HomeMy WebLinkAboutJANUARY 7, 1997 MINUTESCity o£ Virginia Beach
"WORLD'S LARGEST RESORT CffY'
CITY COUNCIL
MAYOR MEYERA E OBERNDORF, At-La,ge
VICE MAYOR WILLIAM D SF_.SSOMS, JR At-I~,ge
JOHN A BAUM,
LJN~/OOD 0 B~NCH
WI~AM W HARRISON JR Lynnha~n ~ugh
HARO~ HEI~HOBER At ~ge
BA~A~4 M HENRY Pungo ~ough
LOUIS R JON~ Bays~de ~rough
~BA S McC~NAN Pnnc~ Anne ~rough
N~CY K PA~ER At ~rge
LOUISA M ~YHO~ K~pmlk ~ugh
JAMES K SPOP. E, C~ty Manag~
L~SLIE L LILLfY, C~ty
RUTH HODGE$ SMITH CMC / AAE, Cny CIr, k
CITY COUNCIL AGENDA
January 7, 1997
CITY HALL BI/II..DING
2401 COURTHOUSE DPJVE
VIRGINIA BEACH VIRGINIA 23456 9005
~757~ 627 4303
I ·
CZTY MANAGER'S BRIEFINGS
- Conference Room -
ao
MINORITY BUSINESS COUNCIL ACCOMPLISHMENTS Patrtcta Phillips, Director of Finance
Shewltng Moy Wong, Chair, Minority Business Council
Bo
FIVE-YEAR FORECAST
Dean Block, Director of Management Services
10:30 aM
II. REVIEW OF AGENDA ITENS
II I . CI'l"i' COUNCIL CONCERNS
IV.
INFORMAL SESSION - Conference Room -
A. CALL TO ORDER - Mayor Meyera E. Oberndorf
11:30 aM
B. ROLL CALL OF CITY COUNCIL
C. RECESS TO EXECUTIVE SESSION
Vo
FORMAL SESSION - Council Chamber -
A. CALL TO ORDER - Mayor Meyera E. Oberndorf
2:00 PM
B. INVOCATION:
Reverend Charles A. Vtnson
Piney Grove Baptist 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
Deoember 17, 1996
G. AGENDA FOR FORMAL SESSION
He
CONSENT AGENDA
The Consent Agenda will be determined during the Agenda Review Session and considered in the
ordinary course of business by City Council to be enacted by one motion.
I. PUBLIC HF~RINGS
i ·
BLACKWATER CREEDS FOUNDATION - TAX EXEMPTION
AGRICULTURE RESERVE PROGRAM PURCHASES
J. ORDINANCES/RESOLUTIONS
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Ordinances to authorize the acquisition of Agricultural Land
Preservation Easements (ARP) and the issuance by the City of
its contract obligations:
a·
From Ralph L. Frost, Trustee (Blackwater Borough) -
Installment Purchase Agreement No. 1997-1 - $841,238.
be
From Fay· F. Shealy and Beverly F. Powell, Trustees
(Blackwater Borough) -
Installment Agreement No. 1997-2 - 8736,316.
Installment Agreement No. 1997-4 - 8 77,448.
Ce
From Irene T. Frost, (Blackwater Borough) -
Installment Agreement No. 1997-3 - 893,705.
de
From Earl M. and Laura M. Tebault (Blackwater Borough)
Installment Agreement No. 1997-5 - $567,268.
e·
From William E. and Michael W. Chaplain (Pungo Borough)
Installment Agreement No. 1997-6 - 8188,266.
Resolution re legislation designating real and personal
property owned by Blackwater Creeds Foundation as being EXEMPT
from state, local real and personal property taxation.
Resolution, (4th Supplement), to AMEND the City's Master Bond
Resolution adopted February 11, 1992, to include Water and
Sewer System Revenue Bonds, Series of 1997; and, to approve
the Financing Agreement with the Virginia Resources Authority
(VRA) which provides for the terms and conditions of the
repayment of the 87,500,000 loan from the Virginia Water
Facilities Revolving Fund for the Sandbridge Sewer
(CIP 6-931).
Resolution re a policy for sharing certain General Fund
Revenues between the City and the Virginia Beach School Board.
Ordinance to AMEND and REORDAIN Section 2-452.1 of the City
Code to increase the membership of the Chesapeake Bay
Preservation Area Board to nine members.
Ordinance to APPROPRIATE a 8189,232 Grant from the U. S.
Department of Justice and 8225,223 from the General Fund
Balance to the Police Department's FY 1996-1997 Operating
Budget; TRANSFER 891,950 from the General Fund Reserve for
Contingencies to the Police Department's FY 1996-1997
Operating Budget re expanding the Community Policing Program;
and, increase estimated grant revenue from the Federal
Government accordingly.
Ordinance to authorize license refunds in the amount of
$99.01.
Ko
&PPOINTMEHTS
FRANCIS LAND HOUSE BOARD OF GOVERNORS
WETLANDS BOARD
L. UNFINISHED BUSINESS
M. NEW BUSINESS
N. ~DJOURNMENT
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If you are physically disabled or visually impaired
and need assistance at this meeting,
please call the CITY CLERKtS OFFICE at 427-4303
Hearing impaired, call: TDD only 427-4305
(TDD - Telephonic Device for the Deaf)
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01/03/97BAP
AGENDA\01 \07\ 97 · ITM
MINUTES
VIRGINIA BEACH CITY COUNCIL
Virginia Beach, Virginia
January 7, 1997
Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFINGS to the VIRGINIA
BEACH CITY COUNCIL in the Council Conference Room, City Hall Building, on Tuesday, January 7,
1997, at 10:30 A. M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, Barbara M. Henley. Harold
Heischober, Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf and Nancy IC Parker
Council Members Absent:
Vice Mayor William D. Sessorns, Jr. [ENTERED: 11:23 A.M.]
William gE. Harrison, Jr.
[ENTERED: 10. 40 A M]
Louisa M. Strayhorn [DEATH OF MOTHER]
-2-
CITY MANAGER'S BRIEFING
MINORITY BUSINESS COUNCIL ,4 CCOMPLISHMENTS
10:$0 P.M.
ITEM # 41581
Patricia Phillips, Director of Finance, introduced Shewling Moy Wong, Chairperson - Minority Business
Council to present the first Annual Report to City Council
Chair Wong with assistance of the Vice-Chair Ed Hamm, advised the Minority Business Council has had
16 meetings. The Citizens who have served on the Minority Council have contributed a total of 504
hours. The Minority Business Council has continually been impressed with the good will and heightened
awareness exhibited by the many City staff members that are involved in the procurement processes across
the City. The MBC sincerely appreciates the diligence and hard work of the Director of Finance, Patricia
Phillips, the City Attorney's Office (including Randy Blow, John Newhard and Larry Spencer), and the
Purchasing Division (including Rick Berry, John McConnell, Linda Capps, Loretta Brown, Harry
Smithson, Mary Kaye Dize and Mitch Frazier) in support of its mission. The MCB could not have
accomplished as much without their assistance.
Chair Wong introduced Members of the Minority Business Council:
Ed Hamm - Vice Chair
LeRoy Michael Cloud Butler
Helen V. Preti
Sylvia Nery Strickland-Primm
(not in attendance)
Council Lady Louise Strayhorn
(unable to be in attendance due to death of Mother)
Vice Chair Hamm advised the City continues to award contracts based on the lowest responsible bid. As
displayed in the Mission statemeng the MBC focuses on creating opportunities:
MISSION OF THE MINORITY BUSINESS COUNCIL
To assist the City in its efforts to increase participation of
minority-owned businesses, woman-owned businesses and
small businesses in the procurement process and to assure that
procurement opportunities are made available to all persons
regardless of race, religion, color and national origin or
disability.
GOALS
Identify firms who have been awarded City contracts and City
agencies involved in projecting the City's image to the public.
Encourage City agencies and firms projecting the City's image
to fairly reflect Virginia Beach as a City of ethnic and racial
diversity when carrying forward the City's business.
Help achieve and maintain improved minority business
participation levels by prime contractors and subcontractors
within Virginia Beach.
January 7, 1997
-3-
CITY MANAGER'S BRIEFING
MINORITY BUSINESS COUNCIL ACCOMPLISHMENTS
ITEM # 41581 (Continued)
Chair Wong shared the Minority Business Council's Accomplishments:
,
1
Gained an Understanding
Training:
The City Attorney's Office and Purchasing Division conducted training
sessions to increase the awareness and understanding of the intent of the
Minority Business Council Ordinance. The first of the training sessions
was presented to the engineers and contracting personnel from the
Departments of Public Works and Public Utilities to inform them of the
requirements related to Architectural and Engineering Services (~4 & E)
procurement. The second training session was presented to the
Purchasing Division staff, so they could better understand their role and
responsibility in the implementation of the ordinance.
Research:
In order to better understand the background and intent of the legal
environment, research material was developed by the City ,4ttorney's
Office and the Purchasing Division and reviewed by all MBC members
and support sta~.. A copy of this material is available.
Departmental Dialogue:
In order to increase awareness of the changes in the procurement
ordinance, the MBC had dialogues with departments that are responsible
for major procurement or for projecting the City's image. The following
department directors and staff attended meetings and provided valuable
information: Public Works - Ralph Smith and John Herzke; Public
Utilities - Clarence Warnstaff and Gary Jones; Convention and Visitor
Development - Jim Ricketts and Ron Kuhlman; Video Services - Gwen
Cowart; and, Public Information - Pam Lingle.
Encouraged Use of Minority--owned Businesses
Improvement in the Process:
Each request for bids and request for proposals has been modified to
reflect language that informs vendors and contractors of the City's
position regarding minority--owned businesses, including penalties for
non-compliance with the minority purchasing ordinance.
Reduction in the Bonding Requirement:
Each bid and RFP is evaluated prior to release to prevent unnecessary
bonding that may serve as an artificial barrier for minority and small
businesses.
January 7, 1997
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CITY MANAGER'S BRIEFING
MINORITY BUSINESS COUNCIL ACCOMPLISHMENTS
ITEM # 41581 (Continued)
Request for Proposal (RFP) Evaluation Committee:
One of the primary areas that the MBC focused upon was the need to
insure the evaluation committees included an appropriate level of
diversity among its members. The MBC looked at the past history to
better understand the make-up of evaluation committees, and asked the
Purchasing Agent to be proactive in improving the minority participation
in those committees. Hs a result, the Purchasing Division's professional
staff actively encourages increased minority participation of Department
Heads when such committees are establishevL These efforts increased
sensitivity to the potential of cultural biases and awareness of the intent
of the ordinance.
Contractors:
The final area of effort was focused upon contractors that have been
awarded major contracts. The MBC invited several key contractors to
attend MBC meetings. The purpose of the meetings was to further
increase awareness of the intent of the MBC and to encourage the use
of minority sub-contracts in delivery of City services. A list of the
contractors that attended MBC meetings is as follows:
Cellar Door Productions, Inc.
Baker Campbell and Farley
Hotel-Motel Association
Developed and Maintained a Reliable Data Base of Minority-Owned Firms.
Base line information was obtained for 1995 regarding the number and
amount of minority bid proposals awarded. While the data is an excellent
beginning, it must be emphasized that it was difficult to construct. The
data has been updated on a quarterly basis. In the Fall of 1996, the
MBC asked staff to begin gathering information on the number of
minority vendor solicitations and responses. While the development of the
measurement instrument and methodology was labor intensive, it provided
additional baseline information that will be used to monitor procurement
trends as they relate to minority contracting.
Developed Processes to Support Minority Procurement
Complaint procedures - the MBC developed a complaint procedure so
all members and staff can address complaints regarding the issues in a
consistent and efficient manner.
Requirement for minimum number of minority bidders - a procedure was
implemented by the Purchasing Division requiring a minimum of three
minority firms/solicitation to the extent practicable.
Minority bids for goods and services increased in 1995-96 to 6.64% from 1.6% in 1994-95. However,
construction awards dropped to .29% in 1995-96 from 13% in 1994-95. (1994-95 has one large award
which skewed the results.) In FY 95-96, there were $122,390,212 total construction contracts awarded
as opposed to FY 94-95 with $50,416,549.
January 7, 1997
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CITY' MANAGER'S BRIEFING
MINORITY BUSINESS COUNCIL ACCOMPLISHMENTS
ITEM # 41581 (Continued)
Chair Wong and Vice-Chair Harem advised Future Plans:
Develop a recognition program for excellent City contractors.
Further refine measurement and tracking of &~ta. While the database
is much improved, minority vendors must continue to be added to ensure
the requests for bids and proposals reach potential minority bidders.
Approaches include more coordination with the Department of Economic
Development and research of census data.
Add federal minority classifications to reporting. Classifications, such as
,4frican American, Hispanic American, Eskimo, Aleut, American
Indian, Asian American, or other minorities are important to determine
that we reach as many segments as possible.
,4dd women--owned businesses to reporting. While not a minority, this
classification is also an important segment of our City's businesses.
Educate city contractors and other businesses on the diversity of people
in the area. V~sits to professional organizations and other liaisons will
help everyone know our interest in fair representation of all segments of
our business community.
Help identify minority businesses that meet or match Virginia Beach
business opportunities. Matching minority businesses with Virginia Beach
opportunities will increase the probability that a minority business wouM
be the lowest responsive and responsible bidder or proposer.
Information on MBC meetings will be placed on the City's Bulletin
Board.
January 7, 1997
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CITY MANAGER'S BRIEFING
FIVE- YEAR FORECAST
11:05 A.M.
ITEM#41582
Dean Block, Director of Management Services, illustrated the City of P~rginia Beach Five-year Forecast
FY 1998 through FY 2002/Challenges for a N~w C~ntury.
INTRODUCTION
New Century - Maturing City
Fiscal Sustainability
1. The Ability to Maintain Existing levels and Capital Base.
2. The Ability to Withstand Local/Regional Economic Disruptions.
3. The Ability to meet the demands of Natural Growth, Decline
and Change.
The Ability to help Shape the City's Fiscal and Community
Future.
DRIVING FORCES
The General Economy
1. Ixtke Gaston - 1998 Completion/Operation
2. Oceana Growth
*5,000 Jobs + Spin-Off
3. Real Estate Assessment Growth
4. Risk of Recession
Aging Infrastructure
1. Schools - 47% over 30 years old.
2. City - 21% over 30 years old.
3. Inventory/Analysis to be done.
Intergovernmental Factors
1. 40% of Revenues
2. Federal Revenues/Impact Aid
3. State Revenues
State does not support schools well
Population and Demographics
1. Growth - 35,000 persons; 3,800 students
2. Need for Basic Aid
3. Growth Impacts
4. Housing
5. Per Capita Income
Generally, in the last five years, City service levels have been maintained, with increases notably in Police
and where new facilities have been added. In these last five years, there has been significant increase
in the "service levels" included in the school budget. There has been a series of "initiatives" by the
School Board locally and by the State that have added new programs, expanded programs and called for
greater spending. Examples abound and include expansion of "at-risk" programs; gifted and talented
programs; the shift to middle schools; the addition of magnet schools; smaller class sizes; art and music
classrooms; free text books; increasing mandates such as special education; and others
January 7, 1997
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CITY MANAGER'S BRIEFING
FIP'E- YEAR FORECAST
ITEM # 41582 (Continued)
These "initiatives ~ add both capital costs, in the form of increased classroom needs, and operational
costs. While some of these programs are partially supported by the State, the Standards of Quality (SOQ)
formula and local efforts in excess of SOQ requirements ensure substantial local costs. Virginia Beach
has a well-deserved reputation for its municipal and schools services. While service levels are often
difficult to measure, it is undeniably true that for many, if not most services, those levels have increased
in the last decade. Our recreation centers are second to none. The City has greatly improved surface-
level road capacity, and there are many more police on the street compared to population growth. Mr.
Block displayed graphs entitled Growth in City Operations Compared to Growth in Population +
Inflation and Growth in School Operation Compared to Student Population + Inflation. Both graphs
reflect an increase in service levels over the period. For the City, this reflects cost growth in areas such
as public assistance, investment in replacement capital, and facility renovations on a pay-as-you-go
basis. Also, reflected are additional police and the opening of capital facilities. The school data reflects
the initiatives previously described, as well as the opening of new schools and the expansion of existing
schools. Graphs entitled: City Employees per 1,000 Residents and School Employees Per 1,000 Students
reflected new school programs, in aggregate, have led to a significant trend in cost growth along with
services. Although the rate of pupil growth has decreased, total local costs for operations and debt service
have grown significantly, and at a rate much greater than the growth in pupils and inflation would
require. The same is true to a lesser degree for City programs, foretelling a possible trend that must be
carefully reviewed. Care should be taken in using "population and inflation" or "pupil growth and
inflation" as a "standard" of judgement.
FORECASTS AND DISCUSSION
Some Key Variables:
Gaston 1998; Oceana Expansion
Similar Level/Mix as Current Services
Continuation of Renewal/Replacement
All Enterprise/Utility Funds Balanced
"Bow Wave" Funded; VRS Phase-In
Low Inflation; Compensation Increases
Average 3.5%
Approved 96/97 CIP with 2 cent July 1996
Tax Increase
Uses School Administration Forecast with
Minor Changes in Years 4 and 5
BASELINE FIVE-Y~ FORECAST TOTAL BUDGET (in thousands)
REVENUES 1996-97 1997-98 1998-99 1999-00 2000-01 2001-02
General Revenue 832,818.4 859,805 2 889,068.4 927,086.5 962,709 5 1,002,766 8
· , ,
Enterprise Revenue 8,404.9 8,73Z4 8,989.2 9,258 4 9,530.7 9,811 0
Utdity Revenue 65,006.4 61,675.4 66,212 8 61,998.9 63,516 1 65,187 8
Total,ill Funds [~6.229. 7 930.213 1 964.270.5 998.343 8 1.035 756 3 1.077,765.6
,
EXPENDITURES
City Operations 289,627.8 302,303.1 315,377.4 329,513. 7 342,532 5 355,983 5
School Operations 426,278.9 459,444 3 481.824.0 506,928 1 530,365 9 567,388 1
Enterprise 8,404.9 8, 732.4 8.989.2 9,258 4 9,530 7 9,811 0
, ! ,
Utilities 65,006.4 61,675.4 66,21Z8 61,998.9 63,516.1 65,187 8
Debt Servwe/CIP 116,911.6 117,000.3 118,426.3 123,039.3 123,443 2 123,753 2
Total All Funds 906,229.7 ~49.155.~ 990.829.7 1.030.738 4 1.069.388.4 1.122.123 5
Surplus/(DefictO 0.0 (18,942 4) (26,559 2) (32,394 6) (33,632 2) (44,35Z 9)
Illll I I1 I I I I I I
January 7, 1997
-8-
CITY MANAGER'S BRIEFING
FIVE-YEAR FORECAST
ITEM # 41582 (Continued)
BASELINE FIVE- YF. JIR FORECAST CITY AND SCHOOL OPERATIONS (in thousands)
Ill
REVENUES 1996-97 1997-98 1998-99 1999-00 2000-01 2001-02
Total Local Tares 299,673.9 31~92&0 33~239.9 349,115.7 366,481.4 388,98Z7
Total Local Other 77,099.9 77, 73Z1 79,641.8 83,274.5 86,0662 88,884 0
Revenues
State Revenues 270, 723.6 278, 718.4 289,68Z0 301,130.9 313,573 0 326,098.8
Federal Revenues 25,833.9 26,087.0 26,33&0 26,336.8 27,4565 27,801.6
Transfers In 3,599.2 3, 703.6 3, 787.6 3,87&4 3,967.3 4,059 3
Total 679.930.5 705.174 2 731.694.3 765.736 2 797.544 3 835.831 5
E37OENDITURES
Total City 289,627.8 302,303.1 315,377.4 329,513. 7 342,53Z5 355,983 5
Operattons
Total School 387,302.7 421,813.5 442,876.1 466,6171 488,644 0 524,205 9
Operations
Total 679.930.5 724.116.6 758.253.5 796.130 ~ 831.176 5 880.189 4
Survtus/(Oepcit) aO (18,942.4) (~-6,559.2) (3~304 6) (33,632. ~-) (44,357 9)
Revenue Growth Range
Downside -- 1-1.5%
Upside -- 1.5-2.0% -- Higher likelihood
Other Funds
VMSM
Storm Water
Parking Fund
FY 1996-1997
Indicators positive at this time.
FY 1997-1998
Fair local revenue growth
State Aid not keeping Pace with inflation
population/Enrollment Growth
State Aid Tied to Match, Etc.
Generally Flat Federal Revenues
Large Cost "Bow Wave" (+ $15-MILLION)
Out Years
Important to Strategic Thinking
"Natural" Local Tax Growth of 4-6%
Mr. Block cites the following Recommendations:
Hold Debt Management Guidelines until Gaston complete.
Avoid New, non-essential facilities not clearly justified by positive
economic return
Consider VRS costs
Adopt City/School Revenue Sharing Policy
Urge Review of Programs for Duplication, Efficiencies
Work to improve State K-12 Funding
Consider Increased/New Fees (e.g. Waste Management)
January 7, 1997
-9-
~GEND~ REVIEW SESSION
12:30 P.M.
ITEM # 41583
Councilman Baum and Council Lady Henley requested discussion:
J. 2 Resolution re legislation designating real and personal property
owned by Blackwater Creeds Foundation as being EXEMPT
from state, local real and personal property taxation.
The primary use of the building is to provide a meeting facility for the Creeds Ruritan Club. The Ruritan
Club receives rental income from the Farm Bureau Insurance Company. Question 6b needs to be
readdressed: "Is there any income derived from the use of any portion of the real property by other
individuals or groups, whether considered as rent or reimbursement for necessary expenses for services
incurred? lf yes, give all details?." The rental of a portion of this building to the Farm Bureau Insurance
Company needs to be reflected.
Councilman Harrison expressed concern that the organization has not yet been granted 501 (c) status by
the Internal Revenue Service. Council Members will request DEFERRAL until January 28, 1997.
ITEM # 41584
Vice Mayor Sessoms requested DEFERRAL for thirty days (February 4, 1997):
J. 4 Resolution re a policy for sharing certain General Fund
Revenues between the City and the Virginia Beach School
Board.
Mayor Oberndorf,, Vice Mayor Sessoms, the City Manager and City Attorney met yesterday, January 6,
1997, with the Superintendent, Chairman and Vice Chairman of Schools to discuss this item. The School
Board will be meeting today and there are several questions which need to be addressed.
Vice Mayor Sessotns advised there will be another meeting on January 21, 1997, with the School Board
representatives to assure progress is being made relative this resolution.
Mayor Oberndorf referenced a call from School Board Member Tim Jackson concerning fifty questions
relative this Policy. Mayor Oberndorf requested Mr. Jackson provide the City Manager with these
questions and he respond in writing to each question. Mayor Oberndorf referenced correspondence
received today from the School Board Chairman requesting DEFERRAL until consideration by the School
Board.
ITEM # 41585
Council Lady McClanan inquired whether the police would remain in the communities or transferred to
the Oceanfront during the summer.
J. 6
Ordinance to APPROPRIATE a $189,232 Grant from the U.
S. Department of Justice and $225,223 from the General Fund
Balance to the Police Department's FY 1996-1997 Operating
Budget; TRANSFER $91,950 from the General Fund Reserve
for Contingencies to the Police Department's FY 1996-1997
Operating Budget re expanding the Community Policing
Program; and, increase estimated grant revenue from the
Federal Government accordingly.
Chief Wall advised the 17 officers retained specifically for the Oceanfront from one grant are placed in
the communities during the off season. The other officers work in the communities year 'round.
Council Lady Henley referenced a time gap early in the morning where there is no coverage at the North
End of the City. Chief Wall advised there are probably some days when the zones have to be expanded;
however, this is done all over the City. In the early morning hours, there are fewer officers, as there are
fewer calls.
January 7, 1997
- 10 -
,4GF, ND,4 RE~'IEW SESSION
ITEM # 41586
BY CONSF~SUS, the following items shall compose the CONSENT ,4GEND,4:
ORDINANCES/RESOL UTIONS
Ordinances to authorize the acquisition of Agricultural Land
Preservation Easements (,4RP) and the issuance by the City of
its contract obligations:
a. From Ralph L. Frost, Trustee (Blackwater Borough) -
Installment Purchase Agreement No. 1997-1 - $841,238.
b. From Faye F. Shealy and Beverly F. Powdl, Trustees
(Blackwater Borough) -
Installment Agreement No. 1997-2 - $736,316.
Installment Agreement No. 1997-4 - $ 77,448.
c. From Irene T. Frost, (Blackwater Borough) -
Installment Agreement 3Io. 1997-3 - $93,705.
d. From Earl M. and Laura M. Tebault (Blackwater Borough)
Installment Agreement 31o. 1997-5 - $567,268.
e. From 14rdliam E. and Michael 14. Chaplain (Pungo Borough)
Installment Agreement No. 1997-6 - $188,266.
J. 2.
Resolution re legislation designating real and personal property
owned by Blackwater Creeds Foundation as being EXEMPT
from state, local real and personal property taxation.
Resolution, (4th Supplement), to AMEND the City's Master
Bond Resolution adopted February 11, 1992, to include Water
and Sewer System Revenue Bonds, Series of 1997; and, to
approve the Financing Agreement with the Virginia Resources
Authority (VIM) which provides for the terms and conditions of
the repayment of the $7,500,000 loan from the Virginia Water
Facilities Revolving Fund ]'or the Sandbridge Sewer (CIP 6-
93D.
Ordinance to AMEND and RE, ORDAIN Section 2-452.1 of the
City Code to increase the membership of the Chesapeake Bay
Preservation Area Board to nine members.
J. 6.
Ordinance to APPROPRIATE a $189,232 Grant from the U.
S. Department of Justice and $225,223 from the General Fund
Balance to the Police Department's FY 1996-1997 Operating
Budget; TRANSFER $91,950 from the General Fund Reserve
for Contingencies to the Police Department's FY 1996-1997
Operating Budget re expanding the Community Policing
Program; and, increase estimated grant revenue from the
Federal Government accordingly.
J.Z Ordinance to authorize license refunds in the amount of
$99.01.
J. 8. Ordinance to authorize tax refunds in the amount of $1,654.90.
J. 2 will be DEFERRED BY CONSENT to January 28, 1997.
January 7, 1997
- 11 -
CITY COUNCIL CONCERNS
12:52 P~I.
ITEM # 41587
Council Lady Parker requested an update relative the dredging of Rudee Inlet.
The City Manager advised Rudee Inlet was officially opened yesterday morning, January 6, 199Z The
City is currently repairing the dredge. The extensive dredging has incurred damage. During the FY 1997-
1998 Budget cycle, a proposal will be discussed relative investigating different types of dredging
equipment or contract dredging. The Army Corps of Engineers will be returning for the annual dredging
in March; therefore, the City should not have to contract on an emergency basis this year. This is good
news as funds in the amount of $500,000 would not have to be expended. The City Manager congratulated
Ralph Smith and his staff. Changes in equipment, or procedure, need to be discussed in order to have the
channel remain open.
The City Manager advised the City has overdredged. The inner channel has a seven foot depth and has
been taken down to twelve feet.
Councilman Branch believed the City Manager was going to investigate the jetty design as to adequacy.
The City Manager advised this is a complex engineering issue and consulting assistance is required. A
proposal is being devised.
ITEM # 41588
The City Manager advised a comprehensive list of questions and answers will be provided relative the
Resolution re a policy for sharing certain General Fund Revenues between the City and the Virginia
Beach School Board.
Mayor Oberndorf requested the questions and answers be reviewed at the City Council Workshop of
January 21, 1996.
January 7, 1997
- 12 -
ITEM # 41589
Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY
COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, January 7, 1997, at
1:00 P.M.
Council Members Present:
John A. Baum, Linwood O. Branch, III, William gE. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis tZ Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf,, Nancy I~ Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 13 -
ITEM # 41590
Mayor Meyera E. Oberndoff, entertained a motion to permit City Council to conduct its EXECUTIVE
SESSION, pursuant to Section 2.1-344, Code of Virginia, as amendea~ for the following purpose:
PERSONNEL MATTERS: Discussion or consideration of or interviews
of prospective candidates for employment, assignment, appointment,
promotion, performance, demotion, salaries, disciplining, or resignation
of specific public officers, appointees, or employees pursuant to Section
2.1-344 (4) (1).
To Wit:
Appointments - Boards and Commissions:
Chesapeake Bay Preservation Board
Francis Land House Board of Governors
Wetlands Board
PUBLICLY-HELD PROPERTY: Discussion or consideration of the
condition, acquisition, or use of real property for public purpose, or of
the disposition of publicly-heM property, or of plans for the future of an
institution which could affect the value of property owned or desirable for
ownership by such institution pursuant to Section 2.1-344(,4)(3).
Southeastern Parkway and Greenbelt Right-of-Way
Site Selection - Lynnhaven Borough
Site Selection - Kempsville Borough
LEGAL MATTERS: Consultation with legal counsel or briefings by staff
members, consultants, or attorneys pertaining to actual or probable
litigation, or other specific legal matters requesting the provision of legal
advice by counsel pursuant to Section 2.1-344(A)(7).
Lake Gaston Water Supply Project
Upon motion by Vice Mayor Sessoms, seconded by Councilman Heischober, City Council voted to proceed
into EXECUTIVE SESSION.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndoff, Nancy I~ Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 14-
FORMAL SESSION
VIRGINIA BEA CH CITY COUNCIL
January 7, 1997
2:20 P.M.
Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY
COUNCIL tn the Council Chamber, Ctty Hall Building, on Tuesday, January 7, 1997, at 2 20 P M
Counctl Members Present.
John A Baum, Linwood 0 Branch, III, Wilham W. Harrtson, Jr., HaroM
Hetschober, Barbara M Henley, Louts R Jones, Reba S McClanan,
Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor Wilham
D Sessoms, Jr
Councd Members Absent
Loutsa M. Strayhorn
[DEATH OF MOTHER]
INVOCATION
Reverend Charles A Vtnson
Ptney Grove Baptist Church
Vtce Mayor Sessoms, betng a Corporate Officer of Central Fidelity Bank, &sclosed 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 Central Ftdehty Bank The Vice Mayor regularly makes thts Disclosure as he may
or may not know of the Bank's tnterest tn any apphcation that may come before Ctty Counctl Vtce Mayor
Sessoms' letter of,January I, 1997, ts hereby made a part of the record.
January 7, 1997
- 15 -
CERTIFICATION OF
EXECUTIF~ SESSION
ITEM # 41591
Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council CERTIFIED THE
EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS.
Only public business matters lawfully exempted from Open Meeting
requirements by Virginia law were discussed in Executive Session to
which this certification resolution applies;
Only such public business matters as were identified in the motion
convening the Executive Session were heard, discussed or considered by
Virginia Beach City Council.
Voting: I0-0
Council Members Voting ~4ye:
John A. Baum, Linwood O. Brancl~ III, William gE. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Obemdoff, Nancy I~ Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members/lbsent:
Louisa M. Strayhorn
January 7, 1997
CERTIFICATION OF EXECUTIVE SESSION
VIRGINIA BEACH CITY COUNCIL
WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION,
pursuant to the affirmative vote recorded in ITEM # 41590 Page No. 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 Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council
hereby certifies that, to the best of each member's knowledge, (a) only public business matters
lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive
Session to which this certification resolution applies; and, Co) only such public business matters
as were identified in the motion convening this Executive Session were heard, discussed or
considered by Virginia Beach City Council.
Ruth Hodges Sr~ith, CMC/AAE
City Clerk
January 7, 1997
- 16 -
Item V- F. 1
MINUTES
ITEM # 41592
Upon motion by Fice Mayor Sessoms, seconded by Council Lady Parker, City Council APPROVED
the Minutes of the INFORMAL AND FORMAL SESSIONS o.f December 17, 1996.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., HaroM
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndoff, Nancy IC Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Counctl Members Absent:
Louisa M. Strayhorn
January 7, 1997
-17-
Item V-G. 1.
ADOPT AGENDA
FOR FORMAL SESSION
ITEM # 41593
BY CONSENSUS, City Council ADOPTED:
AGENDA FOR THE FORMAL SESSION
January 7, 1997
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Item V-I.1.
PUBLIC ~NG
ITEM # 41594
Mayor Oberndorf DECLARED A PUBLIC HEARING:
BLACKWATER CREEDS FOUNDATION - TAX EXEMPTION
There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING.
January 7, 1997
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Item V-I.2.
PUBLIC HEARING
ITEM # 41595
Mayor Oberndorf DECLARED A PUBLIC HEARING:
AGRICULTURE RESERVE PROGRAM PURCHASES
There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING.
January 7, 1997
- 20 -
Item V-J.
CONSENT AGENDA
ORDINANCES~RESOLUTIONS
ITEM # 41596
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council APPROF'ED BY
CONSENT in ONE MOTION Items 1, 2, 3, 5, 6, 7 and 8 of Or&'nances/Resolutions.
Item J. 2 was DEFERRED BY CONSENT until the City Council Session of January 28, 1997.
Voting: 10-0
Council Members Voting Aye:
John ,4. Baum, Linwood O. Branch, III, William gE. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf, Nancy IC Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
Council Lady McClanan VERBALLY ABSTAINED on J.a.,b. and c. as she had a long standing personal
relationship with the Frost Family.
Council Lady McClanan VOTED a VERBAL NAY on J.d~ and e.
Council Lady Parker VOTED a VERBAL NAY on J. 3.
January 7, 1997
- 21 -
Item V-J.l.a.b.c.
CONSENT AGENDA
ORDINANCES/RES OL UTIONS
ITEM # 41597
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinances to authorize the acquisition of Agricultural Land
Preservation Easements (ARP) and the issuance by the City of its
contract obligations:
a. Ralph L. Frost, Trustee (Blaclovater Borough) -
Installment Purchase Agreement No. 1997-1 - $841,238.
Faye F. Shealy and Beverly F. Powell, Trustees (Blackwater
Borough) -
Installment Agreement No. 1997-2 - $736,316.
Installment Agreement No. 1997-4 - $ 77,448.
c. Irene T. Frost, (Blackwater Borough) -
Agreement No. 1997-3 - $93,705.
Installment
Voting:
9-0 (By Consent)
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis 1~ Jones, Mayor Meyera E.
Oberndoff, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Abstaining:
Reba S. McClanan
Council Members Absent:
Louisa M. Strayhorn
Council Lady McClanan ABSTAINED, as she had a long standing personal relationship with the Frost
Family.
January 7, 1997
AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENT AND
THE ISSUANCE BY THE CITY OF ITS CONTRACT
OBLIGATIONS IN THE MAXIMUMPRINCIPALAMOUNT OF
$841,238
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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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$841,238; and
WHEREAS, the aforesaid Development Rights shall be acquired
through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The City Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of January , 1997.
Adoption requires an affirmative vote of a majority of all
members of the City Council.
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CA-96-6508
ordin\noncode\ frosttr, orn
R-1
December 13, 1996
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APPROVED AS TO CONTENT:
~tur'a 1~~~" Department
APPROVED AS TO LEGAL
L~w- Department ~
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C~n~FIED AS TO AVAILABILITY OF FUNDS:
city-of Virginia Beach,~VA, Director of Finance
RALPH L. FROST, TRUST~-~
OF THE RALPH L]~-]~- FROST TRUST
the "Seller"
CITY OF VIRGINIA BEACH, VIRGINIA
the "City"
INSTALLMENT PURCHASE AGREEMF_aNT
(Agreement No. 1997-1)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
AGREEMF.2qTS ........................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1
S~ON 1.2
Definitions .............................. 2
Rules of Construction ....................... 4
ARTICLE 2
SALE AND PURCHASE OF DEVF. IOPMENT RIGHTS
S~ON 2.1
S~ON 2.2
Agreement to Sell and Purchase Development Rights .... 4
Delivery of Deed of Easement .................. 4
ARTICLE 3
PAYMF~NT OF PURCHASE PRICE
S~ON 3.1
SECTION 3.2
SECTION 3.3
Payment of Purchase Price .................... 5
Registration and Transfer of this Agreement .......... 5
Mutilated, Lost, Stolen or Destroyed Agreement ....... 6
ARTICLE 4
REPRESENTATIONS AND WARRANTIF~
SECTION 4.1
SECI/ON 4.2
Representations and Warranties of the City .......... 7
Representations and Warranties of the Seller ......... 7
PROVISIONS RELATING TO EX~USION
OF ]NTF_.R~T FROM INCOM]~ FOR FEDERAL INCOME TAXATION
SF.L'qlON 5.1
S~ON 5.2
Intent of City and Tax Covenant of City ............ 9
Acknowledgment of Seller with Regard to Tax
Consequences of Transaction ................... 9
ARTICLE 6
SECTION 6.1
SECTION 6.2
SEC'q/ON 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
Suer by Merger or Consolidation ............. 10
ARTICLE 7
MISC~-!.IANEOUS
SEC'l/ON 7.1
SF, C'rlON 7.2
SECTION 7.3
SECTION 7.4
SECTION 7.5
SECTION 7.6
SF.L'TION 7.7
SECTION 7.8
S~ON 7.9
S~ON 7.10
Suers of City ......................... 10
Par6~ in Interest .......................... 10
Binding Effect ............................ 11
Severability ............................. 11
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 11
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXI'HB1T A-
EXHIBIT B -
EXHIBIT C -
EXHIBIT D -
EXHIBIT E-
Form of Deed of Easement
De~ription of Land
Permitted Encumbrances
Form of Assignment
Transfer of Agreement - Schedule of Transferees
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I~STA~LLM~.NT PURCHASE AGIH=.I=.MI=-NT
(Agreement No. 199%1)
TI-IlS INST~ PURCHASE AGI~'~.MF~NT (this 'Agreement") is made
as of the day of , 1997, between Ralph L. Frost, Trustee of the Ralph
Lee Frost Trust (the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body
politic and corporate of the Commonwealth of Virginia (the "City").
A. Pursuant to the authority granted by the Open-Space Land Act,
Chaptex 17, Title 10.1 of thc Code of Virginia of 1950, as amended (the "Act"), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
city.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (he~ defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of Land (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGP, EE~
NOW, TI-IEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinaf~ 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
DEFI~ONS
SEC~ON 1.1 ]~ai~J~. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
"Agricultural Use" means (i) the bona fide production of crops, animal or fowl,
including, but not limited to, the production of fruits, vegetables, honey, grains, meat,
poultry and dairy products, the raising of livestock and poultry, and the production and
harvest of products from horticultural, silvicultural or aquacultural activity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in the Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) ~ry uses directly related
to agricultural activities conducted on the same property, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the processing of agricultural, silvicultural,
horticultural or aquacultural products, except as an accessory use.
'Business Day' or "business day' means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is located are not
required or authorized by law or executive order to close for business, and (b) The New
York Stock Exchange is not closed.
'City" means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its successors and assigns.
'City Council" means the Council of the City.
"City Manager" means the City Manager of the City.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shah 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 ~ of Easement of even date herewith from the
Seller to the City, which shah convey the Development Rights to the City in perpetuity.
The Deed of Easement shah be substantially in the form attached hereto as Exhibit A
and made a part hereof.
'Development Rights" mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
not be limited to, the right to develop the Land for any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
'Enabling Legislation' means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
Ordinance.
'Estate Settlement Transfer' means the transfer by the legal representative of the
estate of a deceased Seller of such Seller's rights in and to this Agreement in connection
with the distribution of the deceased Seller's estate or other settlement of such decedent
Seller's estate.
"Interest Payment Date" means June 1 and December 1 in each year, commencing
June 1, 1997.
"Land" means the tract of land located in Virginia Be~ch, Virginia, containing
approximately acres, and more particularly described in Exhibit B attached
hereto and made a part hereof.
"Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix J to the City Code, as the same may be
amended or modified from time to time.
'Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof hereafter approved, in writing, by the City,
'Person" or "person" means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
"Purchase Price" means $841,238 the purchase price to be paid by the City to the
Registered Owner in accordance with this Agreement.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
'Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
'Registrar' means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
"Seller" means Ralph L. Frost, Trustee of the Ralph Lee Frost Trust.
"State" means the Commonwealth of Virginia.
SF.L'FION 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.
Co) The terms "agree" and "agreements" contained herein are intended
to include and mean "covenant" and "covenants."
(c) References to Articles, Sections, and other subdivisions of this
Agreement are to the designated Articles, Sections, and other subdivisions of this
Agreement.
(d) The headings of this Agreement are for convenience only and shall
not define or limit the provisions hereof.
(e) All references made (i) in the neuter, masculine or feminine gender
shall be deemed to have been made 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
SF.L'~ON 2.1 A_~reemcnt to Sell and Purchase Develop_ ment Rights. The
Seller agrees to sell the Development Rights in the Land to the City and the City agrees
to purchase the Development Rights in the Land from the Seller on the date hereof for
the Purchase Price.
S~ON 2.2 Delivery of Deed of Ea~ment. In order to evidence the
sale of the Development Rights to the City, the Seller shall execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A
and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office
of the Circuit Court of the City.
ART/CLE 3
PAYMENT OF PURCHASE PRICE
SF.~ON 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_. The Purchase
Price is $841,238.
fo) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on 1une 1,
199'7, and semiannually thereafter on June 1 and December 1 in each year to and
including , 202_, at the rate of .. .% per annum. Interest shall be
calculated on the basis of a 360-day year of twelve 30-day months.
(c) Both the single installment of principal of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shall forward all such interest payments by check or draft mailed to the person(s)
appearing on the registration books of thc City maintained by the Registrar as the
Registered Owner on the Record Date, at the address of such Registered Owner as it
appears on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Registrar.
(e) The City's obligation to pay the Purchase Price hereunder and to
pay interest on the unpaid balance of the Purchase Price is a general obligation of the
City, and the full faith and credit and the unlimited taxing power of the City are
irrevocably pledged to the punctual payment of the Purchase Price and the interest on the
unpaid principal balance of the Purchase Price as and when the same respectively become
due and payable.
SECTION 3.2
Registration and Transfer of this Agreement.
(a) Until thc Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at thc 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 preseribe, the
ownership of this Agreement. The Registrar, however, shall not be required to mak~ any
such registration and transfer during the period from the Record Date to the next
succeeding Interest Payment Date or final principal payment date.
Co) Except for an Estate Settlement Transfer, this Agreement may not
be transferred by the Registered Owner prior to the expiration of a one (1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(c) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
Registrar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the surrender for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exh~ii E
with the name, address and tax identification number of the transferee Registered Owner,
and the date of the transfer; provided, however, that if there is any conflict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shah be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
SECTION 3.3 ' Mutilated. Lost. Stolen or Destroyed Am-eement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the ~istration boo~ maintained by thc Registrar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement shall first be s~ to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there ~al! be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purchaser of
the original Agreement (in lieu of which such substitute Agreetnent was issued) presents
for payment such original Agreement, the City and the Registrar shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor or otherwise to the
extent of any loss, damage, cost or expense incurred by the City and the Registrar in
connection th~th.
ARTICLE 4
REPRESENTATIONS AND WARRANTIT~
SECHON 4.1 R~resentations and Warranties of the City_. The City makes
the following representations and warranties:
of the State.
(a) The City is a body politic and corporate and a political subdivision
(b) The City has the necessary power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes the valid and legally binding obligation of
the City, and is enforceable against the City in accordance with its terms.
(d) There are no proceedings pending or, to the knowledge of the City,
threatened before any court or administrative agency which may affect the authority of
the City to enter into this Agreement.
SECHON 4.2 Representations and Warranties of the Seller.
makes the following representations and warranties:
The Seller
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Deed of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any ~ or public authority or
regulatory body i~ required u a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the ~une has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or proceeding pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceability of, this Agreement or the Deed of Easement.
(d) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conffict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the Deed of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if necessary, releases or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with respect to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of f:a~ment there will be no liens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(f) The Seller is not a nonresident alien of the United State~ of
America for purposes of federal income taxation.
(g) The Social Security Number of the Seller is 226-22-4157.
The representations in subsections (0 and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the Internal
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
ARTICLE 5
PROVISIONS 1H=.IATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FF..D~ INCOME TAXATION
S~ON 5.1 Intent of City_ and Tax Covenant of City_. The City intends
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for p~ of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to take any action, which would cause this
Agreement to be an 'arbitrage bond' within the meaning of Section 148 of the Code, or
which would otherwise cause interest payable under this Agreement to become includable
in the gross income of any Registered Owner for purposes of federal income taxation.
SECFION 5.2 Acknowledgment of Seller with Re~ard to Tax
(~onseo_uences of Transaction. The Seller has received an opinion from Kaufman &
Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing
laws, regulations, rulings and decisions, interest payable under this Agreement is not
includable in the gross income of the Seller for federal income tax purposes, which
opinion assumes continuous compliance with certain covenants in the Tax Certificate and
Compliance Agreement to be executed and delivered by the City on the date of delivery
of this Agreement and is otherwise limited in accordance with its terms. The Seller
acknowledges that Seller has made Seller's own independent investigation and has
consulted with such attorneys, accountants and others as the Seller shall have selected in
the Seller's sole discretion to advise the Seller with respect to all other tax considerations
related to the transaction contemplated hereby (including, but not limited to, installment
sales treatment under Section 453 of the Code, charitable contribution deductions under
Section 170 of the Code, and federal estate tax implications); and the Seller certifies that
the Seller has not looked to or relied upon the City or any of its officials, agents or
employees, or to Bond Counsel, with respect to any of such matters.
ARTICLE 6
S~ON 6.1 At)oointment of Registrar. First Union National Bank of
---- v
Virginia is hereby designated and appointed to act as Registrar for this Agreement.
SEC'FION 6.2 Ownership of Agreement. The Registrar, in its individual
capacity or as trustee for holders of participation interests in this Agreement, may in
good faith buy, sell, own and hold this Agreement, and may join in any action which any
Registered owner may be entitled to take with like effect as if it did not act as Registrar
hereunder. The Registrar, in its individual capacity, either as principal or agent, may
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 ns if it
did not act in any capacity hereunder.
SEL~ON 6.3 Removal of Rezistrar and Atmointment of Successor
~. The City shall have the right, subject to the terms of any agreement with the
Registrar, to remove the Registrar any time by filing with such Registrar to be removed,
and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing,
such removal shall not be effective until a successor Registrar has assumed the
Registrar's duties hereunder. The City shall have the sole right to select a succe.ssor
Registrar.
SEC~ON 6.4 _Oualifications of Successor Re~strar. Any suer
Registrar shall be either (a) the Depamnent 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 Mer~er 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 sung to the
corporate lx~st 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
MISC~-~ LANEOUS
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 succes~rs
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.
SEC~ON 7.2 Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Agreement expressed or implied is intended or shall be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
10
benefit of the City, thc Seller, any other Registered Owner from time to time of this
Agreement and the Registrar.
SF.L"HON 7.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, personal representatives,
s~rs and assigns, including, without limitation, all Registered Owners from time
to time of this Agreement.
SF_.L'~ON 7.4 Sever-ability_. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
SEC'I~ON 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 resistive 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.
SF_L~ON 7.6 Amendments, Changes and Modifications. This Agreement
may not be amended, changed, modified, altered or terminat~ 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 su~sor Registered Owners.
S~ON 7.7 No Personal Liability of City Officials. No covenant or
agreement contained in this Agreement shall be deemed to be the covenant or agreement
of any official, officer, agent or employee of the City in his or her individual capacity,
and neither the officers or employees of the City nor any official executing this
Agreement shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the issuance thereof.
SF.L"FION 7.8 Governing Law. The laws of the State shall govern the
construction and enforcement of this Agreement.
S~ON 7.9 Notices. Except as otherwise provided in this Agreement,
all notices, demands, requests, consents, approvals, certificates or other communications
required under this Agreement to be in writing shall be sufficiently given and shall be
deemed to have been properly given three Business Days after the same is mailed by
11
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:
c ty:
City Manager
Municipal Cen~
Virginia Beach, VA 23456
with a copy to:
City Attorney
Municipal Center
Virginia Beach, VA 23456
Seller:
Ralph L. Frost, Trustee
The Ralph Lee Frost Trust
3161 Land of Promise Road
Virginia Beach, Virginia 23457
Registrar:
First Union National Bank of Virginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, Vh'ginia 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 ~ be sent hereunder.
SECTION 7.10 Itgjiita~. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next sung
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
WITNESS the signatures and seals of the parties hereto as of the date first above
written.
12
[crrY's SEAL]
CITY OF VIRGINIA BEACH, VIRGINIA
By:
James K. Spore, City Manager
City Clerk
(SEAL)
Approved as to Legal
Sufficiency:
Approved as to Sufficiency of
Funds:
Deputy City Attorney
Director, Department of Finance
13
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, 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 Ralph L. Frost,
Trustee of the Ralph Lee Frost Trust.
(SEAL)
My Commission Expires:
Notary Public
14
This instrument was prepared by
V~rgnma Beach C~ty Attorney's Office
Exemption Clmmed: § 58.1-811(A)(3)
§ 58.1-811(C)(4)
DEED OF EASEMENT
Exhibit A
THIS DEED OF EASEMENT is made this~ day of ,19__,
by and between RALPH L. FROST, Trustee (collectively, the "Grantor"), and CITY OF
VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of
Virginia (the "City") whose address is Mumcipal Center, Virginia Beach, Virginia 23456,
Grantee.
RECITALS
WHEREAS, pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virgima 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 "C~ty Code"), to
promote and encourage the preservation of agricultural land in designated areas within the
southern portion of the C~ty; and
WHEREAS, in furtherance of the purposes of the Act and the Or&nance, the C~ty
has established the Agricultural Reserve Program of the City which provides for the
acquisition of development fights through the purchase of agricultural land preservation
easements wah respect to property located in the portions of the City covered by the
Ordinance; and
WHEREAS, the Grantor is the owner ~n fee simple of certain agricultural real
property located ~n the City and more particularly described in Exhibit A hereto (th~
"Land"); and
WHEREAS, the Land ~s located in that portion of the City subject to the
Ordinance and meets the ehg~bfl~ty criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has agreed to sell to the C~ty the Grantor's Development
Rights (hereinafter defined) in the Land by executing and delivering th~s Deed of
Easement and thereby restrict the use of the Land as described here~n; and
GPIN
1480-34-4508
1480-54-2473
1480-67-5685
1480-61-0995
1480-73-2269
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
In the Land to fulfill the policy and purposes of the City as set forth in the Act and the
Ordinance; and
WHEREAS, the transfer by the Grantor of the Development Rights ~n 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 receipt and sufficiency of which are hereby acknowledged, the Grantor,
for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns, and
for any subsequent owner of the Land does hereby grant and convey, with general
warranty and English covenants of title, unto the City, and its successors and assigns,
forever and in perpetmty, an agricultural land preservation easement in, on, over and with
respect to the Land restricting the Land to Agricultural Use and in furtherance thereof,
does hereby grant and convey, with general warranty and English covenants of title, to
the City, and its successors and assigns, forever and in perpetuity, all of the Development
Rights with respect to the Land.
TERMS, COVENANTS, CONDITIONS AND AGREEMENTS
A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees,
successors and assigns covenants with the City, (1) to refrain from engaging in any act
or activity, or permitting to occur or suffering to exist any act or activity upon the Land
which would constitute the exercise of a Development Right or a use other than an
Agricultural Use, it being the intention of the parties that the Land shall be preserved for
Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this
Deed of Easement shall create a perpetual easement, running 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, limitations and restrictions contmned herein
are intended to limit the use of the Land as hereto set forth.
B. The parties, for themselves, their heirs, personal representatives, devisees,
successors and assigns, further covenant and agree as follows:
(1) As used in this Deed of Easement the term "Development Rights"
shall mean the right to develop the Land for any use, including without limitation, any
commercial, industrial or residential use, other than for Agricultural Use.
(2) As used in this Deed of Easement the term "Agricultural Use"
means (i) the bona fide production of cropa, 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 aquactfluual activity, (ii) the repair, expansion or replacement
of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the
date of application for entry in the Agriculua'al Reserve Program and no more than one
freestanding mobile home, as permitted by Section 19-19 of the City Code, and
(iii) accessory uses directly related to agricultural activities conducted on the same
property, including the sale of agricultural products as permitted by Section 401 of the
City Zoning Ordinance. The term does not include the processing of agricultural,
silvicultural, horticultural or aquacultuxal 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 Dccd of Easement shall be to (i) promote and
encourage the preservation of farmland, and promote and enhance agriculture as an
important industry within the City, (ii) preserve the rural character of the southern part
of the City, (iii) conserve and protect environmentally sensitive lands, waters and other
resources, (iv) reduce and defer the need for major ~nfrastructure improvements in the
southern part of the City and the expendinme of public funds for such improvements,
(v) preserve open spaces, and (vi) assist in shaping the character, d~rection and timing of
community development.
(6) In the event of a violation or attempted violation of any of the
provisions hereof, the City and its successors and assigns, may ~nst~tute and prosecute any
proceeding at law or ~n equit3' to enforce the provisions hereof or to abate, prevent or
enjoin any such violation or auempted violation.
WITNESS, the hand and seal of the Grantor as of the date first above written.
ii[NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything
herein to the contrary notwithstanding, AND ,
execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance
of and releasing any marital or augmented estate interest in the easement and fights set
forth herein.
GRANTOR:
Ralph L. Frost, Trustee
.(SEAL)
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before
, Virginia, this day of
19__, by Ralph L. Frost, Trustee
me in
the Cay of
, Grantor.
Notary Public
(SEAL)
My Commission Expires:
EXHIBIT A
Parcel One:
ALL THAT CERTAIN tract, piece or parcel of land, w~th the buildings
and improvements thereon, situated m the City of Vtrgima Beach (formerly
Blackwater, Princess Anne), Virginia, and being numbered as Tract
Number Four (4), as shown on the plat of the property known as the
"Martin Farm", made by E. E. Burroughs, County Surveyor, April 22,
1901, and containing sixty (60) acres. It being a part of the same property
which was conveyed to George A. Nosay by deed of E. T. Humphries and
Irene F. Humphries, his wife, dated April 21, 1920, and duly recorded in
the Clerk's Office of the Circuit Court of Princess Anne County, Virginia,
Deed Book 108, Page 385.
Parcel Two:
ALL THAT CERTAIN tract of land, with the buildings and improvements
thereon, situated in the City of Virgima Beach (formerly Blackwater
Magisterial District, of Pnncess Anne County), in the State of Virginia,
containing 93.6 acres, more or less, and bounded as follows:
BEGINNING at an iron pipe in the Southern side of Butts Road at a point
distant, in a Westerly direction, along said road 947 feet from the road
leading from Blackwater to Pocaty, and running thence along the Western
line of C. E. Baxter's land South 13 deg. 5 min. West 555 feet to a stake,
thence South 17 deg. 43 min. West 1968 feet, more or less, along a ditch,
thence South 49 deg. 40 m~n. West 1190 feet along a ditch, thence North
73 deg. 35 min. West 231 5 feet along a ditch to an iron pipe, thence
North 3 deg. 30 m~n. East 3394 feet, more or less, to an iron pipe m the
southern side of Butts Road, thence along said road South 80 deg 30 min.
East 1213 feet, and thence along said road South 80 deg. 30 min. East 444
feet to the point of beginning; it being the same property designated as
"No. 3, J. N. Baxter, 93.6 acres" on the plat of I. B. Baxter's Estate, made
by C. F. Petrie, C. E., November 12th, 1917, and recorded m the Clerk's
Office of the Circuit Court of the City of Virginia Beach (formerly
Princess Anne County), in Map Book 5, page 283.
Parcel Three:
ALL THAT CERTAIN tract of land, with the buildings and improvements
thereon, situated in the C~ty of Virginia Beach (formerly Blackwater
Magisterial District, of Princess Anne County), in the State of Virginia,
contalmng 152.51 acres, more or less, and bounded as follows:
BEGINNING on the North side of Butts Road at a ditch at the Eastern line
of the land of Geo. A. Nosay, deceased, and nmning thence along said
ditch North 7 deg. 10 min. East 629 feet; thence South 77 deg. 45 min.
West 7 feet; thence North 7 deg. 10 min. East 445 feet; thence South 77
deg. 45 min. West 7 feet, thence South 5 deg. East 200 feet; thence North
4 deg. 51 min. East 678 feet to another ditch; thence North 6 deg. 3 min.
East 47 feet to a corner stake; thence North 88 deg. 33 min. East 480 feet
to an oak; thence North 88 deg. 33 min. East 78.5 feet to a pine at the end
of a ditch; thence along smd ditch North 88 deg. 33 min. East 877 feet to
a gum; thence South 89 deg. 27 min. East 181 feet to a pine; thence South
89 deg. 27 min. East 271.3 feet to a gum; thence North 89 deg. 30 min.
East 51 feet to a beech; thence North 89 deg. 30 min. East 75 feet to a
corner; thence along the Western bank of another ditch North 4 deg. 33
m~n. East 968 feet; thence North 9 deg. West 256.5 feet; thence North 70
deg. 12 man. West 523 feet; thence North 3 deg. 3 min. East 264 feet to
a corner oak; thence along Y. K. Wlute's southern line North 81 deg. 15
min. East 618.8 feet to a sweet gum; thence North 81 deg. 15 min. East
127 feet to a sweet gum; thence North 81 deg. 15 min. East 412 feet to a
post; thence North 81 deg. 15 min. East 91.5 feet to a post; thence North
81 deg. 15 min. East ~ to 1L M. Tebault's western line; thence along
said line South 8 deg. West 1650 feet, more or less, to a corner beech;
thence North 82 deg. 35 min. West 407 feet to a poplar; thence North 82
deg. 35 min. West 27.5 feet to a post; thence South 20 deg. 50 min. West
74 feet; thence South 20 deg. 25 min. West 58.9 feet to a stake; thence
South 15 deg. 25 nun. West 316 feet to a stake; thence South 8 deg. 5
min. West 333 feet to a stake, thence South 16 deg. West 149 2 feet to a
dead gum; thence South 16 deg. 50 min. West 148 5 feet to a stake in a
holly stump; thence South 37 deg. East 409.2 feet to a stake, thence South
19 deg. East 85 feet to a stake; thence South 7 deg. East 359 feet to a
sweet gum; thence South 4 deg. 30 min. East 312.8 feet to a stake, thence
South 10 deg. East 337.2 feet to a stake; thence South 22 deg. 30 min.
West 211 feet to Butts Road; thence along said Road North 80 deg. 30
mm. West 448 feet to a d~tch, thence along said road North 80 deg. West
2105 feet to the point of beginning, it being all of the 93.6 acres of land
conveyed to the said Joshua Newton Baxter, m the name of J N. Baxter,
by C. N. Mendenhall and wife by deed dated April 1 st, 1925, and recorded
in the Clerk's Office of the Circuit Court of the City of Vlrguna Beach,
Virginia, in Deed Book 123, at page 575; and all of the 44.25 acres of land
conveyed to the said Joshua Newton Baxter in the name of J. N. Baxter by
Lovama E. Baxter by deed dated November 12th, 1917, and recorded in
said Clerk's Office m Deed Book 103, at page 248, and designated as "No.
'6
8. J. N. Baxter, 44-1/4 acres' on the plat of the I. B. Baxter Estate,
recorded in said Clerk's Office in Map Book 5, page 283; and 11 21 acres
from the Northwest comer of the tract of land conveyed in the name of
Joshua N. Baxter by Annie E. Knight by deed dated December 1 st, 1917,
and recorded in said Clerk's Office in Deed Book 101, page 381; and all
of the 3.45 acres of land conveyed to the said J. N. Baxter by Y. K. White
by deed dated November 8th, 1918, and recorded in said Clerk's Office tn
Deed Book 103, at page 98, together with all buildings and improvements
thereon and all rights, privileges and appurtenances belonging or in
anywise appertaining.
Parcel Four:
ALL THAT CERTAIN tract, piece or parcel of land, situate in the City of
Virginia Beach (formerly Blackwater District, ~ Anne County),
Vlrgima, and described as "Tract No. 1' upon which the buildings are
situated, containing by accurate survey, eight and four-fifth (8.4) acres, and
bounded on the South by Butm Road; in the East by Mare Road; on the
North by Robert Miller's land, and on the West by the lands of I. B.
Baxter; being the same property conveyed to Arthur G. Ptnkston by deed
of Anne S. Baxter, et al, dated December 23rd, 1946, and of record in the
Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia,
in Deed Book 241, at page 154.
Parcel Five:
ALL THAT CERTAIN tract, piece or parcel of land situate in the City of
Virglma Beach, Virginia, descn'bed as follows:
BEGINNING at a pin in the Blackwater Public Road and running thence
S 81 15 W 2 5 feet to a bar; thence same course 112.4 feet to a Red Oak;
thence same course 236 feet to a maple; thence same course 263.5 feet to
a post; thence same course 91.5 feet to a post; thence same course 99.1
feet to a p~n; thence N 14 45 W. 263.3 feet to a pin; thence along the
center hne of a ditch N 79 50 E 803 feet to a pm ~n the edge of
Blackwater Pubhc Road and thence S 14 45 E 263.3 feet to the point of
beglnmng and containing Five (5) acres as shown by a plat and survey
made by W. B. Gallup, County Sur~-eyor, May 30, 1946, for hmmy
Thacker; being a part of the same property con,, eyed to Arthur G. Pinkston
by deed of J. G. Thacker, Jr., et ~x, dated April 9, 1947, and of record tn
the Clerk's Office of the Circuit Court of the City of Virginia Beach,
V~rginia, in Deed Book 248 at page 137, less, however, that portion
thereof described as follows, which ~s here specifically excluded, to-wit:
One (1) square acre situate at the northeast comer of smd tract "Parcel
Five" facing 210 feet from the edge of the Blackwater Pubhc Road and
running back 210 feet with the northern line being contiguous with the
northern line of this parcel.
LESS AND EXCEPT all portions of the above-described property, if any,
which contain any of the following soft types: (1) Back Bay Mucky Peat;
(2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky
Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of
the above described property designated and described as "#" as shown on
that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which
plat is intended to be recorded simultaneously herew~th.]
IT BEING a part of the same property conveyed to Ralph L. Frost,
Trustee, from Ralph Lee Frost and Irene T. Frost, husband and wife, by
deed dated , duly recorded in the aforesaid Clerk's
Office in Deed Book , at page
EXHIBIT B
Parcel One.
ALL THAT CERTAIN tract, p~ece or parcel of land, with the buildings and
improvements thereon, s~tuated in Blackwater, Princess Anne, V~rgirua, and being
numbered as Tract Number Four (4), as shown on the plat of the property known
as the "Martin Farm", made by E. E. Burroughs, County Surveyor, April 22, 1901,
and containing sixty (60) acres. It being a part of the same property which was
conveyed to George A. Nosay by deed of E. T. Humphnes and Irene F.
Humphries, his w~fe, dated April 21, 1920, and duly recorded ~n the Clerk's Office
of the Circuit Court of Princess Anne County, Virginia, Deed Book 108, Page
385.
BEING THE SAME property conveyed to Arthur G. Pinkston by deed of Lola
Gertrude Chesson, et vir, dated October 21st, 1943 and duly of record ~n the
Clerk's Office of the Circuit Court of Princess Anne County, Virginia, in Deed
Book 220, at page 152.
Parcel Two:
ALL THAT CERTAIN tract of land, w~th the buildings and improvements
thereon, situated in Blackwater Magisterial District, of Princess Anne County, in
the State of Virginia, containing 93.6 acres, more or less, and bounded as follows:
BEGINNING at an iron pipe in the Southern s~de of Butts Road at a point distant,
~n a Westerly direction, along said road 947 feet from the road leading from
Blackwater to Pocaty, and running thence along the Western hne of C. E. Baxter's
land South 13 deg. 5 m~n. West 555 feet to a stake, thence South 17 deg. 43 min.
West 1968 feet, more or less, along a d~tch, thence South 49 deg. 40 min. West
1190 feet along a ditch, thence North 73 deg. 35 min. West 231.5 feet along a
ditch to an tron p~pe, thence North 3 deg. 30 m~n. East 3394 feet, more or less,
to an ~ron pipe in the southern s~de of Butts Road, thence along said road South
80 deg. 30 m~n. East 1213 feet, and thence along said road South 80 deg. 30 nun.
East 444 feet to the point of beginning; it being the same property designated as
"No. 3, J. N. Baxter, 93.6 acres" on the plat of I. B. Baxter's Estate, made by C.
F. Petrie, C. E., November 12th, 1917, and recorded in the Clerk's Office of the
C~rcuit Court of Pnncess Anne County, in Map Book 5, page 283.
Parcel Three:
ALL THAT CERTAIN tract of land, with the buildings and improvements
thereon, situated in Blackwater Magisterial District, of Princess Anne County, in
the State of Virginia, containing 152.51 acres, more or less, and bounded as
follows:
BEGINNING on the North side of Butts Road at a ditch at the Eastern line of the
land of Geo. A. Nosay, deceased, and running thence along said &tch North 7
deg. 10 min. East 629 feet; thence South 77 deg. 45 min. West 7 feet; thence
North 7 deg. 10 min. East 445 feet; thence South 77 deg. 45 min. West 7 feet;
thence South 5 deg. East 200 feet, thence North 4 deg. 51 m~n. East 678 feet to
another ditch; thence North 6 deg. 3 mtn. East 47 feet to a corner stake, thence
North 88 deg. 33 mm. East 480 feet to an oak; thence North 88 deg. 33 min. East
78.5 feet to a pine at the end of a ditch; thence a long said ditch North 88 deg. 33
min. East 877 feet to a gum; thence South 89 deg. 27 min. East 181 feet to a pine;
thence South 89 deg. 27 min. East 271.3 feet to a gum; thence North 89 deg. 30
min. East 51 feet to a beech; thence North 89 deg. 30 min. East 75 feet to a
corner; thence along the Western bank of another ditch North 4 deg. 33 min. East
968 feet; thence North 9 deg. West 256.5 feet; thence North 70 deg. 12 mm. West
523 feet; thence North 3 deg. 3 m~n. East 264 feet to a corner oak; thence along
Y. K. White's southern line North 81 deg. 15 min. East 618.8 feet to a sweet
gum; thence North 81 deg. 15 min. East 127 feet to a sweet gum; thence North
81 deg. 15 min. East 412 feet to a post; thence North 81 deg. 15 min. East 91.5
feet to a post; thence North 81 deg. 15 min. East to R. M. Tebault's
western hne; thence along said line South 8 deg. West 1650 feet, more or less to
a corner beech; thence North 82 deg. 35 min. West 407 feet to a poplar; thence
North 82 deg. 35 min. West 27.5 feet to a post; thence South 20 deg. 50 min.
West 74 feet; thence South 20 deg. 25 min. West 58.9 feet to a stake; thence
South 15 deg. 25 min. West 316 feet to a stake; thence South 8 deg. 5 min. West
333 feet to a stake, thence South 16 deg. West 149.2 feet to a dead gum; thence
South 16 deg. 50 min. West 148 5 feet to a stake in a holly stump; thence South
37 deg East 409.2 feet to a stake, thence South 19 deg. East 85 feet to a stake;
thence South 7 deg. East 359 feet to a sweet gum; thence South 4 deg. 30 mtn.
East 312.8 feet to a stake, thence South 10 deg. East 337 2 feet to a stake; thence
South 22 deg. 30 m~n. West 211 feet to Butts Road; thence along said Road North
80 deg. 30 min. West 448 feet to a ditch, thence along said road North 80 deg.
West 2105 feet to the point of beginning, it being all of the 93.6 acres of land
conveyed to the smd Joshua Newton Baxter, tn the name of J N. Baxter, by C.
N. Mendelhall and wife by deed dated April 1st, 1925, and recorded in the
aforesaid Clerk's Office in Deed Book 123, at page 575; and all of the 44.25 acres
of land conveyed to the said Joshua Newton Baxter in the name of J. N. Baxter
by Lovania E. Baxter by deed dated November 12th, 1917, and recorded in said
Clerk's Office in Deed Book 103, at page 248, and designated as "No. 8. J. N.
Baxter, 44-1/4 acres" on the plat of the I. B. Baxter Estate, recorded in said
Clerk's Office in Map Book 5, page 283; and 11.21 acres from the Northwest
corner of the tract of land conveyed in the name of Joshua N. Baxter by Anme E.
Knight by deed dated December 1st, 1917, and recorded in said Clerk's Office in
Deed Book 101, page 381; and all of the 3.45 acres of land conveyed to the smd
J. N. Baxter by Y. K. White by deed dated November 8th, 1918, and recorded in
said Clerk's Office in Deed Book 103, at page 98, together with all buildings and
improvements thereon and all rights, privileges and appurtenances belonging or in
anywise appertaining.
Parcel Four:
ALL THAT CERTAIN tract, p~ece or parcel of land, situate in Blackwater
D~strict, Princess Anne County, Virgnnia, and described as "Tract No. 1" upon
which the buddings are situated, containing by accurate survey, eight and four-
fifth (8.4) acres, and bounded on the South by Butts Road; in the East by Main
Road; on the North by Robert Miller's land, and on the West by the lands of I.
B. Baxter; being the same property conveyed to Arthur G. Pinkston by deed of
Anne S. Baxter, et al, dated December 23rd, 1946, and of record in said Clerk's
Office in Deed Book 241, at page 154.
Parcel Five:
BEGINNING at a pin in the Blackwater Public Road and runmng thence S 81 15
W 2.5 feet to a bar; thence same course 112.4 feet to a Red Oak; thence same
course 236 feet to a maple; thence same course 263.5 feet to a post; thence same
course 91.5 feet to a post; thence same course 99.1 feet to a pin; thence N 14 45
W. 263.3 feet to a pin; thence along the center line of a ditch N 79 50 E 803 feet
to a pin in the edge of Blackwater Pubhc Road and thence S 14 45 E 263.3 feet
to the point of beginning and containing Five (5) acres as shown by a plat and
survey made by W. B. Gallup, County Surveyor, May 30, 1946, for Jimmy
Thacker; being a part of the same property conveyed to Arthur G. Pinkston by
deed of J. G. Thacker, Jr., et ux, dated April 9, 1947, and of record in the said
Clerk's Office in Deed Book 248 at page 137, less, however, that portion thereof
described as follows, which is here specifically excluded, to-w~t:
One (1) square acre situate at the northeast comer of said tract "Parcel F~ve"
facing 210 feet from the edge of the Blackwater Public Road and running back
210 feet w~th the northern line being contiguous w~th the northem hne of this
parcel.
LESS AND EXCEPT all portions of the above-described property, if any, which
contmn any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan
Mucky Peat; (3) Nawney Silt Loam; or (4) Pamhco Mucky Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of the
above described property designated and described as "#" as shown on that certmn
plat entitled: "#", Scale #" = #', dated #, prepared by #, whmh plat ~s intended to
be recorded s~multaneously herewith.]
EXI{IBIT C
PEIUVIi'I'I'P_,~) ENC~{Ca. NC'ES
[SEE ATTACHEI~]
17
ASSIONMF. NT
~IT D
FOR VALUE RECEIVED,
([collectively,] the 'Registered Owner') hereby sell[s], assign[s] and transfer[s] unto
, without recourse, all of the Re~ stered Owner' s
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
Registrar (as defined in such Agreement) to transfer such Agreement on the books kept
for registration thereof. The Registered Owner hereby represents, warrants and certifies
that there have been no amendments to such Agreement [except
Date:,
Signature guaranteed:
NOTICE: Signature must be
guaranteed by a member firm
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Installment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
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AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENT AND
THE ISSUANCE BY THE CITY OF ITS CONTRACT
OBLIGATIONS IN THE MAXIMUMPRINCIPALAMOUNT OF
$736,316
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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$736,316; and
WHEREAS, the aforesaid Development Rights shall be
acquired through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The City Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of January , 1997.
Adoption requires an affirmative vote of a majority of all
members of the City Council.
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CA-96-6506
noncode \ shea lytr. orn
R-1
December 13, 1996
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APPROVED AS TO CONTENT:
0~gricultural Depa~ment
APPROVED AS TO LEGAL
LaW b~partment ' ~
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CERTIFIED AS TO AVAILABILITY OF FUNDS:
City ~T'V~rgi~ia Beach,-~A, Director of Finance
FAY~ F. SHF.,ALY AND BEVF. RLY F. POW~LL,
TRUS~ PURSUANT TO VIRGINIA CODE SECTION ~$- 17.1,
the *Seller*
~d
CITY OF VIRGINIA BEACH, VIRGINIA
the "City'
INST~ PURCHASE AGREEMF~NT
(Agreement No. 1997-2)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
AGR~I::.MENTS ........................................ 1
ARTICt.F~ 1
DEFINITIONS
S~ON 1.1
SF.L'TION 1.2
Definitions .............................. 2
Rules of Construction ....................... 4
ARTICLE 2
SALE AND PURCHASE OF DEVELOP~ RIGHTS
·
SF_L-~ON 2.1 Agreement to Sell and Purchase Development Rights ....
SEC~ON 2.2 Delivery of Deed of Easement ..................
ARTICLE 3
PAYMF-NT OF PURCHASE PRICE
S~ON 3.1
SF.L-'FION 3.2
SF_LWION 3.3
Payment of Purchase Price .................... 5
Registration and Transfer of this Agreement .......... 5
Mutilated, Lost, Stolen or Destroyed Agreement ....... 6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SF.L'WION 4.1
SF.L'rlON 4.2
Representations and Warranties of the City .......... 7
Representations and Warranties of the Seller ......... 7
ARTICLE 5
PROVISIONS I~I=-IATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION
SF. CYION 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
S~ON 6.1
SECTION 6.2
SFLTION 6.3
SECTION 6.4
SECTION 6.5
Appointment of RegisWar ..................... 9
Ownership of Agreement ..................... 9
Removal of Registrar and Appointment of
Succes.~r Registrar ......................... 10
Qualifications of Successor Registrar .............. 10
Successor by Merger or Consolidation ............. 10
ARTICLE 7
MIS C~.I .l ANEOUS
SF. CYION 7.1
SECTION 7.2
SECTION 7.3
SECTION 7.4
SECI'ION 7.5
SECTION 7.6
SECTION 7.7
SECTION 7.8
SECTION 7.9
SECTION 7.10
Suers of City ......................... 10
Parties in Intere~ .......................... 10
Binding Effect ............................ 11
Severability ............................. 11
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 1 !
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXHIBIT A-
EXHIBIT B -
EXHIBIT C -
EXHIBIT D -
EXHIBIT E-
Form of Deed of Easement
Description of Land
Permitted Encumbrances
Form of Assignment
Transfer of Agreement - Schedule of Transferees
INST^T.T~mqT PURCHASE AGRF-I=.MF2qT
(Agreement No. 1997-2)
THIS INSTALLMENT PURCHASE AGRF~F~MENT (this 'Agreement") is made
as of the day of ,1997 between FAYE F. SHE Y and BEVERLY F.
POWELL, TRUSTEES PURSUANT TO VIRGINIA CODE SFATFION 55-17.1
(collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic
and corporate of the Commonwealth of Virginia (the 'City").
A. Pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the 'Act"), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
City.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (hereinafter defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of Land (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller
and the City hereby agree as follows:
DEFINITIONS
SF.L"FION 1.1 ]~,~J9.1~. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
"Agricultural Use" means (i) the bona fide production of crops, animal or fowl,
including, but not limited to, the production of fruits, vegetables, honey, grains, meat,
poultry and dairy products, the raising of livestock and poultry, and the production and
harvest of products from horticultural, silvicultural or aquacultural activity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in the Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) ~sory uses directly related
to agricultural activities conducted on the same property, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the processing of agricultural, silvicultural,
horticultural or aquacultural products, except as an ~sory use.
'Business Day" or "business day" means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is located are not
required or authorized by law or executive order to close for business, and (b) The New
York Stock Exchange is not closed.
"City" means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its succes~ and assigns.
"City Council" means the Council of the City.
"City Manager" means the City Manager of the City.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shall be deemed to include the United States Treasury Regulations in
effect or proposed from time to time with respect thereto.
"Deed of Easement" means the Deed of Easement of even date herewith from the
Seller to the City, which shall convey the Development Rights to the City in perpetuity.
The Deed of Easement shall be substantially in the form attached hereto as F_,xhlhit A
and made a part hereof.
"Development Rights" mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
2
not be limited to, the right to develop the Land eot any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
"Enabling Legislation" means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
'Estate Settlement Transfer' means the transfer by the legal representative of the
estate of a deceased Seller of such Seller's rights in and to this Agreement in connection
with the distribution of the deceased Seller's estate or other settlement of such decedent
Seller's estate.
#Interest Payment Date' means June 1 and December 1 in each year, commencing
June 1, 1997.
'Land" means the tract of land located in Virginia Beach, Virginia, containing
approximately acres, and more particularly described in Exhibit B attached
hereto and made a part hereof.
'Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix J to the City Code, as the same may be
amended or modified from time to time.
'Permitted Encumbrances' mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof hereafter approved, in writing, by the City.
'Person' or 'person' means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
'Purchase Price" means $736,316, the purchase price to be paid by the City to
the Registered Owner in accordance with this Agreement.
'Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
'Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
'Registrar" means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
'Sell~' means, collectively, Faye F. Shealy and Beverly F. Powell, Trustees
pursuan~ to Virginia Code Section ~- 17. I.
"State" means the Commonwealth of Virginia.
SF_CTION 1.2
Rules of Construction.
(a) The words "hereof," "herein," "hereunder," "hereto," and other
words of similar import refer to this Agreement in its entirety. .
(b) The terms "agree" and "agreements" contained herein are intended
to include and mean 'covenant" and "covenants."
(c) References to Articles, Sections, and other subdivisions of this
Agreement are to the designated Articles, Sections, and other subdivisions of this
Agreement.
(d) The headings of this Agreement are for convenience only and shall
not define or limit the provisions hereof.
(e) All references made (i) in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, and (ii) in the singular or plural
number shall be deemed to have been made, respectively, in the plural or singular
number as well.
ARTICLE 2
SALE AND PURCHASE OF DEVEI.OP~ RIGHTS
SEC'I~ON 2. I Agreement to Sell and Purchase Develop_ merit 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.
SF.L-'HON 2.2 Delivery of Deed of Ea.wment. In order to evidence the
sale of the Development Rights to the City, the Seller shah execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A
and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office
of the Circuit Court of the City.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
S~ON 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_. The Purchase
Price is $736,316.
(b) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on lune 1,
1997, and semiannually thereafter on June 1 and December 1 in each year to and
including , 202_, at the rate of % per annum. Interest shall be
calculated on the basis of a 360-day year of twelve 30-day months.
(c) Both the single installment of principal of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shall forward all such interest payments by check or dra~ mailed to the person(s)
appearing on the registration books of the City maintained by the Registrar as the
Registered Owner on the Record Date, at the address of such Registered Owner as it
appears on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Registrar.
(e) The City's obligation to pay the Purchase Price hereunder and to
pay interest on the unpaid balance of the Purchase Price is a general obligation of the
City, and the full faith and credit and the unlimited taxing power of the City are
irrevocably pledged to the punctual payment of the Purchase Price and the interest on the
unpaid principal balance of the Purchase Price as and when the same respectively become
due and payable.
SECTION 3.2
Re_~istration and Transfer of ~his A~reemcnt.
(a) Until the Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at the offices of the Registrar, registration books
for the registration and transfer of this Agreement; and upon presentation of this
Agreement for such purpose at the offices of the Registrar, the Registrar shall register
or cause to be registered on such registration books, and permit to be transferred thereon,
under such reasonable regulations as the City or the Registrar may prescribe, the
ownership of this Agreement. The Registrar, however, shall not be required to make any
such registration and transfer during the period from the Record Date to the next
succeeding Interest Payment Date or final principal payment date.
(b) Except for an Estate Settlement Transfer, this Agreement may not
be transferred by the Registered Owner prior to the expiration of a one (1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(c) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
Registrar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the surrender for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E
with the name, address and tax identification number of the transferee Registered Owner,
and the date of the transfer; provided, however, that if there is any conflict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shall be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
S~ON 3.3 Mutilated. Lost. Stolen or I)~troyed A~eement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the registration booka maintained by the Regi~rar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement flmll first be s~dered to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purc~ of
the original Agreement (in lieu of which such substitute Agreement was issued) presents
for payment such original Agreement, the City and the Registrm' shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor or otherwise to the
extent of any loss, damage, cost or expense incurred by the City and the RegisWar in
connection therewith.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the City_. The City makes
the following representations and warranties:
of the State.
(a) The City is a body politic and corporate and a political subdivision
(b) The City has the necessary power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes me valid and legally binding obligation of
the City, and is enforceable against the City in accordance with its terms.
(d) There are no p~gs 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.
S~ON 4.2 Reoresentafions and Warranties of the Seller.
makes the following representations and warranties:
The Seller
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Deed of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any person or public authority or
regulatory body is required as a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the same has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or p~g pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceability of, this Agreement or the Deed of Easement.
(d) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conflict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the Da~ of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if necessary, releases or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with r~t to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of Easement there will be no liens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(f) The Seller is not a nonresident alien of the United States of
America for purposes of federal income taxation.
(g) The Social Security Numbers of the Seller is are 231-72-0514 (for
Faye F. Shealy) and 231-72-3603 (for Beverly F. Powell).
The representations in subsections (f) and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the ~ntemai
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
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 inmnds
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for purposes of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to tak~ 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 Acknowledtment of Seller with Retard to Tax
Conseo_uences of Transaction. The Seller has received an opinion from Kaufman &
Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing
laws, regulations, rulings and decisions, interest payable under this Agreement is not
includable in the gross income of the Seller for federal income tax purposes, which
opinion assumes continuous compliance with certain covenants in the Tax Certificate and
Compliance Agreement to be executed and delivered by the City on the date of delivery
of this Agreement and is otherwise limited in accordance with its terms. The Seller
acknowledges that Seller has made Seller's own independent investigation and has
consulted with such attorneys, accountants and others as the Seller shall have selected in
the Seller's sole discretion to advise the Seller with respect to all other tax considerations
related to the transaction contemplated hereby (including, but not limited to, installment
sales treatment under Section 453 of the Code, charitable contribution deductions under
Section 170 of the Code, and federal estate tax implications); and the Seller certifies that
the Seller has not looked to or relied upon the City or any of its officials, agents or
employees, or to Bond Counsel, with respect to any of such matters.
ARTICLE 6
SF.~'TION 6.1 Ar~vointment of Retistrar. First Union National Bank of
Virginia is hereby designated and appointed to act as Registrar for this Agreement.
SF.L-TION 6.2 Ownership of Agreement. The Registrar, in its individual
capacity or as trustee for holders of participation interests in this Agreement, may in
good faith buy, sell, own and hold this Agreement, and may join in any action which any
Registered owner may be entitled to take with like effect as if it did not act as Registrar
hereunder. The Registrar, in its individual capacity, either as principal or agent, may
also engage, or have an interest, in any financizl 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.
SECWION 6.3 Removal of Regisuar and A__m)ointment of Successor
]~,gi,~l~. The City shall have the right, subject to the terms of any agreement with the
Registrar, to remove the Registrar any time by filing with such Registrar to be removed,
and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing,
such removal shall not be effective until a successor Registrar has assumed the
Registrar's duties hereunder. The City shall have the sole right to select a successor
Registrar.
SEC~ON 6.4 _Oualifications of Success01~ Registrar. Any successor
Registrar shall be either (a) the Department of Finance of the City, Co) an officer or
employee of the City, or (c) a bank, trust company or other financial institution duly
organized under the laws of the United States or any state or territory thereof which is
authorized by law and permitted under the laws of the State to perform all the duties
imposed upon it as Registrar by this Agreement.
SECWION 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 tm.st business (if any) of the Registrar, shall be the successor Registrar under
this Agreement, without the execution or filing of any paper or any fttrther act on the
part of the parties hereto, anything in this Agreement to the contrary notwithstanding.
ARTICLE 7
lVHSCF.~LANF. DUS
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.
SEC'WION 7.2 Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Agreement expressed or implied is intended or shah be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
10
benefit of the City, the Seller, any other Registered Owner from time to time of this
Agreement and the Registrar.
S~ON 7.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties Imeto, their ~tive heirs, personal representatives,
successors and assigns, including, without limitation, all Registered Owners from time
to time of this Agreement.
S~ON 7.4 i~a~l~.ili~. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
S~ON 7.5 Prior A_m-eements Cancelled: No Merger. This Agreement
shall completely and fully supersede aH 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 aH 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 aH respects and shall not be merged therein.
SF. CFION 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 shaH be binding upon such
Registered Owner and all successor Registered Owners.
SECTION 7.7 No P~l'~onal Liability_ of Ci_ty 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 ~ity,
and neither the officers or employees of the City nor any official executing this
Agreement shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the issuance thereof.
SF_CTION 7.8 Govewing Law. The laws of the State shall govern the
construction and enforcement of this Agreement.
SECFION 7.9 Notice, s. Except as otherwise provided in this Agreement,
aH notices, demands, requests, consents, approvals, certificates or other communications
required under this Agreement to be in writing shaH be sufficiently given and shaH be
deemed to have been properly given three Business Days ~ the same is mailed by
11
certified mail, postage prepaid, return receipt req~, 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
with a copy to:
City Attorney
Municipal Center
Virginia Beach, VA 23456
Seller:
Faye F. Shealy, Trustee
116 lames Longstreet
Williamsburg, Virginia 23185
Beverly F. Powell, Trustee
312 Dunmore Street
Norfolk, Virginia 23510
Registrar:
First Union National Bank of Virginia
Corporate Trust ~ent
2nd Floor
East Street
Richmond, Virginia 23219
Any of the foregoing may, by notice given hereunder to each of the others, designate any
further or different addresses to which subsequent notices, demands, requests, consents,
approvals, certificates or other communications shall be sent hereunder.
SECTION 7.10 Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next succeeding
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
WITNESS the signatures and seals of the parties hereto as of the date first above
written.
12
[cr~'s S~.~C]
CITY OF VIRGINIA BEACH, VIRGINIA
ATr~T:
By:
lames K. Spore, City Manager
City Clerk
(SEAL)
Approved as to Legal
Sufficiency
Approved as to Sufficiency of
Funds:
Deputy City Attorney
Director, Depamnent of Finance
13
COlVIMON'V~_.ALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, this day of ,
19__, by Iames K. Spore, City Manager of the City of Virginia Beach, Virginia, and
attested to by , City Clerk of the City of Virginia Beach,
Virginia, on its behalf.
(SEAL)
My Commission Expires:
Notary Public
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, this day of ,
1997, by Faye F. Shealy, Trustee pursuant to Virginia Code Section 55-17.1.
(SEAL)
My Commission Expires:
Notary Public
14
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, this day of ,
1997, by Beverly F. Powell, Trustee pursuant to V'~ Code Section 55-17.1.
(SEAL)
My Commission Expires:
Notary Public
15
This instrumeat was prepared by
Virginia Beach City Attorney's Office
Exemption Claimed: § 58.1-811(A)(3)
§ 58,1-811(C)(4)
D£ED OF EASEMF2N~
Exhibit A
THIS DEED OF EASEMENT is made this day of , 19_,
by and between BEVERLY F. POWELL and FAYE F. SHEALY, Trustees pursuant to
Virginia Code §55-17.1 (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH,
VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City')
whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee.
RECITALS
WHEREAS, pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as mended (the "Act"), thc City
adopted the Agricultural I. ands Preservation Ordinance (the "Ordinance") as A~dix J
to the Code of the City of Virginia Beach, Virginia, as amended (thc "City Code"), to
promote and encourage the preservation of agricultural land in designated areas within
the southern portion of the City; and
WI~REAS, in furtherance of the purposes of the Act and the Ordinance, the City
has established thc Agricultural Reserve Program of the City which provides for thc
acquisition of development rights through the purchase of agricultural land preservation
easements with respect to property located in the portions of the City covered by the
Ordinance; and
WHEREAS, the Grantor is the owner in fee simple of certain agricultural real
property located in the City and more particularly described in Exhibit A hereto (the
"Land"); and
WHEREAS, the Land is located in that portion of the City subject to the
Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development
Rights (hereinafter defined) in the Land by executing and delivering this Deed of
Easement and thereby restrict the use of the Land as described herein; and
GPIN 1480-85-4745
1480-84-4484
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
in the Land to fulfill the policy and purposes of the City as set forth in the Act and the
Ordinance; and
WHEREAS, the transfer by the Grantor of the Development Rights in the Land
shall be in perpetuity; and
WHEREAS, in order to provide for the payment of the purchase price for the
rights in the Land created hereby, the Grantor and the City have entered into an
Installment Purchase Agreement of even date herewith (the 'Installment Purchase
Agreement');
GRANT
NOW, THF. REFORE, for and in consideration of the sum of TEN DOLLARS
($10.00), the covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, successors and
assigns, and for any subsequent owner of the Land does hereby grant and convey, with
general warranty and English covenants of rifle, unto the City, and its successors and
assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over
and with respect to the Land restricting the Land to Agricultural Use and in furtherance
thereof, does hereby grant and convey, with general warranty and English covenants of
rifle, to the City, and its su~sors and assigns, forever and in pe~ty, all of the
Development Rights with respect to the I. and.
TERMS, COVENANTS, CONDITIONS AND AGREE~
A. The Grantor for Grantor, Grantor's heirs, personal representatives,
devisees, successors and assigns covenants with the City, (1) to refrain from engaging
in any act or activity, or permitting to occur or suffering to exist any act or activity upon
the Land which would constitute the exercise of a Development Right or a use other than
an Agricultural Use, it being the intention of the parties that the Land shall be preserved
for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this
Deed of Easement shall create a perpetual easement, running with the Land and all
portions thereof as an incorporeal and nonpossessory interest therein, enforceable against
the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or
any portion of the Land and any other person or entity having any right, rifle or interest
therein and upon their respective heirs, personal representatives, devisees, successors and
assigns; and (3) that the covenants, conditions, limitations and restrictions contained
herein are intended to limit the use of the Land as herein set forth.
B. The parties, for themselves, their heirs, personal representatives, devisees,
successors and assigns, further covenant and agree as follows:
(1) As used in this Deed of F_asemmt the term 'Development Rights"
shall mean the right to develop the Land for any use, including without limitation, any
commercial, industrial or residential use, other than for Agricultural Use.
(2) As used in this Dccd of ~t the term "Agricultural Use"
means (i) the bona fide production of crops, animal or fowl, including, but not limited
to, the production of fruits, vegetables, honey, grain.% meat, poultry and dairy products,
the raising of livestock and poultry, and the production and harvest of products from
horticultural, silviofltmal or aquaculmml activity, ('fi)the repair, expansion or
replacement of no more than one (1) bona fide dwelling occupied by the landowner or
tenant as of the date of application for entry in the Agricultural Reserve Program and no
more than one ~g mobile home, as permitled by Section 19-19 of the City
Code, and {iii) accessory uses directly related lo agricultural activities conducted on the
same prolmny, including the sale of agricultural pmdm~ as permitted by Section 401 of
the City Zoning Ordinance. The term does not include the processing of agricultural,
silvicultural, horticultural or aquacultural products, except as an accessory use.
(3) 'l'nis Deed of Easement doe~ ~ot grant the public any right of entry
or acce~ or any right~ of use of the Land.
(4) THIS F_.AS~ SHAt~ EXIS~ IN PERPE-'FU1TY AND RUN
WITH THE ENTIRE ACREAGE OF THE LAND.
(5) The purpose of this Deed of Easement shah be to (i) promote and
encourage the preservation of farmland, and ~ and enhance agriculture as an
important industry within the City, ('ti) preserve the rural character of the southern part
of the City, ('fii) con.serve and protect enVil'onmen/ally sensitive lands, waters and other
resou~, ClV) reduce and defer the need for major hfrdztn~ture improvements in the
southern part of the CRy and the expenditure of public funds for such improvements,
(v) preserve open spaces, and (vi) assist in shap/ng the character, direction and timing
of community development.
(6) In the event of a violation or attempted violation of any of the
provisions hereof, the City and its sucx. essors 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 az of the date first above written.
//[NOTE-USE IF GRANTOR IS MARRIED Biff SPOUSE IS NOT ON DEED-Anything
herein to the contrary notwithstanding, AND ,
execute(s) this ~ of Easement for the sole ~ of consenting to the conveyance
of and releasing any marital or augmented estate interest in the easement and rights set
forth herein.
GRANTOR:
Beverly F. Powell
(SEAL)
Faye F. Shealy
,(SEAL)
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged
, Virginia, this
19~, by Beverly F, PoweLl
before me in the City of
day of
, Grantor.
(SEAL)
My Commission Expires:
Notary Public
COMMONWF. a~TH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged
, Virginia, this
19__, by Faye F. Shealy
before me in the City of
day of ,
, Grantor.
(SEAL)
My Commission Expires:
Notary Public
EXHIBIT
par~l One;
ALL THAT certain piece, tract and parcel of land, situate, lying and
being in the City of Virginia Beach (formerly Blackwater Magisterial
Distric0, Virginia, and containing 37 acres as can be seen by reference to
a plat of the I. B. Baxter Estate, recorded in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia, in Map Book 5,
page 283, and the tract hereby conveyed being tract No. 7, and is
designated on said plat as '$. N. Baxter, No. 7, 37.0 Acres', and said
property being bounded on the North by the lands now or formerly
belonging to M. P. Wood, on the East by the lands now or formerly
belonging to the Roanoke R. R. and Lumber Company; on the South by
tract No. 6 of the Baxter property, as shown on said plat, and on the West
by the Blackwater Public Road.
Parcel Two:
ALL THAT lot, piece or parcel of land containing thirty-five (35) acres,
more or less, situate in the City of Virginia Beach (formerly Blackwater
Magisterial District of Princess Anne County), Virginia, and known as the
Ives Land, being more particularly described as follows:
Bounded on the North by the lands now or formerly belonging to A. G.
Pinkston, on the East by lands now or formerly belonging to Tilly Woods,
on the South by the land now or formerly belonging to C. E. Baxter and
on the West by the Blackwater Road, being a part of the same property
which was conveyed to L. B. Baxter by deed of gift from Lavinia E.
Baxter of Princess Anne County, dated November 12, 1917, and duly
recorded in the Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Deed Book 122, page 578.
Parcel Three:
ALL THAT certain lot, piece or parcel of land with the buildings and
improvements thereon, situate, lying and being in the City of Virginia
Beach, Virginia, and being more particularly bounded and described as
follows:
BEGINNING at the northwest corner of the O. L. Smith land in the line
of the Baxter land, it being the common corner of O. L. Smith and W. H.
Smith, and identified on the map hereinafter referred to by the word
'Beginning', running thence North 86 degrees 10 minutes i::a~ 6.12
chains, thence South 78 degrees 15 minutes East 6.75 chains, thence
South 83 degrees 30 minutes East 15.68 chains, thence South 9 degrees
West 2.86 chains, thence South 2 degrees 15 minutes East .92 chains,
thence South 81 degrees 15 minutes East 1.05 chains, thence South 86
degrees 15 minutes ;:ant 5.13 chains, thence North 76 degrees 45 minutes
East 13.80 chains, thence South 82 degrees 15 minutes East 2.67 chains,
thence North 53 degrees 10 minutes East 7.94 chains, thence North 14
degrees 15 minutes East 4.88 chains, thence North 55 degrees 15 minutes
East 3.68 chains, thence North 9 degrees 30 minutes East 1.32 chains,
thence North 8 degrees 10 West 4.92 chains, thence North 14 deg~es
East 6.35 chains, thence North 30 degrees 30 minutes West 2.45 chains,
thence North 51 degrees 20 minutes West 2.44 chains, thence North 64
degrees West 5.86 chains, thence North 74 degrees 10 minutes West 6.75
chains, thence North 52 degrees West 3.18 chains, thence North 61
degrees 15 minutes West 8.10 chains, thence North 34 degrees 10 minutes
West 4.65 chains, thence North 42 degrees West 9.38 chains, thence
North 25 degrees 30 minutes West 0.78 chains, thence North 78 degrees
30 minutes West 3.75 chains, thence North 26 degrees 15 minutes West
2.28 chains, thence North 84 degrees 36 minutes West 7.24 chains, ~
South 81 degrees 10 minutes West 2.03 chains, thence South 75 degrees
15 minutes West 7.20 chains, thence South 63 degrees 45 minutes West
2.09 chains to a marked gum, thence South 11 degrees 45 minutes Fast
3.00 chains, thence South 11 degrees 30 minutes West 6.00 chains, thence
South 14 degrees 50 minutes West 5.00 chains, thence South 10 degrees
West 6.33 chains, thence South 1 degree 10 minutes East 4.20 chains,
thence South 10 degrees 30 minutes West 4.00 chains, thence South 16
degrees 45 minutes East 0.96 chains, thence South 2 degrees 15 minutes
East 3.29 chains, thence South 14 degrees 45 minutes West 2.90 chains,
thence South 18 degrees West 1.47 chains, thence South 18 degrees 45
minutes West 1.31 chains, thence South 4 degrees 45 minutes West 3.12
chains, thence South 7 degrees 15 minutes West 3.20 chains, thence South
3 degrees 45 minutes West 0.98 chains to the Point of Beginning,
containing 235.1 acres, more or less.
IT BEING as to Parcel One and Parcel Two, a part of the same p~
conveyed to Beverly F. Powell and Faye F. Shealy, Trustees pursuant to
Virginia Code §55-17.1, from Beverly F. Powell and Faye F. Shealy, by
Deed of Gift dated October 8, 1996, duly recorded in the aforesaid
Clerk's Office in Deed Book 3670, at page 585.
IT BEING as to Parcel Three, a part of the same property conveyed to
Beverly F. Powell and Faye F. Shealy, Trustees pursuant to Virginia
Code §55-17.1, from Beverly F. Powell and Faye F. Shealy, by Deed of
Gift dated October 8, 1996, duly recorded in the afore.~d Clerk's Office
in Deed Book 3670, at page 588.
LESS AND EXCEPT all portions of the above-described property, if any,
which contain any of the following soil types: (1) Back Bay Mucky Peat;
(2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky
Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion
of the above described property designated and described as '#' as shown
on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #,
which plat is intended to be recorded simultaneously herewith.]
EXHIBIT B
Pm'cel One:
ALL THAT certain piece, tract and parcel of land, situate, lying and being in the
City of Virginia Beach (formerly Blackwater Magisterial Distric0, Virginia, and
containing 37 acres as can be seen by reference to a plat of the I. B. Baxter
Estate, recorded in the Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Map Book 5, page 283, and the tract hereby conveyed being
tract No. 7, and is designated on said plat as "J. N. Baxter, No. 7, 37.0 Acres",
and said property being bounded on the North by the lands now or formerly
belonging to M. P. Wood, on the East by the lands now or formerly belonging
to the Roanoke R. R. and Lumber Company; on the South by tract No. 6 of the
Baxter property, as shown on said plat, and on the West by the Blackwater Public
Road.
Parcel Two:
ALL THAT lot, piece or parcel of land containing thirty-five (35) acres, more
or less, situate in the City of Virginia Beach (formerly Blackwater Magisterial
District of Princess Anne County), Virginia, and known as the Ives Land, being
more particularly described as follows:
Bounded on the North by the lands now or formerly belonging to A. G. Pinkston,
on the East by lands now or formerly belonging to Tilly Woods, on the South by
the land now or formerly belonging to C. E. Baxter and on the West by the
Blackwater Road, being a part of the same property which was conveyed to L.
B. Baxter by deed of gift from Lavinia E. Baxter of Princess Anne County, dated
November 12, 1917, and duly recorded in the Clerk's Office of the Circuit Court
of the City of Virginia Beach, Virginia, in Deed Book 122, page 578.
Parcel Three;
ALL THAT certain lot, piece or parcel of land with the buildings and
improvements thereon, situate, lying and being in the City of Virginia Beach,
Virginia, and being more particularly bounded and described as follows:
BEGINNING at the northwest comer of the O. L. Smith land in the line of the
Baxter land, it being the common comer of O. L. Smith and W. H. Smith, and
identified on the map hereinafter referred to by the word "Beginning", running
thence North 86 degrees 10 minutes East 6.12 chains, thence South 78 degrees
15 minutes East 6.75 chains, thence South 83 degrees 30 minutes East 15.68
chains, thence South 9 degrees West 2.86 chains, thence South 2 degrees 15
minutes East .92 chains, thence South 81 degrees 15 minutes East 1.05 chains,
thence South 86 degrees 15 minutes East 5.13 chains, thence North 76 degrees
45 minutes East 13.80 chains, thence South 82 degrees 15 minutes East 2.67
chains, thence North 53 degrees 10 minutes East 7.94 chains, thence North 14
degrees 15 minutes East 4.88 chains, thence North 55 degrees 15 minutes East
3.68 chains, thence North 9 degrees 30 minutes East 1.32 chains, thence North
8 degrees 10 West 4.92 chains, thence North 14 degrees East 6.35 chains, thence
North 30 degrees 30 minutes West 2.45 chains, thence North 51 degrees 20
minutes West 2.44 chains, thence North 64 degrees West 5.86 chains, thence
North 74 degrees 10 minutes West 6.75 chains, thence North 52 degrees West
3.18 chains, thence North 61 degrees 15 minutes West 8.10 chains, thence North
34 degrees 10 minutes West 4.65 chains, thence North 42 degrees West 9.38
chains, thence North 25 degrees 30 minutes West 0.78 chains, thence North 78
degrees 30 minutes West 3.75 chains, thence North 26 degrees 15 minutes West
2.28 chains, thence North 84 degrees 36 minutes West 7.24 chains, thence South
81 degrees 10 minutes West 2.03 chains, thence South 75 degrees 15 minutes
West 7.20 chains, thence South 63 degrees 45 minutes West 2.09 chains to a
marked gum, thence South 11 degrees 45 minutes East 3.00 chains, thence South
11 degrees 30 minutes West 6.00 chains, thence South 14 degrees 50 minutes
West 5.00 chains, thence South 10 degrees West 6.33 chains, thence South 1
degree 10 minutes East 4.20 chains, thence South 10 degrees 30 minutes West
4.00 chains, thence South 16 degrees 45 minutes East 0.96 chains, thence South
2 degrees 15 minutes East 3.29 chains, thence South 14 degrees 45 minutes West
2.90 chains, thence South 18 degrees West 1.47 chains, thence South 18 degrees
45 minutes West 1.31 chains, thence South 4 degrees 45 minutes West 3.12
chains, thence South 7 degrees 15 minutes West 3.20 chains, thence South 3
degrees 45 minutes West 0.98 chains to the Point of Beginning, containing 235.1
acres, more or less.
IT BEING as to Parcel One and Parcel Two, a part of the same property
conveyed to Beverly F. Power and Faye F. Shealy, Trustees pursuant to Virginia
Code §55-17.1, from Beverly F. Powell and Faye F. Sheaiy, by Deed of Gift
dated October 8, 1996, duly recorded in the aforesaid Clerk's Office in Deed
Book 3670, at page 585.
IT BEING as to Parcel Three, a part of the same property conveyed to Beverly
F. Power and Faye F. Shealy, Trustees pursuant to Virginia Code §55-17.1,
from Beverly F. Powell and Faye F. Shealy, by Deed of Gift dated October 8,
1996, duly recorded in the aforesaid Clerk's Office in Deed Book 3670, at page
588.
LESS AND EXCEPT all portions of the above-described property, if any, which
contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan
Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of the
above described property designated and described as '#' as shown on that
certain plat entitled: '#', Scale #' = #', dated #, prepared by #, which plat is
intended to be recorded simultaneously herewith.]
EXHIBIT C
PERMITTED ENC~~CF~
[SK~ ATrACHEOI
18
ASSIGNMENT
~IT D
FOR VALUE RF~EIVED,
and
([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto
, without recourse, all of the Registered Owner' s
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
Registrar (as defined in such Agreemen0 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
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Installment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
19
EXHIBIT
TRANSFf~R OF AGlmF~MF. NT- SCI4F. rmU[.~ OF TRANSFFJ~F-f~-q
The transfer of this Installment Purchase Agreement may be registered only by
the Registered Owner under such Agreement in person or by its duly authorized officer
or attorney upon presentation hereof to the Registrar, who shall make note thereof in the
books kept for such purpose and in the registration blank below.
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No.
of Transferee
Signature of Registrar
2O
AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENT AND THE
ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN
THE MAXIMUM PRINCIPAL AMOUNT OF $77,448
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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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$77,448; and
WHEREAS, the aforesaid Development Rights shall be
acquired through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The City Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of 3anuary 1997
Adoption requires an affirmative vote of a majority of all
members of the City Council.
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CA-96-6507
noncode\shealy, orn
R-1
December 16, 1996
APPROVED AS TO CONTENT:
9~ricultural Depa~Wdment
SUFFiCIeNCY:
La~ ~D%~artme'nt'
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CERTIFIED AS TO AVAILABILITY OF FUNDS:
City of Virginia Beach,~VA, Director of Finance
FAYE F. SHF..ALY
~d
BEVERLY F. POWELL,
the 'Seller'
and
CITY OF VIRGINIA BEACH, VIRGINIA
the 'City'
INSTALLMENT PURCHASE AGRF~F~MENT
(Agreement No. 1997-4)
TABLE OF CO~
(This Table of Contents is not part of the In~~t Purcha~ Agreement and is only for
convenience of reference)
AGI~RF. MENTS ........................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1
SEUrION 1.2
Definitions .............................. 1
Rules of Construction ....................... 3
ARTICLE 2
SALE AND PURCHASE OF DEVELOPMENT RIGHTS
S~ON 2.1
S~ON 2.2
Agreement to Sell and Purchase Development Rights .... 4
Delivery of Deed of Easement .................. 4
ARTICLE 3
PAYMENT OF PURCHASE PRICE
SECTION 3.1
S~ON 3.2
SEC'TION 3.3
Payment of Purchase Price .................... 4
Registration and Transfer of this Agreement .......... 5
Mutilated, Lost, Stolen or Destroyed Agreement ....... 6
ARTICLE 4
REPRESEI~A'rIONS ,,~ WARRANTI~
SECTION 4.1
SECTION 4.2
Representations and Warranties of the City .......... 7
Representations and Warranties of the Seller ......... 7
ARTICLE 5
PROVISIONS RPIATING TO EXCLUSION
OF INTER~T FROM INCOME FOR FEDERAL INCOME TAXATION
SECTION 5.1
SEC'HON 5.2
Intent of City and Tax Covenant of City ............ 8
Acknowledgment of Seller with Regard to Tax
Consequences of Transaction ................... 9
ARTICLE 6
THE REGISTRAR
SEC'FION 6.1
S~ON 6.2
SEC'TION 6.3
SECFFION 6.4
S~ON 6.5
Appointment of Registrar ..................... 9
Ownership of Agreement ..................... 9
Removal of Registrar and Appointment of
Suer Registrar .......................... 9
Qualifications of Suer Registrar ............... 9
Successor by Merger or Consolidation ............. 10
ARTICLE 7
MISCF~LLANE43US
SEC~ON 7.1
SEC~ON 7.2
SECTION 7.3
SECTION 7.4
S~ON 7.5
SECFION 7.6
S~ON 7.7
S~ON 7.8
S~ON 7.9
SECTION 7.10
Successors of City ......................... 10
Parties in Interest .......................... 10
Binding Effect ............................ 10
Severability ............................. 10
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 11
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXHIBIT A-
EXHIBIT B-
EXHIBIT C -
EXHIBIT D -
EXHIBIT E-
Form of Deed of Easement
Description of Land
Permitted Encumbrances
Form of Assignment
Transfer of Agreement - Schedule of Transferees
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-4)
THIS INSTALLMENT PURCItASE AG~ (this "Agreement') is made
as of the day of , 199_ between FAYE F. SHF. ALY and BEVERLY F.
POWF~IJ~ (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA,
a body politic and corporate of the Commonwealth of Virginia (the 'City").
A. Pursuant to the authority granted by the Open-Space l~nd Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the 'Act'), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
City.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (hereinafter defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of I. and (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller
and the City hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitiolas. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
'Agricultural Use' means (i) the bona fide product/on 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 wtivity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in ~ Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) ~ry uses directly related
to agricultural activities conducted on the same property, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the processing of agricultural, silvicultural,
horticultural or aquacultural products, except as an acc~sory use.
'Business Day' or 'business day' means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is located are not
required or authorized by law or executive order to close for business, and (b) The New
York Stock Exchange is not closed.
'City' means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its succes.~rs and a.~igns.
"City Council' means the Council of the City.
'City Manager' means the City Manager of the City.
"Code' means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shall be deemed to include the United States Treasury Regulations in
effect or proposed from time to time with respect thereto.
'Deed of Easement' means the Deed of Easement of even date herewith from the
Seller to the City, which shall convey the Development Rights to the City in perpetuity.
The Deed of Easement shall be substantially in the form attached hereto as Exhibit A
and made a part hereof.
'Development Rights' mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
not be limited to, the right to develop the Land for any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
'Enabling Legislation' means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
"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 Date" means June 1 and December 1 in each year, commencing
June 1, 1997.
"I. and" means the tract or tracts of land located in Virginia Beach, Virginia,
containing approximately acres, and more particularly described in Exhibit B
attached hereto and made a part hereof.
"Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix J to the City Code, as the same may be
amended or modified from time to time.
"Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof hereafter approved, in writing, by the City.
"Person" or "person" means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
"Purchase Price" means $77,448, the purchase price to be paid by the City to the
Registered Owner in accordance with this Agreement.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
"Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
"Registrar" means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
"Seller" means, collectively, Faye F. Shealy and Beverly F. Powell.
"State" means the Commonwealth of Virginia.
SECTION 1.2
Rules of Con~B'~etion.
(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) Referencea to Articlea, Sections, and other $ubdivisiona of this
Agreement are to the designated Articlea, 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) Ali references made (i) in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, and (ii) in the singular or plmal
number shall be deemed to have been made, respectively, in the plural or singular
number az well.
ARTICLE 2
SALE AND PURCHASE OF DEVF. t.OPMF~IWF 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.
S~ON 2.2 Delivery_ of Deed of Easement. In order to evidence the
sale of the Development Rights to the City, the Seller shall execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto az 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
S~ON 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_. The Purchase
Price is $77,448.
Co) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on June 1,
1997, and semiannually thereafter on June 1 and December 1 in each year to and
including , 202_, at the rate of % per annum. Intere~ shall be
calculated on the bash of a 360-day year of twelve 30-day months.
(c) Both the single installment of principal of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shall forward all such interest payment~ by check or dr~ mailed to the person(s)
appearing on the regisUation books of the City maintained by the Registrar az the
Registered Owner on the Record Date, at the address of such Registered Owner az it
a~s on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Registrar.
(e) The City's obtigation 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
irrev(w, ably 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.
S~ON 3.2
Registration and Transfer of this Agreement.
(a) Until the Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at the offices of the Registrar, registration books
for the registration and transfer of this Agreement; and upon presentation of this
Agreement for such purpose at the offices of the Registrar, the Registrar shall register
or cause to be registered on such registration books, and permit to be transferred thereon,
under such reaso~le 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
su~ing Interest Payment Date or final principal payment date.
(b) Except for an Estate Settlement Transfer, this Agreement may not
be transferred by the Registered Owner prior to the expiration of a one (1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(c) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
Registrar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the surrender for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E
with the name, address and tax identification number of the transferee Registered Owner,
and the date of the transfer; provided, however, that if there is any conffict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shall be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
SECTION 3.3 Mutilated. Lost. Stolen or Destroyed A~reement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the registration books maintained by the Registrar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement shall first be surrendered to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purchaser of
the original Agreement (in lieu of which such substitute Agreement was issued) presents
for payment such original Agreement, the City and the Registrar shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, ~nd flmll 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
RF.~RESENTATIONS AND WARRANTIES
S~ON 4.1 Re~_ resentations and Warranties of the City. The City makes
the following representations and warranties:
(a) The City is a ~ly politic and corporate and a political subdivision
of the State.
(b) The City has the neces~ power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes the valid and legally binding obligation of
the City, and is enforceable against the City in accordance with its terms.
(d) There are no proceedings pending or, to the knowledge of the City,
threatened before any court or administrative agency which may affect the authority of
the City to enter into this Agreement.
SECTION 4.2 Reoresentafions and Warranties of the Seller.
makes the following representations and warranties:
The Seller
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Deed of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any person or public authority or
regulatory body is required as a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the same has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or proceeding pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceab~ty of, this Agreement or the Deed of F. asement.
(d) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conflict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the ~ of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if necessary, releases or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with respect to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of Easement there will be no liens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(f) The Seller is not a nonresident alien of the United States of
America for purposes of federal income taxation.
(g) The Social Security Number(s) of the Seller are 231-72-0~14 (for
Faye F. Shealy) and 231-72-3603 (for Beverly F. Powell).
The representations in subsections (0 and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the Internal
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
ARTICLE 5
PROVISIONS RI=.IATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION
SEC~ON 5.1 Intent of City_ and Tax Covenant of City_. The City intends
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for purposes of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to take any action, whick 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.
SECHON 5.2 Acknowledgment of $~ller with Regard to Tax
Con~_uences 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, ridings and decisions, interest payable under this Agreement is not
includable in the gross income of the Seller for federal income tax purposes, which
opinion assumes continuous compliance with certain covenants in the Tax Certificate and
Compliance Agreement to be executed and delivered by the City on the date of delivery
of this Agreement and is otherwise limited in accordance with its terms. The Seller
acknowledges that Seller has made Seller's own independent investigation and has
consulted with such attorneys, accountants and others as the Seller shall have selected in
the Seller's sole discretion to advise the Seller with respect to all other tax considerations
related to the transaction contemplated hereby (including, but not limited to, installment
sales treatment under Section 453 of the Code, charitable contribution deductions under
Section 170 of the Code, and federal estate tax implications); and the Seller certifies that
the Seller has not looked to or relied upon the City or any of its officials, agents or
employees, or to Bond Counsel, with respect to any of such matters.
ARTICLE 6
THE REGISTRAR
SECTION 6.1 Ao~ointment of Registrar. First Union National Bank of
---- _
Virginia is hereby designated and appointed to act as Registrar for this Agreement.
SECTION 6.2 Ownership of Agreement. The Registrar, in its individual
capacity or as trustee for holders of participation interests in this Agreement, may in
good faith buy, sell, own and hold this Agreement, and may join in any action which any
Registered owner may be entitled to take with like effect as if it did not act as Registrar
hereunder. The Registrar, in its individual capacity, either as principal or agent, may
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.
SF./LMION 6.3 Removal of Re~strar and A__mmintment of Succ~sor
1~. The City shall have the right, subject to the terms of any agreement with the
Registrar, to remove the Registrar any time by filing with such Registrar to be removed,
and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing,
such removal shall not be effective until a suer Registrar has assumed the
Registrar's duties hereunder. The City shall have the sole right to select a successor
Registrar.
SECTION 6.4 0ualifications of Successor Re~strar. 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 Me,er 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
MISCF~I~I ANF. DUS
SECFION 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 suers
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.
SF_LTION 7.2 Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Agreement expressed or implied is intended or shall be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
benefit of the City, the Seller, any other Registered Owner from time to time of this
Agreement and the Registrar.
SEC-~ON 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.
S~ON 7.4 Severability. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
10
S~ON 7.5 Prior Agreements Cancelled: No b4erg_er. This Agreement
shall completely and fully supersede all other prior agreements, both written and oral,
between the City and the Seller rehting to the acquisition of the Development Rights.
Neither the City nor the Seller shall h~ 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 Fasement in ail respects and shall not be merged therein.
SECTION 7.6 Amendments. Changes and Modifications. This ~ment
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.
S~ON 7.7 No P~rsonal Liability of CiG Officials. No covenant or
agreement conlained in this Agreement shall be deemed to be the covenant or agreement
of any official, officer, agent or employee of the City in his or her individual capacity,
and neither the officers or employees of the City nor any official executing this
Agreement shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the issuance thereof.
SF_/L'~ON 7.8 Governing Law. The laws of the State shah govern the
construction and enforcement of this Agreement.
S~ON 7.9 Notices. Except as otherwise provided in this Agreement,
all notices, demands, requests, consents, approvals, certificates or other communications
required under this Agreement to be in writing shall be sufficiently given and shall be
deemed to have been properly given three Business Days after the same is mailed by
certified mail, postage prepaid, return receipt requested, addressed to the person to whom
any such notice, demand, request, approval, certificate or other communication is to be
given, at the address for such person designated below:
City:
City Manager
Municipal Center
Virginia Beach, VA 23456
with a copy to:
City Attorney
Municipal Center
Virginia Beach, VA 23456
11
Faye F. Shealy
116 James Longslxeet
Williamsburg, Virginia 23185
Beverly F. Powell
312 Dunmore Street
Norfolk, Virginia 23510
First Union National Bank of V'n'ginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, Virginia 23219
Any of the foregoing may, by notice given hereunder to each of the others, designate any
further or different addresses to which subsequent notices, demands, requests, consents,
approvals, certificates or other communications shall be sent hereunder.
SECTION 7.10 Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next succeeding
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
WITNF~S the signatures and seals of the parties hereto as of the date first above
written.
[cn'Y's
crrY OF VIRGINIA BEACH, VIRGINIA
ATTEST: By:
lames K. Spore, City Manager
City Clerk
12
(SF, AL)
Approved as to Legal
Sufficiency
Approved as to Sufficiency of
Funds:
Deputy City Attorney
Director, Department of Finance
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, this day of ,
19__, by 1ames K. Spore, City Manager of the City of Virginia ~ach, Virginia, and
attested to by , City Clerk of the City of Virginia Beach,
Virginia, on its behalf.
(SEAL)
My Commission Expires:
Notary Public
13
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument wa~ acknowledged
, Virginia, this
19~, by Faye F. Shealy.
before me in the City of
dayof ,
(SEAL)
My Commission Expire~:
Notary Public
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged
, Virginia, this
19~, by Beverly F. Powell.
before me in the City of
day of ,
(S~.,)
My Commission Expires:
Notary Public
14
This instrument was prepared by
Virginia Beach City Attorney's Office
F..x~btt A
Exemption Claimed: § 58.1-811(A)(3)
§ 58.1-811 (0(4)
DEED OF EASEMENT
THIS DEED OF EASEMENT is made this day of , 19__,
by and between FAYE F. SHEALY, n~r~tal statu~, and BEVERLY F.
pOWELL, marital $tatu$? (collectively, the "Grantor-), and crrY OF
VIRGRqlA BEACH, VIRGINIA, a body politic and corporate of the ~ of
Virginia (the "City") whose address ia Municipal Center, Virginia Beach, V'uginia
23456, Grantee.
WHEREAS, pursuant to the amhodty granted by the Opm-Space Land Act,
Chapter 17, Title 10.1 of the Code of V'uginia of 1950, as mended (the 'Act'), the ~
adopted the Agricultural Lands Preservati~ Ordinance (the "Ordinance') as ~ I
to the Code of the City of Virginia Beach, Virginia, as amended (the 'City Code'), m
promote and encourage the prese~ of agricultural land in deaigtmed arma ~
the southern portion of the City; and
WHEREAS, in furtherance of the purlmses of the Act and the Ogffnmno~ the ~aty
has established the Agricultural Reserve Program of the City which provides for the
acquisition of development fights thrtmgh the purchase of agricultural land Imgsmaeafion
easements with respect to property' located in the portions of the Cky co,,ered by the
Ordinance; and
WHEREAS, the Grantor is the owner in fee simple of certain aglicukural mai
property located in the City and more particularly described in ~ A lmreto (the
"Land"); and
WHEREAS, the Land is located in that portion of the C'n?- subject to ~
Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has ~ to sell to the City the Graator's De~~t
Rights (hereinafter def'med) in the ~ by executing and deliveafng this [Xxxl of
Easement and thereby restrict the use of the I and as described herein; and
GPIN #1387-87-3240
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
in the Land to fulfill the policy and purposes of the City as set forth in the Act and the
Ordinance; and
WHEREAS, the transfer by the Grantor of the Development Rights in the Land
shall be in perpetuity; and
WHEREAS, in order to provide for the payment of the purchase price for the
rights in the Land created hereby, the Grantor and the City have entered into an
Installment Purchase Agreement of even date herewith (the 'Installment Purchase
Agreement');
GRANT
NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS
($10.00), the covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Grantor, for Grantor, Grantor's heirs, personal representatives, devisees, suers and
assigns, and for any subsequent owner of the Land does hereby grant and convey, with
general warranty and Eaglish covenants of rifle, unto the City, and its su~essors and
assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over
and with respect to the Land restricting the Land to Agricultural Use and in furtherance
thereof, does hereby grant and convey, with general warranty and English covenants of
rifle, to the City, and its successors and assigns, forever and in perpetuity, all of the
Development Rights with respect to the Land.
TERMS. ,COVENANTS. CONDITIONS AND AOREEIvI~NT$
A. The Grantor for Grantor, Grantor's hefts, personal representatives,
devisees, successors and assigns covenants with the City, (1) to refrain from engaging
in any act or activity, or permitting to occur or suffering to exist any act or activity upon
the Land which would constitute the exercise of a Development Right or a use other than
an Agricultural Use, it being the intention of the parties that the Land shall be preserved
for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this
Deed of Easement shall create a perpetual easement, running with the Land and all
portions thereof as an incorporeal and nonpossessory interest therein, enforceable against
the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or
any portion of the Land and any other person or entity having any right, rifle or interest
therein and upon their respective heirs, personal representatives, devisees, successors and
assigns; and (3) that the covenants, conditions, limitations and restrictions contained
herein are intended to limit the use of the Land as herein set forth.
B. The parties, for themselves, their hefts, personal representatives, devisees,
successors and assigns, further covenant and agree as follows:
(1) As used in this Deed of Ease~t the term "Development Rights"
shall mean the right to develop the Land for any use, including without limitation, any
commercial, industrial or residential use, other than for Agricultural Use.
(2) As used in this Deed of Easement the term "Agricultural Use"
means (i) the bona fide production of crops, animal or fowl, including, but not limited
to, the production of fruits, vegetables, honey, groins, meat, poultry and dairy products,
the raising of livestock and poultry, and the production and harvest of products from
horticultural, silvicultural or aquacultural activity, (ii)the relntir, 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) a~ry uses directly related to agricultural activities conducted on the
same property, including the sale of agricultural products as permitted by Section 401 of
the City Zoning Ordinance. The term does not include the p~ing of agricultural,
silvicultur~il, horticultural or aquacultural products, except as an accx~sory use.
(3) This Deed of i::~ment 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 Dczd of Easement shall be to (i) promote and
encourage the preservation of farmland, and promote and enhance agriculture as an
important industry within the City, (ii) preserve the rural character of the southern part
of the City, (iii) conserve and protect environmentally sensitive lands, waters and other
resources, (iv) reduce and defer the need for major infrastructure improvements in the
southern part of the City and the expenditure of public funds for such improvements,
(v) preserve open spaces, and (vi) assist inlshaping the character, direction and timing
of community development.
1
(6) In the event of a viqLation or attempted violation of any of the
provisions hereof, the City and its su~ and assigns, may institute and prosecute
any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent
or enjoin any such violation or attempted violation.
WITNESS, the hand and seal of the Grantor as of the date first above written.
//{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything
herein to the contrary notwithstanding, AND ,
execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance
of and releasing any marital or augmented estate interest in the easement and rights set
forth herein.
GRANTOR:
Faye F. Shealy
,(s~)
Beverly F. Powell
(SEAL)
,(SEAL)
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before
, Virginia, this day of
19._.., by Fay~ F, Shealy and . her husband
me in the City of
, Grantor.
(SgAL)
My Commission Expires:
Notary Public
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me
, Virginia, this day of
19~, by l)everly F. Powell and , h~
in the City of
, Grantor.
Notary Public
(SEAL)
My Commission Expires:
EXHIBIT A
GPIN # 1387-87-3240
L OCA TION:
6208 Crags Causeway, Blackwater Borough
A CREA GE:
One (1) parcel totalhng 43.10 acres (46.10 acres outstde of
marsh or swamp less one (1) 3-acre budding stte)
LESS AND EXCEPT all portions of the above-described property, if any,
which contain any of the following soil types: (1) Back Bay Mucky Peat;
(2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky
Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of
the above described property designated and described as "#" as shown on
that certmn plat entitled: "#", Scale #" = #', dated #, prepared by #, which
plat is intended to be recorded s~multaneously herewith.]
EXHIBIT B
GPIN it 1387-87-3240
L OCA
6208 Crags Causeway, Blackwater Borough
ACREAGE:
One (1) parcel totalling 43 10 acres (46.10 acres outstde of marsh
or swamp less one (1) 3-acre budding stte)
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
Muck)' Peat; (3) Naw-aey Silt Loam; or (4) Pamlico Mucky Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of the
above descn'bed property designated and described as "#" as shown on that certain
plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat ~s intended to
be recorded simultaneously herewith.]
EXH~IT C
P~V~i'l'l~D ~ICUMBP. A~CES
[S~K A'I'rA~]
17
ASSIGNMENT
EXHIBIT D
FOR VALUE RECEIVED,
and
([collectively,] the 'Registered Owner') hereby sell[si, assign[s] and transfer[s] unto
, without recourse, all of the Registered Owner's
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
Registrar (as defined in such Agreement) to transfer such Agreement on the books kept
for registration thereof. The Registered Owner hereby represents, warrants and certifies
that there have been no amendments to such Agreement [except
Date:
Signature guaranteed:
NOTICE: Signature must be
guaranteed by a member firm
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Installment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
18
EXHIBIT E
TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREF~
The transfer of this Installment Purchase Agreement may be registered only by
the Registered Owner under such Agreement in person or by its duly authorized officer
or attorney upon presentation hereof to the Registrar, who shall make note thereof in the
books kept for such purpose and in the registration blank below.
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No.
of Transferee
Signature of Registrar
6,
19
AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENT AND
THE ISSUANCE BY THE CITY OF ITS CONTRACT
OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF
$93,705.
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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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$93,705; and
WHEREAS, the aforesaid Development Rights shall be
acquired through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The city Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of 3anuary , 1997.
Adoption requires an affirmative vote of a majority of all
members of the City Council.
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CA-96-6509
noncode\ ifrost, orn
R-1
December 13, 1996
APPROVED AS TO CONTENT:
~'gricultural Depa~ment
APPROVED AS TO LEGAL /
L~ Department' ' i-
76
77
78
CERT~IED AS TO AVAILABILITY OF FUNDS:
city o~f- 9i~ih~la' Be~c~h-/-~, Director of Finance
mENE T. FROST
the "Seller"
and
CITY OF VIRGINIA BEACH, VIRGINIA
the "City"
INSTALLMF~NT PURCHASE AGREEMENT
(Agreement No. 1997-3)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
AGREF2vtF2qTS ........................................ 1
ARTICLE 1
DEFINITIONS
SECTION 1.1
S~ON 1.2
Definitions .............................. 1
Rules of Construction ....................... 3
ARTICLE 2
SALE AND PURCHASE OF DEVELOPMF~NT RIGHTS
SECTION 2.1
SECTION 2.2
Agreement to Sell and Purchase Development Rights .... 4
Delivery of Deed of Easement .................. 4
ARTICLE 3
PAYMENT OF PURCHASE PRICE
SECTION 3.1
SECTION 3.2
SECTION 3.3
Payment of Purchase Price .................... 4
Registration and Transfer of this Agreement .......... 4
Mutilated, Lost, Stolen or Destroyed Agreement ....... 5
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 RKI.ATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION
S~ON 5.1
S~ON 5.2
Intent of City and Tax Covenant of City ............ 8
Acknowledgment of Seller with Regard to Tax
Consequences of Transaction ................... 9
ARTICLE 6
THE REGISTRAR
SECTION 6.1
SECTION 6.2
S~ON 6.3
SECTION 6.4
S~ON 6.5
Appointment of Registrar ..................... 9
Ownership of Agreement ..................... 9
Removal of Registrar and Appointment of
Successor Registrar .......................... 9
Qualifications of Successor Registrar ............... 9
Successor by Merger or Consolidation ............. 10
ARTICLE 7
M/SC~LLANEOUS
S~ON 7.1
S~ON 7.2
SECTION 7.3
S F.L-'FION 7.4
SF_L-q~ON 7.5
S~ON 7.6
SECTION 7.7
S~ON 7.8
S~ON 7.9
S~ON 7.10
Successors of City ......................... 10
Parties in Interest .......................... 10
Binding Effect ............................ 10
Severability ............................. 10
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 11
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXHIBIT A-
EXHIBIT B-
EXHIBIT C-
F. XHIBIT D -
EXHIBIT E-
Form of Deed of Easement
Description of Land
Permitted Encumbrances
Form of Assignment
Transfer of Agreement - Schedule of Transferees
INSTALLMENT PIJ'RC~SE AGREEMENT
(Agreement No. 1997-3)
THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement') is made
as of the~ day of , 1997 between Irene T. Frost (the "Seller") and CITY
OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth
of Virginia (the "City").
A. Pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
City.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (hereinafter defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of Land (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGREEMENTS
NOW, THF. REFORE, 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
S~ON 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
*Agricultural Use" means (i) the bona fide production of crops, animal or fowl,
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 horticultmal, silvicultural or aquacultural activity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in the Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related
to agricultural activities conducted on the same p~, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the p~g of agricultural, silvicultural,
horticultural or aquacultural products, except as an accessory use.
'Business Day' or 'business day" means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is locat~ are not
required or authorized by law or executive order to close for business, and (b) The New
York Stock Exchange is not closed.
'City' means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its successors and assigns.
'City Council' means the Council of the City.
'City Manager' means the City Manager of the City.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shall be deemed to include the United States Treasury Regulations in
effect or proposed from time to time with respect thereto.
'Deed of Easement' means the Deed of Easement of even date herewith from the
Seller to the City, which shall convey the Development Rights to the City in perpetuity.
The Deed of Easement shall be substantially in the form attached hereto as Exhibit A
and made a part hereof.
*Development Rights' mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
not be limited to, the right to develop the Land for any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
'Enabling Legislation' means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
"Estate Settlement Transfer" means the transfer by the legal representative of the
estate of a deceased Seller of such Seller's rights in and to this Agreement in connection
with the distribution of the deceased Seller's estate or other settlement of such decedent
Seller's estate.
"Interest Payment Date" means June 1 and December 1 in each year, commencing
June 1, 1997.
"Land" means the tract or tracts of land located in Virginia Beach, Virginia,
containing approximately acres, and more particularly described in Exhibit B
attached hereto and made a part hereof.
"Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix I to the City Code, as the same may be
amended or modified from time to time.
"Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof hereafter approved, in writing, by the City.
"Person" or "person" means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
"Purchase Price" means $93,705, the purchase price to be paid by the City to the
Registered Owner in accordance with this Agreement.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
"Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
"Registrar" means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
"Seller" means ~rene T. Frost.
"State" means the Commonwealth of Virginia.
SECTION 1.2
Rules of Construction.
(a) The words "hereof," "herein," "hereunder," "hereto," and other
words of similar import refer to this Agreement in its entirety.
(b) The terms 'agree' and 'agreement~' 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, rnascu!irle or feminine gender
shall be deemed to have been made in all such genders, and (ii) in the singular or plural
number shall be deemed to have been made, respectively, in the plural or singular
number as well.
ARTICLE 2
SALE AND PURCHASE OF DEVI~JOPMENT RIGHTS
SF_L-WION 2.1 Anreement to Sell and Purcha.qe Devekmment Rights. The
Seller agrees to sell the Development Rights in the Land to the City and the City agrees
to purcha~ the Development Rights in the Land from the Seller on the date hereof for
the Purchase Price.
SECTION 2.2 Delivery of Deed of Easement. In order to evidence the
sale of the Development Rights to the City, the Seller shall execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A
and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office
of the Circuit Court of the City.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
SECTION 3.1
Payment of Purchas~ Price.
(a) The City shall pay the principal portion of the Purchase Price to
the Registered Owner in a single installment on ,202_. The Purchase
Price is $93,705.
Co) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on June 1,
199'/, and semiannually thereafter on June 1 and December 1 in each year to and
including , 202_, at the rate of ~ per annum. Inter~t sha~H be
calculated on the basis of a 360-day year of twelve 30-day months.
(c) Both the single installment of prineip~ of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shall forward all such interest payments by check or draft mailed to the person(s)
appearing on the registration books of the City maintained by the Registrar as the
Registered Owner on the Record Date, at the address of such Registered Owner as it
appears on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Registrar.
(e) The City's obligation to pay the Purchase Price hereunder and to
pay interest on the unpaid balance of the Purchase Price is a general obligation of the
City, and the full faith and credit and the unlimited taxing power of the City are
irrevocably pledged to the punctual payment of the Purchase Price and the interest on the
unpaid principal balance of the Purchase Price as and when the same respectively become
due and payable.
S~ON 3.2
Reifistration and Transfer of this A~reement.
-- --
(a) Until the Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at the offices of the Registrar, registration books
for the registration and transfer of this Agreement; and upon presentation of this
Agreement for such purpose at the offices of the Registrar, the Registrar shall register
or cause to be registered on such registration books, and permit to be transferred thereon,
under such reasonable regulations as the City or the Registrar may prescribe, the
ownership of this Agreement. The Registrar, however, shall not be required to make any
such registration and transfer during the period from the Record Date to the next
succeeding Interest Payment Date or final principal payment date.
(b) Except for an Estate Settlement Transfer, this Agreement may not
be transferred by the Registered Owner prior to the expiration of a one (1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(c) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
Registrar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the s~der for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E
with the name, address and tax identification number of the transf~ Registered Owner,
and the date of the transfer; provided, however, that if there is any conflict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of' the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shall be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
SEC~ON 3.3 Mutilated. Lost. S~olen or Destroy~l Agreement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the registration books maintained by the Registrar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement shall first be surrendered to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purchaser of
the original Agreement (in lieu of which such substitute Agreement was issued) presents
for payment such original Agreement, the City and the Registrar shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or 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.
,~TICLE 4
REPRF~ENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the City_. The City makes
the following representations and warranties:
(a) The City is a body politic and corporate and a political subdivision
of the State.
Co) The city has the necessary power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes the valid and legally binding obligation of
the City, and is enforceable against the City in accor~ce with its terms.
(d) There are no proceedings pending or, to the knowledge of the City,
threatened before any court or administrative agency which may affect the authority of
the City to enter into this Agreement.
SECTION 4.2 R~presentafions and Warranties of th~ Seller. The Seller
makes the following representations and warranties:
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Deed of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any person or public authority or
regulatory body is required as a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the same has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or proceeding pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceability of, this Agreement or the Deed of Easement.
(d) There is (i) no provision of any existin~ mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conflict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the Deed of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if n~, releazes or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with respect to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of Easement there will be no liens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(f) The Seller is not a nonresident alien of the United States of
America for purposes of federal income taxation.
(g) The Social Security Number of the Seller is 226-30-0161.
The representations in subsections (f) and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the Internal
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
ARTICLE 5
PROVISIONS RELATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FF. DERAL INCOME TAXATION
SF. LTION 5.1 Intent of City and Tax Covenant of City. The City intends
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for purposes of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to take any action, which would cause this
Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or
which would otherwise cause interest payable under this Agreement to become includable
in the gross income of any Registered Owner for purposes of federal income taxation.
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 aH the duties
imposed upon it as Registrar by this Agreement.
SECYFION 6.5 Suer by Me. er 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 suer 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 Su~essors of City. In the event of the dissolution of the
City, all the covenants, atipuhtiona, promises and agreements in this Agreement
contained, by or on behalf of, or for the benefit of, the City, the Seller, any other
Registered Owner and the Registrar, shall bind or inure to the benefit of the successors
of the City from time to time and any entity, officer, board, commission, agency or
instrumentality to whom or to which any power or duty of the City shall be transferred.
SECTION 7.2 Parties in Interest. Except as herein otherwise specific~y
provided, nothing in this Agreement expressed or implied is intended or shall be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
benefit of the City, the Seller, any other Registered Owner from time to time of this
Agreement and the Registrar.
S~ON 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.
SEC~ON 7.4 ~/g~l~. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
10
Regisu'ar:
Irene T. Frost
3161 Land of Promise Road
Virginia ach, Virginia 23 57
First Union National Bank of Virginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, Virginia 23219
Any of the foregoing may, by notice given hereunder to each of the others, designate any
further or different addresses to which subsequent notices, demands, requests, consents,
approvals, certificates or other communications shall be sent hereunder.
SF. CTION 7.10 Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next sung
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
W1TNESS the signatures and seals of the parties hereto as of the date first above
written.
[CITY'S SEAL]
CITY OF VIRGINIA BEACH, VIRGINIA
ATTEST: By:
lames K. Spore, City Manager
City Clerk
12
(SEAL)
(SEAL)
Approved as to Legal
Sufficiency:
Approved as to Sufficiency of
Funds:
Deputy City Attorney
I~_rector, Department of Finance
COMlVlO~TH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, this day of ,
19m, by 1ames 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
13
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was ~cknowledged
, Virginia, this
199/, by Irene T. Frost.
before me in the City of
day of ,, ,,
(SEAL)
My Commission Expires:
Notary Public
14
This instrument was prepared by
Virgima Beach City Attorney's Office
,~:~hibit A
Exemption Claimed: § 58.1-811(A)(3)
§ 58.1-811(C)(4)
DEED OF EASEMENT
THIS DEED OF EASEMENT is made this day of ,19m,
by and between IRENE T. FROST, (marital status) (collectively, the
'Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate
of the Commonwealth of Virginia (the 'City') whose address is Municipal Center,
Virginia Beach, Virginia 23456, Grantee.
RECITALS
WHEREAS, pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the 'Act'), the City
adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J
to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code'), to
promote and encourage the preservation of agricultural land in designated areas within
the southern portion of the City; and
WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of development rights through the purchase of agricultural land preservation
easements with respect to property located in the portions of the City covered by the
ordinance; and
WHEREAS, the Grantor is the owner in fee simple of certain agricultural real
property located in the City and more particularly described in Exhibit A hereto (the
"Land"); and
WHEREAS, the Land is located in that portion of the City subject to the
Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development
Rights (hereinafter defined) in the Land by executing and delivering this Deed of
Easement and thereby restrict the use of the Land as described herein; and
GPIN 1480-64-8423
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
in the Land to fulfill the policy and pmlmses of the City as set forth in the Act and the
Ordinance; and
WHEREAS, the transfer by the Grantor of the Development Rights in the Land
shall be in perpetuity; and
WHEREAS, in ordex to provkte for the payment of the purchase price for the
rights in the Land created hereby, the Grantor and the City have entered into an
Installment Purchase Agreement of even date herewith (the "Installment Purchase
Agreement");
NOW, THEREFORE, fo~ and in consideration of the sum of TEN DOLLARS
($10.00), the covenants and prrnnis~ contained herein and other good and valuable
consideration, the receipt and ~ff~aciea~ of which are hereby acknowledged, the
Grantor, for Grantor, Grantor's helm, personal representatives, devisees, successors and
assigns, and for any sub~t ownex of the Land does hereby grant and convey, with
general warranty and Englkh covemmt~ of fl0e, unto the City, and its successors and
assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over
and with respect to the Land restricting the Land to Agricultural Use and in furtherance
thereof, does hereby grant and convey, with general warranty and English covenants of
rifle, to the City, and its s~r.x:essors and assigns, forever and in perpetuity, all of the
Development Rights with msIx~ to the Land.
TERMS. COVENANTS. CONDITIONS AND AOREEMENT$
A. The Grantor for Grantor, Grantor's heirs, personal representatives,
devisees, successors and assigns covenants with the City, (1) to refrain from engaging
in any act or activity, or permitting to occur or suffering to exist any act or activity upon
the Land which would constitute the exercise of a Development Right or a use other than
an Agricultural Use, it being the intention of the parties that the Land shall be preserved
for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this
Deed of Easement shall create a peq~etual easement, running with the Land and all
portions thereof as an incorporeal and nonpossessory interest therein, enforceable against
the Grantor and upon any pta'cha..~r, 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 restxxtive heirs, personal representatives, devisees, successors and
assigns; and (3) that the covenants, conditions, limitations and restrictions contained
herein are intended to limit the use of the Land as herein set forth.
B. The parties, for themseh'es, their heirs, personal representatives, devisees,
successors and assigns, further covenant and agree as follows:
(1) As used in this Deed of Easement the term "Development Rights"
shall mean the right to develop the Land for any use, including without limitation, any
commercial, industrial or residential use, other than for Agricultural Use.
(2) As used in tiffs Deed of Easement the term "Agricultural Use"
means (i) the bona fide production of crops, animal or fowl, including, but not limited
to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products,
the raising of livestock and poultry, and the production and harvest of products from
horticultural, silvicultural or aquaculnaal activity, (ii)the repair, expansion or
replacement of no more than one (1) bona fide dwelling occupied by the landowner or
tenant as of the date of application for entry in the Agricultural Reserve Program and no
more than one freestanding mobile home, as permitted by Section 19-19 of the City
Code, and (iii) accessory uses directly related to agricultural activities conducted on the
same property, including the sale of agricultural products as permitted by Section 401 of
the City Zoning Ordinance. The term does not include the processing of agricultural,
silvicultural, horticultural or aquacultural products, except as an accessory use.
(3) This Deed of Easement does not grant the public any right of entry
or access or any rights of use of the Land.
(4) THIS EASEMF~NT SHALL EXIST IN PERPETUITY AND RUN
WITH THE ENTIRE ACREAGE OF THE LAND.
(5) The purpose of this Deed of Easement shall be to (i) promote and
encourage the preservation of farmland, and promote and enhance agriculture as an
important industry within the City, (ii) preserve the rural character of the southern part
of the City, (iii) conserve and protect environmentally sensitive lands, waters and other
resources, (iv) reduce and defer the need for major infrastructure improvements in the
southern part of the City and the expenditure of public funds for such improvements,
(v) preserve open spaces, and (vi) assist in shaping the character, direction and timing
of community development.
(6) In the event of a violation or attempted violation of any of the
provisions hereof, the City and its successors and assigns, may institute and prosecute
any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent
or enjoin any such violation or attempted violation.
W1TNESS, the hand and seal of the Grantor as of the date first above written.
#[NOTE-USE IF GRANTOR IS MARR1F~ BUT SPOUSE IS NOT ON DEED--Anytlfmg
herein to the contrary notwithstanding, AND ,
execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance
of and releasing any marital or augmented estate interest in the easement and fights set
forth herein.
GRANTOR:
Irene T. Frost
(SEAL)
.(SEAL)
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing
19_, by Irene T, Frost
instrument was acknowledged
, Virginia, this
before me in
day of
the City of
, Grantor.
(SEAL)
My Commission Expires:
Notary Public
EXHIBIT A
ALL THAT parcel of land situate in Blackwater Borough, Virginia Beach,
Virginia, designated as 'PARCEL T-1 39.8515 acres (AREA BEFORE
DED. = 40.00 AC)' on plat entitled 'Sulxlivision of pan of property of
Luta I. Tebault' made by Wilfred P. Large, Certified Land Surveyor,
dated October 3, 1980 and duly recorded in the Clerk's Office of the
Circuit Court of the City afore~d in Map Book 144, page 35, reference
to which is hereby made for a more particular description thereof,.
IT BEING the same property conveyed to Irene T. Frost from Imta I.
Tebault, widow, in part by deed dated December 10, 1980, duly recorded
in the aforesaid Clerk's Office at Deed Book 2077, at page 80, and in part
by deed dated September 21, 1993, duly recorded in the aforesaid Clerk's
Office in Deed Book , at page .
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 EXCEFr that certain tract, piece or parcel being a portion
of the above described property designated and described as '#' as shown
on that certain plat entitled: '#', Scale #' = #', dated #, prepared by #,
which plat is intended to be recorded simultaneously herewith.]
EXHIBIT B
ALL THAT parcel of land situate in Blackwater Borough, Virginia Beach,
Virginia, designated as 'PARCEL T-1 39.8515 acres (AREA BEFORE DED. =
40.00 AC)' on plat entitled 'Subdivision of part of property of Luta I. Tebault'
made by Wilfred P. Large, Certified Land Surveyor, dated October 3, 1980 and
duly recorded in the Clerk's Office of the Circuit Court of the City aforesaid in
Map Book 144, page 35, reference to which is hereby made for a more particular
description thereof.
IT BEING the same property conveyed to Irene T. Frost from Luta I. Tebault,
widow, in part by deed dated December 10, 1980, duly recorded in the aforesaid
Clerk's Office at Deed Book 2077, at page 80, and in part by deed dated
September 21, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book
, at page .
LESS AND EXCEPT all portions of the above-described property, if any, which
contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan
Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of the
above described property designated and described as '#' as shown on that
certain plat entitled: ~#', Scale #~ = #', dated #, prepared by #, which plat is
intended to be recorded simultaneously herewith.]
~IT C
PERMr~-~'~_~D ENCUMBRANCES
[SEE A'I'I'A~]
17
ASSIGNMENT
EXHIB~ D
FOR VALUE RF_~E1V~Y),
and
([collectively,] the 'Registered Owner') hereby sell[si, assign[s] and transfer[s] unto
..., without recourse, all of the Registered Owner' s
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
Registrar (as defined in such Agreement) to transfer such Agreement on the books kept
for registration thereof. The Registered Owner hereby represents, warrants and certifies
that there have been no amendments to such Agreement [except
e
Date:
Signature guaranteed:
NOTICE: Signature must be
guaranteed by a member firm
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Installment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
18
EXHIBIT E
TRANSFFR OF AGR~I~Mi~NT - SCHF~r~uI~ OF TRANSFF~R~I~
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.
1,
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No.
of Transferee
Signature of Registrar
t
19
- 22 -
Item V-J.l.&e.
CONSENT AGENDA
ORDINANCES/I~SOL UTIONS
ITEM # 41598
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baton, City Council ADOPTED:
Ordinances to authorize the acquisition of Agricultural Land
Preservation Easements (ARP) and the issuance by the City of its
contract obligations:
Earl M. and Laura M. Tebault (Blackwater Borough)
Installment Agreement No. 1997-5 - $567,268.
William E. and Michael W. Chaplain (Pungo Borough)
Installment Agreement No. 1997-6 - $188,266.
Voting:
9-1 (By ConsenO
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Mayor Meyera E.
Oberndoff, Nancy IC Parker and Vice Mayor William D. Sessoms, Jr.
Council Members Voting Nay:
Reba S. McClanan
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENT AND
THE ISSUANCE BY THE CITY OF ITS CONTRACT
OBLIGATIONS IN THE MAXIMUMPRINCIPALAMOUNT OF
$567,268.
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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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$567,268; and
WHEREAS, the aforesaid Development Rights shall be
acquired through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The City Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of 3anuary , 1997.
Adoption requires an affirmative vote of a majority of all
members of the City Council.
CA-96-6510
noncode \Tebault. orn
R-1
December 17, 1996
APPROVED AS TO CONTENT:
~ricultural Depar~ent
APPROVED AS TO LEGAL
/
L~w~Department '
76
77
78
city of Virginia Beach, ~A, Director of Finance
EARL M. TEBAULT
and
LAURA M. TEBAULT,
Husband and Wife,
the "Seller"
and
CITY OF VIRGINIA BEACH, VIRGINIA
the "City"
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-5)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
Section
RECITALS ........................................... 1
AGREEMENTS ........................................ 1
ARTICLE 1
DEFINITIONS
SECTION 1.1
SECTION 1.2
Definitions .............................. 2
Rules of Construction ....................... 4
ARTICLE 2
SALE AND PURCHASE OF DEVELOPMENT RIGHTS
SECTION 2.1
SECTION 2.2
Agreement to Sell and Purchase Development Rights .... 4
Delivery of Deed of l~a__~ment .................. 4
ARTICLE 3
PAYMENT OF PURCHASE PRICE
SECTION 3.1
S~ON 3.2
SECTION 3.3
Payment of Purchase Price .................... 5
Registration and Transfer of this Agreement .......... 5
Mutilated, Lost, Stolen or Destroyed Agreement ....... 6
ARTICLE 4
RRPRF_,S~ATIONS AND WARRANTIF~
SF_.L'~ON 4.1
SECrION 4.2
Representations and Warranties of the City .......... 7
Representations and Warranties of the Seller ......... 7
Section
ARTICLE 5
PROVISIONS RFJ..ATING TO EXCLUSION
OF ]NTERF~T FROM INCOME FOR FF, D~L 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
S F. ILWION 7.6
SECTION 7.7
SECTION 7.8
SECTION 7.9
SECTION 7.10
Successors of City ......................... 10
Parties in Interest .......................... 10
Binding Effect ............................ 11
Severability ............................. 11
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 11
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXH~IT A -
EXHIBIT B -
F_XI-II~IT C -
EXHIBIT D -
EXHIBIT E -
Form of Deed of Easement
Description of Land
Permitted Encumbrances
Fora of Assignment
Transfer of Agreement - Schedule of Transferees
ii
INSTALLMENT pURCHASE AGREEMISNT
(Agreement No. 199%5)
THIS INSTALLMENT PURCHASE AGREEIVlrmNT (this "Agreement") is made
as of the ~ day of ,1997 between EARL M. TEBAULT and LAURA M.
TI~JtAULT, Husband and Wife, (collectively, the "Seller") and CITY OF VIRGINIA
BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the
"City").
RECITALS
A. Pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
City.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (hereinafter defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of Land (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller
and the City hereby agree as follows:
ARTICLE 1
DEFINITIONS
SF. CTION 1.1 D.~lllilil~. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
"Agricultural Use" means (i) the bona fide production of crops, animal or fowl,
including, but not limited to, the production of fruits, vegetables, honey, grains, meat,
poultry and dairy products, the raising of livestock and poultry, and the production and
harvest of products from horticultural, silvicultural or aquacultural activity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in the Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related
to agricultural activities conducted on the same property, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the processing of agricultural, silvicultural,
horticultural or aquacultural products, except as an accessory use.
"Business Day" or "business day" means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is located are not
required or authorized by law or executive order to close for business, and (b) The New
York Stock Exchange is not closed.
"City" means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its successors and assigns.
"City Council" means the Council of the City.
"City Manager" means the City Manager of the City.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shall be deemed to include the United States Treasury Regulations in
effect or proposed from time to time with respect thereto.
"Deed of Easement" means the Deed of Easement of even date herewith from the
Seller to the City, which shall convey the Development Rights to the City in perpetuity.
The Deed of Easement shall be substantially in the form attached hereW as Exhibit A
and made a part hereof.
"Development Rights" mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
not be limited to, the right to develop the Land for any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
"Enabling Legislation" means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
"Estate Settlement Transfer" means the transfer by the legal representative of the
estate of a deceased Seller of such Seller's rights in and to this Agreement in connection
with the distribution of the d~ Seller's estate or other settlement of such decedent
Seller's estate.
"Interest Payment Date" means June 1 and December 1 in each year, commencing
June 1, 1997.
"Land" means the tract of land located in Virginia Beach, Virginia, containing
approximately acres, and more particularly described in Exhibit B attached hereto
and made a part hereof.
"Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix J to the City Code, as the same may be
amended or modified from time to time.
"Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof herea~r approved, in writing, by the City.
"Person" or "person" means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
"Purchase Price" means $567,268, the purchase price to be paid by the City to
the Registered Owner in accordance with this Agreement.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
"Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
"Registrar" means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
"Seller" means, collectively, Earl M. Tebault and Laura M. Tebault, Husband
and Wife.
"State" means the Commonwealth of Virginia.
SECTION 1.2
Rules of Construction.
(a) The words "hereof," "herein," "hereunder," "hereto," and other
words of similar import refer to this Agreement in its entirety.
(b) The terms "agree" and "agreements" contained herein are intended
to include and mean "covenant'' and "covenants."
(c) References to Articles, Sections, and other subdivisions of this
Agreement are to the designated Articles, Sections, and other subdivisions of this
Agreement.
(d) The headings of this Agreement are for convenience only and shall
not define or limit the provisions hereof.
(e) All references made (i) in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, and (ii) in the singular or plural
number shall be deemed to have been made, respectively, in the plural or singular
number as well.
ARTICLE 2
SALE AND PURCHASE OF DEVELOPMENT RIGHTS
SECTION 2.1 A~reement to Sell and Purchase Develooment 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.
S~ON 2.2 Delivery of Deed of Easement. In order to evidence the
sale of the Development Rights to the City, the Seller shall execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A
and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office
of the Circuit Court of the City.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
SECTION 3.1
Payment of Purchase Price.
(a) The City shall pay the principal portion of the Purchase Price to
the Registered Owner in a single installment on ,202_. The Purchase
Price is $567,268.
(b) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on June 1,
1997, and semiannually thereafter on June 1 and December 1 in each year to and
including , 202_, at the rate of % per annum. Interest shall be
calculated on the basis of h 360-day year of twelve 30-day months.
(c) Both the single installment of principal of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shall forward all such interest payments by check or draft mailed to the person(s)
appearing on the registration books of the City maintained by the Registrar as the
Registered Owner on the Record Date, at the address of such Registered Owner as it
appears on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Registrar.
(e) The Ci~'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 Agreemellt.
(a) Until the Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at the offices of the Registrar, registration books
for the registration and transfer of this Agreement; and upon presentation of this
Agreement for such purpose at the offices of the Registrar, the Registrar shall register
or cause to be registered on such registration books, and permit to be transferred thereon,
under such reasonable regulations as the City or the Registrar may prescribe, the
ownership of this Agreement. The Registrar, however, shall not be required to make any
such registration and transfer during the period from the Record Date to the next
succeeding Interest Payment Date or final principal payment date.
Co) Except for an Estate Settlement Transfer, this Agreement may not
be transf~ by the Registered Owner prior to the expiration of a one (1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(c) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
Registrar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the surrender for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E
with the name, address and tax identification number of the transferee Registered Owner,
and the date of the transfer; provided, however, that if there is any conflict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shall be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
SECTION 3.3 Mutilated. Lost. Stolen or Destroyed Agreement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the registration books maintained by the Registrar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement shall first be surrendered to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purchaser of
the original Agreement (in lieu of which such substitute Agreement was issued) presents
for payment such original Agreement, the City and the Registrar shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or 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
REPRF~ENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the City_. The City makes
the following representations and warranties:
of the State.
(a) The City is a body politic and corporate and a political subdivision
(b) The City has the necessary power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes the valid and legally binding obligation of
the City, and is enforceable against the City in accor~ce with its terms.
(d) There are no proceedings pending or, to the knowledge of the City,
threatened before any court or administrative agency which may affect the authority of
the City to enter into this Agreement.
SECTION 4.2 Revresentations and Warranties of the Seller.
makes the following representations and warranties:
The Seller
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Deed of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any person or public authority or
regulatory body is required as a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the same has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or proceeding pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceability of, this Agreement or the Deed of Easement.
(d) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conflict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the Deed of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if necessary, releases or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with respect to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of Easement there will be no liens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(f) The Seller is not a nonresident alien of the United States of
America for purposes of federal income taxation.
(g) The Social Security Numbers of the Seller are 228-34-8868 (for
Earl M. Tebaul0 and 225-36-7458 (for Laura M. Tebaul0.
The representations in subsections (f) and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the Internal
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
ARTICLE 5
PROVISIONS RELATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION
SEL~ON 5.1 Intent of City_ and Tax Covenant of City_. The City intends
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for purposes of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to take any action, which would cause this
Agreement to be an *arbitrage bond" within the meaning of Section 148 of the Code, or
which would otherwise cause interest payable under this Agreement to become includable
in the gross income of any Registered Owner for purposes of federal income taxation.
SECTION 5.2 Acknowledgment of Seller with Re~ard to Tax
Consequences Of Transaction. The Seller has received an opinion from Kaufman &
Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing
laws, regulations, rulings and decisions, interest payable under this Agreement is not
includable in the gross income of the Seller for federal income tax purposes, which
opinion assumes continuous compliance with certain covenants in the Tax Certificate and
Compliance Agreement to be executed and delivered by the City on the date of delivery
of this Agreement and is otherwise limited in accordance with its terms. The Seller
acknowledges that Seller has made Seller's own independent investigation and has
consulted with such attorneys, accountants and others as the Seller shall have selected in
the Seller's sole discretion to advise the Seller with respect to all other tax considerations
related to the transaction contemplated hereby (including, but not limited to, installment
sales treatment under Section 453 of the Code, charitable contribution deductions under
Section 170 of the Code, and federal estate tax implications); and the Seller certifies that
the Seller has not looked to or relied upon the City or any of its officials, agents or
employees, or to Bond Counsel, with respect to any of such matters.
ARTICLE 6
THE REGISTRAR
SECTION 6.1 Ao~ointment of Registrar. First Union National Bank of
Virginia is hereby designated and appointed to act as Registrar for this Agreement.
SECTION 6.2 Ownership of Agreement. The Registrar, in its individual
capacity or as trustee for holders of participation interests in this Agreement, may in
good faith buy, sell, own and hold this Agreement, and may join in any action which any
Registered owner may be entitled to take with like effect as if it did not act as Registrar
hereunder. The Registrar, in its individual capacity, either as principal or agent, may
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
~,gi,~l~. The City shall have the right, subject to the terms of any agreement with the
Registrar, to remove the Registrar any time by filing with such Registrar to be removed,
and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing,
such removal shall not be effective until a successor Registrar has assumed the
Registrar's duties hereunder. The City shall have the sole right to select a successor
Registrar.
SECTION 6.4 0ualifications of Successor Registrar. Any successor
Registrar shall be either (a) the Department of Finance of the City, (b) an officer or
employee of the City, or (c) a bank, trust company or other financial institution duly
organized under the laws of the United States or any state or territory thereof which is
authorized by law and permitted under the laws of the State to perform all the duties
imposed upon it as Registrar by this Agreement.
SECTION 6.5 Successor bv 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 Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Agreement expressed or implied is intended or shall be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
10
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 ~ty. glllhil~. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
SECTION 7.5 Prior Agreements Cancelled: No Merger. This Agreement
shall completely and fully supersede all other prior agreements, both written and oral,
between the City and the Seller relating to the acquisition of the Development Rights.
Neither the City nor the Seller shall hereafter have any rights under such prior
agreements but shall look solely to this Agreement and the Deed of Easement for
definitions and determination of all of their respective rights, liabilities and
responsibilities relating to the Land, the Development Rights and the payment for the
Development Rights. In addition, this Agreement shall survive the execution and
recording of the Deed of Easement in all respects and shall not be merged therein.
SECTION 7.6 Amendments, Changes and Modifications. This Agreement
may not be amended, changed, modified, altered or terminated except by an agreement
in writing between the City and the then Registered Owner. An executed counterpart of
any such amendment shall be attached to this Agreement and shall be binding upon such
Registered Owner and all successor Registered Owners.
SECTION 7.7 No Personal Liability of CiW Officials. No covenant or
agreement contained in this Agreement shall be deemed to be the covenant or agreement
of any official, officer, agent or employee of the City in his or her individual capacity,
and neither the officers or employees of the City nor any official executing this
Agreement shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the issuance thereof.
SECTION 7.8 Governing Law. The laws of the State shall govern the
construction and enforcement of this Agreement.
SECTION 7.9 Notices. Except as otherwise provided in this Agreement,
all notices, demands, requests, consents, approvals, certificates or other communications
required under this Agreement to be in writing shall be sufficiently given and shall be
deemed to have been properly given three Business Days after the same is mailed by
11
certified mail, postage prepaid, return receipt requested, addressed to the person to whom
any such notice, demand, request, approval, certificate or other communication is to be
given, at the address for such person designated below:
City:
City Manager
Municipal Center
Virginia Beach, VA 23456
with a copy to:
City Attorney
Municipal Center
Virginia Beach, VA 23456
Seller:
Earl M. and Laura M. Tebault
4780 Blackwater Road
Virginia Beach, Virginia 23457
Registrar:
First Union National Bank of Virginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, Virginia 23219
Any of the foregoing may, by notice given hereunder to each of the others, designate any
further or different addresses to which subsequent notices, demands, requests, consents,
approvals, certificates or other communications shall be sent hereunder.
SECTION 7.10 Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next su~ing
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
wrI2qF_~S the signatures and seals of the parties hereto as of the date first above
written.
12
CITY:
[CITY'S SEAL]
CITY OF VIRGINIA BEACH, VIRGINIA
ATTEST:
By:
/ames K. Spore, City Manager
City Clerk
SELLER:
,(SEAL)
.(SEAL)
Approved as to Legal
Sufficiency
Approved as to Sufficiency of
Funds:
Deputy City Attorney
Director, Department of Finance
13
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
, Virginia, 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
COAgdONAFEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged
, Virginia, this
1997, by Earl M. Tebault and Laura M. Tebault.
before me in the City of
day of ,
(SE, L)
My Commission Expires:
Notary Public
14
This instrument was prepared by
Vtrgima Beach City AtWrney's Office
Exemption Claimed: § 58.1-811 (A)(3)
§ 58.1-811 (C)(4)
DEED OF EASEMENT
Extfibit A
THIS DEED OF EASEMENT is made this day of , 19__,
by and between EARL M. TEBAULT and LAURA MAE TEBAI, JLT, husband and wife
(collectively, the "Grantor'), and CITY OF VIRGINIA BEACH, VIRGINIA, a body
politic and corporate of the Commonwealth of Virginia (the 'City') whose address is
Municipal Center, Virginia Beach, Virginia 23456, Grantee.
RECITALS
WHEREAS, pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as mended (the 'Act'), the City
adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Apixnxlix J
to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code'), to
promote and encourage the preservation of agricultural land in designated areas within
the southern portion of the City; and
WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of development rights through the purchase of agricultural land preservation
easements with respect to property located in the portions of the City covered by the
Ordinance; and
WHEREAS, the Grantor is the owner in fee simple of certain agricultural real
property located in the City and more particularly described in Exhibit A hereto (the
'Land'); and
WHEREAS, the Land is located in that portion of the City subject to the
Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development
Rights (hereinafter defined) in the Land by executing and delivering this Deed of
Easement and thereby restrict the use of the Land as described herein; and
GPIN 1490-33-0238
1480-80-4595
1490-21-6639
1480-91-9968
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
in the Land to fulfill the policy and purlx~es of the City as set forth in the Act and the
WHEREAS, the transfer by the Grantor of the Development Rights in the Land
WHEREAS, in order to provide f~r the payment of the purchase price for the
rights in the Land created hereby, the Grantor and the City have entn~ into an
Inslallrnent Purchase Agreement of even date herewith (the 'Instalment Purchase
Agreement");
GRANT
NOW, TI:IlqREFORE, for and in ctmsidemfion of the sum of TEN DOLLARS
($10.00), the covenants and promises coalairmd herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Grantor, for Grantor, Grantor's heirs, ~ representatives, devisees, successors and
assigns, and for any subsequent owner of the/.and does hereby grant and convey, with
general warranty and English covenants of title, unto the City, and its successors and
assigns, fore,-er and in perpetuity, an agricultural land preservation easement in, on, over
and with respect to the Land restri~g the l.aml to Agricultural Use and in furtherance
the/vof, 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 restx~ to the Land.
TERMS. COVENAN'I~, f~)NDITIQNS AND AGR~=~dF~.N'I'S
A. 'I'ne Grantor for Grantor, Grantor's heirs, personal representatives,
devisees, successors and assigns covenants with the City, (1) to refrain from engaging
in any act or activity, or permitting to ocotr or suffering to exist any act or activity upon
the Land which would constitute the exercise of a Development Right or a use other than
an Agricultural Use, it being the intention of the parties that the Land shall be preserved
for AgriculRual Use in accordance with the provisions of the Ordinance; and (2) that this
De~ of Easement shall create a pe~ easement, running with the Land and all
portions thereof as an incorporeal and non~ry interest therein, enforceable against
the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or
any portion of the Land and any other person or entity having any right, title or interest
therein and utxm thdr respective heirs, persoml representatives, devisees, succ, e~sors and
assigns; and O) that the covenants, conditions, limitations and restrictions contained
herein are intended to limit the use of the Land as herein set forth.
B. The parties, for themselves, their heirs, personal representatives, devisees,
successors and assigns, further covenant and agree as follows:
(1) A~ reed in ~ ~ of Easement the term 'Development Rights'
shall mean the right to develop the Land for any use, including without limitation, any
commerce, ~ tl rgsidenfial u~, other than for Agricultural Use.
(2) As meal in this Deed of Easement the term 'Agricultural Use'
means (i) the bona fide ll~ductioo of crops, animal or fowl, including, but not limited
to, the ptmlntakm of frui~ vegetabks, honey, grains, meat, poultry and dairy products,
the raising of ~ and poultry, and the production and harvest of products from
horfioxlunak nlvimltuml or aqmculmral activity, (ii)the repair, expansion or
replaceam~ of no mm~ atari one (1) bona fide dwelling occupied by the landowner or
tenant as of the dam of ~ for entry in the Agricultural Reserve Program and no
more than mm fme~m~Ymg nmbile home, as permitted by Section 19-19 of the City
Code, and ('th') access~y uses directly related to agricultural activities conducted on the
same ~, induding the sale of agricultural products as permitted by Section 401 of
the City ~ O~inam~ ~ term does not include the processing of agricultural,
silvicultural, horfi~ or aquaculRuai products, except as an accessory use.
0) ~ Dml of Easemmt does not grant the public any right of entry
or accem or any dgl~ of ~e of the land.
(4) TltLg EASEMENT SHALL EXIST IN PERPETUITY AND RUN
WITH TItE ~ ACREA~ OF TftE LAND.
(5) The tmrpo~ of ~ Deed of Easement shall be to (i) promote and
encourage the pres~wafim of farmland, and promote and enhance agriculture as an
importa~ imtmtry within the CRy, (h') preserve the rural character of the southern part
of the ~aty, (ih') comerve and protect environmentally sensitive lands, waters and other
re~ourc~, 0v) reduce and defer the need for major infrastructure improvements in the
~ part of the Caty and the expmdimre of public funds for such improvements,
(v) presea~e open spaces, and (va') as.xist in shaping the character, direction and timing
of community devetopmexm
(6) In the event of a violation or attempted violation of any of the
provisions hereof, the ~'y and its successors and assigns, may institute and prosecute
any procoe~g at law or in equity to enforce the provisions hereof or to abate, prevent
or enjoin any such violat~ or attempt~ violation.
9,TrNESS, the hamt and seal of the Grantor as of the date first above written.
GRANTOR:
Earl M. Tebault
(SEAL)
Laura Ma~ Tebault
(SEAL)
COMMO~TH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before
, Virginia, this day of
19__, by Earl M. Tebault and Laura Mae Tebault, Grantor.
me in the City of
(SEAL)
My Commission Expires:
Notary Public
EXHIBIT A
Parcel One:
ALL THAT certain tract, piece or parcel of land, situate in the City of
Virginia Beach (formerly Blackwater (formerly Pungo) Magisterial District
of Princess Anne County), Virginia, and bounded and described as
follows: On the north by the lands now or formerly of E. M. Tilley; on
the east by the lands now or formerly of Thomas Harrison; on the south
by the lands now or formerly of Gabriel Armstrong and A. Sones,
(sometimes known as A. James); and on the west by the lands now or
formerly of Jessie Ives, containing thirty (30) acres, more or less, but the
same is conveyed as a whole and not by the acre.
Parcel Two;
ALL THAT tract of land, with the buildings and improvements thereon,
situate on the Public Road from Blackwater to Pocaty in the City of
Virginia Beach (formerly Blackwater (formerly Pungo) Magisterial District
of Princess Anne County), Virginia, containing one hundred and five
hundred and ninety-seven thousandths (100.597) acres, and bounded and
described according to the survey and plat of the 'Henry Holmes Farm in
Blackwater, Princess Anne County, Virginia, November 16th, 1916',
made by Joseph G. Moore, Co., Surveyor, and duly recorded in the
Clerk's Office the Circuit Court of the City of Virginia Beach (formerly
Princess Anne County), Virginia, in Map Book 5, page 177, as follows:
Beginning at the southeastern intersection of said Public Road and a
private road shown on said plat, and from thence running lq. 18° 50' W.
822.5 feet along the eastern line of said road; thence lq. 89° 35' E. 838.5
feet to another private road; then N. 5° 45' E. 1669.5 feet along the
private road last mentioned to a gum; thence N. 24 ° 17' E. 56.1 feet to
a gum stump; thence N. 3° 17' E. 175.6 feet to a corner post; thence S.
83° 13' E. 257.3 feet to a pine; thence along the same course 517.9 feet
to a beech; thence S. 83 ° 20' E. 209.9 feet to a pine stump; thence along
the same course 230.3 feet to a pine; thence along the same course 261.2
feet to a pine; thence along the same course 414 feet to a corner post;
thence S. 6° 47' W. 231 feet to a corner post; thence S. 84° 45' E. 89.8
feet to a post; thence S. 87° 10' E. 78.8 feet to a post in a ditch; thence
along said ditch S. 46° 5' W. 196.3 feet; thence along said ditch S. 26°
30' W. 138 feet; thence along said ditch S. 12° 5' W. 1049 feet; thence
along said ditch S. 11 ° 15' W. 394.4 feet; thence along said ditch S. 12°
10' E. 230.8 feet to an ash in the northern line of the private road first
Parcel Five;
ALL THAT certain piece or parcel of land, situate in the City of Virginia
Beach (formerly Blackwater Magisterial District of Princess Anne
County), Virginia, known, and designated as part of the Alton's Creek
Farm, bounded by the Tilley tract and the land of Tom Harris or Harrison
and the land of James Forman, containing thirty (30) acres, more or less,
the said land being further described in the deed from Jesse B. Howell and
wife to David Smith, dated June 17, 1899, and recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach, Virginia, in
Deed Book 71, page 417.
Parcel Six:
ALL THAT certain parcel of land, situate in the City of v rg a Beach
(formerly Blackwater Magisterial District of Princess Anne County),
Virginia, containing five (5) acres, more or less, conveyed in gross and
not by the acre, and bounded and described as follows: Beginning at a
point on the southern side of Altons Creek and in the northern line of the
land of the said Oscar Lynwood Smith (the said point of beginning being
in a southerly direction across Altons Creek from the galvanized iron pipe
on the northern side of said Creek at the northwest comer of the 420 acres
of marsh land of the said F. O. Baum, as shown on the plat of the said
marsh land made for him in January 1946, by Alonzo L. Cherry, Certified
Surveyor) and running from the said point of beginning westerly along the
northern line of the land of the said Oscar Lynwood Smith to the head
waters of Altons Creek and thence northeasterly and easterly and
southeasterly along the meanderings of Altons Creek to the point of
beginning.
Parcel Seven:
ALL RIGHT, title and interest of the grantors in and to any property
shown on the plat entitled "Oscar Lynnwood Smith Property ~ted in
Blackwater Mag. District, Princess Anne County, VA.~, recorded in the
Clerk's Office of the Circuit Court of the City of Virginia Beach,
Virginia, in Map Book 43, page 37, which is not included within the
bounds of the above six parcels of land.
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 EX CEtVT that certain tract, piece or parcel being a portion
of the above de.scribed property designated and described as '#' as shown
on that certain plat entitled: '#', Scale #' = #', dated #, prepared by #,
which plat is intended to be recorded simultaneously herewith.]
IT BEING, as to Parcels One (1) through Seven (7), the same property
conveyed to Earl M. Tebault and Laura Mae Tebault, Ma wife, from
Oscar Lynwood Smith, et ux, by deed dated September 19, 1957, duly
recorded in the aforesaid Clerk's Office in Deed Book 513, at page 279.
E IT B
Parcel One:
ALL THAT certain tract, piece or parcel of land, situate in the City of Virginia
Beach (formerly Blackwater (formerly Pungo) Magisterial District of Princess
Anne County), Virginia, and bounded and described as follows: On the north by
the lands now or formerly of E. M. Tilley; on the east by the lands now or
formerly of Thomas Harrison; on the south by the lands now or formerly of
Gabriel Armstrong and A. Jones, (sometimes known as A. James); and on the
west by the lands now or formerly of Jessie Ives, containing thirty (30) acres,
more or less, but the same is conveyed as a whole and not by the acre.
Parcel Two:
ALL THAT tract of land, with the buildings and improvements thereon, situate
on the Public Road from Blackwater to Pocaty in the City of Virginia Beach
(formerly Blackwater (formerly Pungo) Magisterial District of Princess Anne
County), Virginia, containing one hundred and five hundred and ninety-seven
thousandths (100.597) acres, and bounded and described according to the survey
and plat of the ~Henry Holmes Farm in Blackwater, Princess Anne County,
Virginia, November 16th, 1916*, made by Joseph G. Moore, Co., Surveyor, and
duly recorded in the Clerk's Office the Circuit Court of the City of Virginia
Beach (formerly Princess Anne County), Virginia, in Map Book 5, page 177, as
follows: Beginning at the southeastern intersection of said Public Road and a
private road shown on said plat, and from thence running N. 18° 50' W. 822.5
feet along the eastern line of said road; thence N. 89° 35' E. 838.5 feet to
another private road; then N. 5° 45' E. 1669.5 feet along the private road last
mentioned to a gum; thence N. 24° 17' E. 56.1 feet to a gum stump; thence N.
3° 17' E. 175.6 feet to a corner post; thence S. 83° 13' E. 257.3 feet to a pine;
thence along the same course 517.9 feet to a beech; thence S. 83° 20' E. 209.9
feet to a pine stump; thence along the same course 230.3 feet to a pine; thence
along the same course 261.2 feet to a pine; thence along the same course 414 feet
to a corner post; thence S. 6° 47' W. 231 feet to a corner post; thence S. 84° 45'
E. 89.8 feet to a post; thence S. 87010' E. 78.8 feet to a post in a ditch; thence
along said ditch S. 46° 5' W. 196.3 feet; thence along said ditch S. 26° 30' W.
138 feet; thence along said ditch S. 12° 5' W. 1049 feet; thence along said ditch
S. 11 ° 15' W. 394.4 feet; thence along said ditch S. 12° 10' E. 230.8 feet to an
ash in the northern line of the private road first above mentioned thence along
said road N. 66° 15' W. 92.6 feet to a hickory; thence along said road N. 63°
15' W. 510.4 feet to a pine; thence along said road S. 78° 30' W. 221.1 feet to
a post; thence along said road S. 76° 15' W. 1076.6 feet to a pine; thence along
said road S. 62° 38' W. 595.2 feet to a gum stump, the point of beginning, save
and except one acre on the public road which was conveyed by M. B. Gaskins
and wife to Harry Whitehurst by deed dated February 15, 1940, and duly
recorded in said Clerk's Office in Deed Book 200, page 24 ........
parcel Three:
ALL THAT certain tract of land, situate in the City of Virginia Beach (formerly
Blackwater (formerly Pungo) Magisterial District of Prince.~ Anne County),
Virginia, containing thirty (30) acres, more or leas, and bounded and described
according to the deed from James E. Bell and wife to John T. Harrison, dated
January 5, 1880, and recorded in the Clerk's Office of the Circuit Court of the
City of Virginia Beach, Virginia, in Deed Book 54, page 463, as follows, to-wit:
Beginning on the south at Armstrong's line, and running north by a line of stakes
and marked flees, to E. M. Tilley's line, thence along said line east to a stake or
marked trees; thence south and east to Armstrong's line, by a line of stakes and
marked trees; and thence west along Armstrong's line to the point of beginning,
together with a right of way through the land formerly occupied by Gabriel
Whitehurst, to Alton Creek Landing; the boundaries on the west and east having
been agreed upon by John T. Harrison, Plumice Fuller and Gabriel Whitehurst.
Four:
ALL THAT certain tract of land, situate in the City of Virginia Beach (formerly
Blackwater (formerly Pungo) Magisterial District of Prin~ Anne County),
Virginia, containing ten (10) acres, more or less, and bounded according to the
deed from Jesse Howell and wife to John T. Harrison, dated February 22, 1886,
and recorded in the Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Deed Book 58, page 94, as follows, to-wit: Adjoining the
land of Jesse B. Howell, the land of John T. Harrison, the land of E. M. Tilley,
and the land of Bain and Brothers, containing ten (10) acres, more or less, being
a portion of the tract of land conveyed to Sesse B. Howell by George L. Oldfield
and wife, by deed dated February 8, 18 ....... which deed reserves unto the said
Jesse B. Howell the right of way to the Landing.
Parcel Five;
ALL THAT certain piece or parcel of land, situate in the City of Virginia Beach
(formerly Blackwater Magisterial District of Princess Anne County), Virginia,
known, and designated as part of the Alton's Creek Farm, bounded by the Tilley
tract and the land of Tom Harris or Harrison and the land of James Forman,
containing thirty (30) acres, more or less, the said land being further described
in the deed from Jesse B. Howell and wife to David Smith, dated June 17, 1899,
and recorded in the Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Deed Book 71, page 417.
EXIHRIT C
PERMHTED ENCUMBRANCES
[SEE ATTACHF~]
17
ASSIGNMENT
EXHIBIT D
FOR VALUE RECF3VED,
and
([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto
, without recourse, all of the Registered Owner' s
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
RegisUar (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
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Installment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
18
~NSFER OF AGREElVlrE~ - SCHEDULE OF TRANSFEREF_~
The transfer of this Installment Purchase Agreement may be registered only by
the Registered Owner under such Agreement in person or by its duly authorized officer
or attorney upon presentation hereof to the Registrar, who shall make note thereof in the
books kept for such purpose and in the registration blank below.
,
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No.
of Transferee
Signature of Registrar
4,
19
AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN
AGRICULTURAL LAND PRESERVATION EASEMENTAND THE ISSUANCE
BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM
PRINCIPAL AMOUNT OF $188,266.
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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 acquisition of
the Development Rights (as defined in the Installment Purchase
Agreement, a true copy of which is hereto affixed) on certain
property located in the City and more fully described in Exhibit B
of the Installment Purchase Agreement for a purchase price of
$188,266; and
WHEREAS, the aforesaid Development Rights shall be
acquired through the acquisition of a perpetual agricultural land
preservation easement, as defined in, and in compliance with, the
requirements of the Ordinance; and
WHEREAS, the City Council has reviewed the proposed terms
and conditions of the purchase as evidenced by the Installment
Purchase Agreement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF VIRGINIA BEACH, VIRGINIA:
1. The City Council hereby determines and finds that
the proposed terms and conditions of the purchase of the
Development Rights pursuant to the Installment Purchase Agreement,
including the purchase price and manner of payment, are fair and
reasonable and in furtherance of the purposes of the Ordinance, and
the City Manager is hereby authorized to approve, upon or before
the execution and delivery of the Installment Purchase Agreement,
the rate of interest to accrue on the unpaid principal balance of
the purchase price set forth hereinabove as the greater of 6.00%
per annum or the per annum rate which is equal to the yield on
United States Treasury STRIPS purchased by the City to fund such
unpaid principal balance; provided, however, that such rate of
interest shall not exceed 7.50% unless the approval of the City
Council by resolution duly adopted is first obtained.
2. The City Council hereby further determines that
funding is available for the acquisition of the Development Rights
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pursuant to the Installment Purchase Agreement on the terms and
conditions set forth therein.
3. The City Council hereby expressly approves the
Installment Purchase Agreement in the form and substance presented
at this meeting and, subject to the determination of the City
Attorney that there are no defects in title to the property or
other restrictions or encumbrances thereon which may, in the
opinion of the City Attorney, adversely affect the City's
interests, authorizes the City Manager to execute and deliver the
Installment Purchase Agreement in substantially the same form and
substance as presented at this meeting with such minor
modifications, insertions, completions or omissions which do not
materially alter the purchase price or manner of payment, as the
City Manager shall approve. The City Council further directs the
City Clerk to affix the seal of the City to, and attest same on,
the Installment Purchase Agreement. The City Council expressly
authorizes the incurrence of the indebtedness represented by the
issuance and delivery of the Installment Purchase Agreement.
4. The City Council hereby elects to issue the
indebtedness under the Charter of the City rather than pursuant to
the Public Finance Act of 1991 and hereby constitutes the
indebtedness a contractual obligation bearing the full faith and
credit of the City.
Adopted by the Council of the City of Virginia Beach,
Virginia, on this 7th day of January , 1997.
Adoption requires an affirmative vote of a majority of all
members of the City Council.
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CA-96-6511
noncode \ chaplain, orn
R-1
December 18, 1996
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APPROVED AS TO CONTENT:
ur~l Department
APPROVED AS TO LEGAL
SU~FIGIENCY: ---- /
Law Department
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77
CER~IE~ AS TO ~VAILA~ILITY OF FUNDS:
Cit~ ~f Virginia Beach, VA/ Director of Finance
and
MICHAF. L W. CHAPLAIN,
the 'Seller'
and
CITY OF VIRGINIA BEACH, VIRGINIA
the 'City'
INSTALLMENT PURCHASE AGREEMENT
(Agreement No. 1997-6)
TABLE OF CONTENTS
(This Table of Contents is not part of the Installment Purchase Agreement and is only for
convenience of reference)
Section
AGRE~ ........................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1
SECTION 1.2
Definitions .............................. 2
Rules of Construction ....................... 4
ARTICLE 2
SALE AND PURCHASE OF DEVlqLOPMENT RIGHTS
SECTION 2.1
SECTION 2.2
Agreement to Sell and Purchase Development Rights .... 4
Delivery of Deed of Easement .................. 4
ARTICLE 3
PAYMEHT OF PURCHASE PRICE
SECTION 3.1
SECTION 3.2
SECTION 3.3
Payment of Purchase Price .................... 5
Registration and Transfer of this Agreement .......... 5
Mutilated, Lost, Stolen or Destroyed Agreement ....... 6
ARTICLE 4
REPRF~ENTATIONS 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 RF!.ATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FED~ INCOME TAXATION
SECI~ON 5.1
SEC~ON 5.2
Intent of City and Tax Covenant of City ............ 9
Acknowledgment of Seller with Regard to Tax
Consequences of Transaction ................... 9
ARTICLE 6
SECTION 6.1
SECTION 6.2
SECTION 6.3
SECTION 6.4
SEC~ON 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
S~ON 7.1
SECTION 7.2
SECTION 7.3
S~ON 7.4
SECI~ON 7.5
S~ON 7.6
SECFION 7.7
SECHON 7.8
S~ON 7.9
SECTION 7.10
Successors of City ......................... 10
Parties in Interest .......................... 10
Binding Effect ............................ 11
Severability ............................. 11
Prior Agreements Cancelled; No Merger ............ 11
Amendments, Changes and Modifications ........... 11
No Personal Liability of City Officials ............. 11
Governing Law ........................... 11
Notices ................................ 11
Holidays ............................... 12
Signatures and Seals ..................................... 12
EXHIBIT A-
EXHIBIT B -
EXHIBIT C -
EXH~IT D -
EXI-IIB~ E -
Form of Deed of Easement
Description of Land
Permitted Encumbrances
Form of Assignment
Transfer of Agreement - Schedule of Transferees
INSTAr.I.MI:~NT PURCHASE AGR~E1VI~.NT
(Agreem~t No. 1996-7)
THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made
as of the day of , 199_ between WILLIAM E. CHAPLAIN and
MICHAEL W. CHAPLAIN (collectively, the 'Seller') and CITY OF VIRGINIA
BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the
'City").
A. Pursuant to the authority granted by the Open-Space Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as mended (the "Act"), the City
adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the
preservation of agricultural land in designated areas within the southern portion of the
city.
B. In furtherance of the purposes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of Development Rights (hereinafter defined in Section 1.1) through the
purchase of agricultural land preservation easements with respect to property located in
the portions of the City covered by the Ordinance.
C. The Seller is the owner in fee simple of Land (hereinafter defined in
Section 1.1) which is located in that portion of the City subject to the Ordinance and
meets the eligibility criteria of Section 7 of the Ordinance.
D. The Seller has agreed to sell, and the City has agreed to purchase,
Seller's Development Rights in the Land on and subject to the terms and conditions
hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller
and the City hereby agree as follows:
ARTICLE 1
DF3qN1TIONS
SECTION 1.1 l~,,flflilig~. As used in this Agreement, the following terms
have the following meanings, unless the context clearly indicates a different meaning:
"Agricultural Use" means (i) the bona fide production of crops, animal or fowl,
including, but not limited to, the production of fruits, vegetables, honey, grains, meat,
poultry and dairy products, the raising of livestock and poultry, and the production and
harvest of products from horticultural, silvicultural or aquaculmml activity, (ii)the
repair, expansion or replacement of no more than one (1) bona fide dwelling occupied
by the landowner or tenant as of the date of application for entry in the Agricultural
Reserve Program and no more than one freestanding mobile home, as permitted by
Section 19-19 of the Virginia Beach City Code, and (iii) actx..ssory uses directly rehted
to agricultural activities conducted on the same property, including the sale of
agricultural products as permitted by Section 401 of the Virginia Beach City Zoning
Ordinance. The term does not include the processing of agricultural, silvicultural,
horticultural or aquacultural products, except as an accessory use.
"Business Day' or "business day" means a day on which (a) banks located in the
City and in the city in which the principal office of the Registrar is located are not
required or authorized by law or executive order to close for business, and Co) The New
York Stock Exchange is not closed.
"City" means the City of Virginia Beach, Virginia, a body politic and corporate
and a political subdivision created and existing under and by virtue of the Constitution
and laws of the State, its successors and assigns.
"City Council" means the Council of the City.
"City Manager" means the City Manager of the City.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference
to the Code herein shall be deemed to include the United States Treasury Regulations in
effect or proposed from time to time with respect thereto.
"Deed of Easement" means the Deed of Easement of even date herewith from the
Seller to the City, which shall convey the Development Rights to the City in perpetuity.
The Deed of Easement shall be substantially in the form attached hereto as Exhibit A
and made a part hereof.
"Development Rights" mean the rights of the Seller in the Land to develop the
Land for any use other than an Agricultural Use. Development Rights shall include, but
not be limited to, the right to develop the Land for any commercial, industrial or
residential use except as expressly permitted by the Ordinance.
"Enabling Legislation" means, collectively, (1) the Open Space Land Act,
Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the
"Estate Settlement Transfer" means the transfer by the legal representative of the
estate of a deceased Seller of such Seller's rights in and to this Agreement in connection
with the distribution of the d~ Seller's estate or other settlement of such decedent
Seller's estate.
"Interest Payment Date" means lune 1 and December 1 in each year, commencing
June 1, 1997.
'Land' means the tract of land located in Virginia Beach, Virginia, containing
approximately acres, and more particularly described in Exhibit B
attached hereto and made a part hereof.
"Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the
City Council on May 9, 1995, as Appendix $ to the City Code, as the same may be
amended or modified from time to time.
"Permitted Encumbrances' mean the encumbrances listed on Exhibit C attached
hereto and made a part hereof and any encumbrances on or with respect to the Land or
any portion thereof hereafter approved, in writing, by the City.
"Person' or 'person" means any natural person, firm, association, corporation,
company, trust, partnership, public body or other entity.
"Purchase Price' means $188,266, the purchase price to be paid by the City to
the Registered Owner in accordance with this Agreement.
"Record Date' means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month immediately preceding each Interest Payment Date and the principal
payment date.
"Registered Owner" means the registered owner of this Agreement as shown on
the registration books maintained by the Registrar.
'Registrar" means First Union National Bank of Virginia or any other person
hereafter appointed by the City to act as Registrar and paying agent for this Agreement.
'Seller" means, collectively, William E. Chaplain and Michael W. Chaplain.
'State' means the Commonwealth of Virginia.
S~ON 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.
Co) The terms "agree" and "agreements" contained herein are intended
to include and mean 'covenant" and "covenants."
(c) References to Articles, Sections, and other subdivisions of this
Agreement are to the designated Articles, Sections, and other subdivisions of this
Agreement.
(d) The headings of this Agreement are for convenience only and shall
not define or limit the provisions hereof.
(e) All references made (i) in the neuter, masculine or feminine gender
shall be deemed to have been made 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 DEVELOPMEKr RIGHTS
SECTION 2.1 Agreement to Sell and Purchase Development Rights. The
Seller agrees to sell the Development Rights in the I_and to the City and the City agrees
to purchase the Development Rights in the Land from the Seller on the date hereof for
the Purchase Price.
SECTION 2.2 Delivery of Deed of Easement. In order to evidence the
sale of the Development Rights to the City, the Seller shall execute and deliver to the
City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A
and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office
of the Circuit Court of the City.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
S~ON 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_. The Purchase
Price is $188,266.
(b) Interest on the unpaid principal balance of the Purchase Price shall
accrue from the date hereof and shall be payable to the Registered Owner on June 1,
1997, and semiannually thereafter on June 1 and December I in each year to and
including , 202_, at the rate of % per annum. Interest shah be
calculated on the basis of a 360-day year of twelve 30-day months.
(c) Both the single installment of principal of the Purchase Price and
the interest on the unpaid balance thereof are payable in lawful money of the United
States of America at the time of payment.
(d) Payment of interest on the unpaid balance of the Purchase Price
shall be made by the City on each Interest Payment Date to the Registrar. The Registrar
shaJ1 forward all such interest payments by check or draft mailed to the person(s)
appearing on the registration books of the City maintained by the Registrar as the
Registered Owner on the Record Date, at the address of such Registered Owner as it
appears on such registration books. The single installment of principal of the Purchase
Price shall be paid on the principal payment date set forth in Subsection (a) above by the
Registrar to the Registered Owner as of the Record Date upon presentation and surrender
of this Agreement at the office of the Regislxar.
(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.
S~ON 3.2
Registration and Transfer of this A~reement.
(a) Until the Purchase Price and all interest thereon have been paid in
full, the City shall maintain and keep at the offices of the Registrar, registration books
for the registration and transfer of this Agreement; and upon presentation of _this
Agreement for such purpose at the offices of the Registrar, the Registrar shall register
or cause to be registered on such registration books, and permit to be transferred thereon,
under such reasonable regulations as the City or the Registrar may prescribe, the
ownership of this Agreement. The Registrar, however, shall not be required to mak~ any
such registration and transfer during the period from the Record Date to the next
su~ing Interest Payment Date or final principal payment date.
(b) Except for an Estate Settlement Transfer, this Agreement may not
be transferred by the Registered Owner prior to the expiration of a one (~1) year period
from the date this Agreement has been fully executed, delivered and become effective,
and any such attempted transfer shall be null and void. The Registrar shall be instructed
not to make any such transfers (other than an Estate Settlement Transfer) on its
registration books kept for the purpose of registering the transfer of this Agreement prior
to the expiration of said one (1) year period.
(e) The Seller is the original Registered Owner. This Agreement shall
be transferable only upon the books of the City maintained for such purpose by the
RegisWar, at the written request of the Registered Owner as then shown on such
registration books or his attorney duly authorized in writing, upon presentation and
surrender of this Agreement, together with a written instrument of transfer substantially
in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and
approved by the Registrar in writing, duly executed by the Registered Owner or his
attorney duly authorized in writing. Upon the surrender for transfer of this Agreement,
the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E
with the name, address and tax identification number of the transferee Registered Owner,
and the date of the transfer; provided, however, that if there is any conflict between the
information set forth in Exhibit E hereto and the registration books maintained by the
Registrar, the information shown on such registration books shall control.
The City and the Registrar may deem and treat the person in whose name this
Agreement is registered upon the books of the City maintained by the Registrar as the
absolute owner of this Agreement, whether any payments hereunder shall be overdue or
not, for the purpose of receiving payment of, or on account of, the Purchase Price and
interest thereon and for all other purposes, and all such payments so made to any such
Registered Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon this Agreement to the extent of the sum or sums so paid, and neither
the City nor the Registrar shall be affected by any notice to the contrary.
For every registration of transfer of this Agreement, the City or the Registrar may
make a charge sufficient to reimburse themselves for any tax or other governmental
charge required to be paid with respect to such exchange or transfer, which sum or sums
shall be paid by the person requesting such transfer as a condition precedent to the
exercise of the privilege of registering such transfer.
SECTION 3.3 Mutilated, Lost. Stolen or Destroyed Agreement. In the
event that this Agreement is mutilated, lost, stolen or destroyed, the City and the
Registered Owner (as then shown on the registration books main~ by the Registrar)
shall execute and deliver a substitute agreement having the same terms and provisions
as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any
mutilated Agreement, such mutilated Agreement shall first be surrendered to the
Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first
furnished to the City and the Registrar evidence of such loss, theft or destruction
satisfactory to the City and the Registrar, together with indemnity satisfactory to each of
them in their sole discretion. The City and the Registrar may charge the Registered
Owner requesting such new Agreement their expenses and reasonable fees, if any, in this
connection. If after the delivery of such substitute Agreement, a bona fide purchaser of
the original Agreement (in lieu of which such substitute Agreement was issued) presents
for payment such original Agreement, the City and the Registrar shall be entitled to
recover such substitute Agreement from the person to whom it was delivered or any
other person who receives delivery thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor or otherwise to the
extent of any loss, damage, cost or expense incurred by the City and the Registrar in
connection therewith.
ARTICLE 4
REPRESENTATIONS AND WARRANTIF~
S~ON 4.1 Representations and Warranties of the City. The City makes
the following representations and warranties:
of the State.
(a) The City is a body politic and corporate and a political subdivision
(b) The City has the necessary power and authority to acquire the
Development Rights, to enter into this Agreement, to perform and observe the covenants
and agreements on its part contained in this Agreement and to carry out and consummate
all transactions contemplated hereby. By proper action, the City has duly authorized the
execution and delivery of this Agreement.
(c) This Agreement has been duly and properly authorized, executed,
sealed and delivered by the City, constitutes the valid and legally binding obligation of
the City, and is enforceable against the City in accordance with its terms.
(d) There are no proceedings pending or, to the knowledge of the City,
threatened before any court or administrative agency which may affect the authority of
the City to enter into this Agreement.
SF.L'TION 4.2 R~presentations and Warranties of the Seller. The Seller
makes the following representations and warranties:
(a) The Seller has full power and authority to execute and deliver this
Agreement and the Dc~ of Easement, and to incur and perform the obligations provided
for herein and therein. No consent or approval of any person or public authority or
regulatory body is required as a condition to the validity or enforceability of this
Agreement or the Deed of Easement, or, if required, the same has been duly obtained.
(b) This Agreement and the Deed of Easement have been duly and
properly executed by the Seller, constitute valid and legally binding obligations of the
Seller, and are fully enforceable against the Seller in accordance with their respective
terms.
(c) There is no litigation or proceeding pending or, so far as the Seller
knows, threatened before any court or administrative agency which, in the opinion of the
Seller, will materially adversely affect the authority of the Seller to enter into, or the
validity or enforceability of, this Agreement or the Deed of Easement.
(d) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Seller or affecting the Land, and (ii) to the
knowledge of the Seller, no provision of law or order of court binding upon the Seller
or affecting the Land, which would conflict with or in any way prevent the execution,
delivery, or performance of the terms of this Agreement or the Deed of Easement, or
which would be in default or violated as a result of such execution, delivery or
performance, or for which adequate consents, waivers or, if neces~, releases or
subordinations, have not been obtained.
(e) There exist no liens, security interests or other encumbrances on
or with respect to the Land (other than Permitted Encumbrances), and at the time of
execution and delivery of the Deed of Easement there will be no Hens, security interests
or other encumbrances of the Development Rights to be conveyed thereby.
(0 The Seller is not a nonresident alien of the United States of
America for purposes of federal income taxation.
(g) The Social Security Numbers of the Seller are 230-02-4028 (for
William E. Chaplain) and 230-02-4566 (for Michael W. Chaplain).
The representations in subsections (0 and (g) above are made under penalties of perjury
and the information contained therein may be disclosed by the City to the Internal
Revenue Service. The Seller acknowledges that any false statement in such subsections
could be punished by fine, imprisonment or both.
ARTICLE
PROVISIONS lz~I~ATING TO EXCLUSION
OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION
SECWION 5.1 Intent of City and Tax Covenarl[ of City_. The City intends
that the interest payable under this Agreement shall not be includable in the gross income
of the Registered Owner for purposes of federal income taxation pursuant to Section 103
of the Code. Accordingly, the City shall not knowingly take or permit to be taken any
other action or actions or omit or fail to take any action, which would cause this
Agreement to be an "arbitrage bond" within the meaning of Section 148 of the Code, or
which would otherwise cause interest payable under this Agreement to become includable
in the gross income of any Registered Owner for purposes of federal income taxation.
S~ON 5.2 Ackngwledgment of Seller with Regard to Tax
Consoquences of Transaction. The Seller has received an opinion from Kaufman &
Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing
laws, regulations, rulings and decisions, interest payable under this Agreement is not
includable in the gross income of the Seller for federal income tax purposes, which
opinion assumes continuous compliance with certain covenants in the Tax Certificate and
Compliance Agreement to be executed and delivered by the City on the date of delivery
of this Agreement and is otherwise limited in accordance with its terms. The Seller
acknowledges that Seller has made Seller's own independent investigation and has
consulted with such attorneys, accountants and others as the Seller shall have selected in
the Seller's sole discretion to advise the Seller with respect to all other tax considerations
related to the transaction contemplated hereby (including, but not limited to, installment
sales treatment under Section 453 of the Code, charitable contribution deductions under
Section 170 of the Code, and federal estate tax implications); and the Seller certifies that
the Seller has not looked to or relied upon the City or any of its officials, agents or
employees, or to Bond Counsel, with respect to any of such matters.
ARTICLE 6
THE REGISTRAR
SECTION 6.1 Am~ointment of Registrar. First Union National Bank of
---- --
Virginia is hereby designated and appointed to act as Registrar for this Agreement.
SECTION 6.2 Ownership of Agreement. The Registrar, in its individual
capacity or as trustee for holders of participation interests in this Agreement, may in
good faith buy, sell, own and hold this Agreement, and may join in any action which any
Registered owner may be entitled to take with like effect as if it did not act as Registrar
hereunder. The Registrar, in its individual capacity, either as principal or agent, may
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 ff it
did not act in any capacity hereunder.
SF.L'HON 6.3 Removal of Registrar and Ap_oointment of Successor
Eg~gi,~l~. The City shall have the right, subject to the terms of any agreement with the
RegisU'ar, to remove the Registrar any time by filing with such Registrar to be removed,
and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing,
such removal shall not be effective until a suer Registrar has assumed the
Registral"S duties hereunder. The City shall have the sole right to select a successor
Registrar.
SECTION 6.4 _Oualifications of Successor Regisultr. Any stw. c. essor
Registrar shall be either (a) the Department of Finance of the City, Co) an officer or
employee of the City, or (c) a bank, trust company or other financ~ 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.
SF.L"FION 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
M/SCELLANEOUS
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
instrumen_m__lity to whom or to which any power or duty of the City shall be transferred.
SF.L'TION 7.2 Parlie~ in Interest. Except as herein otherwise ~caily
provided, nothing in this Agreement expressed or implied is intended or shah be
construed to confer upon any person, firm or corporation, other than the City, the Seller,
any other Registered Owner and the Registrar, any right, remedy or claim under or by
reason of this Agreement, this Agreement being intended to be for the sole and exclusive
10
benefit of the City, the Seller, any other Registered Owner from time to time of this
Agreement and the Registrar.
SECTION 7.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, personal representatives,
successors and assigns, including, without limitation, all Registered Owners from time
to time of this Agreement.
SECTION 7.4 Severability. In case any one or more of the provisions of
this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of this Agreement and this Agreement
shall be construed and enforced as if such illegal or invalid provisions had not been
contained herein or therein.
SECTION 7.5 Prior A_m'eements Cancelled: No Merger. This Agreement
shall completely and fully supersede all other prior agreements, both written and oral,
between the City and the Seller relating to the acquisition of the Development Rights.
Neither the City nor the Seller shall herea~r 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.
SEL-'FION 7.6 Amendments. Changes and Modifications. This Agreement
may not be amended, changed, modified, altered or terminated except by an agreement
in writing between the City and the then Registered Owner. An executed counterpart of
any such amendment shall be attached to this Agreement and shall be binding upon such
Registered Owner and all successor Registered Owners.
SECTION 7.7 No Personal Liability of City Officials. No covenant or
agreement contained in this Agreement shall be deemed to be the covenant or agreement
of any official, officer, agent or employee of the City in his or her individual capacity,
and neither the officers or employees of the City nor any official executing this
Agreement shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the issuance thereof.
SECTION 7.8 Governing Law. The laws of the State shall govern the
construction and enforcement of this Agreement.
SECTION 7.9 Notices. Except as otherwise provided in this Agreement,
all notices, demands, requests, consents, approvals, certificates or other communications
required under this Agreement to be in writing shall be sufficiently given and shall be
deemed to have been properly given three Business Days after the same is mailed by
11
certified mail, postage prepaid, return receipt requested, addressed to the person to whom
any such notice, demand, request, approval, certificate or other communication is to be
given, at the address for such person designated below:
City:
City Manager
Municipal Center
Virginia Beach, VA 23456
with a copy to:
City Attorney
Municipal Center
Virginia Beach, VA 23456
Seller:
William E. Chaplain
1508 Pleasant Ridge Road
Virginia Beach, Virginia 23456
Michael W. Chaplain
4921 Morris Neck Road
Virginia Beach, Virginia 23457
Registrar:
First Union National Bank of Virginia
Corporate Trust Department
2nd Floor
901 East Cary Street
Richmond, Virginia 23219
Any of the foregoing may, by notice given hereunder to each of the others, designate any
further or different addresses to which subsequent notices, demands, requests, consents,
approvals, certificates or other communications shall be sent hereunder.
SEC~ON 7.10 Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any fight, as provided in this
Agreement, shall not be a Business Day, such payment may, unless otherwise provided
in this Agreement, be made or act performed or right exercised on the next succeeding
Business Day with the same force and effect as if done on the nominal date provided in
this Agreement, and in the case of payment no interest shall accrue for the period after
such nominal date.
WITNESS the signatures and seals of the parties hereto as of the date first above
written.
12
[CITY'S SEAL]
crrY OF VIRG~ BEACH, VIRG~
A'FrEST:
By:
James K. Spore, City Manager
City Clerk
,(SEAL)
Approved as to Legal
Sufficiency
Approved as to Sufficiency of
Funds:
Deputy City Attorney
Director, Department of Finance
13
COMMONWEAL~ OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before me in the City of
., Virginia, this day of ,
19__, by James K. Spore, City Manager of the City of Virginia Beach, V'u-ginia, 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
, Virginia, this day of
1997, by William E. Chaplain.
me in the City of
(SEAL)
My Commission Expires:
Notary Public
14
COMMONWEALTH OF VIRGINIA
AT LARGE, to-wit:
The foregoing instrument was acknowledged before
, Virginia, this day of
1997, by Michael W. Chaplain.
me in the City
of
(SEAL)
My Commission Expire~:
Notary Public
15
Tlu$ instrument was prepared by
Virginia Beach City Attorney's Office
Exemption Claimed: § 58.1-811 (A)(3)
§ 58.1-811(C)(4)
DEED OF EASEbiK'NT
Exhibtt A
THIS DEED OF EASEMENT is made this day of , 19__,
by and between WILLIAM E. CHAPLAIN and MICItAFJ~ W. CHAPLAIN and
WILLIAM E. CHAPLAIN, Guardian for MICHAEL W. CHAPLAIN (collectively, the
"Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate
of the Commonwealth of Virginia (the 'City') whose address is Municipal Center,
Virginia Beach, Virginia 23456, Grantee.
WHEREAS, pursuant to the authority granuxl by the Open-Stmce Land Act,
Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the 'Act'), the City
adopted the Agricultural Lands Preservation Ordinanc~ (the 'Ordinance") as Appendix J
to the Code of the City of Virginia Beach, Virginia, aa amended (the "City Code"), to
promote and encourage the preservation of agricultural land in designated areas within
the southern portion of the City; and
WHEREAS, in furtherance of the pmpoaes of the Act and the Ordinance, the City
has established the Agricultural Reserve Program of the City which provides for the
acquisition of development rights through the purchase of agricultural land preservation
easements with respect to property located in the portions of the City covered by the
Ordinance; and
WHEREAS, the Grantor is the owner in fee fimple of certain agricultural real
property located in the City and more particularly deacri~ in Exhibit A hereto (the
"Land"); and
WHEREAS, the Land is located in that portion of the City subject to the
Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and
WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development
Rights (hereinafter defined) in the Land by executing and delivering this Deed of
Easement and thereby restrict the use of the Land as 6escribed herein; and
GPIN 2412-60-9315
2411-79-5353
2412-70-9104
2411-69-3743
WHEREAS, the City has agreed to purchase the Grantor's Development Rights
in the Land to fulfill the policy and purposes of the City as set forth in the Act and the
Ordinance; and
WI:IgREAS, the transfer by the Grantor of the Development Rights in the Land
Wt~REAS, in order to provide for the payment of the purchase price for the
fights in the Land created hereby, the Grantor and the City have entered into an
Imxlallme~ Purchase Agreement of even date herewith (the 'Installment Purchase
Agr,~:m~u");
GRANT
NOW, THEREFORE, for and in consideration of the sum of TEN DO~
($10.00), the covenants and promises contained herein and other good and valuable
coosideration, the receipt and sufficiency of which are hereby acknowledged, the
Gran~, for Grantor, Grantor's heirs, personal representatives, devisees, suers and
assigns, and for any subsequent owner of the Land does hereby grant and convey, with
general warranty and English covenants of rifle, unto the City, and its successors and
assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over
and ~rith reslxx:t to the Land restricting the Land to Agricultural Use and in furtherance
thereof, does hereby grant and convey, with general warranty and English covenants of
title, Ilo the City, and its suers and assigns, forever and in perpetuity, all of the
Development Rights with respect to the Land.
TERMS. COVENANTS, CONDITIONS ~ AOREEMEN'I~
A. The Grantor for Grantor, Orantor's heirs, personal representatives,
devL__~-s_, successors and assigns covenants with the City, (1) to refrain from engaging
in any act or activity, or permitting to occur or suffering to exist any act or activity upon
the Land which would constitute the exercise of a Development Right or a use other than
an Agricultural Use, it being the intention of the parties that the Land shall be preserved
for ~tural Use in accordance with the provisions of the Ordinance; and (2) that this
Deed of Fa~ment shall create a perpetual easement, running with the Land and all
portions thereof as an incorporeal and nonpossessory interest therein, enforceable against
the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or
any portion of the Land and any other person or entity having any right, rifle or interest
therein and upon their respective heirs, personal representatives, devisees, successors and
a.~gns; and (3) that the covenants, conditions, limitations and restrictions contained
herein are intended to limit the use of the Land as herein set forth.
B. The parties, for themselves, their heirs, personal representatives, devisees,
succeas~rs and assigns, further covenant and agree as follows:
(1) As used in this Deed of Easement the term 'Devel~t Rights"
shall mean the right to develop the Land for any use, including without limitation, any
commercial, industrial or residential use, other than for Agricultural Use.
(2) As used in this Deed of Easement the term 'Agfieultmal Uae"
means (i) the bona fide production of crops, animal or fowl, including, but not limited
to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy lzaxlu~,
the raising of livestock and poultry, and the production and harvest of produ~ from
horticultural, silvicultural or aquacultural activity, (ii)the rel~, expaa.qion 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 ~ and no
more than one freestanding mobile home, as permitted by Section 19-19 of the City
Code, and (iii) accesmry uses directly related to agricultural activities conducted on the
same property, including the sale of agricultural products as permitted by ,gecfion 401 of
the City Zoning Ordinance. The term does not include the processing of agrkafltural,
silvicultural, horticultural or aquacultural products, except as an accessory use.
(3) This Deed of Easement does not grant the public any right of entry
or access or any fights of use of the Land.
(4) THIS EASEMENT SHALL EXIST IN PERPETUrrY AND RUN
WITH THE ENTIRE ACREAGE OF THE LAND.
(5) The purpose of this Deed of Easement shall be to (i) promote and
encourage the preservation of farmland, and promote and enhance agriculture as an
important industry within the City, (ii) preserve the rural character of the southern part
of the City, (iii) conserve and protect environmentally sensitive lands, waters and
resources, (iv) reduce and defer the need for major infrastructure improvements in the
southern part of the City and the expenditure of public funds for such improvements,
(v) preserve open spaces, and (vi) assist in shaping the character, direction and timing
of community development.
(6) In the event of a violation or attempted violation of any of the
provisions hereof, the City and its successors and assigns, may institute and prosecute
any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent
or enjoin any such violation or attempted violation.
WITNESS, the hand and seal of thc Grantor as of the date first above written.
#[NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DE. KD-Anytlfmg
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.
(SEAL)
(SEAL)
(SEAL)
COMMONWEALTH OF VI~G~'qIA
AT LARGE, ~o-wit:
The f~ ~ was ackaowied~ before
,v-~~ ~of
19__, by W'fllimn F- Ouplain
(SE.AL)
My Commi~ Expires:
COMMON'WEALTIt OF VIR~
AT LARGE, m-wiz:
~ foreg~ instrum~t ~ a~lmowledged before me in the City of
· V'uginia, ~ dayof ,
19__, by b~hae, l W. Ckaplain , Grantor.
(SEAL)
My Commiss~ ~
Notary Public
COMM~TIt OF VIRGINIA
AT LARGE, u~-wit:
'Ihe foreg~ insmunem ~ acknowledged before me
, Virginia, ~ day of
19__, by William E. CI~_ lain. Guardian for ~ W. Chaplain
in the City of
, Grantor.
(SEAL)
My Commi~on Expires:
Notary Public
EXHIBIT
Parcel One:
ALL OF THAT CERTAIN tract, piece and parcel of land, with the
improvements thereon, and the appurtenances thereunto belonging, situate,
lying and being in the City of Virginia Beach (formerly Pungo Magisterial
District, Princess Anne County), Virginia; shown on a Plat thereof made
by W. B. Gallup, County Surveyor, March 18, 1947, attached to and
made a part of the Deed dated June 18, 1947, from Elizabeth F. Williams
(widow), et al, to Melvin M. Williams duly recorded in the Clerks Office
of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book
, at page , the property hereby conveyed being designated
thereon "Melvin Williams and Dawley Heirs, 21.0 ac', and more
particularly described as follows:
BEGINNING at a point in the eastern edge of the right of way of Dawley
Road in the center line of a ditch separating the property hereby conveyed
from property formerly of Nicholson; and from said point running along
the center line of said ditch South 65 degrees 54 minutes lost 613.2 feet
to a pump strainer at the intersection of the property of Melvin Williams;
thence along the line of the property of Williams, South 24 degrees 49
minutes West 1315.2 feet to a pin in the line of the property of Elizabeth
F. Williams; thence along the line of the property of Elizabeth F.
Williams and the School lot, North 63 degrees 48 minutes West 830 feet
to a pin in the Eastern edge of the right of way of Dawley's Road; thence
along the Eastern edge of the right of way of Dawley's Road North 36
degrees 40 minutes 1129.6 feet to a point; thence North 19 degrees 58
minutes East 182.3 feet to the point of beginning. Said tract of land
containing 21.0 acres.
parcel TWQ;
ALL THAT CERTAIN tract of land, lying East of the above mentioned
twenty-one (21) acre tract, bounded by the lands of Elizabeth F. Williams,
the twenty-one (21) acre tract, and the lands of Nicholson and others,
containing approximately sixty-five (65) acres, more or less, and the tract
of land shown on the aforementioned Plat containing 9.7 acres marked
"Melvin Williams and Dawley's Heirs", reference being made to said Plat
for a more particular description."
Parcel One and Parcel Two are also described in the aggregate as follows:
ALL THAT CERTAIN tract, piece or parcel of land, situate, lying and
being in the City of Virginia Beach (formerly Pungo Magisterial District),
Virginia, described as follows:
Bounded on the West by Charity Neck Road; Bounded on the South by
Pleasant Ridge Road; Bounded on the North by land now or formerly
owned by James O. and Doffs S. Nixon; and bounded on the East by land
now or formerly owned by Sea Bay Development Corp; including that
certain three (3) acre parcel designated 'SCHOOL LOT' and fronting
Charity Neck Road. Said parcel contains 93 acres, more or less,
including any and all improvements located thereon.
IT BEING as to Parcel One, a pan of the same property an undivided 112
interest in which was conveyed to Melvin M. Williams from Elizabeth F.
Williams, et al, by deed dated June 18, 1947, duly recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach, Virginia in
Deed Book , at page , and an undivided 1/2 interest in which
was devised to Melvin M. Williams under the will of Eliza Ann Munden
(nee Williams), duly recorded in the aforesaid Clerk's Office in Will Book
12, at page 428.
IT BEING as to Parcel Two, a part of the same property devised to
Melvin M. Williams under the will of Eliza Ann Munden (nee Williams),
duly recorded in the aforesaid Clerk's Office in Will Book 12, at page
428.
Upon the death of Melvin M. Williams, he devised all of the above
property (Parcel One and Parcel Two) to William E. Chaplain and
Michael W. Chaplain, by his will duly recorded in the aforesaid Clerk's
Office in Will Book , at page .
LESS AND EXCEFr all portions of the above-described property, if any,
which contain any of the following soil types: (1) Back Bay Mucky Peat;
(2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky
Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion
of the above described property designated and described as '#' as shown
on that certain plat entitled: "#', Scale #~ = #', dated #, prepared by #,
which plat is intended to be recorded simultaneously herewith.]
~XHIBIT B
Parcel One:
ALL OF THAT CERTAIN tract, piece and parcel of land, with the
improvements thereon, and the appurtenances thereunto belonging, situate, lying
and being in the City of Virginia Beach (formerly Pungo Magisterial District,
Princess Anne County), Virginia; shown on a Plat thereof made by W. B. Gallup,
County Surveyor, March 18, 1947, attached to and made a part of the Deed dated
June 18, 1947, from Elizabeth F. Williams (widow), et al, to Melvin M.
Williams duly recorded in the Clerks Office of the Circuit Court of the City of
Virginia Beach, Virginia, in Deed Book , at page . , the property
hereby conveyed being designated thereon 'Melvin Williams and Dawley Heirs,
21.0 ac', and more particularly described as follows:
BEGINNING at a point in the eastern edge of the right of way of Dawley Road
in the center line of a ditch separating the property hereby conveyed from
property formerly of Nicholson; and from said point running along the center line
of said ditch South 65 degrees 54 minutes East 613.2 feet to a pump strainer at
the intersection of the property of Melvin Williams; thence along the line of the
property of Williams, South 24 degrees 49 minutes West 1315.2 feet to a pin in
the line of the property of Elizabeth F. Williams; thence along the line of the
property of Elizabeth F. Williams and the School lot, North 63 degrees 48
minutes West 830 feet to a pin in the Eastern edge of the fight of way of
Dawley's Road; thence along the Eastern edge of the fight of way of Dawley's
Road North 36 degrees 40 minutes 1129.6 feet to a point; thence North 19
degrees 58 minutes East 182.3 feet to the point of beginning. Said tract of land
containing 21.0 acres.
Parcel Two;
ALL THAT CERTAIN tract of land, lying East of the above mentioned twenty-
one (21) acre tract, bounded by the lands of Elizabeth F. Williams, the twenty-
one (21) acre tract, and the lands of Nicholson and others, containing
approximately sixty-five (65) acres, more or less, and the tract of land shown on
the aforementioned Plat containing 9.7 acres marked "Melvin Williams and
Dawley's Heirs", reference being made to said Plat for a more particular
description."
Parcel One and Parcel Two are also described in the aggregate as follows:
ALL THAT CERTAIN tract, piece or parcel of land, situate, lying and being in
the City of Virginia Beach (formerly Pungo Magisterial Distric0, Virginia,
described as follows:
Bounded on the West by Charity Neck Road; Bounded on the South by Pleasant
Ridge Road; Bounded on the North by land now or formerly owned by James O.
and Doris S. Nixon; and bounded on the East by land now or formerly owned by
Sea Bay Development Corp; including that certain three (3) acre parcel designated
*SCHOOL LOT* and fronting Charity Neck Road. Said parcel contains 93
acres, more or less, including any and all improvements located thereon.
IT BEING as to Parcel One, a part of the same property an undivided 1/2 interest
in which was conveyed to Melvin M. Williams from EliTobeth F. Williams, et
al, by deed dated June 18, 1947, duly recorded in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia in Deed Book.. ,, at
page , and an undivided 1/2 interest in which was devised to Melvin M.
Williams under the will of Eliza Ann Munden (nee Williams), duly recorded in
the aforesaid Clerk's Office in Will Book 12, at page 428.
IT BEING as to Parcel Two, a part of the same property devised to Melvin M.
Williams under the will of Eliza Ann Munden (nee Williams), duly recorded in
the afore~d Clerk's Office in Will Book 12, at page 428.
Upon the death of Melvin M. Williams, he devised all of the above property (
Parcel One and Parcel Two) to William E. Chaplain and Michael W. Chaplain,
by his will duly recorded in the aforesaid Clerk's Office in Will Book , at
page ~.
LESS AND EXCEPT all portions of the above-d~bed property, if any, which
contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan
Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded.
[LESS AND EXCEPT that certain tract, piece or parcel being a portion of the
above described property designated and described as *#~ as shown on that
certain plat entitled: *#~, Scale #* = #', dated #, prepared by #, which plat is
intended to be recorded simultaneously herewith.]
EXHIBIT C
PERMITTED ENCUMBRANC~
[SEE A~FACHI~II]
18
ASSIG~
EXHIBIT D
FOR VALUE RECEIVED,
and
([collectively,] the 'Registered Owner") hereby sell[si, assign[s] and transfer[s] unto
, without recourse, all of the Registered Owner' s
right, title and interest in and to the Installment Purchase Agreement to which this
Assignment is attached; and the Registered Owner hereby irrevocably directs the
Registrar (as defined in such Agreement) to transfer such Agreement on the books kept
for registration thereof. The Registered Owner hereby represents, warrants and certifies
that there have been no amendments to such Agreement [except
,
Date:
Signature guaranteed:
NOTICE: Signature must be
guaranteed by a member firm
the New York Stock
Exchange or a commercial
bank or trust company.
NOTICE: The signature on this
Assignment must correspond with of
the name of the Registered Owner
as it appears on the registration
books for the Ins~llment Purchase
Agreement referred to herein in every
particular, without alteration or
enlargement or any change whatever.
19
EXHIBIT E
TRANSFER OF AGRI~I~_IV~ - SCI-IF~DULF~ OF TRANSFI:RI~.B_S
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.
Xe
Date of
Registration of
Transfer
Name and
Address of
Transferee
Registered Seller
Tax I.D. No.
of Transferee
Signature of Registrar
,
4,
e
e
2O
- 23 -
Item V-J.2
CONSENT AGENDA
ORDINANCES/RES OL UTIONS
ITEM # 41599
Upon motion by Vgce Mayor Sessoms, seconded by Councilman Baum, City Council DEFERRED UNTIL
JANUARY 28, 1997 COUNCIL MEETING:
Resolution re legislation designating real and personal property owned
by Blackwater Creeds Foundation as being EXEMPT from state, local
real and personal property taxation.
Voting:
10-0 (By Consent)
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf, Nancy IC Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 24 -
Item V-~.$.
CONSENT AGENDA
ORDINANCES~RESOLUTIONS
ITEM # 41600
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Resolution, (4th Supplement), to AMEND the City's Master Bond
Resolution adopted February 11, 1992, to include Water and Sewer
System Revenue Bonds, Series of 1997; and, to approve the Financing
Agreement with the Virginia Resources Authority (VRA) which provides
for the terms and conditions of the repayment of the $7,500,000 loan
from the Virginia Water Facilities Revolving Fund for the Sandbridge
Sewer (CIP 6-95D.
Voting:
9-1 (By ConsenO
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison. Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf and Vice Mayor William D. Sessoms, Jr.
Council Members Voting Nay:
Nancy K. Parker
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
TABLE OF CONTENTS
Page
Recitals ...................... i
ARTICLE I
FOURTH SUPPLEMENTAL RESOLUTION
Section 4.101. Fourth Supplemental Resolution ...... 1
Section 4.102. Meaning of Terms; Definitions ...... 2
Section 4.103. Reference to Articles and Sections .... 2
ARTICLE II
19 9.7, .PROJECT
Section 4.201. Authorization of 1997 Project ...... 2
ARTICLE III
I~SU,AN.CE AND S,ALE OF SERIES OF 1997 BOND_
Section 4.301. Issuance and Sale of Series of 1997 Bond . 2
Section 4.302. Authorization of Financing Agreement . . . 3
Section 4.303. Details of Series of 1997 Bond ...... 3
Section 4.304. Registrar. ............... 3
Section 4.305. Form of Series of 1997 Bond ....... 3
Section 4.306. Security for Series of 1997 Bond ..... 8
Section 4.307. Application of Proceeds ......... 9
Section 4.308. Payment Provisions ........... 9
Section 4.309. Determinations by city Manager ...... 10
ARTICLE IV
REDEMPTION OF SER. IES OF 1997 BOND
Section 4.401. Redemption Provisions .......... 10
ARTICLE V
AMENDMENTS TO MASTER, RESOLUTION
Section 4.501. Amendment to Section 603 ......... 10
Section 4.502. Amendment to Section 604 ......... 10
Section 4.503. Amendment to Section 605 ......... 11
ARTICLE VI
MISCELLANEOUS
Section 4.601. Limitation of Rights ........... 11
Section 4.602. Severability ............... 12
Section 4.603. Effective Date .............. 12
Appendix A - Description of the 1997 Project
CITY OF VIRGINIA BEACH, VIRGINIA
FOURTH SUPPLEMENTAL RESOLUTION SUPPLEMENTING AND AMENDING
RESOLUTION ADOPTED FEBRUARY 11, 1992, ENTITLED ~MASTER WATER
AND SEWER RE%'END~ BOND RESOLUTION PROVIDING FOR THE ISSUANCE
FROM TIM~ TO TIME OF ONE OR MORE SERIES OF WATER AND SEWER
SYSTEM REVEN~E BONDS OF THE CITY OF VIRGINIA BEACH," AS
PREVIOUSLY SUPPL_m~I~TTED AND AMENDED, TO PROVIDE FOR THE
ISSUANCE AND SALE OF A TAXABLE WATER AND SEWER SYSTEM REVENUE
BOND, SERIES OF 1997, AND PROVIDING FOR THE FORM, DETAILS AND
PAYMENT THEREOF AND THE FINANCING OF THE COST OF IMPROVEMENTS
TO THE CITY~ S WATER AND SANITARY SEWER FACILITIES
ADOPTED ON JANUARY 7, 1997
FOIIRTH SUPPL~NTAL RESOLUTION SUPPLEMENTING AND AM]KNDING
RESOLUTION ADOPTED FEBRUARY 11, 1992, ENTITLED nMASTER WATER
AND SEWER REVENDE BOND RESOLUTION PROVIDING FOR THE ISSUANCE
FROM TIME TO TIME OF ONE OR MORE SERIES OF WATER AND SEWER
SYSTEM REVENU~ BONDS OF THE CITY OF VIRGINIA BEACH," AS
PREVIOUSLY SUPPL_~¥~9~D AND AMENDED, TO PROVIDE FOR THE
ISSUANCE AND SALE OF A TAXABLE WATER AND SEWER SYSTEM REVENUE
BOND, SERIES OF 1997, AND PROVIDING FOR THE FORM, DETAILS AND
PAYMENT THEREOF AND THE FINANCING OF THE COST OF IMPROVEMENTS
TO THE CITY tS WATER AND SANITARY SEWER FACILITIES
WHEREAS, the Council (the "Council") of the City of Virginia
Beach, Virginia (the "City"), adopted a resolution on February 11,
1992, providing for the issuance from time to time of water and
sewer revenue bonds to finance the cost of improvements and
extensions to its water and sanitary sewer system;
WHEREAS, the Council desires to issue pursuant to the
foregoing resolution not more than $1,950,000 of the $7,400,000
water and sewer system revenue bonds authorized by an ordinance
adopted by the Council on November 23, 1993, $1,417,000 of the
$14,080,000 water and sewer system revenue bonds authorized by an
ordinance adopted by the Council on May 10, 1994, and $4,133,000 of
the $6,593,000 water and sewer system revenue bonds authorized by
an Ordinance adopted by the Council on May 9, 1995, and to sell
such bonds as a single issue in a collective amount not to exceed
$7,500,000; and
WHEREAS, the City has applied to the Virginia Water Facilities
Revolving Fund (the "Revolving Fund"), which is administered by
Virginia Resources Authority ("VRA"), for the purchase of the
City's water and sewer system revenue bonds, and the Revolving
Fund, acting by and through VRA, has agreed to purchase such bonds
pursuant to the terms of a Financing Agreement dated as of January
1, 1997, between the Revolving Fund and the City (the "Financing
Agreement"), the form of which has been presented to this meeting.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
VIRGINIA:
ARTICLE I
FOURTH SUPPLEMENTAL RESOLUTION
Section 4.101. Fourth Supplemental Resolution. This Fourth
Supplemental Resolution is adopted pursuant to and in accordance
with Section ll01(g) of the Master Resolution. All covenants,
conditions and agreements of the Master Resolution shall apply with
equal force and effect to the Series of 1997 Bond and to the
holders thereof, except as otherwise provided herein.
Section 4.102. Meaning of Terms; Definitions. Except as
otherwise defined herein, terms defined in the Master Resolution
are used in this Fourth Supplemental Resolution with the meanings
assigned to them in the Master Resolution. In addition to other
terms defined elsewhere herein, the following terms shall have the
following meanings in this Fourth Supplemental Resolution.
"Master Resolution" shall mean the resolution adopted by the
Council on February 11, 1992, establishing a program for financing
improvements and extensions to the System.
"1997 Project" shall mean the acquisitions, improvements,
extensions, additions and replacements to the System as described
in Article II.
"Registrar" shall mean the City Treasurer acting as paying
agent and bond registrar for the Series of 1997 Bond.
"Series of 1997 Bond" shall mean the Taxable Water and Sewer
System Revenue Bond, Series of 1997, in the amount determined by
the City Manager not in excess of $7,500,000 to be issued in
accordance with the provisions of Article III.
"Fourth Supplemental Resolution" shall mean this Fourth
Supplemental Resolution which supplements the Master Resolution.
Section 4.103. Reference to Articles and Sections. Unless
otherwise indicated, all references herein to particular articles
or sections are references to articles or sections of this Fourth
Supplemental Resolution.
ARTICLE II
1997 PROJECT
Section 4.201. Authorization of 1997 Project. The Council
has authorized the acquisitions, improvements, extensions,
additions and replacements to the System described on Appendix A,
which are part of the approved capital improvement program of the
City.
ARTICLE III
ISSUANCE AND $.ALE OF SERIES OF 1997 BOND
Section 4.301. Issuance and Sale of Series of 1997 Bond. The
City hereby provides for the issuance of water and sewer system
revenue bonds in the maximum principal amount of $7,500,000,
consisting of not more than $1,950,000 of the $7,400,000 water and
sewer system revenue bonds authorized by an ordinance adopted by
the Council on November 23, 1993, $1,417,000 of the $14,080,000
water and sewer system revenue bonds authorized by an ordinance
adopted by the Council on May 10, 1994, and $4,133,000 of the
$6,593,000 water and sewer system revenue bonds authorized by an
ordinance adopted by the Council on May 9, 1995, which such bonds
shall be issued and sold to the Revolving Fund. Subject to the
limitations set forth in the preceding sentence, the City Manager
is hereby authorized to determine at the time of the sale of the
bonds the specific amounts to be issued from the three authorizing
ordinances. The proceeds thereof shall be used to pay the Cost of
the 1997 Project. All such bonds shall constitute Bonds, as
defined in the Master Resolution.
Section 4.302. Authorization of Financing Agreement. The
form of the Financing Agreement is approved. The City Manager is
authorized to execute the Financing Agreement in substantially such
form, with such completions, omissions, insertions and changes not
inconsistent with this Fourth Supplemental Resolution as may be
approved by the City Manager, whose approval shall be evidenced
conclusively by the execution and delivery thereof. The issuance
and sale of the Series of 1997 Bond to the Revolving Fund shall be
upon the terms and conditions of the Master Resolution, this Fourth
Supplemental Resolution and the Financing Agreement.
Section 4.303. Details of Series of 1997 Bond. The Series of
1997 Bond shall be issued as a single, registered bond and shall be
designated "Taxable Water and Sewer System Revenue Bond, Series of
1997." The Series of 1997 Bond shall be dated the date of its
delivery to the Revolving Fund and shall provide for the Revolving
Fund to make principal advances from time to time in an aggregate
amount not to exceed $7,500,000 and to note such advances on the
Series of 1997 Bond as moneys are advanced by the Revolving Fund
thereunder. An authorized representative of the Revolving Fund
shall enter the amount and the date of each such principal advance
on the Certificate of Principal Advances on the Series of 1997 Bond
when the proceeds of each such advance are delivered to the City.
Except as otherwise provided herein, the Series of 1997 Bond
shall be payable, executed, authenticated, registrable, exchange-
able and secured, all as set forth in the Master Resolution and the
Financing Agreement.
Section 4.304. Registrar. The selection of the City
Treasurer as paying agent and bond registrar for the Series of 1997
Bond is approved.
Section 4.305. Form of Series of 1997 Bond. The Series of
1997 Bond shall be in substantially the following form, with such
variations, omissions and insertions as may be necessary to set
forth the details thereof pursuant to Article II of the Master
Resolution:
Interest on this bond is included in the gross income of the
registered owner hereof for Federal income tax purposes.
Rol
[January __, 1997]
UNITED STATES OF AMERICA
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH
Taxable Water and Sewer System Revenue Bond
Series of 1997
The City of Virginia Beach, Virginia (the "City"), a political
subdivision of the Commonwealth of Virginia, for value received,
acknowledges itself in debt and promises to pay to the Virginia
Water Facilities Revolving Fund (the "Fund"), or its registered
assigns or legal representative, the principal sum equal to the sum
of the principal advances shown on the Certificate of Principal
Advances below, but not to exceed SEVEN MILLION FIVE HUNDRED
THOUSAND DOLLARS ($7,500,000), together with interest on the unpaid
principal from the date of each advance made and noted on the
Certificate of Principal Advances at the rate of 4.75% per year,
calculated on the basis of a 360-day year of twelve 30-day months.
Interest only is due on June 1, 1998. Thereafter, equal install-
ments of combined principal and interest of $ are payable
on each June I and December 1, beginning December 1, 1998, with a
final installment of $ due on December 1, 2017. Each
installment shall be applied first to the payment of interest
accrued and unpaid to the payment date and then to principal. If
the aggregate amount of principal advances is less than $ ,
then the installments due on the Bond shall be reduced to the
extent thereof as provided in the Financing Agreement. If not
sooner paid, all amounts due under this bond shall be due and
payable on December 1, 2017.
Ail amounts due hereunder are payable in lawful money of the
United States. Payments shall be made by check or draft mailed to
the registered owner at its address as it appears on the registra-
tion books kept for that purpose by the City Treasurer who has been
appointed paying agent and registrar (the "Registrar"), on the 15th
day of the month preceding the payment date, except that the final
payment is payable upon presentation and surrender of this bond at
the office of the Registrar.
No notation is required to be made on this bond of any payment or
prepayment of principal. THEREFORE, THE FACE AMOUNT OF THIS BOND
MAY EXCEED THE PRINCIPAL SUM REMAINING OUTSTANDING AND DUE
HEREUNDER.
This bond has been authorized by ordinances adopted by the
Council of the City on November 23, 1993, May 10, 1994, and May 9,
1995 (collectively, the "Ordinance"), and is issued pursuant to the
Constitution and statutes of the Commonwealth of Virginia,
including the Public Finance Act of 1991, a resolution adopted by
the Council on February 11, 1992, as supplemented and amended by
resolutions adopted February 11, 1992, December 7, 1993, November
8, 1994, and [January 7, 1997] (collectively with the Ordinance,
the "Resolution"), and a financing agreement dated as of January 1,
1997, between the City and the Fund, acting by and through the
Virginia Resources Authority (the "Financing Agreement"), to
finance, in part, improvements to the City's water and sanitary
sewer system (the "System"), including the construction of vacuum
sewer, pumping stations and associated force mains in the Sandbrid-
ge area of the City. The City's obligations under this bond shall
terminate when all amounts due and to become due pursuant to this
bond and the Financing Agreement have been paid in full. All terms
not otherwise defined herein shall have the meanings assigned to
them in the Resolution.
This bond and the interest thereon are limited obligations of
the City and are payable solely from the revenues to be derived
from the ownership or operation of the System, as the same may from
time to time exist, except to the extent payable from the proceeds
of the Bonds, the income, if any, derived from the investment
thereof, certain reserves, income from investments pursuant to the
Resolution or proceeds of insurance, which revenues and other
moneys have been pledged as described in the Resolution to secure
payment thereof. This Bond and the interest thereon are payable
solely from the revenues pledged thereto in the Resolution, and
nothing herein, the Resolution or in the Financing Agreement shall
be deemed to create or constitute a pledge of the faith and credit
of the Commonwealth of Virginia or of any county, city, town or
other political subdivision of the Commonwealth, including the
City.
The City has covenanted and agreed to fix, charge and collect
rates, fees and other charges for the use of and for services
furnished or to be furnished by the System, and will from time to
time and as often as appears necessary, revise such rates, fees and
other charges so as to meet the following two independent require-
ments: (a) Revenues will be sufficient in each Fiscal Year to equal
the sum of (1) the Operating Expenses shown in the Annual Budget
for such Fiscal Year, and (2) (A) 115% of the sum of Maximum Annual
Debt Service and Maximum Annual Prior Parity Bond Debt Service, and
(B) 100% of the Maximum Annual Additional Parity Debt Service; and
(b) Revenues shall be sufficient in each Fiscal Year to equal the
sum of (1) the Operating Expenses shown in the Annual Budget for
such Fiscal Year, (2) the amount, if any, required to be paid into
the Renewal and Replacement Fund in such Fiscal Year, (3) the
amount required to be paid into the Revenue Bond Fund in such
Fiscal Year, (4) the amount required to be paid into the Parity
Double Barrel Bond Fund in such Fiscal Year, (5) the amount
required to be paid into the Parity Debt Service Component Fund in
such Fiscal Year, (6) the amount required to be paid into the
Subordinate Debt Fund in such Fiscal Year, (7) the principal of and
premium, if any, and interest on all other indebtedness of the City
attributable to the System that becomes due in such Fiscal Year,
(8) the amount transferred to the Capital Improvement Account for
the immediately preceding Fiscal Year or such other amount as may
be determined by the City's Director of Public Utilities, and (9)
any amount necessary to be paid into the Debt Service Reserve Fund
to restore the amount on deposit therein to the amount of the Debt
Service Reserve Requirement.
This bond is issued under and is equally and ratably secured
on a parity with the unpaid balance of the City's $5,100,000 Water
and Sewer Revenue Notes, 1977 (P.A. Corp.), $2,000,000 Drought
Relief Revenue Bond, 1978, $2,200,000 Water and Sewer Revenue
Notes, 1982 (County Utilities), $1,800,000 Water and Sewer Revenue
Notes, 1982 (Kempsville Utilities), $19,975,000 Water and Sewer
System Revenue Bonds, Series of 1992, $46,440,000 Water and Sewer
System Revenue and Refunding Bonds, Series of 1993, and
$1,405,031.36 Taxable Water and Sewer System Revenue Bond, Series
of 1994, to the extent set forth in the Resolution. Reference is
hereby made to the Resolution and all amendments and supplements
thereto for a description of the provisions, among others, with
respect to the nature and extent of the security, the rights,
duties and obligations of the City, the rights of the holders of
this bond and the terms upon which the bond is issued and secured.
Additional bonds ranking equally with this bond may be issued on
the terms provided in the Resolution and the Financing Agreement.
This bond is subject to prepayment to the extent and under
terms set forth in the Financing Agreement.
This bond is issued as a registered bond and may be trans-
ferred only in accordance with the provisions with respect thereto
as provided in the Resolution and the Financing Agreement.
This bond may be exchanged without cost at the office of the
Registrar for bonds in printed form in denominations of $5,000 and
multiples thereof (except that one bond for each payment date may
be issued in an odd denomination of not less than $5,000) in an
aggregate principal amount equal to the unpaid principal of this
bond.
If an Event of Default, as defined in the Resolution, occurs
and is continuing, the principal of this bond may be declared
immediately due and payable by the registered owner by written
notice to the City.
Notwithstanding anything in this bond to the contrary, in
addition to the payments of debt service provided for by this bond,
the City shall also pay such additional amounts, if any, which may
be necessary to provide for payment in full of all amounts due
under the Financing Agreement, including late payment charges equal
to 5.0% of any payment received by the registered owner of this
bond more than 10 days from its due date, but only from legally
available funds.
Ail acts, conditions and things required by the Constitution
and statutes of the Commonwealth of Virginia to happen, exist or be
performed precedent to and in the issuance of this bond have
happened, exist and have been performed, and this bond, together
with all other indebtedness of the City, is within every debt and
other limitation prescribed by the Constitution and statutes of the
Commonwealth of Virginia.
This bond shall not be valid or be entitled to any security or
benefit under the Resolution until the Registrar shall have
executed the Certificate of Authentication appearing hereon and
inserted the date of authentication hereon.
IN WI~SS W~EREOF, the City of Virginia Beach, Virginia, has
caused this bond to be signed by its Mayor, to be countersigned by
its Clerk, its seal to be affixed hereto and this bond to be dated
, 1997.
COUNTERSIGNED:
City Clerk, City of
Virginia Beach, Virginia
(SEAL)
Mayor, City of Virginia
Beach, Virginia
CERTIFICATE OF AUTHENTICATION
Date Authenticated:
This bond is one of the bonds described in the within-
mentioned Resolution.
City Treasurer, Registrar
By
Authorized Signature
CERTIFICATE OF PRINCIPAL ADVANCES
The amount and date of principal advances not to exceed the
face amount hereof shall be entered hereon by an authorized
representative of the Fund when the proceeds of each such principal
advance are delivered to the City.
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Amo~n ~ Da t ·
Authorized Signature
Section 4.306. Security for Series of 1997 Bond. The Series
of 1997 Bond shall be issued pursuant to the Master Resolution,
this Fourth Supplemental Resolution and the Financing Agreement and
shall be equally and ratably secured under and to the extent
provided in the Master Resolution with the Prior Parity Bonds, any
Bonds that may be issued under the Master Resolution, any Parity
Double Barrel Bonds that may be issued and any Parity Debt Service
Components that may be incurred, without preference, priority or
distinction of any obligations over any other obligations;
provided, however, the Debt Service Reserve Fund will secure only
the Bonds.
Section 4.307. Applic&tion of Proceeds. The proceeds of the
Series of 1997 Bond shall be applied as follows:
(a) The amount of Series of 1997 Bond proceeds neces-
sary, together with amounts on deposit in the Debt Service
Reserve Fund, to equal the Debt Service Reserve Requirement
after the issuance of the Series of 1997 Bond shall be paid to
the Fiscal Agent and deposited into the Debt Service Reserve
Fund.
(b) The balance of the proceeds shall be deposited as
and when received from the Revolving Fund to a General Account
in the Construction Fund to be used to pay the Cost of the
1997 Project and to pay expenses incident to issuing the
Series of 1997 Bond.
Section 4.308. Payment Provisions. The Series of 1997 Bond
shall bear interest on the unpaid principal from the date of each
principal advance as recorded on the Series of 1997 Bond at a rate
of 4.75% per year, calculated on the basis of a 360-day year of
twelve 30-day months. Accrued interest on all amounts advanced
shall be due and payable on June 1, 1998. Thereafter equal
installments of combined principal and interest shall be due and
payable on each December 1 and June 1, beginning December 1, 1998,
with a final installment due and payable no later than December 1,
2017. The Council authorizes the City Manager to determine the
amounts of such combined principal and interest installment
payments; provided, however, that the aggregate principal component
of such installment payments shall not exceed $7,500,000. Each
installment shall be applied first to payment of interest accrued
and unpaid to the payment date and then to principal. If the
aggregate amount of principal advances on the Series of 1997 Bond
shall be less than the denomination of the Series of 1997 Bond, the
principal amount due shall be reduced to the extent thereof, as
provided in the Financing Agreement. The Series of 1997 Bond shall
be payable solely from Revenues and nothing in the Financing
Agreement, the Series of 1997 Bond or this Fourth Supplemental
Resolution shall be deemed to create or constitute a pledge of the
faith and credit of the Commonwealth of Virginia or of any county,
city, town or other political subdivision of the Commonwealth,
including the City. In addition, the City shall pay a late payment
charge as provided in the Financing Agreement if any payment is not
received within 10 days of its due date, but only from legally
available funds. All payments due on the Series of 1997 Bond shall
be payable as provided in the Financing Agreement in lawful money
of the United States of America. Payments shall be made by check
or draft mailed to the registered owner at its address as it
appears on the registration books kept for that purpose by the
Registrar, on the 15th day of the month preceding the payment date,
except that the final payment is payable upon presentation and
surrender of the Series of 1997 Bond at the office of the Regis-
trar. The City intends that amounts constituting interest on the
Series of 1997 Bond will be included in the gross income of the
holder thereof for Federal income tax purposes.
Section 4.309. Determinations by City Man&ger. Following the
sale of the Series of 1997 Bond, the City Manager shall file a
certificate with the City Clerk setting forth the final payment
provisions of the Series of 1997 Bond and the amounts of the water
and sewer system revenue bonds to be issued as a part of the Series
of 1997 Bond from the amounts authorized by the ordinances
referenced in Section 4.301. The actions of the City Manager in
determining the final payment provisions of the Series of 1997 Bond
shall be conclusive, and no further action with respect to the sale
and issuance of the Series of 1997 Bond shall be necessary on the
part of the City Council.
ARTICLE IV
REDEMPTION OF SERIES OF 1997 BQND
Section 4.401. Redemption Provisions. The Series of 1997
Bond shall be subject to prepayment as set forth in Section 7.1 of
the Financing Agreement.
ARTICLE V
AMENDMENTS TO MASTER RESQLUTION
Section 4.501. Amendment to Section 603. Section 603(b) of
the Master Resolution shall be amended and restated to read as
follows:
(b) City of Virginia Beach Water and Sewer System
Revenue Bond Fund, in which there are established a Prior
Parity Bond Account, an Interest Account, a Principal
Account, a 1994 RLF Debt Service Account and a 1997 RLF
Debt Service Account;
Section 4.502. Amendment to Section 604. Section 604(a) of
the Master Resolution shall be amended to insert after subsection
(4) the following as subsection (5):
(5) then, to the 1997 RLF Debt Service Account in
the Revenue Fund, such amount, if any, as may be required
to make the total amount on deposit therein equal to one-
sixth of the finance payment multiplied by the sum of one
plus the number of complete months since the last finance
payment due on the Series of 1997 Bond in the next
succeeding six months, as such finance payment is
required by Section 6.1 of the Financing Agreement
10
between the City and the Virginia Water Facilities
Revolving Fund dated as of January 1, 1997;
Section 4.503. Amendment to Section 605. The second sentence
of the first paragraph of Section 605 shall be amended and restated
to read as follows:
"The Fiscal Agent shall pay when due the principal
of and interest on the Bonds from the Principal Account
and the Interest Account, respectively, except that the
principal of and interest on the Series of 1994 Bond
shall be paid solely from the 1994 RLF Debt Service
Account and the principal of and interest on the Series
of 1997 Bond shall be paid solely from the 1997 RLF Debt
Service Account."
The fourth paragraph of Section 605 shall be amended and
restated to read as follows:
"In the event the balance in the Principal Account,
the Interest Account, the 1994 RLF Debt Service Account
or the 1997 RLF Debt Service Account within the Revenue
Bond Fund is insufficient for the purposes thereof, the
City shall transfer to the Fiscal Agent for deposit in
such Accounts such amounts as may be necessary therefor
from available moneys in the Revenue Account pursuant to
Section 604, and then from the Residual Account pursuant
to Section 612, and then from the Renewal and Replacement
Account pursuant to Section 610. In the event the
balance in any such Account is still insufficient for the
purposes thereof, the Fiscal Agent shall transfer such
amount as may be necessary therefor from the Debt Service
Reserve Fund pursuant to Section 608."
ARTICLE VI
MISCELLANEOUS
Section 4.601. Limitation of Rights. With the exception of
the rights herein expressly conferred, nothing expressed or
mentioned in or to be implied from this Fourth Supplemental
Resolution is intended or shall be construed to give any person
other than the parties hereto and the holders of the Series of 1997
Bond any legal or equitable right, remedy or claim under or in
respect to this Fourth Supplemental Resolution or any covenant,
condition or agreement herein contained, this Fourth Supplemental
Resolution and all of the covenants, conditions and agreements
hereof being intended to be and being for the sole and exclusive
benefit of the holders of the Series of 1997 Bond as herein
provided.
11
8eotion 4.t02. laver~bilit~. If any provision of this Fourth
Supplemental Resolution shall be held invalid by any court off
competent Jurisdiction, such holdinq shall not invalidate any other
provision therefor.
laotion 4.G03. Iffactiva Data. This Fourth Supplemental
Resolution shall take effect immediately.
Adopted by the City Council of the City of Virginia Beach,
Virginia, on this 7th day of January, 1997.
APPROVED AS TO CONTENTS:
signature i
Finance
Department
APPROVED~
Public Utilities
Department
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM:
City A%~dorney
- 12 -
Description o£ the 1997 Project
City of Virginia Beach, Virginia
Taxable Water and Sewer System Revenue Bond
Series of 1997
APPENDIX A
The acquisitions, improvements, extensions, additions and
replacements to the System in order to finance the construction of
vacuum sewer, pumping stations and associated force mains in the
Sandbridge area of the City.
13
la4a652 2 CBEBC Dm.R.
FINANCING AGREEMENT
BETWEEN
VIRGINIA WATER FACILITIES REVOLVING FUND
CITY OF VIRGINIA BEACH, VIRGINIA
Virginia Resources Authority
Virginia Water Facilities Revolving Fund
Loan No. C-515154-01
(Sandbridge Interceptor)
[08/01/93 ]
TABLE OF CONTENTS
ARTICLE I
Page
Section 1.1.
Section 1.2.
DEFINITIONS
D~f'mitions ..............................
Rules of Construction; R~femnces to Master Bond R~solufion .....
ARTICLE H
Section 2.1.
REPRF~~ATION$
Representations by Borrower .............................................
ARTICLE m
Section 3.1.
Section 3.2.
ISSUANCE AND DELIVERY OF THE LOCAL BOND
Loan to Borrower and Purchase of the ~ Bond ...................
Conditions Precedent to Purchase of the Local Bond .................
ARTICLE IV
USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Application of Proceexts .................................................. 8
Agreement to Accomplish Project ...................................... 9
Permits ......................................................................10
Construction Contractors ................................................. 10
Engineering Services ...................................................... 10
Borrower Required to Complete Project ............................... 10
ARTICLE V
Section 5.1.
Section 5.2.
PLEDGE, REVENUES AND RATES
Pledge of Revenues .........................................................
Annual Budget ..............................................................
11
12
- i -
Section 6.1.
Section 6.2.
ARTICLE VI
Payment of I. xr. al Bond ...................................................
Payment of Additional Payments ........................................
Page
12
12
Section 7.1.
ARTICLE VII
PREPA~~
Prepayment of Local Bond ................................................
13
Section 8.1.
Section 8.2.
Section 8.3.
Section 8.4.
Section 8.5.
Section 8.6.
Section 8.7.
Section 8.8.
Section 8.9.
Section 8.10.
Section 8.11.
Section 8.12.
ARTICLE VIII
OPERATION AND USE OF SYSTEM
Maintenance .................................................................
Additions and Modifications ..............................................
Use of System ...............................................................
In~fion of System and Borrower's Books and Records ............
Ownership of Land .........................................................
Sale or Encumbrance .......................................................
Collection of Revenues ....................................................
No Free Service .............................................................
No Competing Service .....................................................
Mandatory Connection .....................................................
Lawful Charges .............................................................
Performance Certification .................................................
13
13
14
14
14
14
14
15
15
15
15
15
Section 9.1.
Section 9.2.
Section 9.3.
Section 9.4.
Section 9.5.
ARTICLE IX
INSURANCE, DAMAGE AND DF~TRUCTION
Insurance ....................................................................
Requ~ments of Policies ..................................................
Notice of Damage, Destruction and Condemnation ..................
Damage and Destruction ..................................................
Condemnation and Loss of Title .........................................
16
17
17
18
18
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Section 10.1.
Section 10.2.
Section 10.3.
Section 10.4.
Section 10.5.
Section 10.6.
Section 10.7.
Section 10.8.
Section 10.9.
ARTICLE X
SPECIAL COVENANTS
Maintenance of Existence ..................................................
Financial Records and Statements; Reports ..............................
Certificate as to No Default ................................................
Additional Indebtedness ....................................................
Parity Bonds .................................................................
Further Assurances ..........................................................
Other Indebtedness ..........................................................
Assignment by Borrower ...................................................
Compliance with Master Bond Resolution ................................
18
19
19
19
19
20
2O
20
2O
ARTICLE XI
DEFAI.~LT$ AND REMF~DIF.~
Section 11.1. Events of Default ...........................................................
Section 11.2. Notice of Default ...........................................................
Section 11.3. Remedies on Default .......................................................
Section 11.4. Delay and Waiver ..........................................................
21
22
22
22
Section 12.1.
Section 12.2.
Section 12.3.
Section 12.4.
Section 12.5.
Section 12.6.
Section 12.7.
Section 12.8.
Section 12.9.
Section 12.10
Section 12.11.
ARTICLE XII
MISCELLANEOUS
Successors and Assigns ...................................................
Amendments ................................................................
Limitation of Borrower's Liability .......................................
Applicable Law ............................................................
Sevembility .................................................................
Notices ......................................................................
Right to Cure Default .....................................................
Headings ....................................................................
Term of Agreement .......................................................
Commitment Letter .......................................................
Counterparts ................................................................
23
23
23
23
23
23
24
24
24
25
25
Ig~ITS
Exhibit A ~ Form of Local Bond
Exhibit B - Project Description
Exhibit C - Project Budget
Exhibit D - Opinion of Borrower's Counsel
Exhibit E- Requisition
Exhibit F - Prior Bonds and Existing Parity Bonds
Exhibit G - Performance Standards
Exhibit Iq- Pending Litigation
- iv -
FINANCING AGREKMIr~NT
THIS FINANCING AGREEM~NT is made as of the first day of January, 1997,
between the VIRGINIA WATER FACIIXHF~ REVOLVING FUND, acting by and through
the VIRGINIA RESO~C~ AUTHORITY, a public body corporate and a political
subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRG~
BEACH, VIRG~, a political subdivision of the Commonwealth of Virginia (the
"Borrower").
Pursuant to Chapter 22, Title 62.1 of the Code of Virginia (1950), as amended (the
"Act"), the General Assembly created a permanent and perpetual fund known as the "Virginia
Water Facilities Revolving Fund" (the "Fund"). In conjunction with the State Water Control
Board, the Authority administers and manages the Fund. From the Fund, the Authority from
time to time makes loans to and acquires obligations of local governments in Virginia to finance
or ref'mance the costs of wastewater treatment facilities within the meaning of Section 62.1-224
of the Act.
The Borrower has requested a loan from the Fund and will evidence its obligation to
repay such loan by the Local Bond the Borrower will issue and sell to the Fund. The Borrower
will use the proceeds of the sale of the Local Bond to the Fund (i) to finance that portion of the
Project Costs not being paid from other sources, and (ii) deposit in the Debt Service Reserve
Fund (as established under and as defined in the Master Bond Resolution) the amount required
by the Master Bond Resolution, aH as further set forth in the Project Budget.
ARTICLE I
DEFINITIONS
Section 1.1. Def'mitions. The capitalized terms contained in this Agreement and not
defined above shall have the meanings set forth below unless the context requires otherwise and
any capitalized terms not otherwise defined herein shall have the meaning assigned to such terms
in the Act:
"Additional Payments" means the payments required by Section 6.2.
"Agreement" means this Financing Agreement between the Fund and the Borrower,
together with any amendments or supplements hereto.
"Authorized Representative" means any member, official or employee of the Borrower
authorized by resolution, ordinance or other official act of the governing body of the Borrower
to perform the act or sign the document in question.
"Board" means the State Water Control Board.
"Business Day" means a day of the year which is not a Saturday or Sunday or a day on
which banking institutions located in New York or Virginia are required or authorized to remain
closed or on which the New York Stock Exchange is closed.
"Closing Date" means the date of the delivery of the Local Bond to the Fund.
"Commitment Letter' shall mean the commitment letter from the Fund to the Borrower,
dated March 23, 1995, accepted June 30, 1995, and all extensions and amendments thereto.
"Consulting Engineer" means the engineer or the firm of engineers experienced in the
field of sanitary engineering and licensed and registered as a professional engineer to do
business in Virginia, designated by the Borrower from time to time as the Borrower's consulting
engineer in accordance with Section 4.5 in a written notice to the Authority. Such individual or
firm shall be subject to the reasonable approval of the Authority and may be an employee of the
Borrower or an independent engineer or firm of engineers.
"Default* means an event or condition the occurrence of which would, with the lapse of
time or the giving of notice or both, become an Event of Default.
"Depamnent" means the Department of Environmental Quality, created and acting under
Chapter 11.1, Title 10.1, of the Code of Virginia, as amended.
"Event of Default" shall have the meaning set forth in Section 11.1.
"Existing Parity Bonds" means any of the Borrower's bonds, notes or other evidences of
indebtedness, as further described on Exhibit F, that on the date of the ~ Bond's issuance
and delivery were secured by a pledge of Revenues on a parity with the pledge of Revenues
securing the Local Bond.
"Fiscal Year* means the period of twelve months established by the Borrower as its
annual accounting period.
"Fourth Supplemental Resolution" means the Fourth Supplemental Resolution
supplementing and amending the Master Bond Resolution, adopted by the Borrower on
December 17, 1996.
"Ix~ Bond" means the bond in substantially the form attached to this Financing
Agreement as Exhibit A issued by the Borrower to the Fund pursuant to this Agreement.
"Local Bond Proceeds" means the proceeds of the sale of the Local Bond to the Fund
pursuant to this Agreement.
"Local Resolution" means the resolution or ordinance adopted by the governing body of
the Borrower approving the transactions contemplated by and authorizing the execution and
delivery of this Agreement and the execution, issuance and delivery of the Ix)cai Bond. For
purposes of this Agreement, the Ix)cai Resolution shall also mean the Fourth Supplemental
Resolution.
"Master Bond Resolution" means the Master Water and Sewer Revenue Bond Resolution
Providing for the Issuance from Time to Time of One or More Series of Water and Sewer
System Revenue Bonds of the City of Virginia Beach, adopted by the Borrower's City Council
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on February 11, 1992, as it may be mended or supplemented by its terms from time to time.
"Net Proceeds" means "Net ~s" as def'med in the Master Bond Resolution.
"Net Revenues Available for Debt Service" means the Revenues less amounts necessary
to pay Operation and Maintenance Expense.
"Operation and Maintenance Expense" means "Operating Expenses" as defined in the
Master Bond Resolution.
"Opinion of Counsel" shall mean a written opinion of recognized bond counsel,
acceptable to the Authority.
"Parity Bonds" means bonds, notes or other evidences of indebtedness of the Borrower
issued under Section 10.5.
"Performance Standards" means the performance standards for the Project as more
particularly described in Exhibit G.
"Prior Bonds" means any of the Borrower's bonds, notes or other evidences of
indebtedness, as further described in Exhibit F, that on the date of the ~ Bond's issuance
and delivery were secured by a pledge of Revenues all or any portion of which was superior to
the pledge of Revenues securing the Local Bond.
"Project" means the particular project described in Exhibit B, the costs of the
construction, acquisition or equipping of which are to be financed or refinanced in whole or in
part with the Local Bond Proceeds.
"Project Budget" means the budget for the f'mancing or the refinancing of the Project, a
copy of which is attached to this Agreement as Exhibit C, with such changes therein as may be
approved in writing by the Authority.
"Project Costs" means the costs of the construction, acquisition or equipping of the
Project, including the deposit to the Debt Service Reserve Fund, as further described in the
Project Budget, and such other costs as may be approved in writing by the Authority, provided
such costs are permitted by the Act.
"Revenues" means "Revenues" as defmed in the Master Bond Resolution.
"Subordinate Bonds" means bonds, notes or other evidences of indebtedness of the
Borrower secured by a pledge of Revenues expressly made subordinate to the pledge of
Revenues to secure the payment of the Local Bond.
"System" means "System" as def'med in the Master Bond Resolution.
Section 1.2. Rules of Constructionl References to Master Bond Resolution. The
following rules shall apply to the construction of this Agreement unless the context requires
otherwise:
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(a) Singular words shall connote the plural number as well as the singular and
vice versa.
Co) All references in this Agreement to particular Sections or Exhibits are
references to Sections or Exhibits of this Agreement unless otherwise indicated.
(c) The headings and table of contents as used in this Agreement are solely
for convenience of reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(d) References in this Agreement to sections and subsections in the Master
Bond Resolution shall be read to include the defined terms used in such sections and
subsections.
ARTICLE H
REPRF_~ENTATIONS
Section 2.1.
representations as the
Representations by Borrower. The Borrower makes the following
basis for its undertakings under this Agreement:
(a) The Borrower is a duly created and validly existing "local government"
(as del'reed in Section 62.1-224 of the Ac0 of the Commonwealth of Virginia and is vested with
the rights and powers conferred upon it by Virginia law.
Co) The Borrower has full right, power and authority to (i) adopt the Local
Resolution and execute and deliver this Agreement and the other documents related thereto,
(ii) issue, sell and deliver its ~ Bond to the Fund, (iii) own and operate the System,
(iv) construct, acquire or equip the Project (as described in Exhibit B) and finance or refinance
the Project Costs by borrowing money for such purpose pursuant to this Agreement and the
issuance of its Local Bond, and (v) carry out and consummate all of the transactions
contemplated by the ~ Resolution, this Agreement and the ~ Bond.
(c) This Agreement and the Local Bond were duly authorized by the local
Resolution and are in substantially the same form as presented to the governing body of the
Borrower at its meeting at which the laxgal Resolution was adopted.
(d) All permits, licenses, registrations, ce~Xificates, authorizations and
approvals required to have been obtained as of the date of the delivery of this Agreement have
been obtained for (i) the Borrower's adoption of the Iaxal Resolution, (ii) the execution and
delivery by the Borrower of this Agreement and the Local Bond, (iii) the performance and
enforcement of the obligations of the Borrower thereunder, (iv) the acquisition, construction,
equipping, occupation, operation and use of the Project, and (v) the operation and use of the
System. The Borrower knows of no reason why any such required permits or approvals not
obtained as of the date hereof cannot be obtained as needed.
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(e) This Agreement and the Local Bond have been executed and delivered by
duly authorized officials of the Borrower and constitute the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their terms.
(f) Except as disclosed in Exhibit H, there are not pending nor, to the best of
the Borrower's knowledge, threatened, any actions, suits, proceedings or investigations of a
legal, equitable, regulatory, administrative or legislative nature, in which a judgment, order or
resolution may have a materially adverse effect on the Borrower in its business, assets, condition
(financial or otherwise), operations or prospects or in its ability to perform its obligations under
this Agreement or the Local Bond.
(g) There have been no defaults by any contractor or subcontractor under any
contract made in connection with the construction or equipping of the Project.
(h) No material adverse change has occurred in the financial condition of the
Borrower as indicated in the fmancial statements, applications and other information furnished
to the Authority.
(i) Except as listed on Exhibit F, there is no indebtedness of the Borrower
secured by a pledge of Revenues prior to or on a parity with the pledge of Revenues securing
the Lrx~ Bond.
0) No Event of Default or Default has occurred and is continuing.
ARTICLE III
I~$UANCE AND DELIVERy OF THE LOCAL BOND
Section 3.1. Loan tO Borrower ~nd P~rc~a~ of the Local Bond. The Borrower
agrees to borrow from the Fund and the Fund agrees to lend to the Borrower the principal
amount equal to the sum of the principal disbursements made pursuant to Section 4.1, but not to
exceed $7,500,000.00 for the purposes herein set forth. The Borrower's obligation shall be
evidenced by the Local Bond, which shall be in substantially the form of Exhibit A attached
hereto and made a part hereof and delivered to the Fund on the Closing Date. The Local Bond
shall be in the original principal amount of the loan and shall mature and be payable as
hereinafter provided.
Section 3.2. Condition~ Prec~ent to Purcha~ of the Local Bond. The Fund shall
not be required to make the loan to Borrower and purchase the Local Bond unless the Fund shall
have received the following, all in form and substance satisfactory to the Authority:
(a) A certified copy of the Local Resolution.
(b) A certificate of appropriate officials of the Borrower as to the matters set
forth in Section 2.1 and such other matters as the Authority may reasonably require.
(c) (i) If required by the Department, a contract or contracts for the
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construction, acquisition and/or equipping of the Project which are acceptable to the Depamnent
as to form and content, or (ii) the Consulting Engineer's estimate of the total Project Costs to be
financed with the Local Bond ~s.
Such contracts or estimates must be in an amount and otherwise compatible with the
f'mancing plan described in the Project Budget.
(d) A certificate of the Consulting Engineer to the effect that in the opinion of
the Consulting Engineer (i) the Project will be a part of the System, (ii) the Local Bond
ProceSs and funds available from the other sourcxa specified in the Project Budget will be
sufficient to pay the estimated Project Costs, and (iii) during the first two Fiscal Years of the
Borrower following completion of the Project, the projected Net Revenues Available for Debt
Service will satisfy the rate covenant made by the Borrower in Section 5.1. In providing this
certificate, the Consulting Engineer may take into consideration future System rate increases,
provided that such rate increases have been duly approved by the governing body of the
Borrower and any other person or entity required to give approval for the rate increase to
become effective. In addition, the Consulting Engineer may take into consideration additional
furore revenues to be derived under existing contractual arrangements entered into by the
Borrower and from reasonable estimates of growth in the consumer base of the Borrower.
(e) Evidence satisfactory to the Authority that all governmental permits or
approvals for the Project required to have been obtained as of the date of the delivery of this
Agreement have been obtained and a statement of the Consulting Engineer that he knows of no
reason why any future required governmental permits or approvals cannot be obtained as
needed.
(f) Evidence satisfactory to the Authority that the Borrower has obtained or
has made arrangements satisfactory to the Authority to obtain any funds or other financing for
the Project as contemplated in the Project Budget.
(g) Evidence satisfactory to the Authority that the Borrower has performed
and satisfied all of the terms and conditions contained in this Agreement to be performed and
satisfied by it as of such date.
(h) A certificate of the Consulting Engineer as to the date the Borrower is
expected to complete the acquisition, construction and equipping of the Project.
(i) An Opinion of Counsel, substantially in the form of Exhibit D, addressed
to the Fund and the Authority.
(j) Evidence satisfactory to the Authority that the Borrower has complied
with the insurance provisions set forth in Sections 9.1 and 9.2 hereof.
(k) Evidence satisfactory to the Authority that the Local Bond will be issued
on a parity basis with the Existing Parity Indebtedness.
(1) Such other documentation, certificates and opinions as the Authority may
reasonably require.
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USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT
Section 4.1. Application of Proceeds.
(a) The Borrower agrees to apply the ~ Bond Proceeds solely and exclusively to
the payment, or the reimbursement of the Borrower for the payment, of Project Costs and
further agrees to exhibit to the Department or the Authority receipts, vouchers, statements, bills
of sale or other evidence of the actual payment of such Project Costs. The Authority shall
disburse money from the Fund to or for the account of the Borrower not more frequently than
once each calendar month (unless otherwise agreed by the Authority and the Borrower) upon
receipt by the Authority (with a copy to be furnished to the Department) of the following:
(1) A requisition (upon which the Authority shall be entitled to rely) signed
by an Authorized Representative and containing all information called for by, and otherwise
being in the form of, Exhibit E to this Agreement;
(2) If any requisition includes an item for payment for labor or to contractors,
builders or materialmen,
(i) a certificate, signed by the Consulting Engineer, stating that such
work was actually performed or such materials, supplies or equipment were
actually furnished or installed in or about the construction of the Project; and
(ii) a certificate, signed by an Authorized Representative, stating either
that such materials, supplies or equipment are not subject to any lien or security
interest or that such lien or security interest will be released or discharged upon
payment of the requisition.
Upon receipt of each such requisition and accompanying certificate or certificates and
approval thereof by the Department, the Authority shall disburse Local Bond Procx~s
hereunder to or for the account of the Borrower in accordance with such requisition in an
amount and to the extent approved by the Department and shall note the date and amount of
each such disbursement on a schedule of principal disbursements to be included on the ~
Bond. The Authority shall have no obligation to disburse any such Ix)cai Bond Proceeds if the
Borrower is in default hereunder nor shall the Department have any obligation to approve any
requisition if the Borrower is not in compliance with the terms of this Agreement. The
Borrower shall deposit disbursements in the Construction Fund (as clef'reed in the Master Bond
Resolution) to be utilized as described in Article V of the Master Bond Resolution and Section
4.307 of the Fourth Supplemental Bond Resolution.
(b) The Borrower shall comply with all applicable State laws, including but not
limited to, the Virginia Public Procurement Act, as amended, regarding the awarding and
performance of public construction contracts. Except as may otherwise be approved by the
Department, disbursements shall be held at ninety-five percent (95 51;) of the maximum
authorized amount of the Local Bond to ensure satisfactory completion of the Project. Upon
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receipt from the Borrower of the certificate specified in Section 4.2 and a final requisition
detailing all retainages to which the Borrower is then entitled, the Authority, to the extent
approved by the Board and subject to the provisions of this Section and Section 4.2, will
disburse to or for the account of the Borrower Local Bond Proceeds to the extent of such
approval.
The Authority shall have no obligation to disburse Loc~ Bond Proceeds in excess of the
amount neces~ to pay for approved Project Costs. If principal disbursements up to the
maximum authorized amount of the Local Bond are not made, principal installments due on the
Local Bond shall be reduced in accordance with Section 6.1.
Section 4.2. Ag_~ent to Accomplish Pro_leer. The Borrower agrees to cause the
Project to be acquired, constructed, expanded, renovated or equipped as described in Exhibit B
and in accor~ce with the Project Budget and the plans, specifications and designs prepared by
the Consulting Engineer and approved by the Department. The Borrower shall use its best
efforts to complete the Project by the date set forth in the certificate provided to the Authority
pursuant to Section 3.2(h). All plans, slx;cifications and designs shall be approved by all
applicable regulatory agencies. The Borrower agrees to maintain complete and accurate books
and records of the Project Costs and permit the Authority and the Department through their duly
authorized representatives to inspect such books and records at any reasonable time. The
Borrower and the Authority, with the consent of the Department, may amend the description of
the Project set forth in Exhibit B.
When the Project has been completed, the Borrower shall promptly deliver to the
Authority and the Department a ceRificate signed by an Authorized Representative of the
Borrower and by the Consulting Engineer stating (i) that the Project has been completed
substantially in accordance with this Section, the plans and specifications as amended from time
to time, as approved by the Department, and in substantial compliance with all material
applicable laws, ordinances, rules and regulations, (ii) the date of such completion, (iii) that all
certificates of occupancy or other material permits necessary for the Project's use, occupancy
and operation have been issued or obtained, and (iv) the amount, if any, to be reserved for
payment of Project Costs.
Section 4.3. Permits. The Borrower, at its sole cost and expense, shall comply with,
and shall obtain all permits, consents and approvals required by local, state or federal laws,
ordinances, rules, regulations or requirements in connection with the acquisition, construction,
equipping, occupation, operation or use of the Project. The Borrower shall, upon request,
promptly furnish to the Authority and the Department copies of all such permits, consents and
approvals. The Borrower shall also comply with all lawful program or procedural guidelines or
requirements duly promulgated and amended from time to time by the Department in connection
with the acquisition, construction, equipping, occupation, operation or use of projects financed
by the Fund under the Act including, but not limited to, those pertaining to the adoption of any
requisite sewer use ordinance and compliance with the Performance Standards in the operation
of the Project. The Borrower shall also comply in all respects with all applicable federal laws,
regulations and other requirements relating to or arising out of or in connection with the Project
and the funding thereof by the Fund, including, but not limited to, the federal "crosscutting"
requirements identified in Schedule A of the Commitment Letter.
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Section 4.4. Construction Contractors. Each construction contractor employed in the
accomplishment of the Project shall be required in the construction contract to furnish a
performance bond and a payment bond each in an amount equal to one hundred percent (100 %)
of the particular contract price. Such bonds shall list the Borrower, the Fund, the Authority, the
Department and the Board as beneficiaries. Each contractor shall be required to maintain during
the construction period covered by the particular construction contract builder's risk insurance,
workers' compensation insurance, public liability insurance, property damage insurance and
vehicle liability insurance in amounts and on terms satisfactory to the Consulting Engineer.
Upon request of the Authority, the Department and the Board, the Borrower shall cause each
contractor to furnish evidence of such bonds and insurance to the Authority, the Department or
the Board.
Section 4.S. Engineering Serv.i. ces. The Borrower shall retain a Consulting Engineer
to provide engineering services covering the operation of the System and the supervision and
in~tion of the construction of the Project. The Consulting Engineer shall certify to the Fund,
the Authority and the Depamnent as to the various stages of the completion of the Project as
disbursements of Local Bond Proceeds are requested and shall upon completion of the Project
provide to the Fund, the Authority and the Board the certificates required by Sections 4.1 and
4.2.
Section 4.6. Borrower Required to Comolete Proiect. If the ~ Bond ProceeAs
are not sufficient to pay in full the cost of the Project, thc Borrower will complete the Project at
its own expense and shall not be entitled to any reimbursement therefor from thc Fund, the
Authority, the Department or the Board or any abatement, diminution or postponement of the
Borrower's payments under the Local Bond or this Agreement.
PL~GE, REVENUF~ AND RATF.~
Section 5.1. Pledge of R~vgnues. Subject to the Borrower's right to make application
of Revenues as set forth in Sections 604 and 615 of the Master Bond Resolution, the Revenues
are hereby pledged to the Fund to secure the payment of the principal of and interest on the
Local Bond and the payment and performance of the Borrower's obligations under this
Agreement as set forth in Section 615 of the Master Bond Resolution. This pledge shall be
valid and binding from and after the execution and delivery of this Agreement. The Revenues,
as received by the Borrower, shall immediately be subject to the lien of this pledge without any
physical delivery of them or further act. The lien of this pledge of the Revenues is on a parity
with the lien of the pledge securing the Existing Parity Bonds. The lien of this pledge shall,
subject to the right of the Borrower to make application of Revenues as set forth in the Master
Bond Resolution, have priority over all other obligations and liabilities of the Borrower, and the
lien of this pledge shall be valid and binding against all parties having claims of any kind against
the Borrower regardless of whether such parties have notice of this pledge.
(a) The Borrower covenants and agrees that it will comply with the revenue
covenant contained in Section 601 of the Master Bond Resolution.
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Co) Within one hundred and twenty (120) days after the close of each Fiscal
Year, the Borrower shall deliver to the Authority a certificate of the Consulting Engineer, an
independent certified public accountant or other consultant reasonably acceptable to the
Authority to the effect that (i) during the p~g Fiscal Year, the Borrower satisfied the rate
covenant made by the Borrower in subsection (a) of this Section, or, ff not, the amount of the
deficiency in Net Revenues Available for De.l>t Service which existed and the rates, fees and
other charges which must be established by the Borrower to cure such deficiency, and (ii)
during the Fiscal Year in which the certificate is delivered, the projected Revenues will satisfy
the revenue covenant made by the Borrower in Section 601 of the Master Bond Resolution, or,
ff not, the rates, fees and other charges the Borrower must establish to satisfy such rate
covenant.
(c) On or before the last day of each Fiscal Year, the Borrower shall review
the adequacy of its rates, fees and other charges for the next Fiscal Year, and, if such review
indicates the Borrower's rates, fees and other charges are insufficient to satisfy the rate covenant
in subsection (a) of this Section, the Borrower shah promptly take appropriate action to increase
its rates, fees and other charges or reduce its Operations and Maintenance Expense to cure any
deficiency.
Section 5.2. Annual Budget. The Borrower shall furnish a copy of the Annual
Operating Budget (as defined in the Master Bond Resolution) and the capital expenditures
budget for the System and any amendments or supplements thereto to the Authority promptly
upon their preparation and otherwise comply with the provisions of Section 602 of the Master
Bond Resolution.
ARTICLE VI
PAYM~N'I~
Section 6.1. P~ym,nt of L0gal Bond. The Local Bond shall be dated the date of its
delivery to the Fund and shall bear interest on the disbursed principal balance thereof at the rate
of four and three-fourths percent (4.75 %) per annom from the date of each disbursement.
Interest only on all amounts disbursed under the ~ Bond shall be due and payable on June 1,
1998. Commencing De~mber 1, 1998, and continuing semi-annually thereafter on June 1 and
December I in each year, principal and interest due under the Lrw. al Bond shall be payable in
equal installments of $297,047.13, with a final installment of $297,047.27 due and payable on
December 1, 2017. Such semi-annual installments shall continue, unless all amounts due
hereunder and under the Local Bond are sooner paid, until December 1, 2017, when all amounts
due hereunder and under the ~ Bond shall be due and payable in full. If principal
disbursements up to the maximum authorized amount of the ~ Bond are not made, the
principal amount due on the Local Bond shall not include such undisbursed amount. However,
unless the Borrower and the Authority agree otherwise in writing, until all amounts due
hereunder and under the Lrw~ Bond shall have been paid in full, less than full disbursement of
the maximum authorized amount of the Local Bond shall not postpone the due date of any semi-
annual installment due on the Local Bond, or change the amount of such installment. If any
installment of principal of or interest on the Loc~ Bond is not paid within ten (10) days after its
due date, the Borrower agrees to pay to the Fund a late payment charge in an amount equal to
o 10-
five percent (5.0%) of the overdue installment.
Section 6.2. Pa_wnent of Additional P~enB. In addition to the payments of
principal and interest on the Local Bond, the Borrower agrees to pay on demand of the Fund the
following Additional Payments:
(1) The costs of the Fund, the Authority, the Department or the Board
in connection with the enforcement of this Agreement, including the reasonable
fees and expenses of any attorneys used by any of them; and
(2) All expenses, including reasonable attorneys' fees, relating to any
amendments, waivers, consents or collection or enforcement proc2~ings
pursuant to the provisions hereof.
The Borrower agrees to pay interest on any Additional Payments enumerated in (1) or
(2) above not received by the Fund within ten (10) days after demand therefor at a rate of five
percent (5.0%) per anmlm of the overdue installment from its due date until the date it is paid.
ARTICLE VII
PR VAYM
Section 7.1. Prepayment of Local Bond. At its option and after giving at least ten
(10) days' written notice to the Authority, the Borrower may prepay the Local Bond at any
time, in whole or in part and without penalty. Such written notice shall specify the date on
which the Borrower will make such prepayment and whether the Local Bond will be prepaid in
full or in part, and ff in part, the principal amount to be prepaid. Any such partial prepayment
shall be applied against the principal amount outstanding under the Local Bond but shall not
postpone the due date of any subsequent payment on the Local Bond, or change the amount of
such installment, unless the Borrower and the Authority agree otherwise in writing.
ARTICLE VIII
OPERATION AND USE OF SYSTEM
Section 8.1. Maintenance. At its own cost and expense, the Borrower shall operate
the System in a proper, sound and economical manner and in compliance with all legal
requirements, shall maintain the System in good repair and operating condition and from time to
time shall make all neces~ repairs, renewals and replacements.
Section 8.2. Additions and Modifimti0ns. At its own expense, the Borrower from
time to time may make any additions, modifications or improvements to the System which it
deems desirable and which do not materially reduce the value of the System or the structural or
operational integrity of any part of the System, provided that all such additions, modifications or
improvements comply with all applicable federal, state and local laws, rules, regulations,
orders, permits, authorizations and requirements. All such renewals, replacements, additions,
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modifications and improvements shall become part of the System.
Section 8.3. Use of System. The Borrower shall comply with all lawful requirements
of any governmental authority regarding the System, whether now existing or subsequently
enacted, whether foreseen or unforeseen or whether involving any change in governmental
policy or requiring structural, operational and other changes to the System, irrespective of the
cost of making the same.
Section 8.4. In~_oection of System and Borrower'~ Books and R~cord~. The
Authority and the Depamnent and their duly authorized representatives and agents shall have
such reasonable rights of access to the System as may be necessar7 to determine whether the
Borrower is in compliance with the requirements of this Agreement and shall have the right at
all reasonable times and upon reasonable prior notice to the Borrower to examine and copy the
books and records of the Borrower insofar as such books and records relate to the System.
Section 8.5. Ownershi_l} of Land. The Borrower shall not construct, reconstruct or
install any part of the Project on lands other than those which the Borrower owns or can acquire
title to or a perpetual easement over, in either case sufficient for the Borrower's purposes,
unless such part of the Project is lawfully located in a public street or highway or is a main,
conduit, pipeline, main connection or facility located on land in which the Borrower has
acquired a right or interest less than a fee simple or perpetual easement and such lesser right or
interest has been approved by written opinion of counsel to the Borrower as sufficient for the
Borrower's purposes.
Section 8.6. Sale or Encumb.r~no~. No part of the System shall be sold, exchanged,
leased, mortgaged, encumbered or otherwise disposed of except as provided in Section 807 of
the Master Bond Resolution.
Section 8.7. Collection of Revenues. The Borrower shall use its best efforts to collect
all rates, fees and other charges due to it and shall perfect liens on premises served by the
System for the amount of all delinquent rates, fees and other charges where such action is
permitted by law. The Borrower shall, to the full extent permitted by law, discontinue and shut
off, or cause to be discontinued and shut off, services and facilities of the System, and use its
best efforts to cause to be shut off water service furnished otherwise than through the System, to
customers of the System who are delinquent beyond any customary grace periods in the payment
of rates, fees and other charges due to the Borrower.
Section 8.8. No Free Service. The Borrower shall comply with Section 806(a) of the
Master Bond Resolution.
Set-tion 8.9. No Competing Service. The Borrower shall not provide, grant any
franchise to provide or give consent for anyone else to provide, any services which would
compete with the System except as provided in Section 806(b) of the Master Bond Resolution.
Section 8.10. Mandato~ Connection. To the extent permitted by law, the Borrower
shall adopt and enforce rules and regulations, consistent with applicable laws, requiring the
owner, tenant or occupant of each lot or parcel of land which is se~wed or may reasonably be
served by the System and upon which lot or parcel a building shall have been constructed for
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residenfia~l, commercial or industrial use, to connect such building to the System; provided,
however, such rules and regulations may permit the continued use of private sewage disposal
systems approved by the applicable board of health or health officer by any such building
already in existence at the time the services of the System become available to it upon such
conditions as may be specified in such rules and regulations or until such time as such approved
private sewage disposal system shall cease to be approved or shall require major repairs to
continue to be approved, at which time such building shall be required to connect to the System.
Section 8.11. Lawful Charges. The Borrower shall pay when due all taxes, fees,
assessments, levies and other governmental charges of any kind whatsoever (collectively, the
"Governmental Charges") which are (i) assessed, levied or imposed against the System or the
Borrower's interest in it, or (ii) incurred in the operation, maintenance, use and occupancy of
the System. The Borrower shall pay or cause to be discharged, or shall make adequate
provision to pay or discharge, all lawful claims and demands for labor, materials, supplies or
other objects which, if unpaid, might by law become a lien upon all or any part of the System or
the Revenues (collectively, the "Mechanics' Charges"). The Borrower, after giving the
Authority ten (10) days' notice of its intention to do so, at its own expense and in its own name,
may contest in good faith any Governmental Charges or Mechanics' Charges. If such a contest
occurs, the Borrower may permit the same to remain unpaid during the period of the contest and
any subsequent appeal. Upon request, the Borrower shall furnish to the Authority proof of
payment of all Governmental Charges and the Mechanics' Charges required to be paid by the
Borrower under this Agreement.
Section 8.12. Performance Certification. Upon completion of the Project and its
commencement of operation (the "Initiation of Operation"), the Borrower shall promptly notify
the Depamnent. If the Borrower fails to so notify the Depamnent, the Department may
establish the date of such completion. During the year after the Initiation of Operation, the
Borrower shall retain a Consulting Engineer to assist in the operation of the Project and the
training of operating personnel, to revise the Borrower's operation and maintenance manual, as
necessary, and to advise the Borrower if the Project is meeting the Performance Standards. One
year from the Initiation of Operation, the Borrower shall submit to the Department a certificate
as to whether the Performance Standards have been met. If the Department concludes that the
Performance Standards have not been met, the Borrower shall submit within thirty (30) days of
such date a report detailing (i) the reasons for the failure of the Project to meet the Performance
Standards, (ii) the Borrower's plan for undertaking any necessary corrective action to cause the
Project to meet the Performance Standards, and (iii) a schedule for completing any such
corrective action, including the projected date for the submission of a certificate stating that the
Performance Standards have been met. The Borrower shall then undertake such corrective
action and any other action necessary to meet the Performance Standards. When the Project has
met the Performance Standards, the Borrower shall so certify to the Department. For so long as
the Performance Standards have not been met, the Borrower shall retain a Consulting Engineer,
unless the Department shall agree otherwise in writing.
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ARTICLE IX
INS~CE. DAMAGE AND DF-~UCTION
Section 9.1. Insurance. Unless the Authority otherwise agrees in writing, the
Borrower continuously shah maintain or cause to be maintained insurance against such risks as
are customarily insured against by public bodies operating systems similar in size and character
to the System, including, without limitation:
(a) Insurance in the amount of the full replacement cost of the System's
insurable portions against loss or damage by fire and lightning, with broad form extended
coverage endorsements covering damage by windstorm, explosion, aircraft, smoke, sprinkler
leakage, vandalism, malicious mischief and such other risks as are normally covered by such
endorsements (limited only as may be provided in the standard form of such endorsements at the
time in use in Virginia); provided that during the construction of the Project, the Borrower may
provide or cause to be provided, in lieu of the insurance in the amount of the full replacement
cost of the Project, builders' risk or similar types of insurance in the amount of the full
replacement cost thereof. The determination of replacement cost shah be made by a reco~
appraiser or insurer selected by the Borrower and reasonably acceptable to the Authority.
(b) Comprehensive general liability insurance with a combined single limit of
$1,000,000 per year against liability for bodily injury, including death resulting therefrom, and
for damage to property, including loss of use thereof, arising out of the ownership,
maintenance, operation or use of the System.
(c) Unless the Borrower qualifies as a self-insurer under the laws of Virginia,
workers' compensation insurance.
The Authority shall not have any responsibility or obligation with re~ to (i) the
procurement or maintenance of insurance or the amounts or the provisions with respect to
policies of insurance, or (ii) the application of the proceeds of insurance.
Section 9.2. Requirements of Policies. (a) All insurance required by Section 9.1 shatl
be maintained with generally recognized, responsible insurance companies selected by the
Borrower and reasonably acceptable to the Authority. Such insurance may be written with
deductible amounts comparable to those on similar policies carried by other utility systems of
like size and character to the System. ff any such insurance is not maintained with an insurer
licensed to do business in Virginia or placed pursuant to the requirements of the Virginia
Surplus Lines Insurance Law (Chapter 48, Title 38.2, Code of Virginia of 1950, as amended) or
any successor provision of law, the Borrower shall provide evidence reasonably satisfactory to
the Authority that such insurance is enforceable under Virginia law.
Co) In lieu of insurance written by commercial insurance companies, the City
may maintain a program of serf-insurance or participate in group risk f'mancing programs, as
and to the extent and subject to the requirements set forth in Section 808 of the Master Bond
Resolution.
(c) The Borrower shall provide no less often than annually and upon the
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written request of the Authority a certificate or certificates of the respective insurers evidencing
the fact that the insurance required by Section 9.1 hereof is in force and effect.
Section 9.3. Notice of Damage. De. ruction and Condemnation. In the case of
(i) any damage to or destruction of any material part of the System, (ii) a taking of all or any
part of the System or any right therein under the exercise of the power of eminent domain,
(iii) any loss of the System because of failure of title, or (iv) the commencement of any
proceedings or negotiations which might result in such a taking or loss, the Borrower shall give
prompt notice thereof to the Authority describing generally the nature and extent of such
damage, destruction, taking, loss, proceedings or negotiations.
Section 9.4. Damage and Destruction. If all or any part of the System is destroyed or
damaged by fire or other casualty, and the Borrower shall not have exercised its option to
prepay in full the Local Bond pursuant to Article VII hereof and Section 809 of the Master Bond
~solufion, the Borrower shall restore promptly the property damaged or destroyed to
substantially the same condition as before such damage or destruction, with such alterations and
additions as the Borrower may determine and which will not impair the capacity or character of
the System for the purpose for which it then is being used or is intended to be used. The
Borrower will apply the Net Proceeds as set forth in Section 809 of the Master Bond Resolution.
Section 9.5. Condemnation and Loss of Ti0o. If title to or the temporary use of all
or any part of the System shall be taken under the exercise of the power of eminent domain or
lost because of failure of title, and the Borrower shall not have exercised its option to prepay in
full the Local Bond pursuant to Article VII hereof and Section 809 of the Master Bond
Resolution, the Borrower shall cause the Net Proce.~s from any such condemnation award or
from title insurance to be applied as set forth in Section 809 of the Master Bond Resolution.
SPECIAL COVENANTS
Section 10.1. M~intenance of Existence. The Borrower shall maintain its existence as
a "local government" (as defined in the Ac0 of the Commonwealth of Virginia and, without
consent of the Authority and the Department, shall not dissolve or otherwise dispose of all or
substantially all of its assets or consolidate or merge with or into another entity.
Notwithstanding the foregoing, the Borrower may consolidate or merge with or into, or sell or
otherwise transfer all or substantially all of its assets to a political subdivision of the
Commonwealth of Virginia, and the Borrower thereafter may dissolve, if the surviving,
resulting or transferee political subdivision, if other than the Borrower, assumes, in written form
acceptable to the Authority and the Department, all of the obligations of the Borrower contained
in the Local Bond and this Agreement, and there is furnished to the Authority and the
Department an Opinion of Counsel acceptable to the Authority and the Department subject to
customary exceptions and qualifications, to the effect that such assumption constitutes the legal,
valid and binding obligation of the surviving, resulting or transferee political subdivision
enforceable against it in accordance with its terms.
Section 10.2. Financial Re~0rd$ and Statementsl Rep0rt,$. (a) The Borrower shall
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maintain proper books of record and account in which proper entries sl~__ll be made in
accordance with generally accepted government accounting standards, consistently applied, of
all its business and affairs related to the System. The Borrower shall have an annual audit of the
financial condition of the System made in accordance with the provisions of Section 810 of the
Master Bond Resolution. The Borrower shall furnish to the Authority copies of such report
immediately after it is submitted to the Borrower. Such audit shall also be conducted in
accordance with the provisions of the Single Audit Act of 1984, 31 U.S.C. §§ 7501 et seo_., as
amended, and the regulations promulgated thereunder, including OMB Circular No. A-128.
The Borrower shall also furnish to the Authority a certificate of such accountant to the effect
that, during the course of such accountant's regular examination of the Borrower's financial
condition, nothing came to such accountant's attention that would constitute an Event of Default
or a Default.
(b) The Borrower shall furnish to the Authority a copy of the report required
by Section 810Co) of the Master Bond Resolution upon receipt thereof.
Section 10.3. Certificate as to No Default. The Borrower shall deliver to the
Authority, within one hundred and twenty (120) days after the close of each Fiscal Year, a
certificate signed by an Authorized Representative stating that, during such year and as of the
date of such certificate, no event or condition has happened or existed, or is happening or
existing, which constitutes an Event of Default or a Default, or if such an event or condition has
happened or existed, or is happening or existing, specifying the nature and period of such event
or condition and what action the Borrower has taken, is taking or proposes to take to rectify it.
Section 10.4. Additional Indebtedness. The Borrower shall not incur any indebtedness
or issue any bonds, notes or other evidences of indebtedness secured by a pledge of Revenues,
except Subordinate Bonds or Parity Bonds.
Section 10.5. Parity Bonds. Provided the Borrower is not in default hereunder, the
Borrower may issue bonds, notes or other evidences of indebtedness ranking on parity with the
Ltx~ Bond with respect to the pledge of Revenues ("Parity Bonds") as and to the extent and
subject to the conditions set forth in Article IH of the Master Bond Resolution.
The Borrower shall give notice to the Authority of the issuance of such debt within 30
days of its issuance and provide a copy of the supplemental resolution and any offering
document authorizing the issuance of such debt.
Section 10.6. Further Ass0~nc, es. The Borrower shall to the fullest extent permitted
by law pass, make, do, execute, acknowledge and deliver such further resolutions, acts, deeds,
conveyances, assignments, transfers and assurances as may be necessary or desirable for the
better assuring, conveying, granting, assigning and confirming the rights, Revenues and other
funds pledged or assigned by this Agreement, or as may be required to carry out the purposes of
this Agreement. The Borrower shall at all times, to the fullest extent permitted by law, defend,
preserve and protect the pledge of the Revenues and other funds pledged under this Agreement
and all rights of the Authority, the Department and the Board under this Agreement against all
claims and demands of all persons.
Section 10.7. Other Indebtedness. The Borrower agrees to pay when due all amounts
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requit~ by any other bonded indebtedness and to perform all of its obligations in connection
therewith.
Section 10.8. Ass'_mmnent by Bo.rrower. The Borrower may not assign its rights under
this Agreement without thc prior written consent of the Authority and the Department. If the
Borrower desires to assign its rights under this Agreement to another "local government" (as
defined in the Ac0, the Borrower shall give notice of such fact to the Authority and the
Department. If the Authority and the Department consent to the proposed assignment, the
Borrower may proceed with the proposed assignment, but such assignment shall not become
effective until the Authority and the Department are furnished (i) an assumption agreement in
form and substance satisfactory to the Authority and the Department by which the assignee
agrees to assume all of the Borrower's obligations under the ~ Bond and this Agreement,
and (ii) an Opinion of Counsel to the assignee, subject to customary exceptions and qualifica-
tions, that the assumption agreement, the Local Bond and this Agreement constitute legal, valid
and binding obligations of the assignee enforceable against the assignee in accordance with their
terms and that the assignment and assumption comply in all respects with the provisions of this
Agreement. Notwithstanding the foregoing, the assignment of the rights of the Borrower under
the Local Bond and this Agreement or the assumption of the obligations thereunder by the
assignee shall in no way be construed as releasing the Borrower's obligations.
Section 10.9. Compliance with Master Bond R~solution. The Borrower shah comply
with all material provisions of the Master Bond Resolution and furnish to the Authority a copy
of any amendments or supplements to it promptly upon the execution and delivery thereof.
ARTICLE XI
DEFAULT~ AND REMEDIE~
Section 11.1. Ev~nt~ of Default. Each of the following events shall be an "Event of
Default":
(a) The failure to pay when due any payment of principal or interest due
hereunder or to make any other payment required to be made under the Ix)c~ Bond or this
Agreement;
Co) The Borrower's failure to perform or observe any of the other covenants,
agreements or conditions of the ~ Bond or this Agreement and the continuation of such
failure for a period of sixty (60) days after the Authority gives the Borrower written notice
specifying such failure and requesting that it be cured, unless the Authority shall agree in
writing to an extension of such time prior to its expiration; provided, however, if the failure
stated in the notice is correctable but cannot be corrected within the applicable period, the
Authority will not unreasonably withhold its consent to an extension of such time if corrective
action is instituted by the Borrower within the applicable period and diligently pursued until the
Default is corrected;
(c) Any warranty, representation or other statement by or on behalf of
Borrower contained in this Agreement or in any instrument furnished in compliance with or in
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reference to this Agreement or in connection with the issuance and sale of the Local Bond is
false or misleading in any material respect;
(d) The occurrence of a default by the Borrower under the terms of any
Subordinate Bonds, Parity Bonds, Existing Parity Bonds or Prior Bonds and the failure to cure
such default or obtain a waiver thereof within any period of time permitted thereunder;
(e) An order or decree shall be entered, with the Borrower's consent or
acquiescence, appointing a receiver or receivers of the System or any part thereof or of the
Revenues thereof, or if such order or decree, having been entered without the Borrower's
consent or acquiescence, shall not be vacated, discharged or stayed on appeal within sixty (60)
days after the entry thereof;
(f) Any proceeding shall be instituted, with the Borrower's consent or
acquiescence, for the purpose of effecting a composition between the Borrower and its creditors
or for the purpose of adjusting the claims of such creditors, pursuant to any federal or state
statute now or hereafter enacted, if the claims of such creditors are under any circumstances
payable from Revenues; or
(g) Any bankruptcy, insolvency or other similar proceeding shall be instituted
by or against the Borrower under any federal or state bankruptcy or insolvency law now or
hereinafter in effect and, if instituted against the Borrower, is not dismissed within sixty (60)
days after fding.
Section 11.2. Notice of Defa#lt. The Borrower agrees to give the Authority prompt
written notice if any order, decree orp~g referred to in Section 11.1(e), (f) or (g) is
entered or instituted against the Borrower or of the occurrence of any other event or condition
which constitutes a Default or an Event of Default immediately upon becoming aware of the
existence thereof.
Section 11.3. Remedies on Default. Whenever any Event of Default referred to in
Section 11.1 shall have happened and be continuing, the Authority shall, in addition to any
other remedies provided herein or by law, including rights SlXX:ified in Section 62.1-228 of the
Act, have the right, at its option without any further demand or notice, to take one or both of
the following remedial steps:
(a) Declare immediately due and payable all payments due or to become due
on the Local Bond and under this Agreement, and upon notice to the Borrower, the same shall
become immediately due and payable by the Borrower without further notice or demand; and
Co) Take whatever other action at law or in equity may a~ necessary or
desirable to collect the payments then due and thereafter to become due on the Local Bond and
under this Agreement or to enforce any other of the Fund's, the Authority's, the Department's
or the Board's rights under this Agreement or to enforce performance by the Borrower of its
covenants, agreements or undertakings contained herein or in the I.rr. al Bond.
Section 11.4. Del#y #nd Waiver. No delay or omission to exercise any right or power
accruing upon any Default or Event of Default shall impair any such right or power or shall be
- 18-
construed to be a waiver of any such Default or Event of Default or acquiescence therein, and
every such right or power may be exercised from time to time and as often as may be deemed
expedient. No waiver of any Default or Event of Default under this Agreement shall extend to
or shall affect any subsequent Default or Event of Default or shall impair any rights or remedies
consequent thereto.
ARTICLE XH
lWSCELLANF U$
Section 12.1. Successo~ and Ass'_lgnS. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors and assigns.
Section 12.2. Amendments. The Authority and the Borrower, with the written consent
of the Department, shall have the right to amend from time to time any of the terms and
conditions of this Agreement, provided that all amendments shall be in a writing and shall be
signed by or on behalf of the Authority and the Borrower.
Section 12.3. Limitation of Borrower's Liability. Notwithstanding anything in the
Local Bond or this Agreement to the contrary, the Borrower's obligations are not its general
obligations, but are limited obligations payable solely from the Revenues which are specifically
pledged for such purpose. Neither the Local Bond nor this Agreement shall be deemed to create
or constitute a debt or a pledge of the faith and credit of the Borrower and the Borrower shall
not be obligated to pay the principal of or interest on the Local Bond or other costs incident
thereto except from the Revenues and other funds pledged therefor. In the absence of fraud, no
present or future director, official, officer, employee or agent of the Borrower shall be liable
personally in respect of this Agreement or the Local Bond or for any other action taken by such
individual pursuant to or in connection with the financing provided for in this Agreement or the
~ Bond.
Section 12.4. Applicable Law. This Agreement shall be governed by the applicable
laws of Virginia.
Section 12.5. Severabili~. If any chuse, provision or section of this Agreement shall
be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or
Section shall not affect the remainder of this Agreement which shall be construed and enforced
as if such illegal or invalid clause, provision or section had not been contained in this
Agreement. If any agreement or obligation contained in this Agreement is held to be in
violation of law, then such agreement or obligation shall be deemed to be the agreement or
obligation of the Fund and the Borrower, as the case may be, only to the extent permitted by
law.
Section 12.6. Notices. Unless otherwise provided for herein, all demands, notices,
approvals, consents, requests, opinions and other communications under the Local Bond or this
Agreement shall be in writing and shall be deemed to have been given when delivered in person
or mailed by first class registered or certified mail, postage prepaid, addressed as follows:
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Fund:
Virginia Water Facilities Revolving Fund
c/o Virginia Resources Authority
P. O. Box 1417
Richmond, VA 23211
Attention: Executive Director
Authority:
Virginia Resources Authority
P. O. Box 1300
Richmond, VA 23210
Attention: Executive Director
Department
and Board:
State Water Control Board
Department of Environmental Quality
P. O. BOx 10009
Richmond, VA 23240-0009
Attention: Executive Director
Borrower:
City of Virginia Beach, Virginia
Municipal Center
Virginia Beach, VA 23456
Attention: City Manager
A duplicate copy of each demand, notice, approval, consent, request, opinion or other
communication given by any party named in this Section shall also be given to each of the other
parties named. The Authority, the Department, the Board and the Borrower may designate, by
notice given hereunder, any further or different addresses to which subsequent demands,
notices, approvals, consents, requests, opinions or other communications shall be sent or
persons to whose attention the same shall be directed.
Section 12.7. Rig. h_ t to Cure Default. If the Borrower shall fail to make any payment
or to perform any act required by it under the Local Bond or this Agreement, the Authority
without prior notice to or demand upon the Borrower and without waiving or releasing any
obligation or default, may (but shall be under no obligation to) make such payment or perform
such act. All amounts so paid by the Authority and all costs, fees and expenses so incurred
shall be payable by the Borrower as an additional obligation under this Agreement, together
with interest thereon at the rate of interest of five percent (5.0%) per annum until paid. The
Borrower's obligation under this Section shall survive the payment of the Local Bond.
Section 12.8. Heading. The headings of the several articles and sections of this
Agreement are inserted for convenience only and do not comprise a part of this Agreement.
Section 12.9. Term of Agreement. This Agreement shall be effective upon its
execution and delivery, provided that the Local Bond previously or simultaneously shall have
been executed and delivered. Except as otherwise specified, the Borrower*s obligations under
the ~ Bond and this Agreement shall expire upon payment in full of the Local Bond and all
other amounts payable by the Borrower under this Agreement.
Section 12.10. Commitment Le~er. The Commitment Letter is an integral part of this
Agreement and shall survive closing hereunder.
Section 12.11. Countemarts. This Agreement may be executed in any number of
counterparts, each of which shal~ be an original and all of which together shall constitute but
one and the same instrument.
WITNESS the following signatures, all duly authorized.
VIRGINIA WATER FACILITIES REVOLVING FUND
By: Virginia Resources Authority,
Administrator
By:
Shockley D. Gardner, Jr.,
Executive Director
CITY OF VIRGINIA BEACH, VIRGINIA
By:
Its:
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EXHIBIT A
Form of Local Bond
City of Virginia Beach, Virginia
C-515154-01
[To come from Borrower's Bond Counsel]
EXlIIBIT B
Project Description
City of Virginia Beach, Virginia
C-515154-01
The Project consists of various acquisitions, improvements, extensions,
additions and replacements to the System in order to f'mance the
construction of vacuum, sewer, pumping stations and associated
mains in the Sandbridge area of the Borrower.
EXHIBIT C
Project Budget
City of Virginia Beach, Virginia
C-515154-01
Cost Category_
Bond Counsel
Engineering
Construction
Debt Service Reserve
Contingency
TOTAL ...........
EXHIBIT D
Opinion of Borrower's Bond Counsel
City of Virginia Beach, Virginia
C-515154-01
[To come from Borrower's Bond Counsel]
EXq~RIT E
Form of Requisition
City of Virginia Beach, Virginia
C-515154-01
[LEIYERt-IEAD OF BORROWER]
[Date]
Donald W. Wampler, Program Manager
Construction Assistance Program
Office of Water Resources Management
Department of Environmental Quality
1a. O. Box 11143
Richmond, Virginia 23230
Re:
City of Virginia Beach, Virginia
Loan NO. C-515!54-Q1
Dear Mr. Wampler:
This requisition, Number ~, is submitted in connection with the Financing
Agreement dated as of January 1, 1997 (the "Financing Agreement"), between the Virginia
Water Facilities revolving Fund, also known as the Virginia Revolving Loan Fund (the "Fund")
and the City of Virginia Beach, Virginia (the "Borrower"). Unless otherwise defined in this
requisition, all capitalized terms used herein shall have the meaning set forth in Article I of the
Financing Agreement. The undersigned authorized Representative of the Borrower hereby
requests disbursement of loan prcr. e~s under the Financing Agreement in the amount of
$ , for the purposes of payment of the Project Costs as set forth in Schedule 1
attached hereto.
Attached hereto are invoices relating to the items for which payment is requested.
The undersigned certifies that (a) the amounts requested by the requisition will be
applied solely and exclusively to the payment, or the reimbursement of the Borrower for the
payment of Project Costs, and (b) any materials, supplies or equipment covered by this
requisition are not subject to any lien or security interest or such lien or security interest will be
released upon payment of the requisition.
This requisition includes an accompanying Certificate of the Consulting Engineer as to
the performance of the work.
Very truly yours,
By:
Its:
Attachments
cc: Mr. Charles L. Massie- VRA
CERTWICATE OF THE CONSULTING ENGINF~ER
FORM TO ACCOMPANY REQUEST FOR DISBURSEMENT
This Certificate is submitted in connection with Requisition Number. , dated
,19m, submitted by the City of Virginia Beach, Virginia (the "Borrower") to
the Virginia Water Facilities Revolving Fund. Capitalized terms used herein shall have the
same meanings set forth in Article I of the Financing Agreement referred to in the Requisition.
The undersigned Consulting Engineer for the Borrower hereby certifies to the Virginia
Water Facilities Revolving Fund that, insofar as the amounts covered by this Requisition include
payments for labor or to contractors, builders or materialmen, such work was actually
performed or such materials, supplies or equipment were actually furnished to or installed in the
Project.
[Consulting Engineer]
By:
Date:
U
0
n:l o3
0 0
:>
0
Prior Bonds.
Nolle.
EXItlBIT F
Prior Bonds and Existin~ Parity Bonds
City of Virginia Beach, Virginia
C-515154-01
$ 5,100,000 Water and Sewer Revenue Notes,
1977 (P. A. Corp.);
$ 2,000,000 Drought Relief Revenue Bond, 1978;
$ 2,200,000 Water and Sewer Revenue Notes,
1982 (County Utilities);
$1,800,000 Water and Sewer Revenue Notes,
1982 (Kempsville Utilities);
$19,975,000 Water and Sewer System Revenue
Bonds, Series of 1992;
$46,440,000 Water and Sewer Revenue and
Refunding Bonds, Series of 1993.
$1,405,031 Water and Sewer Revenue Bonds,
Series of 1994
(Total aggregate outstanding balance as of June 30, 1996:
Outstanding Principal
as of June 30, 1996
$ 5,100,000.00
2,000,000.00
1,056,000.00
3,125,000.00
44,420,000.00
1,382,149.82
$ 57,947.149.82)
EXHIBIT G
Project Performance Standards
City of Virginia Beach
C-515154-01
Listed below are the Project Performance Standards for the City of Virginia Beach Project
(Sandbridge Interceptor):
[To Come]
EXHIBIT H
Pending Litigation
City of Virginia Beach, Virginia
C-$15154-01
[To Be Updated]
The Borrower has been involved in litigation for ten years, as various parties in Virginia
and the State of North Carolina have opposed the Borrower's efforts to construct the Lake
Gaston Project. The City Council has ~trmed its commitment to the Lake Gaston Project as
the most effective means of providing the necessary supply of water for the Borrower's
continued welfare, growth and prosperity. The Borrower is committed to pursuing vigorously
all litigation necessary to complete the Lake Gaston Project at the earliest practicable date.
a. In January, 1984, the Borrower fried suit in the United States District
Court for the Eastern District of Virginia, later transferred to the Eastern District of North
Carolina, seeking a declaratory judgment that its withdrawals from lake Gaston will not violate
the riparian fights of certain owners of property on the Roanoke River. The suit was stayed on
September 12, 1991, pending the approval of the Federal Energy Regulatory Commission
CFERC") of the conveyance of easements from Virginia Power to the Borrower for
construction, operation and maintenance of an intake facility.
b. On November 14, 1988, the Board of Supervisors of Mecklenburg
County, Virginia, fried a suit in Mecklenburg County Circuit Court against the Borrower,
seeking a declaration that, under Virginia's Loc~ Consent Law, the Borrower is required to
obtain its consent for the use of storage capacity in John H. Kerr Reservoir. The Board of
Supervisors of Halifax County, Virginia, intervened as party plaintiff. On July 6, 1992, the
Mecklenburg County Circuit Court ruled in favor of the counties. The Borrower appealed that
decision to the Supreme Court of Virginia, which, on September 17, 1993, reversed the
judgment of the trial court and ruled that the Borrower is not required to obta/n the consent of
the counties. The Supreme Court's decision is final and unappealable.
c. The Borrower awarded two contracts to begin construction of the Lake
Gaston pipeline in the summer of 1990. Shortly thereafter, the United States District Court for
the Eastern District of North Carolina enjoined actual construction of any phase of the project
until further order of the Court or until FERC approves an application by Virginia Power for
permission to convey certain easements to the Borrower for the construction, operation and
maintenance of the project's intake facility. On December 6, 1991, the United States Court of
Appeals for the Fourth Circuit modified the injunction to permit construction of two "critical
path" elements of the Lake Gaston Project, so named because their construction will expedite
the completion of the remainder of the Lake Gaston Project by approximately fifteen to eighteen
months.
The Court of Appeads denied the petition for reheating fried by the State of North
Carolina on December 20, 1991, and North Carolina did not pursue an appeal. Construction
work on the two critical path elements of the Lake Gaston Project is essentially complete at this
time.
On November 14, 1994, as a result of the decision of the Virginia State Corporation
Commission described in paragraph (g), the Borrower fried a motion asking the United States
District Court for the Eastern District of North Carolina to modify the aforesaid injunction to
allow the remainder of construction to go forward upon acquisition of the necessary easements,
either by voluntary conveyance from Virginia Power, with FERC approval, or by
condemnation. The State of North Carolina and FERC oppose the motion, and the case is
currently in the brief'mg stage.
d. On May 2, 1991, the National ~c and Atmospheric Administration
CNOAA") ruled that the Coastal Zone Management Act (the "CZMA") authorized the State of
North Carolina to review the Lake Gaston Project for consistency with its Coastal Zone
Management Plan in connection with the Virginia Power application before the FERC. On
September 9, 1991, North Carolina fried its objection to the Lake Gaston Project, claiming that
the withdrawal of water from lake Gaston would be inconsistent with its Coastal Zone
Management Plan. The Borrower and Virginia Power appealed the North Carolina objection to
the United States Secretary of Commerce.
On December 3, 1992, the Secretary of Commerce ruled in favor of the Borrower and
terminated the proceedings on jurisdictional grounds, finding that North Caro~ lacked
authority to object to the Lake Gaston Project because it will be located entirely in Virginia.
North Carolina then requested the Secretary of Commerce to reconsider that dechion, and on
July 30, 1993, the Secretary issued a decision refusing to reconsider. On September 2, 1993,
North Carolina fried suit in the United States District Court for the District of Columbia,
seeking declaratory and injunctive relief against the Secretary. The Borrower has intervened as
a defendant in the suit.
On December 16, 1993, NOAA advised the Borrower that the Department of Justice had
withdrawn its prior opinions on the jurisdictional issue decided in the two Secretaries' decisions;
that NOAA had advised the Secretary that in the absence of a Department of Justice opinion, the
Secretary should revert to a prior NOAA opinion that a state has jurisdiction under the CZMA
to review a project in another state; and that the Secretary had fully accepted NOAA's
recommendation. NOAA also advised the Borrower that NOAA was reopening the
administrative appeal procexxtings and would proceed to a decision on the merits. Also, on
December 16, 1993, North Carolina dismissed the Secretary of Commerce from its suit, and a
consent order dismissing the entire action was entered shortly thereafter.
e. On March 12, 1993, the Boards of Supervisors of Mecklenburg and
Halifax Counties fried suit in Mecklenburg County Circuit Court against the Borrower, seeking
a declaratory judgment that Chapter 812 of the 1992 Virginia Acts of Assembly, which allocates
to the Borrower 60 million gallons of water per day from Lake Gaston, violates the Virginia
Constitution. The Borrower demurred to the suit on various grounds, including the Counties'
lack of standing. On October 15, 1993, the court granted the demurrer and dismissed the suit.
f. On December 23, 1993, in response to the dismissal of the suit described
in paragraph (d), the Borrower Fried a civil action in the United States District Court for the
Eastern District of Norfolk against the Secretary of Commerce and the Undersecretary for
~s and Atmosphere, seeking an order declaring that the Coastal Zone Management Act
does not apply to the Lake Gaston Water Supply Project.
On May 19, 1994, the Secretary of Commerce issued a decision overriding the objection
of the State of North Carolina under the Coastal Zone Management Act, as is more fully
described in paragraph (d). Shortly thereafter, the court dismissed the Borrower's suit as moot.
On July 8, 1994, the State of North Carolina fried an action against the Secretary of
Commerce in the United States District Court for the District of Columbia, asking the court to
set aside the decision of the Secretary discussed in the prece, ziing paragraph. The Borrower has
intervened in the suit. While no date for oral argument has been scheduled, it is anticipated that
all briefs will be fried with the court by late January, 1995, and oral argument will be heard
shortly thereafter.
g. On June 23, 1994, FERC issued a Final Environmental Assessment of the
Lake Gaston Project and announced that it would perform an Environmental Impact Statement.
FERC has jurisdiction in this matter by virtue of the fact that l. ake Gaston forms part of a
hydropower project owned and operated by Virginia Electric and Power Company ("VEPCO")
and licensed by FERC pursuant to the Federal Power Act. Article 17 of VEPCO's license
provides that it may not voluntarily convey any part of the project for non-project uses without
the approval of FERC. Inasmuch as the Borrower needs certain easements in and around Lake
Gaston for the intake structures and other appurtenances of the Pipeline, FERC approval for the
conveyance of such easements is requix~ for their voluntary transfer from VEPCO to the
Borrower, or the easements may be acquired by condemnation (see final paragraph of this
subsection (g)).
As a result of the FERC decision to perform an Environmental Impact Statement, the
Borrower instituted two civil actions on or about July 15, 1994. In one, it has fried a Petition
for Writ of Mandamus in the United States Court of A~ for the Fourth Circuit, asking the
court to order FERC to render a decision no later than August 15, 1994. On December 22,
1994, the Court denied the Petition, citing "FERC's continuing assurance of expedited treatment
and its promise to adhere to a tight schedule .... "
The other action undertaken by the Borrower was the filing of an application with the
Vh'ginia State Corporation Commission for permission to condemn the easements discussed
above. On November 7, 1994, the Commission granted the Borrower's application, thereby
enabling the Borrower to condemn the easements. It is the Borrower's view that, inasmuch as
condemnation of the easements would constitute an involuntary conveyance, the provision of
VF_.IngO's license prohibiting the voluntary conveyance of project property without FERC
approval would not be applicable, and FERC approval would therefore not be necessary. This
issue is being litigated in the suit more fully described in paragraph (c).
~3~22
- 25 -
Item V-J.~.
CONSENT AGENDA
ORDINANCES/RESOL UTIONS
ITEM # 41601
E. Dean Block, Director of Management Services, explained the proposed Revenue Sharing Policy for
City/Public School Purposes.
Upon motion by Vice Mayor Sessoms, seconded by Councilman Harrison, City Council DEFERRED
UNTIL FEBRUARY 4, 1997 COUNCIL MEETING:
Resolution re a policy for sharing certain General Fund Revenues
between the City and the Virginia Beach School Board.
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndo~ Nancy I~ Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 26 -
ltela V-J..5.
CONSENT AGENDA
ORDINANCESlRESOL UTIONS
ITEM # 41602
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinance to AMEND and REORDAIN Section 2-452.1 of the City
Code to increase the membership of the Chesapeake Bay Preservation
Area Board to nine members.
Voting:
10-0 (By ConsenO
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndoff, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
10
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14
15
16
17
18
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22
23
24
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27
28
29
30
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32
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34
35
36
37
AN ORDINANCE TO INCREASE THE
MEMBERSHIP OF THE CHESAPEAKE BAY
PRESERVATION AREA BOARD TO NINE
SECTION AMENDED: CITY CODE S 2-452.1
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
BEACH VIRGINIA'
, ·
That Section 2-452.1 of the Code of the City of Virginia
Beach, Virginia, is hereby amended and reordained to read as
follows:
Sea. 2-452.1. Chesapeake Bay PreservationAx*ea Bo&rd.
(a) There is hereby created the Chesapeake Bay Preservation
Area Board, which shall have such authority as is conferred upon it
by the provisions of the Chesapeake Bay Preservation Area
'~' nine (9) members,
Ordinance. Such board shall consist of ~cvcn ~,,
who shall be appointed by the city council for terms of three (3)
years; provided, however, that original appointments shall be made
as follows: Three (3) members shall be appointed for a term of
three (3) years, two (2) members for a term of two (2) years, and
two (2) members for a term of one (1) year. Members may serve for
no more than three (3) consecutive three-year terms in addition to
an initial term, if such initial term is less than three (3) years,
but a member whose term expires shall continue to serve until his
successor is appointed and qualifies. Appointments to fill
vacancies shall be for the unexpired portion of the term. Members
of the board shall be compensated in the amount of fifty dollars
($50.00) per regularly-scheduled meeting attended and shall be
reimbursed for their necessary expenses in discharging their
duties.
(b) The board shall elect from its membership a chair and
vice-chair. The chair shall preside at all meetings of the board,
except that the vice-chair shall preside in the absence of the
chair. Members of the board shall be required to take an oath of
office prior to assuming their positions. The board may make,
alter and rescind rules and forms for its procedures, consistent
with the ordinances of the city, including, without limitation,
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42
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44
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46
Sections 113 and 114 of the Chesapeake Bay Preservation Area
Ordinance, and the general laws of the commonwealth.
(c) Pursuant to the provisions of section 2.1-639.14A of the
Code of Virginia, the members of the Chesapeake Bay Preservation
Area Board, as a condition of assuming office, shall file
disclosure statements of their personal interests and other
information specified on the forms set forth in Code of Virginia,
section 2.1-639.15 and, thereafter, file such statements annually
on or before January 15.
47
48
Adopted by the City Council of the City of Virginia Beach,
Virginia, on this 7th day of January, 1997.
49
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CA-6524
wmm/ordres/02-452-1.ord
December 20, 1996
R-1
- 27 -
Item V-J.6.
CONSENT AGENDA
O~INANCES/~SOL UTIONS
ITEM # 41603
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinance to APPROPRIATE a $189,232 Grant from the U. S.
Department of Justice and $225,223 from the General Fund Balance to
the Police Department's FY 1996-1997 Operating Budget; TRANSFER
$91,950 from the General Fund Reserve .for Contingencies to the Police
Department's FY 1996-1997 Operating Budget re expanding the
Community Policing Program; and, increase estimated grant revenue
from the Federal Government accordingly.
Voting:
10-0 (By ConsenO
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., tlarold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf,, Nancy IC Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
1
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3
4
5
6
7
8
9
10
AN ORDINANCE TO ACCEPT A $189,232 GRANT FROM
THE U. S. DEPARTMENT OF JUSTICE, TO
APPROPRIATE THE GRANT, AND $225,223 FROM THE
GENERAL FUND BALANCE TO THE POLICE
DEPARTMENT'S FY 1996-97 OPERATING BUDGET, AND
TO TRANSFER $91,950 FROM THE GENERAL FUND
RESERVE FOR CONTINGENCIES TO THE DEPARTMENT'S
FY 1996-97 OPERATING BUDGET, ALL FOR THE
PURPOSE OF EXPANDING THE COMMUNITY POLICING
PROGRAM
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WHEREAS, the Virginia Beach Police Department has been
awarded a three-year grant of $2,408,069 from the U. S. Department
of Justice, Office of Community-Oriented Policing Services, to
provide for the hiring of thirty-two (32) police officers to expand
the City's community policing program;
WHEREAS, up to seventy-five (75) percent of the funding
needed for salaries and fringe benefits will be provided through
grant funds, with funding for the remainder of salaries and fringe
benefits, and for operating expenses and equipment, being provided
through the General Fund;
WHEREAS, of the thirty-two (32) officers being funded
through the grant, seventeen (17) will be hired during FY 1996-97,
and fifteen (15) will be hired during FY 1997-98; and
WHEREAS, $107,892 of the amount needed for equipment for
the seventeen (17) officers has been previously provided through a
federal Law Enforcement Block Grant, accepted and appropriated by
Council on August 6, 1996;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
OF VIRGINIA BEACH, VIRGINIA:
1. That grant funds in the amount of $189,232 are
hereby accepted from the U. S. Department of Justice, Office of
Community-Oriented Policing Services, and appropriated to the FY
1996-97 Operating Budget of the Virginia Beach Police Department
for the purpose of providing for expansion of the community
policing program through the hiring of seventeen (17) police
officers;
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2. That funds in the amount of $225,223 from the
General Fund balance are hereby appropriated, and funds in the
amount $91,950 from the General Fund Reserve for Contingencies are
hereby transferred, to the Police Department's FY 1996-97 Operating
Budget to fund the City's share of the community policing program
expansion;
3. That estimated grant revenue from the Federal
Government is hereby increased by $189,232; and
4. That the City Manager is hereby directed to include
the additional fifteen (15) police officers being funded by the
three-year grant in the Police Department's FY 1997-98 Operating
Budget.
This ordinance shall be effective on the date of its
adoption.
51
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Adopted by the Council of the City of Virginia Beach,
Virginia, on the 7th day of January , 1997.
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CA-6521
ORDIN\NONCODE\POLICING. ORD
R-1
PREPARED: 12 / 19 / 96
APPROVED AS TO CONTENT
Depa~anent of Manageme~'rg'~e~
APPROVED AS TO LEGAL
-D'epamncnt of Law
- 28 -
Item V-J. 7.
CONSENT AGENDA
ORDINANCES/RESOL UTIONS
ITEM # 41604
Upon motion by Pice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinance authorizing license refunds in the amount of $99.01 upon
application of certain persons and upon Certification of the
Commissioner of the Revenue.
10-0 (By ConsenO
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William gE. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndoff, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
FORM NO CA IREV 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 apphcations for license refunds, upon certification
of the Commissioner of the Revenue are hereby approved
NAME LICENSE DATE BASE
YEAR PAID
PENALTY INTEREST
TOTAL
Hogson, David A
903 N Sparrow Road
Chesapeake, VA 23325
Sun Mortgage Corporation
658 W Fox Grove Court
V~rg~n~a Beach, VA 23464
1995 Audit
1995-96 Audtt
46 91
52 10
46 91
52 10
Th~s ordinance shall be effective from date of
adoption
The above abatement(s) totaling $99.01
of the C~ty of V~rgm~a Beach on the 7th
Certd~ed as to Payment
~...~rt P Vaughan- ~
Commissioner of the Revenue
Approved as to form
L['~I,~ L L,II~'~
C~ty Attorney
were approved by the Counol
day of January
,19
97
Ruth Hodges Smith
Crty Clerk
- 29 -
Item V-J. 8.
CONSENT AGENDA
ORDINANCES lltES OL UTIONS
ITEM # 41605
Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED:
Ordinance authorizing tax refunds in the amount of $1,654.90 upon
application of certain persons and upon Certification of the City
Treasurer.
10-0 (By ConsenO
Council Members Voting Aye:
John ,4. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. Oberndorf,, Nancy K. Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members `4bsent:
Louisa M. Strayhorn
January 7, 1997
FORM NO ~ A 7
AN ORDINANCE AUTHORIZING TAX REFUNDS
UPON APPLICATION OF CERTAIN PERSONS
AND UPON CERTIFICATION OF THE TREASURER
FOR PAYMENT
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
That the following appl~cataons for tax refunds upon cert~hcat~on of the Treasurer are hereby approved.
NAME Tax Type T~cket Exonera- Date Penalty Int.
Year of Tax Number t~on No. Paid
Total
Great Financial Mortgage 96 RE(l/2
Great Financial Mortgage 96 RE(2/2
Giant Square Shopping Ctr 96 RE(l/2
Giant Square Shopping Ctr 96 RE(2/2
Kyong S Lampi 96 RE(2/2
Henning & Campbell Buonassissi96 RE(2/2
Norwest Mortgage Inc 96 RE(2/2
Shuttleworth Ruloff 96 RE(2/2
Irving J Dixon 96 RE(2/2
Nationsbanc Mortgage 95 RE(l/2
Nationsbanc Mortgage 95 RE(2/2
Nationsbanc Mortgage 93 RE(l/2
Nationsbanc Mortgage 93 RE(2/2
Herman A Tatem 96 PP
Dawn M Churchill N/A Pkng
Steven J Valentine N/A Pkng
Michelle Hinck N/A Pkng
) 095956-9 11/24/95 15.49
) 095956-9 5/17/96 15.49
) 043956-9 12/5/95 122.27
) 043956-9 6/5/96 122.27
) 068172-4 8/29/96 63.48
) 102753-8 6/5/96 53.72
) 137007-8 5/14/96 33.62
) 040880-6 6/5/96 177.70
) 031602-2 6/5/96 5.70
) 083490-9 11/23/94 153.90
) 083490-9 5/21/95 153.90
) 001538-7 12/5/92 322.60
) 001538-7 9/23/93 366.15
217822-0 9/13/96 2.61
B70502 9/25/96 12.00
B67486 9/27/96 24.00
505582 8/7/96 10.00
1,654.90
This ordinance shall be effective from date of adoption.
The above abatement(s) totaling
$1,654. gO were approved by
the Council of the City of V~rg~nia
Beach on the 7 day of ~,. 1997
Ruth Hodges Smith
C~ty Clerk
Joht~ T./(tkil~o~, treasurer
Approved as to form.
- 30 -
Item V-K.I.
APPOINTMENTS
ITEM # 41606
Upon NOMINATION by Vice Mayor Sessoms, City Council APPOINTED:
CHESAPEAKE BAY PRESERVATION BOARD
Jeffrey W. Ainslie
Mary M. Heinricht
3-Year Terms
01/07/97 - 12/31/99
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndo~ Nancy IC Parker and Vice Mayor William
D. Sessoms, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 31 -
Item V-K.2.
APPOINTMENTS
ITEM # 416O7
Upon NOMINATION by Vice Mayor Sessoms, City Council APPOINTED:
FRANCIS LAND HOUSE BOARD OF GOVERNORS
Elizabeth H. Parker
3-Year Term
01/01/97 - 12/31/99
Voting: 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Itarold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William
D. Sessorns, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 32 -
Item ~-K.3
APPOINTMENTS
ITEM # 41608
Upon NOMINATION by Pice Mayor Sessoms, City Council APPOINTED:
WETLANDS BOARD
Nancy W. Lowe
Unexpired Term thru 9/30/2000
l/'oting : 10-0
Council Members Voting Aye:
John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold
Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan,
Mayor Meyera E. Oberndorf,, Nancy IC Parker and Vice Mayor William
D. Sessotns, Jr.
Council Members Voting Nay:
None
Council Members Absent:
Louisa M. Strayhorn
January 7, 1997
- 33 -
Item V-O.
ADJOURNMENT
ITEM # 41609
Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at $:02 P.M.
B~ve-~y~. Hooks, CMC/AAE
Chief Deputy City Clerk
Ruth Hodges Smith, CMC/AAE
City Clerk
Meyera E. Oberndorf
Mayor
City of Virginia Beach
Virginia
January 7, 1997