effecttve tn accordance with Section 107 09 of the Zomng Ordinance Adopted by the Counctl of the City of Vtrgtnta Beach, Vtrgtnia, on the Twen~_ -stxth of Janua~_ , Nineteen Hundred and Ninety-Nine January 26, 1999 Item V-K.I$. PUBLIC HEARING PLANNING. -47- ITEM # 44565 (Continued) Vottng 11-0 (By ConsenO Councd Members Voting Aye' Linwood O. Branch, III, Margaret L. Eure, Wilham W Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vtce Mayor Wtlham D Sessoms, Jr. and A. M. "Don" Weeks Counctl Members Voting Nay: None Councd Members Absent. None January 26, 1999 - 48 - Item V-K. 14 PUBLIC HEARING ITEM Il 44566 PLANNING. Attorney R J Nutter 425 Corporation Lane, Phone' 518-3200, represented the applicant Upon motton by Councilman Jones, seconded by Counctlman Hetschober, Ctty Counctl ADOPTED an Or&nance upon apphcation of ARMADA/I-IOFFLER HOLDING COMPANY for a Conchttonal Change of Zoning: ORDINANCE UPONAPPLICA TION OF ARMADA/HOFFLER HOLDING COMPANY FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-10 TO CONDITIONAL B-2 ZO1991124 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordtnance upon applicatton of Armada/Hoffler Holding Company for a Change of Zoning Distrtct Class~cation from R-10 Residenttal Dtstrtct to Conchttonal B-2 Community Bustness District on certain property located at the southeast corner of Wesleyan Drive and Dtamond Springs Road The proposed zontng classtfication change to Conchttonal B-2 is for business and retail land use. The Comprehenstve Plan recommends use of thts parcel for suburban residential~low density that ts compattble wtth stngle-famtly use in accordance with other Plan pohcies Said parcel contains 12 8753 acres DISTRICT 4 - BA YSIDE The followtng conchtton shall be requtred 1. Agreement encompassing proffers shall be recorded wtth the Clerk of the Circuit Court and is hereby made apart of the record This Or&nance shall be effective in accordance wtth Sectton 107 69 of the Zoning Ordinance Adopted by the Council of the City of Virgtnia Beach, Virgima, on the Twen~_ -sixth of Janua~_ , Nmeteen Hundred and Ninety-Nme January 26, 1999 Item V-K. 14 - 49- PUBLIC HEARING ITEM # 44566 (Continued) PLANNING Vottng' 10-0 Councd Members Vottng Aye' Ltnwood O. Branch, III, Margaret L Eure, Harold Heischober, Barbara M Henley, Louts R. Jones, Reba S McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vice Mayor Wilham D. Sessoms, Jr and A M. "Don" Weeks Counctl Members Voting Nay: None Council Members Abstaimng: Wilham W Harrison, Jr Councd Members Absent: None Counctlman Harrison ABSTAINED as his law firm provides legal servtces from time to time for Armada/Hoffler and there ts a contractual arrangement between Manorhouse and Armada/Hoffler Holdtng Corporatton Counctlman Jones DISCLOSED pursuant to Sectton 2.1-639 14(G), Code of Vtrgtma, he has an ownershtp tnterest tn Resource Bank which exceeds 3% of the asset value of the bank, and that Armada Hoffler has an extsttng loan with Resource Bank However, the loan ts not secured by the subject property, and Resource Bank has not provided, and will not provtde, financtng to Armada Hoffler for either the subject property or any tmprovements to be constructed thereon Councilman Jones wtshes to dtsclose thts tnterest as tt does not meet the criteria of personal tnterest and DECLARE that he ts able to participate tn thts transactton fatrly, objecttvely, and in the best public tnterest Counctlman Jones' letter of January 26, 1999, is hereby made a part of the record MANORHOUSE AND ARMADA/HOFFLER WERE VOTED UPON IN ONE MOTION.. January 26, 1999 FORM NO P S lB OUR NI~'~ t°~ City o£ ¥ir~inia Reach I ~ITEE-OFF I C_,E COF, I~ESPOI~ENC. E In Reply Refer To Our File No DF-4755 DATE: January 4, 1999 TO' Leslie L. Lilley DEPT: City Attorney FROM: William M. Macali ~q~' DEPT: City Attorney Conditional Zoning Application- Armada/Hoffler Holding Company The above-referenced conditional zoning application is scheduled to be heard by the City Council on January 26, 1999. I have reviewed the subject proffer agreement, dated August 31, 1998, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. WMM/ Enclosure THIS AGREEMENT, made as of the 31st day of August, 1998, by and between ARMADA/HOFFLER HOLDING COMPANY, a Virginia corporation, contract purchaser of the property described on Exhibit A attached hereto, and JOHN G. WILLIAMS and MARY MOORE WILLIAMS, the owners of the property described on Exhibit A attached hereto (hereinafter collectively referred to as "Grantors"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee") ' WITNESSETH: WHEREAS, the Grantors have ~mtiated 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 a portion of the Grantors' property from R-10 (Residential) to B-2 (Conditional) on that certain portion of the property which portion is comprised of 12.822 acres, more or less, located in the Bayside District of the City of Virginia Beach, Virginia, more particularly described in the attached Exhibit A (hereinafter the "Property"); and WHEREAS, the balance of the property owned by John G. and Mary M. Williams is the subject of the conditional use permit application by Manorhouse Retirement Centers, Inc., which area is described as Parcel B elsewhere in this Agreement; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including residential and commercial purposes, through zoning and other land development legislation; and WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, including those listed above, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land Prepared by Mays & Valentine, L L P. 4425 Corporation Lane, State 420 V~rglma Beach, VA 23462 similarly zoned B-2 are needed to cope with the situation to which the Grantors' apphcation g~ves rise; and rezoning WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 zoning district by the existing C~ty'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 Zomng Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said 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 Grantors, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property if developed for a use permitted under the B-2 zoning classification, and hereby covenant and agree that these Proffers shall constitute covenants running with the sa~d Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Property shall be developed substantially in accordance with that certain site plan entitled "Conceptual Site Layout Plan of Wesleyan Commons, Food Lion Centre," dated November 23, 1998, prepared by MSA, P.C., a copy of which has been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach (the "S~te Plan"). 2. Landscaping and fencing shall be installed on the Property substantially as shown on that certain exhibit entitled "Conceptual Landscape Plan of Wesleyan Commons, Food Lion Centre," dated November 23, 1998, prepared by MSA, P.C., a copy of which has been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach (the "Landscape Plan"). 3. The architectural design of the principal structure on the portion of the Property identified as "Parcel A" and the architectural design of the principal structure on the portion of the Property identified as "Wesleyan Parcel Ao4" shall be substantially as shown on that certain exhibit consisting of two drawings, each entitled "Wesleyan Commons, Food Lion Centre," prepared by L. Hou, and dated 1998, copies of which have been exhibited to the City Council of the City Council of Virginia Beach and are on file in the Planning Department of the City of Virginia Beach (the "Renderings"). In addition, the exterior building materials and colors of the principal structure on Parcel A and of the principal structure on Wesleyan Parcel A-4 shall be substantially as shown on the Rendering. 4 The uses permitted on Wesleyan Parcel A-I, Wesleyan Parcel A-2 and Wesleyan Parcel A-3 shall be as follows: (a) The uses permitted on Wesleyan Parcel A-1 shall be restricted to medical/office, office, financial institutions, and freestanding restaurants without drive-through facilities. (b) The uses permitted on Wesleyan Parcel A-2 shall be restricted to medical/office, office, financial institutions, freestanding restaurants without drive-through facilities, and retail. (c) The uses permitted on Wesleyan Parcel A-3 shall be restricted to medical/office, office, financial institutions, freestanding restaurants without drive-through facilities, and retail. 5. The primary structure located on Wesleyan Parcels A-1, A-2 and A-4 shall be constructed primarily of brick with architectural masonry complements in a color that matches the color of the exterior brick materials used in the construction of the primary structure on Parcel A. 6. The primary structure located on Wesleyan Parcel A-3 shall be constructed of brick on the north, east and west exterior portions of the building and of brick siding or architectural block on the southern exterior portion of the structure. The color of the brick materials used on this parcel shall be of the same color used on the primary structure on Parcel A. If siding or architectural block are used on the southern portion of the structure on this parcel, the color shall be compatible with the north, east and west exterior walls of the primary structure on Wesleyan parcel A-3. 7. The roofs on the principal structures located on Wesleyan parcels A-I, A-2 and A-3 shall incorporate the triangular roof feature highlighted in the principal structure on Parcel A. The visible exterior roof materials of the principal structure on these three parcels shall be either shingles or the same materials used in the principal structure on Parcel A and such roof 4 materials shall be color-coordinated with the other roof materials used on the Property. Any exterior mechanical equipment located on the roofs of the buildings on the Property shall be screened by the roof treatment or parapet walls from view from the public right-of-way to or nearest to each parcel. 8. The architectural design of the principal structures located on Wesleyan Parcels A-1, A-2 and A-3 shall be compatible and complementary to the architecture of principal structures located elsewhere on the Property and Parcel B, and such design compatibility together w~th compatibility of the colors of the building and roof materials referred to in paragraphs 5, 6 and 7 of this Agreement shall be determined by the Planning Director. The buildings depicted in the Renderings on Wesleyan Parcels A-I, A-2 and A-3 shall reflect the quality of materials and design by which the Planning Director shall be guided. 9. The primary structures located on Wesleyan Parcels A-1 and A-2 shall be located as close as possible to the building setback line on Wesleyan Drive taking into account the necessary design features to serve these parcels and buffering along Wesleyan Drive as depicted on the Site Plan. In addition, on Wesleyan Parcels A-1 and A-2, the area directly between the northernmost elevation of the principal structure on such parcel and Wesleyan Drive shall be restricted such that no parking spaces may be constructed or maintained within such area. 10. Grantor shall install and maintain the pedestrian connection substantially as shown on the site plan and should utilize brick pavers or similar architectural simulated paving materials where the pedestrian walkways intersect with interior drive aisles substantially as shown on the site plan. 11. Freestanding monument signs erected on the Property shall not exceed a height of e~ght feet. No portion of the signage on each sign shall protrude beyond the sign face area and the sign face area shall be the same width as the monument based of the sign. Any freestanding sign constructed on any parcel shall be of substantially the same exterior building materials and colors as the principal structure on such parcel. 12. Grantors shall install and maintain a picket fence not to exceed four feet in height and landscaping substantially as shown on the site plan along the property line dividing Parcel A from the existing cemetery on the property to the west of Parcel A. Further conditions may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. Ail references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. SIGNATURES BEGIN ON FOLLOWING PAGE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOR PROFFER AGREEMENT DATED AUGUST 31, 1998, BY AND BETWEEN ARMADA/HOFFLER HOLDING COMPANY, JOHN G. WILLIAMS AND MARY MOORE WILLIAMS AND THE CITY OF VIRGINIA BEACH WITNESS THE FOLLOWING SIGNATURES AND SEALS. ARMADA/HOFFLER HOLDING COMPANY, a Virginia corporation By: <-~_~/~~ (SEAL) Lou HMdad, President/, JoluO~. Williams M~'y l~oore Williams (SEAL) COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: ~The foregoing igstru_ment was a~know, le.dged before me thi~_ ~ o~, 19~, by c~O~te//?a~~~ ,as n/~Z-'of Armada/Homer Holding Company, a Virginia corporation, on behalf of the corporation. My Commission Expires:/'~///~,/~: OP / Notary Public COMMONWEALTH OF VIRGINIA CITY/COUNTY OF !./~ .~b;~ ~.~'_.~'/~.- , to-~t: / oing inst~ent wm swom to md ac~owledged before me ~~y of ,1998, by Jo~ G. Willims. ~ ~ -~-- ~t~ public - My Commission Expires: ~~~ZD~[ COMMONWEALTH OF VIRGINIA , to-wit: .4~?~Th~e foregoing instrument was swom to and acknowledged before me thist.,2/~ay of 3/7~,.~t.J , 1998, by Mary Moore Williams. / ' "-- ~)"-N~ar~y ~ul~lic M3, Commission Expires: /ZT/-~////~g;,.O / EXHIBIT A WESLEYAN COMMONS BEGINNING AT A POINT AT THE SOUTHEAST CORNER OF THE INTERSECTION OF DIAMOND SPRINGS ROAD AND WESLEYAN DRIVE; THENCE ALONG THE SOUTHERN RIGHT-OF-WAY OF WESLEYAN DRIVE S74°34'04"E 199.84' TO A POINT, THENCE S75°08'27"E 200.01' TO A POINT; THENCE S74°34'04"E 613.30' TO A POINT;,THENCE ALONG A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 2918.29', AN ARC LENGTH OF 147.08' AND A DELTA ANGLE OF 02°53'16" TO A POINT; THENCE DEPARTING SAID RIGHT-OF-WAY OF WESLEYAN DRIVE S15°25'56"W 188.00' TO A POINT; THENCE N74°34'04"W 76.00' TO A POINT; THENCE S15°25'56"W 243.00' TO A POINT; THENCE S26°32'07"E 55.68' TO A POINT; THENCE S74°34'04"E 384.00' TO A POINT; THENCE S22°47'36"W 118 32' TO A POINT; THENCE S 10°48'04"E 78.25' TO A POINT; THENCE N46°39'29"W 128.78' TO A POINT; THENCE N78°54'33"W 142.04'TO A POINT; THENCE N00°44'55"E 61.26' TO A POINT; THENCE N81°16'54"W 444.69' TO A POINT ON THE EASTERN RIGHT-OF-WAY OF SHURNEY LANE; THENCE NI 1°01 '22"E 65.47' TO A POINT; THENCE ALONG A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 45.00' AN ARC LENGTH OF 34.37' AND A DELTA ANGLE OF 43045'40" TO A POINT; THENCE ALONG A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 45.00', AN ARC LENGTH OF 89.76' AND A DELTA ANGLE OF 114°17'10'' TO A POINT; THENCE NI 1°01'22"E 9.69' TO A POINT; THENCE S83°09'21"W 488.14' TO A POINT ON THE EASTERN RIGHT-OF-WAY OF SAID DIAMOND SPRINGS ROAD; THENCE NI4°50'20"W 163.40' TO A POINT; THENCE DEPARTING SAID RIGHT-OF-WAY OF DIAMOND SPRINGS ROAD N68°48'57"E 65.00' TO A POINT; THENCE N21°l I'03"W 110.00' TO A POINT; THENCE N68°48'57"E 40.00' TO A POINT; THENCE NI 5°54' 12"W 90 29' TO A POINT; THENCE N57°07'35"E 65.88' TO A POINT; THENCE N21°34'58"W 42.81' TO A POINT; THENCE S70°16'16"W 210.81' TO A POINT ON SAID RIGHT-OF-WAY OF DIAMOND SPRINGS ROAD; THENCE ALONG A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1841.97', AN ARC LENGTH OF 229.20' AND A DELTA ANGLE OF 07007'46" TO A POINT; THENCE ALONG A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 55.00', AN ARC LENGTH OF 72.14' AND A DELTA ANGLE OF 75o09'05" TO A POINT, THE POINT OF BEGINNING. SAID PARCEL CONTAINS 558,516 SQUARE FEET OR 12.822 ACRES. GPIN NO. 1468-44-8504 18874(v4) 10 Item V-K. 15. PUBLIC HEARING PLANNING. - 50- ITEM # 44566 Upon motion by Vtce Mayor Sessoms, seconded by Councdman Branch, City Counctl ADOPTED an Ordtnance upon Application of GEE-CEE CONSTRUCTION GROUP L.L.C. for a Condttional Change of Zoning ORDINANCE UPON APPLICATION OF GEE-CEE CONSTRUCTION GROUP, L.L C. FOR A CHANGE OF ZONING FROM R-7 5 AND A-12 TO CONDITIONAL A-12 ZO1991125 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon apphcatton of Gee-Cee Constructton Group LLC for a Change of Zoning Dtstrict Classificatton from R-7 5 Restdenttal Dtstrtct and A-12 Apartment Dtstrict to Conditional A-12 Apartment Distrtct on certain property located on the northern extremity of North Garnett Point Road The proposed zontng classificatton change to Condtttonal A-12 ts for multt-famdy land use at a denstty no greater than 12 dwelhng untts per acre The Comprehenstve Plan recommends use of thts parcel for suburban restdenttal/medtum &htgh denstty that ts compattble with townhouse and multt-famdy use in accordance with other plan pohcies Satd parcel contatns 15.205 acres. DISTRICT 2 - KEMPSVILLE The following condition shah be required: 1 Agreement encompasstng proffers shah be recorded with the Clerk of the Circuit Court and ts hereby made apart of the record This Ordinance shah be effective tn accordance with Section 107 09 of the Zoning Ordinance Adopted by the Counctl of the Ctty of Vtrgtnia Beach, Vtrgima, on the Twen_ty-stxth of Janua~_ , Ntneteen Hundred and Nine~_ -Nine Vottng 11-0 Council Members Vottng Aye' Ltnwood O. Branch, III, Margaret L. Eure, Wilham W Harrtson, Jr, Harold Heischober, Barbara M Henley, Louts R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K Parker, Vtce Mayor WtHtam D Sessoms, Jr and A. M "Don" Weeks Counctl Members Votmg Nay None Counctl Members Absent: None January 26, 1999 FORM NO P $ 119 O,e OUR N&~0~ City of Virginia Beach I~'rEI~-OFFICE CORRESPOI~IPE~C~ In Reply Refer To Our File No DF-4721 DATE: January 4, 1999 TO: Leslie L. Lilley DEPT: City Attorney FROM: William M. Macali ~ DEPT: City Attorney Conditional Zoning Application- Gee-Cee Construction Group LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on January 26, 1999. I have reviewed the subject proffer agreement, dated October 26, 1998, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. WMM/ Enclosure THIS AGREEMENT made th~s 26th day of October 1998 by and between GEE-CEE CONSTRUCTION GROUP LLC, and WlTCHDUCK LAKE ENTERPRISES, INC., here~n collectively referred to as Grantor, and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, herein referred to as C~ty or Grantee. WITNESSETH: WHEREAS, Grantor has initiated an amendment to the Zoning Map of the C~ty of Virginia Beach, Virginia by petition addressed to Grantee, so as to change the classification of Grantor's Property from R-7.5 (Residential) and A-12 Apartment to A-12 Apartment (Conditional) on certain Property which contains a total of approximately 15.185 acres, located in the Kempsville District, Virginia Beach, Virginia, more particularly described in Exhibit A attached hereto. WHEREAS, Grantee's policy ~s to provide only for the orderly developmept of land for Multi-Family development through zoning and other land development legislation; and WHEREAS, Grantor acknowledges that the competing and sometimes ~ncompat~ble uses conflict, and that ~n order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of the change and the need for various types of uses, including those listed above, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned A -12 are needed to cope with the situation to which Grantor's rezoning application gives r~se; and WHEREAS, Grantor has voluntarily proffered in writing in advance of and prior to the public hearing before Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing A-1 2 zoning district 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 rezon~ng and the need for which ~s generated by the rezoning. WHEREAS, sa~d conditions having been proffered by Grantor and allowed and accepted by 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 and varied by written instrument recorded in the Prepared By: Michael H. Levinson, Esq. 98-129\proffer6 agr ~ Clerk's Office of the C~rcu~t Court of the City of Virginia Beach, Virginia (the Clerk's Office) and executed by the record owner of the Property at the time of recordation of such instrument; provided, further, that said instrument is agreed to by Grantee in writing as evidenced by a certified copy or the ordinance or resolution adopted by the governing body of Grantee, after a public hearing before Grantee advertised pursuant to the applicable provisions of the Code of Virginia, which said ord~nanceor resolution shall be recorded along w~th said ~nstrumentas conclusive evidence of such consent. NOW, THEREFORE, Grantor, for itself, its successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from 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 makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property, and hereby covenants and agrees that these Proffers shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through Grantor, ~ts he~rs, personal representatives, assigns, grantees and other successors in ~nterest or t~tle, namely: 1. The maximum number of units to be built on the Property shall be 16. 2. Six foot wooden privacy fence installed along the southern boundary of the Property to screen the adjoining property zoned A-12, as shown on that certain S~te Exhibit prepared by Kellam and Gerwitz Engineering, Inc. dated October 14, 1998, prepared for Gee-Cee Construction Group LLC (the Site Exhibit) attached hereto as Exhibit B. 3. The Property will be developed substantially in conformance with the Site Exhibit, which has been exhibited to the City Council and is on file with the Virginia Beach Planning Department. 4. The undeveloped western and eastern portions of the Property, as shown on the S~te Exhibit, shall remain an "open area" and the trees along the bank shall remain undisturbed. 5. The turnaround area to be located at the eastern end of the Property shall be constructed of pervious materials. 6. The improvements to be constructed on the Property will have substantially the same elevations, architectural design, color and materials as shown on the renderings exhibited to the City Council and which are on file with the V~rg~nia Beach Planning Department. The improvements shall include an "entrance feature" located at the northern terminus of the North Garnett Point Road, as shown on said renderings. 98 129\proffer6 agr 2 Further conditions may be required by Grantee during detailed site plan 3nd/or subdivision review in the administration of applicable City Code provisions by the appropriate City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and regulations applicable thereto, refer to the C~ty Zoning Ordinance of the C~ty in force as of the date the conditional zoning amendment is approved by Grantee. Grantor covenants and agrees that (1) the Zoning Administrator of the C~ty shall be vested with all necessary authority on behalf of the governing body of the City to administer and enforce the foregoing conditions including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or su~t to ensure compliance with such conditions, ~ncluding mandatory or prohibitory injunction, abatement, damages or other appropriate action, su~t or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the ~ssuance 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 C~ty Code, the CZO or th~s Agreement, Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court, and (4) the Zoning Map shows, by appropriate symbol on the map, note the existence of conditions attaching to the zoning of the 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 ~n the Planning Department and that they shall be recorded in the aforesaid Clerk's Office and ~ndexed in the name of Grantor and Grantee. IN WITNESS WHEREOF, the grantor has caused this instrument to be executed as of the day and year first above written. By: ~~--¢~,,~~ ~ 'Geor,~$. ~ooper, I~naging Member WIT~~ LAK~RISES, INC. NOTARY PAGE FOLLOWS 98 129\proffer5 agr 3 October 13, 1 998 (3 57PM) COMMONWEALTH OF VIRGINIA AT LARGE: The foregoing instrument was acknowledged before me in the City of Virginia Beach, this ,~/~Z~day of October, 1998, by George S. Cooper, Manager Member of Gee-Cee Construction Group LLC, a Virginia limited liability company. NOTARY PUBLIC My Commission Expires' MyC0mmissi0n Expires Se~ember30, 200~ COMMONWEALTH OF VIRGINIA AT LARGE' The foregoing instrument was acknowledged before me in the City of Virginia Beach, this ~ day of October, 1998, by Dallas V. Norman, President of Witchduck Lake Enterprises, Inc., a Virginia corporation. NOTARY PUBLIC My Commission Expires' //_ ~9' '~)~ 98-129\proffer6 agr 4 October 19, 1998 (8 40AM) EXHIBIT A PARCEL B- 1 ALL THAT LOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE CITY OF VIRGINIA BEACH, COMMONWEALTH OF VIRGINIA BEING DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE NORTHERLY BOUNDS OF NORTH GARNETT POINT ROAD (MB 51, P 41 & MB 135, P 2) SAID POINT BEING THE NORTHWEST CORNER OF LOT I, PLAT OF PROPERTY OF MINNIE WOODWARD (MB 22, P 71); THENCE NORTH 64° 36' 01" WEST, 483.12' ALONG THE NORTHERLY LINE OF GRAND LAKE, SECTION 2 (MB 135, P 2) TO THE NORTHWEST CORNER OF LOT 3, BLOCK 9, SECTION 2, GRAND LAKE, SECTION 2; THENCE NORTH 25° 23' 39" EAST 502.25' TO A POINT IN THE SOUTHERLY BOUNDS OF PARCEL A (MB 60, P 19); THENCE SOUTH 64° 34' 21" EAST, ALONG THE SOUTHERLY BOUNDS OF PARCEL A, 1379.99' TO A POINT IN THE WESTERLY BOUNDS OF PROPERTY OF SUMMERSET LAKE CONDOMINIUM (MB 56, P 49); THENCE IN A SOUTHERLY DIRECTION, ALONG THE WESTERLY BOUNDS OF PROPERTY OF SUMIVIERSET LAKE CONDOMINIUM THE FOLLOWING COURSES, SOUTH 32° 45' 15" WEST, 42.95'; THENCE SOUTH 49° 47' 37" WEST, 296.87'; THENCE 81° 58' 41" WEST 343.00' TO A POINT, SAID POINT BEING THE NORTHEAST CORNER OF LOT I; THENCE SOUTH 04° 53' 55" WEST 82.80' TO THE NORTHEAST CORNER OF LOT H, PLAT OF PROPERTY OF MINNIE WOODWARD (MB 22, P 71); THENCE NORTH 64° 46' 31" WEST, 487.06' ALONG THE NORTHERLY BOUNDS OF LOT H AND THE NORTHERLY BOUNDS OF GARNETT POINT ROAD; THENCE NORTH 08° 17' 28" EAST, ALONG THE EASTERLY BOUNDS OF NORTH GARNETT POINT ROAD, 8302' TO THE POINT OF BEGINNING CONTAINING 15.185 ACRES. Item ~-L. 1, - 51 - APPOINTMENTS ITEM # 4456 7 B Y CONSENSUS, City Council RESCHEDULED: REVIEW AND ALLOCATION COMMITTEE (COG) January 26, 1999 Item V-L.2. - 52 - APPOINTMENTS ITEM # 44568 Upon NOMINATION by Vice Mayor Sessoms, City Council REAPPOINTED: Cheryl J. Avery-Hargrove Joshua F. Edwards, Sr. Paula E. Hanao 3-Year Terms 2/1/99 - 1/31/2002 HUMAN RIGHTS COMMISSION Voting 11-0 Counctl Members Voting Aye: Linwood 0 Branch, III, Margaret L. Eure, Wilham W Harrtson, Jr, HaroM Heischober, Barbara M. Henley, Louts R. Jones, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K. Parker, Vice Mayor Wilham D Sessoms, Jr and A. M "Don" Weeks Council Members Vottng Nay: None Counctl Members Absent: None January 26, 1999 Item V-L.3. - 53 - APPOINTMENTS ITEM # 44569 Upon NOMINATION by Vice Mayor Sessoms, City Council APPOINTED: James R. Bergdoll 3-Year Term 1/1/99 - 12/31/2001 PENDLE TON PROJECT MANAGEMENT BOARD Voting. 11- 0 Counctl Members Voting Aye. Linwood O. Branch, III, Margaret L Eure, Wilham W Harrison, Jr, Harold Hetschober, Barbara M. Henley, Louts R. Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K Parker, Vtce Mayor Wtlliam D Sessoms, Jr and A M "Don" Weeks Council Members Voting Nay' None Counctl Members Absent None January 26, 1999 - 54 - Item V-M. 1. APPOINTMENTS ITEM tt 445 70 BY CONSENSUS, City Councd APPROVED: PROPOSED FY 1999-2000 OPERATING BUDGET & C I P SCHEDULE DATE Tuesday, March 30 Tuesday, April 6 Tuesday, April 13 Thursday, April 15 Tuesday, April 20 Tuesday, April 27 Tuesday, May 4 Tuesday, May 4 Thursday, May 6 Tuesday, May 11 EVENT Presentation of Budget/CIP Workshop Workshop Public Hearing Workshop Workshop Workshop Public Hearing Reconciliation Workshop Adoption of FY 1999-2000 Operating Budget & Capital Program TIME Noon 10 AM- Noon 10 AM - Noon 7PM 4 PM - 6 PM 3 PM- 5 PM 10 AM - Noon 2PM 3 PM - 5 PM 2PM LOCATION Council Chambers Council Conference Room Council Conference Room Princess Anne High School Council Conference Room Council Conference Room Council Conference Room Council Chambers Council Conference Room Council Chambers January 26, 1999 - 55 - Item V-N. ADJOURNMENT ITEM # 445 71 Mayor Meyera E Oberndorf DECLARED the City Counctl Meettng ADJOURNED at 9:05 P.M. Hooks, CMC/AAE Chief Deputy City Clerk Ctty Clerk Meyera E. Oberndorf Mayor City of V~rginta Beach Vtrgtnta January 26, 1999 - 55 - Item V-N. ADJOURNMENT ITEM # 445 71 Mayor Meyera E. Oberndorf DECLARED the City Councd Meeting ADJOURNED at 9:05 P.M. Beverly O. Hooks, CMC/AAE Chtef Deputy C~ty Clerk City Clerk Mayor City of Virgtnia Beach Virginia January 26, 1999