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Home My WebLink AboutSEPTEMBER 22, 1998 MINUTESC. ity of Virginia l:Scach "WORLD'S LARGEST RESORT CITY" CYTY COUNCIl. MAYOR MEYERA E. OBERNDORF. At-I.~rRe VICE MAYOR WILLIAM D. SE$SOMS. JR.. At.L~rge LINWOOD O. BRANCH IlL Dist~ct ~-B~ch MARGAR~ L. CURE. District I-Cente~ille WI~AM W. HARRISON. JR., D~trict 5.Lynn~en HARO~ HEISCHO~ER. At.~rge ~RBA~ M. H~Y. D~trict 7-Prince3x An~ LO~15 R. 10~. D~ct 4.Bay~Me R~ 5. M~. Dhtrict ~-gme Itull N~CY g. P~K~. At.~rge JAMES K. SPORE. City Manager LESLIE L. [.Il]Fy, CiPJ Attorney RUTll HODGE~ SMITH. CMCIAAE. City Cl~r~ CITY COUNCIL AGENDA CITY HALL BUILDING I 2401 COURTHOUSE DRIVE VIRGINIA BEACH. VIRGINIA 2345~$.~05 PtlONE: (75714~7-4305 FA~: (757)426.5669 EMAIL: CTYCNCL~CITY.VIRGINIA- BEACII.V^.US 22 September 1998 I. CITY MANAGER'S BRIEFINGS - Conference Room - 3:30 PM Do ART OF GLASS EXHIBIT Barbara Bloemink, Executive Director, Contemporary Arts Center YEAR 2000 (Y2K) David Sullivan, Director, Informational Technology PROPOSED AMENDMENTS TO CONSTITUTION OF VIRGINIA Robert R. Matthias, Assistant to the City Manager BOARDS AND COMMISSIONS REVIEW PROCESS AND POLICY Robert R. Matthias, Assistant to the City Manager II. REVIEW OF AGENDA ITEMS III. CITY COUNCIL CONCERNS IV. INFORMAL SESSION - Conference Room - 5:00 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO EXECUTIVE SESSION' V. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyem E. Obemdorf Bo INVOCATION: The Reverend Sidney Nelson, Ph.D. St. Timothy Lutheran 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 INFORMAL & FORMAL SESSIONS SPECIAL FORMAL SESSION 8 September 1998 15 September 1998 AGENDA FOR FORMAL SESSION 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. H. PUBLIC HEARING EXCESS CITY REAL ESTATE PROPERTY Adjacent to 2201 Bieme Drive (DISTRICT 7 - PRINCESS ANNE) ORDINANCES Ordinance to declare approximately 13,171 square feet acre of City-owned property as EXCESS PROPERTY adjacent to 2201 Bierce Drive; and, authorize the City Manager to dispose of same in sale to the adjacent property owner (DISTRICT 7 - PRINCESS ANNE). Ordinance to AMEND Section 2-6 of the City Code re the Resort Area Advisory Commission (RAAC), changing the name to Resort Advisory Commission (RAC); changing the responsibility of the Commission with respect to the Tourism Growth and Investment Special Revenue Fund (TGIF); and, amending the Commission's By-laws. Ordinance to authorize a temporary encroachment into a portion of the City's right-of-way by GREAT NECK BAPTIST CHURCH to construct and maintain two (2) directional signs at the intersections of Great Neck Road/Old Donation Parkway and Inlynnview Road (DISTRICT 5 - LYNNHAVEN). Deferred: 25 August 1998 Ordinance to authorize a temporary encroachment into a portion of the City's drainage easement, known as Canal No. 2, by HERMES ABRASIVES, Ltd. to construct and maintain an eight-foot (8') chain link fence at Viking and Avenger Drives (DISTRICT 6 - BEACH). e Ordinance to authorize temporary encroachments into a portion of the City's right-of-way by CHURCH POINT COMMONS, L.L.C. to construct and maintain a shopping center sign at 1700 Pleasure House Road near First Court Road (DISTRICT 4 - BAYSIDE). o Ordinances to provide for the lease of portions of City property re constructing, maintaining and operating wireless telecommunications facilities: a. 5023 Providence Road (DISTRICT 2 - KEMPSVILLE) b. 1848 Pleasant Ridge Road (DISTRICT 7 - PRINCESS ANNE) 7. LICENSE REFUNDS $6,650.69 J. PUBLIC HEARING - PLANNING PLANNING BY CONSENT - To be determined during the Agenda Review Session. Ordinance in the Petition of WELDON T., JR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment of a portion of an unnamed street beginning at the Southeast corner of the Norfolk and Southern Railroad right-of-way, containing 8,198.5 square feet (DISTRICT 2 - KEMPSVILLE). Deferred for Compliance: 28 April 1998 Recommendation: FINAL APPROVAL Application of SUE D. FRANCE for an enlargement of a non-conforming use at 1741 London Bridge Road re the demolition, relocation and enlargement of one of two non- conforming, single-family dwellings on one lot, containing 1.51 acres (DISTRICT 6 - BEACH). Recommendation: DENIAL Application of ALLEN R. BAER for a Conditional Use Permit for a car wash and automotive repair on the South side of Tiffany Lane, 180 feet more or less West of Princess Anne Road, containing 2.546 acres (DISTRICT 7 - PRINCESS ANNE). Recommendation: DENIAL Applications of COXCOM, INC., dba COX COMMUNICATIONS HAMPTON ROADS re the North side of Princess Anne Road, West of Ferrell Parkway (2636 Princess Anne Road), containing 1.69 acres (DISTRICT 7 - PRINCESS ANNE) ao Change of Zoning District Classification fi.om AG-2 Agricultural District to Conditional B-2 Community Business District b. Conditional Use Permit for a fiber optic transmission faeili _ty Recommendation: APPROVAL Applications re Rosemont Road, 1300 feet more or less North of Dam Neck Road (DISTRICT 7 - PRINCESS ANNE): ROSEMONT COMMERCE PARK, L.L.C. and ARBOR TREE EXPERTS, INC. for a Change of Zoning District Classification fi.om R-5D Residential Duplex District to Conditional I-1 Light Industrial District on the East side of Rosemont Road, containing 25.67 acres ARBOR TREE EXPERTS, INC. for a Conditional Use Permit for processing woody vegetation and storage of same on property East of Rosemont Road and North of Dam Neck Road, containing approximately 14 acres Recommendation: APPROVAL Application ofO & R, INC., a Virginia Corporation, and/or Assigns for a Change of Zoning District Classification from R-10 Residential District to A-12 Apartment District with a PD-H Overlay on the West side of Salem Road, North of Lynnhaven Parkway, containing 12.186 acres (DISTRICT 1 - CENTERVILLE). Deferred: 11 August 1998 Recommendation: APPROVAL Applications of VIRGINIA BEACH DEVELOPMENT AUTHORITY for Change of Zoning District Classification re the North side of Holland Road at the intersection with South Independence Boulevard (DISTRICT 3 - ROSE HALL) a. fi.om P- 1 Preservation District to I- 1 Lieht Industrial DistricL containing 22.928 acres fi.om B-2 Community Business District to I-I Light Industrial District, containing 2.1109 acres Recommendation: APPROVAL Ordinance to AMEND and REORDAIN Sections 2, 4, 7 and 9 of the Airport and Noise Attenuation and Safety Ordinance (Appendix I) of the City Code re renaming Airport Noise Zones and Aircraft Accident Potential Zones; and, requiring new disclosures in connection with certain real estate transactions. Recommendation: APPROVAL Ordinances re the new Air Installations Compatible Use Zones (AICUZ): AMEND and REORDAIN Section 221.1 °fthe City Zoning Ordinance (CZO) re specific standards for certain conditional uses AMEND the official City Zoning Map, without change in the official zoning designation, to reflect the new AICUZ Recommendation: APPROVAL K. APPOINTMENTS DEVELOPMENT AUTHORITY WETLANDS BOARD L. UNFINISHED BUSINESS M. NEW BUSINESS DESIGNATION OF VOTING DELEGATES a. National League of Cities (NLC) Annual Conference - December 1 - 5, 1998 - Kansas City, Missouri N. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) 09/17/98/cmd AGENDA\09-22-98.PLN www.virginia-beach.va.us MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia September 22, 1998 Vice Mayor William D. Sessoms, Jr. called to order the CITY MANAGER'S BRIEFINGS in the Council Conference Room, City Hall Building, on September 22, 1998, at 3:30 P.M. Council Members Present: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms and A. 3/1. "Don" Weeks Council Members Absent: Mayor Meyera E. Oberndorf [OBSER V1NG ROSH HASHANAH ENTERED: 7.'29 P.M. William W. Harrison, Jr. [ENTERED: 3:42 P.M.] -3- CITY MANAGER'S PRESENTATION YEAR 2000 (Y2K) 3:44 P.M. ITEM # 44073 David Sullivan, Director - Information Technology, distributed copies of his slide presentation, which are hereby made apart of the record. From today (September 22, 1998), the year 2000 is 465 days. Back in the 1960's when computers were.first becoming prevalent in business, storage was a very expensive purchase. Computer engineers did everything possible to save extra space. A portion of that was saving two digits every time a date was stored. The 19 was eliminated and computer systems were designed to utilize two digit years, Le. 1998 was 98. Therefore when the year 2000 arrives, computer systems are going to roll over to 00, which the systems will believe are 1900, not 2000. The sorting, calculation, validation and display would be incorrect. The majority of credit cards expire in the year 1999, as the credit card companies had not completely fixed their systems. WHAT IS IMPACTED? Computer software Custom developed in-house programs (e.g., Tax Systems, Payroll). Third party or commercial software (e.g. Word Processors, Spreadsheets) Computer OperatingSystems(e.g., DOS, Windows, Windows95) Computer Hardware Mainframes Networks Servers Personal Computers Any Electronic Equipment using calendaring such as: Traffic Control Systems Security Systems Heating & Air-conditioning systems VCR 's HOW BIG IS THE PROBLEM AT VIRGINIA BEACH? Computer software 35 customer developed mainframe systems with over 1.5-Million lines of computer code (written in-house) 1500 custom developed Personal Computer database systems Computer Hardware 1 Mainframe 1 O0 Servers 425 Network Hubs and Routers 3, 000 Personal Computers Embedded Systems O~er 250 buildings with HVAC and control systems 400 Police, Fire and Rescue Vehicles 485 Gravity Sewer Pump Stations with Control Systems September 22, 1998 -4- CITYMANAGER'S PRESENTATION YEAR 2000 (Y2K) ITEM # 44073 (Continued) The City started to address the problem in 1996 with replacement of the City's Mainframe computer to be compliant. It was actually less expensive to replace. The first modifications to the City's real estate system were made in 1996. The City is utilizing a four phase approach: Mainframe System (scheduled to be fully compliant by December 1998), Networks and Personal Computer Systems (estimated to be completed by September 1999), Embedded Systems (better be complete by December 1999) and Business Partners & Suppliers (estimated completion September 1999). Each Phase utilizes the following approach: Inventory Determine Year 2000 Compliance for each item inventoried Assess risk and set priorities Determine correction strategy: Replace, retire, repair Do the work Test Keep it compliant HOW ARE WE ADDRESSING THE PROBLEM WITH RESOURCES? Information Technology is the lead agency. Full time Contractual Project Manager since July 1997 (Roz Jones) 25 City IT Programmers and Analysts working part time on the project Three additional Contract Programmers to supplement IT staff City Wide Year 2000 Team Each Department has a representative Created a four person team to address R.'BASE database applications Direct Expenditures for Year 2000 (Y2K) FY1996- 1997 FY1997- 1998 FY 1998 - 1999 $ 14,916 $ 361,173 $1,725,125 ($1.4-M. is in a project contingency fund.) OTHER EFFORTS HELPING ADDRESS THE YEAR 2000 PROBLEM Microcomputer Replacement Program City-wide Standard Software Upgrades Replacement of Old Systems for other reasons: VIBES Financial System Library Information System Police Incident Based Report (IBR) Police Computer Aided Dispatching Parks & Recreation Facility Card Risk Management System City Clerk's Document System The City's Internal Auditor estimates the City is 65% complete. Inventories, assessments and plans are largely complete with resources dedicated and funded. September 22, 1998 -5- CITY MAN.4 GER 'S PRESENT.4TION YEAR 2000 (Y2K) ITEM # 44073 (Continued) Relative the bad news, business partners, state and Federal interfaces. Social Security is ahead while Treasury is behind. Other priorities are drawing away resources. The industry keeps discovering new problems (e.g., Police Communications and Mobile Data Terminals). Mr. Sullivan had a meeting with Motorola this morning relative the terminals in the police cars. The terminals, on average, are eight years old. Some of them are ten years old. This is very old for computer technology in today's world. Motorola will not be able to advise relative problems which may exist with these until November. If all must be replaced this would be approximately $3-MILLION to $4-MILLION. Mr. Sullivan believes Virginia Beach is ahead of the majority of City governments and doing better than a number of private businesses. Some companies are being bought by companies with compliant systems. The schools have a project underway; however, they are having a resource problem. A number of their information technology systems have been addressed. The IT industry is being drained by the deman& therefore, salaries are increasing. Employees are being lost to the private sector both on the City side and even more so on the school side. Schools ' inventories have not been as comprehensive as the City's. September 22, 1998 -6- CITY MANAGER'S PRESENTATION PROPOSED AMENDMENTS TO CONSTITUTION OF VIRGINIA 4:10 P.M. ITEM # 440 74 Robert R. Matthias, Assistant to the City Manager, advised the steps to AMEND THE VIRGINIA CONSTITUTION: The General Assembly must approve by simple majority a Joint Resolution describing the Constitutional amendment. No Gubernatorial approval is needed. A General Assembly election must takeplace. The General Assembly must again pass a Joint Resolution describing the Constitutional amendment. A simple majority is all that is required. No Gubernatorial approval is needed. Voters must approve the referendum by simple majority at a November election. After the voters approve the Constitutional amendment, the General Assembly must then enact enabling legislation for the Constitutional amendment to be carried out. This would spell out the details on how the Constitutional amendment would be enacted, utilized, etc. Occasionally the General Assembly will approve enabling legislation at the General Assembly session before the planned referendum. Then the legislation would become effective on January Pt following the referendum. This was the case with pari-mutual betting and the lottery. The General Assembly has passed no enabling legislation for any of the planned Constitutional amendments before the voters this November. In fact, there has been a Constitutional amendment to allow regional government for quite some time; however, the General Assembly has never passed legislation to allow it to become fact. Mr. Matthias referenced the FIVE PROPOSED AMENDMENTS TO THE CONSTITUTION OF VIRGINIA 1998. Shall the Constitution of Virginia be amended to permit persons employed overseas, and their families, who are qualified to vote in Virginia except for having given up a home in Virginia, to continue to vote in Virginia while overseas subject to the conditions and time limits set by law? Shall the Constitution of Virginia be amended to delete the present requirement that the proceedings of the Judicial Inquiry and Review Commission concerning charges against judges shall be confidential so that the General Assembly can provide by law to what extent Commission proceedings and documents will be confidential? Shall the Constitution of Virginia be amended to authorize agreements among localities for sharing the revenues and costs of a specified land area and establishing a special governing body for the area, and to provide that fiscal commitments related to the land area will not be deemed local debt? Shall the Constitution of Virginia be amended to allow a combination of localities to contract debt as part o fan agreement to share the revenues, tax base, or the benefits of economic growth and exempt this class of debt from the ceiling on local debt for cities and town and from the requirement for a local referendum for counties? September 22, 1998 -7- CITY MANAGER'S PRESENTATION PROPOSED AMENDMENTS TO CONSTITUTION OF VIRGINIA ITEM # 44074 (Continued) Shall the Constitution of Virginia be amended to authorize the General Assembly by general law to give local governments the option of eliminating, in work or in part, either the business, professional or occupational license tax or the merchants' capital tax or both? This Fifth amendment couM be a concern to the City. The process of amending the Constitution is a three year process and therefore this amendment probably was introduced in 1996. BPOL was a major issue. Relative Amendment #3, two cities or counties could decide to establish an area for a commercial or industrial park and share in the provisional services for improvements to the park and the revenue derived from same. Under the Constitution of Virginia, Counties cannot sell debt without going to Referendum; however Cities can. Amendment #4 would allow Counties to participate in the sale of debt without going to Referendum. The first amendment in the Constitution states Cities cannot sell or have more outstanding debt greater than 10% of total assessed value. These amendments were mainly proposed at the request of the Urban Partnership who saw these as a way for Regions to work better. An example wouM be Lynchburg and Amherst County wish to establish an industrial park together which they are now prohibited from doing. These Amendments passed in the General Assembly; however, Amendment #3 only passed by 83 votes in the House of Representatives. The NAACP was going to OPPOSE Amendments 3 and 4; however, they have since changed their mind. Mr. Matthias advised the General Assembly does not have Verbatim Minutes in connection with these amendments. Video tapes are made on the floor of the House and Senate, but are not available to anyone. This year, a Commission is investigating the possibility of recording Senate and House Floor Sessions, but not Committee Meetings. Between Committees and Sub Committees, there could be approximately.fifteen or twenty meetings going on at any given time in the General Assembly. Mr. Matthias advised relative Amendment #3, the decision to issue the debt would be made by the Management Board appointed by the local governments involved. The General Assembly has not formulated how this Management Board will be established. It will probably be made up of elected officials appointed to the Board. Councilman Jones believed this might be the case with Amendment g4; however, in Amendment #3, this could be an Authority. Two or more localities could appoint a non-elected Authority, which could in turn issue debt. Mr. Matthias advised a special tax rate could be established within that area of land; however, this is voluntary by agreement between the two localities. The City Attorney advised he was having difficulty interpreting sharing revenues as being the same as taxing individuals. Mr. Matthias advised revenue could come from an additional revenue stream. The City Attorney said if Amendment #3 was ADOPTED, this would mean ajoint powers agreement between two localities. There are existingjoint powers agreement to perform certain functions, but not as stated in Amendment #3 to have a specified land area jointly managed by an Authority. Mr. Matthias read into the record explanation of Amendment #3, from a Chamber of Commerce article: "The General Assembly will establish the guidelines for choosing the Members of the Special Governing Board, which will be made up of elected officials from the co-operating localities similar to current Water and Sewer Authorities. The General Assembly will also determine the exact powers of the Governing Board..4 special tax rate would be set for the businesses located in the Industrial Park. Without the amendment, a special tax rate cannot be set. Flexibility in setting a tax rate for new businesses in the park is an important recruiting tool Revenues from the taxes paid by the businesses in the park would be used to pay the bonds. The debt incurred to establish the park would not be assigned to the localities involved." September 22, 1998 -8- CITY MANAGER'S PRESENTATION PROPOSED AMENDMENTS TO CONSTITUTION OF VIRGINIA ITEM # 44074 (Continued) If Amendment #5 would pass, it would be up to the City Council to eliminate BPOL. If City Council to eliminate BPOL, there wouM be a $21-MILLION to $23-MILLION loss of revenue which could not be replaced unless taxes were increased. Vice Mayor Sessoms advised, as Councilman Jones represents the MPO, action must be taken by approximately the middle of October. A BRIEFING shall be scheduled for October 6, 1998, and guidanee shall be provided to Councilman Jones. September 22, 1998 -9- CITY MANAGER'S PRESENTATION BOARDS AND COMMISSIONS REVIEW PROCESS AND POLICY 4:37P. M. ITEM # 44075 The City Manager advised as a result ora City Council Retreat, a program for a systematic review of the Boards and Commissions was requested. The City Manager- James K. Spore, City Attorney - Leslie L. Lilley, Assistant City Attorney Randy Blow, Assistant to the City Manager - Robert Matthias and the City Clerk - Ruth Hodges Smith met to develop a recommended procedure. Robert Matthias, Assistant to the City Manager, advised the Mayor and City Council make appointments to over sixty (60) boards, commissions and committees (''Agencies "). Although many of these Agencies are either (I) required or authorized by State law ("State Agencies ") or (ii) were established for the purpose of addressing regional issues and concerns ("Regional Agencies "); most of them were established by the City Council for a local purpose ("City Agencies "). As the needs of the City change, the purpose, effectiveness and necessity of these Agencies should be periodically reviewed. However, there is currently no policy or procedure for such a review. There are over 10, 000 volunteers in the City and volunteers also serve on these Boards and Commissions. The Volunteers who serve on these Agencies are a valuable asset to the City; therefore, if the Agency to which a volunteer has been appointed is no longer active, or does not continue to serve a legitimate purpose, the talents and efforts of such volunteers will be underutilized. Procedure to Accomplish Policy With respect to the review of Agencies, the following procedure shall be followed: The City Clerk shall be responsible for producing, on or before September 1 of each year, an updated list of all City, Regional and State Agencies. This list shall include the names of all Agencies, shall identify each Agency as a City, Regional or State Agency. The Agencies on the above-referenced list shall be reviewed by the City Clerk, the City Attorney and the City Manager (or their duly authorized designees) hereinafter the "Agency Review Team"). The results of such review shall be contained in a written report to City Council. Following consultation with any Agencies affected, the Agency Review Team shall make one of the following recommendations to City Council with respect to each Agency (or appointment): (a) that the Agency (or appointment) be continued without any revisions and/or modifications; (b) that the Agency (or appointment) be continued with proposed revisions and/or modifications; or © that the Agency (or appointment) be discontinued. In order to ensure reasonable and timely implementation of this Policy, the Agencies on the above-referenced list shall be reviewed on or before October 1,1998, and every three (3) years thereafter. In addition to the procedure set forth in subsection A, above the Agency Review Team may conduct a review of an Agency or appointment at any time (I) upon the request of City Council or (ii) based upon the Agency Review Team's determination that a change in law, or any other circumstance, warrants such a review. Recommendations of the Agency Review Team must be approved by City Council prior to the implementation. This Policy shall be applicable to all City Agencies and all City Council appointments to Regional or State Agencies. September 22, 1998 -10- CITY MANAGER'S PRESENTATION BOARDS AND COMMISSIONS REVIEW PROCESS AND POLICY ITEM # 44075 (Continued) Mr. Matthias advised for purposes of this Policy, the following terms shall be defined as set forth: City Agency: An advisory agency established by, and in the discretion of, the City Council to study and make recommendations regarding one or more designated issues. City Agencies shall be categorized as follows: Ad Hoc: An agency appointed to address a particular, usually time sensitive topic. The body will automatically be dissolved when the task for which it was established is completed. Standing Advisory: ,4 group appointed by City Council to provide advice to the Council on long term issues. Regional Agency: An agency established for the benefit of two (2) or more localities to study and make recommendations regarding one or more issues of regional interest or concern, and to which appointments are made by the local governing bodies of the member localities. Required by State: An agency, other than a Regional Agency, established by City Council or by the governing bodies of two (2) or more localities pursuant to a State mandate or State enabling legislation. Mr. Matthias cited an example of an Ad Hoc Board or Commission. In 1986 a Bond Referendum Advisory Council was established to provided periodic reports relative the bonds sold by the City to be utilized as intended. This Ad Hoc Board's work has been accomplished; however, absent a recommended poHcy, this Board would stay in force indefinitely. A Standing Advisory Board would be similar to the Agricultural Advisory Commission which provides advice on a long term basis. Southeastern Public Service Authority would be an example of a Regional Agency. The Planning Commission and Wetlands Board would be examples of agencies required by the State. Mr. Matthias advised after review and approval of this Policy by City Council, a list of Boards and Commissions will be provided periodically to City Council which need to be dissolved or reviewed. Whenever new Boards or Commissions are established, it will be recommended a time also be scheduled for their dissolution. This Policy will be reviewed at a future City Council Session. l/ice Mayor Sessoms inquired relative the establishment of a Beach and Waterways Commission. The City Manager advised a recommendation will be provided within 30 days. September 22, 1998 -11- .4 GEND.4 RE VIE W SESSION 4:47P. M. ITEM # 44076 Ordinance to authorize a temporary encroachment into a portion of the City's right-of-way by GRE.4T NECK B.4PTIST CHURCH to construct and maintain two (2) directional signs at the intersections of Great Neck Road?Old Donation Parkway and Inlynnview Road (DISTRICT 5 - L YNNHA VEN). Councilman Harrison referenced the correspondence requesting a DEFERRAL until the City Council Session of October 13, 1998. However, they have called and requested a longer DEFERRAL. Councilman Harrison urged them to take a 6-month or INDEFINITE DEFERRAL to provide for the street improvements. ITEM # 44077 J. 5. Ordinance to authorize temporary encroachments into a portion of the City's right-of-way by CHURCH POINT COMMONS, L.L.C. to construct and maintain a shopping center sign at 1700 Pleasure House Road near First Court Road (DISTRICT 4 - BA YSIDE). This will be discussed during the Formal Session. Council Lady McClanan advised the sign is doubled in size. The size is 32 square feet now and is proposed to be 56 square feet facing the sign and 156 square feet, if the base is included. ITEM # 44078 B Y CONSENSUS, the following items shall compose the CONSENT.4GEND.4: ORDINANCES 1.2. 1.3. 1.4. Ordinance to declare approximately 13,171 square feet of City-owned property as EXCESS PROPERTY adjacent to 2201 Bierce Drive; and, authorize the City Manager to dispose of same in sale to the adjacent property owner DISTRICT 7 - PRINCESS ANNE). Ordinance to .4MEND Section 2-6 of the City Code re the Resort Area Advisory Commission (RAAC), changing the name to Resort Advisory Commission (R/L4C); changing the responsibility of the Commission with respect to the Tourism Growth and Investment Special Revenue Fund (TGIF); and, amending the Commission's By-laws. Ordinance to authorize a temporary encroachment into a portion of the City's right-of-way by GREAT NECK B.4PTIST CHURCH to construct and maintain two (2) directional signs at the intersections of Great Neck Road/Old Donation Parkway and Inlynnview Road (DISTRICT 5 - L YNNHA VEN). Ordinance to authorize a temporary encroachment into a portion of the City's drainage easement, known as Canal No. 2, by HERMES .4BRASIVES, Ltd. to construct and maintain an eight-foot (8',) chain link fence at Viking and Avenger Drives (DISTRICT 6- BEACH). September 22, 1998 - 12- AGENDA RE VIE W SESSION ITEM # 44078 (Continued) 1.6. Ordinances to provide for the lease of portions of City property re constructing, maintaining and operating wireless telecommunications facilities: 5023 Providence Road (DISTRICT 2 - KEMPSVILLE) 1848 Pleasant Ridge Road (DISTRICT 7 - PRINCESS ANNE) I. 7. LICENSE REFUNDS - $6,650.69 September 22, 1998 Antenna Lease Agreement (Kempsville Water Tower) City of Virginia Beach, Lessor and ., Lessee , 199_ wmm\telecomm~empstow.lse TABLE OF CONTENTS Leased Premises Term Rent Security Deposit ............................................................ 3 Governmental Approval ...................................................... 3 Use of Premises Equipment Upgrade ......................................................... 7 Interference Termination Cure by Lessor ............................................................. 9 Condemnation Defense and Indemnification Insurance Assignment and Sublease ................................................... 11 Notices Miscellaneous Provisions Tests and Constructions RF Compliance ........................................................... 15 Marking and Lighting Requirements ........................................... 15 Waiver of Lessor's Lien Brokers Taxes LEASE AGREEMENT THIS LEASE is made as of the day of ,199_, by and between the City of Virginia Beach, a municipal corporation of the Commonwealth of Virginia and , a , having its principal place of business in ~ ("Lessee"), WlTNESSETH: WHEREAS, Lessor is the owner of a parcel of land (the "Owned Premises") situated in the City of Virginia Beach, Virginia, legally described on the attached Exhibit A, on which a municipal water tower (the "Water Tower") is located; and WHEREAS, Lessee is a telecommunications carrier, as defined in Section 3 of the Communications Act of 1934 (47 U.S.C. § 153), and is licensed to provide personal wireless telecommunications service to the general public within the City of Virginia Beach; and WHEREAS, Lessee desires to lease space on the Water Tower, and to lease a portion of the aforesaid parcel, for the purpose of constructing, operating and maintaining certain facilities for the purpose of providing personal wireless telecommunications service to the general public; NOW, THEREFORE, For good and valuable consideration, the parties do hereby agree as follows: 1. Leased Premises. (a) Lessor leases to Lessee, and Lessee leases from Lessor, space on the Water Tower for three sets of antenna arrays, at heights above ground level of 141', 130' and 119', respectively, together with sufficient space on the Water Tower for necessary appurtenances, for the purpose of constructing, maintaining and operating antennas, connecting cables and appurtenances (collectively, the "Antenna Facilities"), as shown on the attached Exhibit C, and a portion of the aforesaid parcel, together with easements for vehicular and pedestrian access and the installation, maintenance and replacement of necessary utilities, wiring, cables and other conduits, for the construction, maintenance and operation of an Accessory Building housing equipment to be used in conjunction with the Antenna Facilities (the "Ground Facilities"), as shown on the attached Exhibit C. The Antenna Facilities and Ground Facilities shall collectively be refen'ed to as the "Lessee Facilities," as shown on the attached Exhibit B (the "Leased Premises"). 2. Term. The initial term of this Lease shall be ten (10) years, commencing on the date of issuance of the building permit authorizing construction of the Lessee Facilities, or any portion thereof (the "Commencement Date"), and ending on a date ten (10) years after the Commencement Date (the "Initial Term"). At the option of Lessee, this Lease may be extended for two (2) additional renewal periods of five (5) years each (the "Renewal Terms") on the same terms and conditions as set forth herein. This Lease shall automatically be extended for each successive Renewal Term tmless Lessee notifies Lessor of its intention not to renew at least sixty (60) days prior to commencement of the succeeding Renewal Term. 3. Rent. (a) Lessee shall pay to Lessor as rent for the Leased Premises the sum of Dollars ($ .) per year. Rent for the first year of this Lease shall be paid by the Commencement Date, and Rent for the remainder of the term shall be paid annually in advance on each anniversary of the Commencement Date. Rent shall be increased annually as described hereafter. (b) The Rent shall be increased annually effective as of each anniversary of the Commencement Date by an amount equal to the percentage increase in the CPI over the prior CPI for the month twelve (12) months prior to the adjustment date, but not to exceed five per cent (5%) in any year. "CPI" means the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items, issued by the Bureau of Labor Statistics for the United States Department of Labor (1982-84 = 100). If the CPI is converted to a different standard reference base or otherwise revised, the adjustment set forth in this paragraph shall be made with the use of the conversion formula published by the Bureau of Labor Statistics. (c) For each additional antenna installed by Lessee beyond the initial an'ay depicted in Exhibit C, Lessee shall pay an additional fee of Dollars ($. ) per year, prorated in the event such an antenna is installed on other than an anniversary of the Commencement Date, which amount shall increase annually under the same terms provided hereinabove and shall become part of the Rent. No such additional antennas not shown in Exhibit C may be installed without the consent of Lessor, which consent shall not be unreasonably withheld, delayed or conditioned. (d) In addition to the amounts set forth in subparagraphs (b) and (c), Lessee shall also pay to the Lessor, as Additional Rent, an amount equal to fifty per cent (50%) of any and all rents charged under any sublease of all or a portion of the Leased Premises entered into by Lessee. Lessee shall, upon reasonable request of Lessor, allow Lessor to inspect any such sublease. (e) In accordance with requirements of Section 15.2-2101 of the Code of Virginia, upon execution of this Lease by Lessee, Lessee shall reimburse Lessor for the cost of publishing the advertisement for bids for the use of the Leased Premises. (f) Lessee shall pay to Lessor all actual and reasonable increased costs of maintenance of the Leased Premises directly attributable to Lessee's use and occupancy thereof within thirty (30) days of presentation to Lessee of an itemized statement delineating such costs, 2 accompanied by reasonable documentation supporting such costs. In addition thereto, Lessee shall, within thirty (30) days after the date of inspection approval of the Antenna Facilities, reimburse Lessor for the actual and reasonable fees and costs, including actual and reasonable travel expenses, charged to Lessor by Lessor's consulting engineer for review of plans and inspections of the installation of the Antenna Facilities, including on-site meetings, not to exceed the sum of Six Thousand Dollars ($6,000.00). (g) Lessee shall pay to Lessor a late payment charge equal to five percent (5%) of the late payment for any payment not paid when due. Lessor shall provide Lessee with written notice of non-receipt of any mounts due within five (5) days of the due date. Any amounts not paid when due shall bear interest at the rate of one per cent (1%) per month from the date which is five (5) days after the mailing of such notice until paid. (h) Subject to the provisions of Paragraph 5(d) and Paragraph 9(b), in the event of termination of this Lease, all prepaid Rent shall be refunded to Lessee, without interest, within sixty (60) days of the effective date of Such termination. 4. Security Deposit. Upon commencement of this Lease, Lessee shall deposit with Lessor the sum of Seven Thousand Dollars ($7,000), which shall be fully refunded to Lessee upon the timely removal of the Lessee Facilities, and related equipment, and the repair and the restoration of the Leased Premises in accordance with the terms of this Lease. If the Lessee Facilities and related equipment are not removed to the reasonable satisfaction of Lessor within sixty (60) days after the termination or expiration of this Lease, they shall be deemed abandoned and shall become the property of Lessor and Lessee shall have no further rights thereto. Lessee has notified Lessor that the following entities have an interest in the Antenna Facilities and related equipment because of financing arrangements with Lessee: If Lessor removes the Lessee Facilities or any portion thereof, Lessor must give written notice to Lessee and the listed entities at the addresses provided, informing them that the Lessee Facilities or portion thereof, have been removed and will be deemed abandoned if not claimed by said entities and the storage fees and other reasonable costs paid within thirty (30) days. 5. Governmental Approval. (a) Lessee's right to use the Leased Premises is contingent upon Lessee obtaining all certificates, permits, zoning and other approvals (whether discretionary or ministerial), specifically including, without limitation, a conditional use permit and site plan approval, that may be required by any federal, state, or local authority, for Lessee's use to take place at the Leased Premises ("Governmental Approvals"). It shall be the sole and entire responsibility of Lessee to determine what Governmental Approvals are needed for the construction and operation of the Lessee Facilities. Lessor agrees to reasonably cooperate with Lessee (at no cost to Lessor) in its efforts to obtain such approvals; provided, however, that Lessor's agreement to cooperate shall not in any way limit or otherwise affect the authority or discretion of Lessor's goveming body, or any department, division, officer or employee of Lessor, in the conduct of its or his duties with respect to any such Governmental Approval and provided further, that Lessor shall not be required to join, be joined, or otherwise participate as a party in any judicial or administrative action brought by Lessee, or any person or entity claiming under Lessee, in which the denial or conditions of any Governmental Approval is in issue. Lessee hereby expressly acknowledges and agrees that neither the execution of this Lease by Lessor nor any act by Lessor or any of Lessor's officers, agents or employees or its governing body in anticipation or in furtherance of the execution of this Lease, shall entitle Lessee to any Governmental Approval, whether discretionary or ministerial, and Lessee shall not be entitled to reimbursement of any costs or expenses of any kind or nature made or incurred in expectation of, or preparation for, the use of the Leased Premises. (b) Lessee warrants that it has performed, or caused to be performed, a radio frequency emissions study ("RF Study") showing that Lessee's intended use will not interfere with any existing communications facilities, and that such RF Study was conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia. Lessee shall, prior to the issuance of a building permit for any of the Lessee Facilities, deliver a copy of such RF study to Lessor. Lessor shall, upon request of Lessee, provide such information regarding Lessor's communications facilities as is necessary for Lessee to avoid interference with such facilities. (c) If any application for a necessary Governmental Approval is denied, or if any certificate, permit, license, or other Governmental Approval issued to Lessee is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority so that Lessee will be unable to use the Leased Premises for Lessee's intended purpose, and all administrative and judicial appeals of such action have been exhausted or the time for filing of such appeals has expired, both Lessor and Lessee shall have the right to terminate this Lease by written notice to the other, and upon such termination, this Lease shall become null and void. (d) Notwithstanding the provisions of subparagraph (c), in the event of termination by Lessee pursuant to subparagraph (c), Lessee shall be liable to Lessor for Rent for a period of 120 days from the date of such termination, unless such termination is by reason of the denial of a conditional use permit or other approval of a discretionary nature by Lessor's governing body. Nothing in this subparagraph shall relieve Lessor of its duty to mitigate its damages in the event of termination by Lessee. 6. Use of Premises. (a) Lessee may use the Leased Premises for the installation, operation, and maintenance of the Antenna Facilities and the Ground Facilities for the transmission, reception and operation of a communications system and uses incidental thereto, 4 and for the storage of related equipment, in accordance with the terms of this Lease. Lessee may erect and operate such Antenna Facilities and Ground Facilities as are depicted on the attached Exhibit C, and may expand such Antenna and Ground Facilities only with Lessor's consent, which consent shall not be unreasonably denied, delayed or conditioned, and only after Lessor has obtained, at Lessee's expense, a certified evaluation indicating that each antenna will not interfere with the signals of existing antennas, and that the Water Tower can structurally support the antennas and related equipment. In connection therewith, Lessee shall have the right to do all work necessary to prepare, maintain and alter the Leased Premises for Lessee's business operations under this Lease and to install transmission lines connecting the antennas to the transmitters and receivers. If Lessor fails to respond in writing in the manner provided in this Lease for the giving of notices within fifteen (15) days following the receipt of Lessee's request for such approval, such request shall be deemed to have been approved by Lessor; provided, however, that if such approval requires the issuance of a new or modified conditional use permit, the provisions of Paragraph 5(a) of this Lease shall apply. (b) Lessee shall, at its sole cost and expense, construct, operate and maintain the Antenna Facilities and Ground Facilities in accordance with the standards and specificatiOns of the City of Virginia Beach Department of Public Utilities, all applicable City ordinances, permits and other requirements, and all applicable FCC rules and regulations. Lessee's installation of the Antenna Facilities and construction of the Ground Facilities shall be in accordance with the plans approved by Lessor, which approval shall not be unreasonably withheld, denied or conditioned. Any damage done to the Owned Premises or any other property of Lessor during installation or operation of the Lessee Facilities shall be repaired at Lessee's expense within thirty (30) days after notification of damage. Title to the Lessee Facilities shall be held by Lessee, and all such Lessee Facilities shall be deemed to be the personal property of Lessee and not fixtures. Lessee shall have the right to remove all Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Lease, provided that Lessee shall be required to repair any damage and to restore the Leased Premises to their original condition, ordinary wear and tear, casualty and the acts or omissions of Lessor or third parties excepted. (c) All modifications or improvements of the Leased Premises made for Lessee's benefit shall be at the Lessee's expense, and such improvements shall be maintained in a good state of repair by Lessee at Lessee's expense. Lessee shall provide written notice to Lessor not less than forty-eight (48) hours before commencing any maintenance of the Lessee Facilities or construction of additional Lessee Facilities. The Antenna Facilities shall, at all times and at Lessee's expense, be painted such color as Lessor deems appropriate. (d) Lessee shall provide Lessor with as-built drawings of the equipment and improvements installed on the Leased Premises showing the actual location of all Antenna Facilities and Ground Facilities and of all other improvements installed on Lessor's property by Lessee in connection with this Lease. The drawings shall be accompanied by a complete and detailed inventory of all equipment, personal property, Ground Facilities and Antenna Facilities to be placed on the Leased Premises or other property of Lessor in connection with this Lease. At Lessor's option, such as-built drawings and inventory may be attached to this Lease as Exhibit E. (e) Lessee shall, at its expense, maintain any equipment on or attached to the Leased Premises in a safe condition, in good repair and in a manner reasonably suitable to Lessor so as not to conflict with the use of the other property of Lessor, subject to the provisions of Paragraph 8 of this Lease. Lessor shall maintain, at its sole expense, access roadways to the Leased Premises in a condition which will allow pedestrian and vehicular access under normal weather conditions; provided, however, that Lessee shall be responsible for the repair of any damage or deterioration caused by Lessee's use of such roadways. (f) Lessee, at all times during this Lease, shall have reasonable access during normal working hours to the Leased Premises in order to install, operate, and maintain its Lessee Facilities, provided, however, that Lessee shall be required to notify Lessor forty-eight (48) hours in advance of accessing the Antenna Facilities. If it is necessary for Lessee to have access to the Leased Premises at some time other than the normal working hours of Lessor, Lessor may charge Lessee for whatever actual and reasonable expense, including employee wages, that Lessor may incur in providing such access. For purposes of this Paragraph 6(f), "normal working hours" are Monday through Friday from 8:00 a.m. to 5:00 p.m. (g) Lessee shall install utilities to serve the Antenna Facilities and Ground Facilities in the location shown on Exhibit B at Lessee's sole expense. Lessee shall separately meter all utilities associated with its use of the Leased Premises and shall promptly pay all costs for such utility services. Lessor shall, without charge to Lessee, sign such documents as may be required by utility providers to provide such service to the Leased Premises, including the grant of permits required by Lessor or a utility provider to provide service as provided herein. (h) Lessor warrants and agrees that: (i) Lessor owns the Owned Premises and has rights of access thereto; (ii) Lessor has full right to make and perform this Lease; and (iii) Lessee, upon paying the rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Leased Premises for the purposes herein contemplated. Lessor shall not cause or permit any use of the Owned Premises which materially and unreasonably interferes with or impairs the operation of the communications facilities or the quality of the communications services being rendered by Lessee from the Leased Premises, nor shall Lessor have unsupervised access to the Leased Premises, except in the event of an emergency requiring immediate access to the Leased Premises. (i) Lessee shall remove the Lessee Facilities upon termination of this Lease unless Lessor otherwise agrees, in writing, and shall restore the affected area to its original condition, 6 ordinary wear and tear, casualty and the acts or omissions of Lessor or third parties excepted. Such removal shall be done in a workmanlike manner and without interference or damage to any other equipment. All costs and expenses for such removal and restoration shall be borne by Lessee. 7. Equipment Upgrade. Lessee may update or replace the Antenna Facilities or the Ground Facilities, or both, from time to time with the prior written approval of Lessor, which approval shall not be unreasonably withheld, delayed or conditioned, provided that any change in their location is satisfactory to Lessor. Lessee shall submit to Lessor a detailed proposal for any such replacement facilities and any supplemental materials as may be requested for Lessor's evaluation and approval. 8. Interference. (a) Lessee's installation, operation, and maintenance of the Antenna Facilities and Ground Facilities shall not damage or interfere in any way with Lessor's current operations. If the Lessee Facilities cause interference to such operations, Lessee shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated in a reasonable time, Lessee shall immediately cease operating the Lessee Facilities to the extent necessary to stop the interference. If the interference cannot be eliminated within thirty (30) days, Lessor may terminate this Lease. (b) Lessee's use and operation of the Leased Facilities shall not interfere with the use and operation of other communication facilities on the Leased Premises which pre-existed the Lessee Facilities. If the Lessee Facilities cause interference, Lessee shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated in a reasonable time, Lessee shall immediately cease operating the Lessee Facilities to the extent necessary to stop the interference. If the interference cannot be eliminated within thirty (30) days, Lessor may terminate this Lease. (c) Subsequent to the installation of the Lessee Facilities, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Owned Premises or property contiguous thereto owned or controlled by Lessor, if such equipment is likely to cause interference with Lessee's operations. In the event interference occurs, Lessor agrees to take all action necessary to eliminate such interference within thirty (30) days. If the interference cannot be eliminated within thirty (30) days, Lessee may terminate this Lease. 9. Termination. (a) Except as otherwise provided herein, this Lease may be terminated upon sixty (60) days written notice to the other party as follows: (i) by either party upon a default in the performance of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of the default (without, however, limiting any other rights of the parties pursuant to any other provisions hereof); (ii) subject to the provisions of Paragraph 5(c) of this Lease, by Lessee if it is unable to obtain or maintain any license, permit or other Governmental Approval necessary for the construction or operation of the Lessee Facilities or of Lessee's business; (iii) by Lessee if the Lessee Facilities are destroyed or damaged by an act of God so as to, in Lessee's judgment, substantially impair Lessee's effective use of the Lessee Facilities, upon thirty (30) days' written notice to Lessor, which notice must be given within thirty (30) days of the date of such destruction or damage. If Lessee so terminates this Lease, Lessee shall be entitled to reimbursement of prepaid Rent covering the period subsequent to the date of destruction or damage; (iv) by Lessor, upon six (6) months' notice, if it determines that a potential user which is a public safety agency of the federal or state government or of the City of Virginia Beach cannot obtain another adequate location; (v) by Lessor, if after a public hearing, the Virginia Beach City Council determines that Lessee's use of the Leased Premises is not in compliance with any applicable ordinance, or state or federal law, or any conditions of any Governmental Approval, and Lessee fails to cure such noncompliance within thirty (30) days after such determination is rendered. Such failure shall be a default of Lessee's obligations under the terms of this Lease; (vi) by Lessee, if Lessee is unable to occupy and utilize the Leased premises due to an action of the FCC, including, without limitation, a take-back of channels or change or reallocation of the frequencies at which Lessee may operate its communications facilities which renders Lessee's operation of its communications facilities at the Leased Premises obsolete; or (vii) by Lessee within ninety (90) days of the execution of this Lease if Lessee determines that the Leased Premises are not suitable for its operation for economic or technological reasons, including, without limitation, signal interference. For purposes of this subdivision, "economic reasons" shall not include the availability of an equivalent site at commercial terms more favorable to Lessee than are contained in this Lease. (b) The parties shall give notice of termination in writing. Lessee shall be liable to Lessor for all Rent and other consideration under Paragraph 3 of this Lease for the period of this Lease prior to said termination date. (c) Upon termination or expiration of this Lease, Lessee shall have sixty (60) days from the date of termination or expiration to remove the Lessee Facilities and related equipment from the Leased Premises and to restore the Leased Premises to their condition prior to installation of the Lessee Facilities, ordinary wear and tear and damage caused by casualty, Lessor or third parties excepted. 10. Cure by Lessor. In the event of any default of this Lease by Lessee not cured by Lessee within the applicable cure period, Lessor may at any time, after notice, cure the default for the account of and at the expense of Lessee. If Lessor is compelled to pay or elects to pay any sum of money or to do any act which will require the payment of any sum of money or is compelled to incur any expense, including reasonable attorney fees in instituting, prosecuting or defending any action to enforce the Lessor's rights under this Lease, the sums so paid by Lessor, with all interest, costs and damages shall be deemed to be Additional Rental and shall be due from the Lessee to Lessor on the first day of the month following ten days' written notice by Lessor and submission by Lessor to Lessee of an itemized statement, with supporting evidence, of Lessor's costs and expenses. 11. Condemnation. In the event the Leased Premises is taken by eminent domain by the state or federal government, or any instrumentality thereof, or by the City of Virginia Beach, this Lease shall terminate as of the date title to the Leased Premises vests in the condemning authority. In the event a portion of the Leased Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event this Lease is not thereby terminated, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of the Leased Premises. Lessor and Lessee shall each be entitled to pursue its own separate awards in the event of a taking of the Leased Premises. 12. Defense and Indemnification. (a) Lessee agrees to defend, indemnify and hold harmless Lessor and its elected officials, officers, employees, agents, and representatives from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, arising from the negligence, willful misconduct, or other fault of Lessee. Lessee shall defend all claims arising out of Lessee's use of the Leased Premises and out of the installation, operation, use, maintenance, repair, removal, or presence of Lessee's Antenna Facilities, equipment and related facilities on the Leased Premises. In no event shall the liability of Lessee under this Sub- paragraph include damages for lost profits, consequential or punitive damages. (b) Without limiting the scope of Subparagraph (a) above, Lessee shall be solely responsible for and will defend, indemnify, and hold Lessor, its agents, officers and employees harmless from and against any and all claims, costs, and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the Leased Premises associated with Lessee's use of hazardous materials. For purposes of this Lease, "hazardous materials" shall be interpreted broadly and specifically include, without limitation, asbestos, fuel, batteries or any hazardous substance, waste, or materials as defined in any applicable federal, state, or local environmental or safety statute, ordinance, regulation or requirement. Lessor represents that, to the best of its knowledge and belief, it has received no notice of any action, suit, proceeding or claim concerning a release of hazardous substances on or affecting the Leased Premises, and that, to the best of its knowledge and belief, there is no release of hazardous substances on or affecting the Leased Premises which would render the Leased Premises unsuitable for the purposes contemplated by this Lease. Lessor agrees to notify Lessee of any such release as soon as reasonably practicable after receiving notice thereof. Notwithstanding the foregoing, it shall be the responsibility of Lessee to determine whether or not there are any adverse conditions, including, without limitation, a release of any hazardous substance on or affecting the Leased Premises which would prevent Lessee's proposed use thereof, and in no event shall any liability of Lessor for any such condition include damages for lost profits, consequential or punitive damages. (c) Lessee represents and warrants that its use of the Leased Premises will not generate, and Lessee will not store or dispose of on the Leased Premises, nor transport to or over the Leased Premises on the property of Lessor, any hazardous materials other than those ordinarily used in the provision of communications services as permitted hereunder and in compliance with all applicable laws, unless Lessee specifically informs Lessor thereof in writing twenty-four (24) hours prior to such storage, disposal or transport or otherwise as soon as Lessee becomes aware of the existence of hazardous materials on the Leased Premises. (d) Lessor and Lessee release each other and their respective principals, officers, directors, employees, representatives and agents, from any claims for damage to any person or to the Leased Premises or to the Lessee Facilities thereon caused by, or that result from, risks insured against under a standard all risk insurance policy. Lessor and Lessee shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. (e) Lease. The obligations of this Paragraph shall survive the expiration or termination of this 13. Insurance. (a) During the Initial Term and Renewal Terms of this Lease, Lessee shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance. All policies other than those for Worker's Compensation shall be written on an occurrence and not on a claims made basis. The coverage amounts set forth below may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. l0 i. Worker's compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. ii. Comprehensive commercial general liability insurance with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage; and broad form property damage coverage. Lessor shall be named as an additional insured under such policy. iii. Automobile liability insurance coveting all owned, hired and non-owned vehicles in an amount not less than One Million Dollars ($1,000,000), combined single limits. (b) Certificates of insurance for each insurance policy required to be obtained by Lessee in compliance with this paragraph shall be filed with Lessor annually during the term of the Lease. Lessee shall immediately advise Lessor of any claim or litigation that may result in liability to Lessor. (c) All insurance policies maintained pursuant to this Lease shall contain the following endorsement: "At least thirty (30) days prior written notice shall be given to Lessor by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the parties named in the Lease." (d) All insurance shall be written by insurers licensed to conduct the business of insurance in the Commonwealth of Virginia and rated A- or better by Best. (e) Lessee shall require that each and every one of its contractors and their subcontractors who perform work on the Leased Premises carry, in full force and effect, workers' compensation, comprehensive public liability and automobile liability insurance coverages of the type which Lessee is required to obtain under the terms of this paragraph with like limits of insurance. 14. Assignment and Sublease. (a) This Lease, and the tights hereunder, may not be sold, assigned, or transferred at any time by Lessee except upon prior written notice to Lessor and with Lessor's written consent, which consent shall not be unreasonably withheld, delayed 11 or conditioned; provided, however, that Lessee may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease, without Lessor's consent. Lessee shall be relieved of all future performance, liabilities and obligations under this Lease upon such assignment. Lessee shall have the right to sublet all or a portion of the Leased Premises and space on the Water Tower without Lessor's consent, but shall remain liable to Lessor for the payment of Rent, Additional Rent and all other payments from Lessee required or contemplated by this Lease unless otherwise consented to, in writing, by Lessor. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. (b) This Lease shall mn with the property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. 15. Notices. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, or by a nationally recognized overnight courier, addressed as follows or if sent by facsimile to the facsimile number set forth below, with a hard copy contemporaneously mailed as previously specified: If to Lessor to: City Manager Municipal Center, Building One 2401 Courthouse Drive Virginia Beach, Virginia 23456 Fax No. With a copy to: City Attorney Municipal Center, Building One 2401 Courthouse Drive Virginia Beach, Virginia 23456 Fax No. If to Lessee, to: 12 With a copy to: Fax No. Attn: Fax No. Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. 16. Miscellaneous Provisions. (a) This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease shall be effective only if made in writing and executed and acknowledged by both parties. (b) Each party agrees to cooperate with the other in executing or having executed any documents (including a Memorandum of Lease in a form acceptable to both parties attached hereto as Exhibit D, Non-Disturbance Agreement, easement agreements, or other documents) necessary to protect its rights or use of the Leased Premises. Either party may record a Memorandum of Lease or easement agreement, but neither party may record this Lease. (c) This Lease shall be construed in accordance with the laws of the Commonwealth of Virginia. Any court action relating to this Lease may be maintained only in the Circuit Court of the City of Virginia Beach or United States District Court for the Eastern District of Virginia. (d) If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. The parties intend that the provisions of this Lease be enforced to the fullest extent permitted by applicable law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. (e) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their representative capacities as indicated. (f) The submission of this document for examination does not constitute an offer to lease or a reservation of or option for the Leased Premises and shall become effective only upon execution by both parties. (g) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. 13 (h) The parties understand and acknowledge that Exhibit A (Description of Owned Premises), Exhibit B (Description of Leased Premises) and Exhibit C (Description of Antenna Facilities and Ground Facilities) may be attached to this Lease in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, Exhibits A, B and C may be replaced by the parties with final, more complete exhibits which shall be agreed to and conformed by the parties. (i) This Lease shall be governed as to all matters, whether of validity, interpretation, obligations, performance or otherwise, exclusively by the laws of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. (j) During the performance of this Lease, the Lessee agrees that it will not discriminate against any employee or applicant for employment because of race, religion, color, sex, handicap or national origin, except where religion, sex, handicap or national origin is a bona fide occupational qualification or consideration reasonably necessary to the normal operation of the Lessee. The Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. The Lessee, in all solicitations or advertisements for employees placed by or on behalf of the Lessee, will state that such Lessee is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the pUrpose of meeting the requirements herein. Lessee agrees to comply with the good faith minority business efforts required by the Virginia Beach City Code. (k) Lessee hereby certifies that it did not, directly or indirectly, enter into any combination or arrangement with any person, firm or corporation or enter into any agreement, participate in any collusion, or otherwise take any action in restraint of fi'ce, competitive bidding for this Lease in violation of any of the laws of the United States or the Commonwealth of Virginia. (1) Lessee represents and warrants that, as of the date of its execution of this Lease, it was the holder of a valid license issued by the Federal Communication Commission to construct and operate radio transmitting facilities within a territory including the City of Virginia Beach pursuant to Section 309 (h) of the Communications Act of 1934 (47 U.S.C. § 309 (h)). Lessee hereby agrees that, if for any reason, such license is revoked or otherwise terminated, it will immediately so notify Lessor, and Lessee shall have the right to terminate this Lease pursuant to Paragraph 9 (a) (ii) of this Lease. 17. Tests and Constructions. Lessee shall have the right following the full execution of this Lease, upon the giving of forty-eight (48) hours' advance notice to Lessor, to enter upon 14 the Owned Premises for the purpose of making appropriate engineering and boundary surveys, inspections, soil test borings or other reasonably necessary tests. In the event of any inconsistency between this Lease and any survey performed, Lessor shall make such amendments to this Lease and adjustments in the location of Leased Premises as shall be reasonably necessary for Lessee's use and satisfactory to Lessee. If the title search or the survey discloses any matters which Lessee deems unsuitable or which interfere with Lessee's use and enjoyment of the Leased Premises, Lessor shall cure such defects within sixty (60) days. If Lessor does not or cannot cure such defect within such sixty (60) days, Lessee shall have the right, without obligation, to terminate this Lease and render it null and void from the date of termination. 18. RF Compliance. Subsequent to the installation of the Lessee Facilities, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Owned Premises or property contiguous thereto owned or controlled by Lessor, if such equipment is likely to cause the Owned Premises to exceed the FCC radiated power density maximum permissible exposure ("MPE") limits for workers and the general public. Such excess radiated power densities shall be deemed a material breach by Lessor. In the event excess radiated power densities occur, Lessor agrees to take or to cause any subsequent lessee or licensee whose use of the Owned Premises results in the FCC specified MPE limits being exceeded to promptly take all mitigation action necessary to eliminate such excess radiated power densities within thirty (30) days. In the event Lessor fails to comply with this paragraph, Lessee may terminate this Lease and/or pursue any other remedies available under this Lease, at law, and/or at equity, including injunctive relief. Lessee shall operate the Lessee Facilities in a manner that will not cause the Owned Premises to exceed the FCC specified MPE. 19. Marking and Lighting Requirements. (a) Lessor shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC, provided that if the requirement for compliance results from the Lessee Facilities, Lessee shall pay for such reasonable costs and expenses (including for any lighting automated alarm system). Should Lessee be cited because the Owned Premises is not in compliance and, should Lessor fail to cure the conditions of noncompliance, Lessee may either terminate this Lease or proceed to cure the conditions of noncompliance at Lessor's expense, which amounts may be deducted from the Rent. (b) If lighting requirements apply and a lighting automatic alarm system has been installed by Lessor, Lessor shall allow Lessee to bridge in to the system to permit a parallel alarm or to install a second alarm if a bridge would interfere with Lessor's alarm. Lessee shall be responsible for the cost and expense of maintaining the bridge or parallel alarm. Notwithstanding anything in this Paragraph 19(b), the responsibility for compliance with FAA and FCC requirements shall remain with Lessor as provided in Paragraph 19(a) above. 15 20. Waiver of Lessor's Lien. (a) Lessor waives any lien rights it may have concerning the Lessee Facilities which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. (b) Lessor acknowledges that Lessee has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Lessee Facilities (the "Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 21. Brokers. Lessor and Lessee represent to each other that they have not negotiated with any real estate broker in connection with this Lease. Lessor and Lessee agree that, should any claim be made against the other for a real estate broker's commission, finder's fee or the like by reason of the acts of such party, the party upon whose acts such claim is based shall indemnify and hold the other party free and harmless from all losses, damages, claims and expenses in connection therewith. 22. Taxes. Lessee shall be responsible for paying all personal property taxes assessed upon the Lessee Facilities and for paying taxes on its leasehold interest pursuant to Virginia Code Section 58.1-3203, or any successor statute. IN WITNESS WHEREOF, the parties hereto have respectively executed this Lease to be effective as of the date hereinabove stated. CITY OF VIRGINIA BEACH ATTEST: by City Manager or Designee City Clerk 16 APPROVED AS TO LEGAL SUFFICIENCY: APPROVED AS TO CONTENT: Department of Law LESSEE by Title: STATE OF VIRGINIA: CITY OF VIRGINIA BEACH I, hereby certify that Virginia Beach, whose name as such , a Notary Public in and for the City and State aforesaid, do ., of the City of is signed to the foregoing Lease Agreement, has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of STATE OF Notary Public My Commission Expires: 17 CITY OF hereby certify that named Lessee, whose name as , a Notary Public in and for the City and State aforesaid, do ., of the above- such is signed to the foregoing Lease Agreement, has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this __ day of Notary Public My Commission Expires: 18 EXHIBIT A (DESCRIPTION OF OWNED PREMISES) All that certain lot, piece or parcel of land lying, being and situate in the City of Virginia Beach, Virginia, having the Geographic Position Identification Number (GPIN) 1466-63-3649. See attached deed for a more complete property description. 19 SEP,'l$'98(TUE) 08:26 CITY ATTORNEY ANNEX TEL:?$? $63 1167 P. O04 m m m LARASAN REALTY CORP,, a Virginia corporation which is the surviving corpora- tion of a merger with KEJ~PTOOO CORP., a fen,or Virginia corporation and DIJNEDINo LIMITED, a Vtrgtn(a corporation which is the surviving corporation of a merger with TODO0 CORP., a fenner Vtrginta corporation, parties o¢ the first part~ and the CITY OF VIR$TNIA BEACH, VIRGIN{A, party or the second part. WI TNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid, and other good and valuable considerations, the, receipt of which is hereby acknowledged, the said parties of the First part do here. hy grant and c6nvey with G£~ERAL WARRANTY and with ENGLISH COVEr~AN~S OF TITLE, free from ell liens and encumbrances, unto the said party oF~the second part, the following described property, to.wit: Co,~nenctng at a point 'on the eastern right of way Of Kempsvtlle Read, which point , 18B feet sou:h of the intersection Of right of way of Providence Road, said noint bein9 the POINT OF BEGINHING~ ~hence S 680 " 51'41" E a distance of 230,00 feet to point; thence S 20o29'19'' W a distance ~50.00 fee~ to a poi.t; thence N &~ $7'4i" W a distanc~ of 230,00 feet ~o R point~ thence N 20u29'19'' £ a dtftnnce of feel to the POINT OF BEGIHNING, IT BEING a part of the same property which was convoyed to Toddo Corp, by deed April 1, 107~, and recorded in Deed BOOk 1~66, at page gS, in the aforesaid Clerk's Office and a part of the same pronerty conveyed to Toddo Corp. and Kemptedd Corp. by deed dated Deco,bar ~2, 197~, a.d recorded in the said ~lerk's DFfice Of the Cite.fL Court of the City of Virginia Beach, Virginia, in Deed Book {248, at page 76g. This oonveymnce is sub)eot to the cond.ittons, restrictions, easements and reservations o¢ reco~d, iF any. afKectino the aforesntd property and constituting constructive noHee, This conveyance is subject to any public utility easements. By Joining hereto the City hereby releases the parties eF the first part from the obligation to reserve 12,8 acres of ~and accordl.o to that certain subdivision agreement recorded ~n the Clark's Office of the Circuit Court of the City of Virginia Bemch in Deed Book 1336. et Page 3~2. SEP.-I$'gS(TUE) 08:26 GITY ATTORNEY ANNEX TEL:7$7 $63 1167 P. O05 The partteS Of the ftrst part covenant that they are seized tn fee simple of said pmperty and have the right to convey the said property to party of the seco~ part~ that they have done no act to encumber the same~ that it, the said party of the second part, shall have quiet' and peaceable, possession of the same, free fr~ all encumbrances~ and that they, the parties of the first part. will execute such further assurances of title as ~ay be requisite or necessary, Ounedtn, Limited, and Toddo Corp, had a ~erger on October §, ~ith Dunedtn, Ll~ted, being the surviving corporation, Larasan Realty Corp. and tL~nptodd Corp. had a merger on Oecember 31, lg75, with Laresan Realty ¢orp, being the surviving corporation. IH WITNESS WHEREOF, L^~AH REALTY CORP. has caused its na~e to be signed hereto by its President and its corporate sea~ affixed hereto and atteste~ by its Secretary, LARASAN REALTY CORP. AITEST: IN WITNESS WHEREOF, OUNEOIN, LIEITED, has caused its name to be ,s~gned hereto by its President and its corporate seal affixed hereto and attested by its Secretary, OUNEDIN, LIMITED ,. , ~., . /.' ,~ · - - [ SeCretary ~restdent -2- '1 m m SEP.-I$'98{TUE) 08:26 GITY ATTORNEY ANNEX TEL:75? 563 1167 P. 006 IN NITNESS {,{HEREOF, the C{TY OF VIRGZNIA.BEACH, VIRGINIA, has caused its name to be signed hereto by its City Hanager an~ its seal to be afftxed hereto by its Ctty Clerk, CITY~IRGINIA BEACII, VIRi;,It{IA ': STATE OF VIRGINIA CiTY OF VIRGIHIA B£ACH, to-wit: in and for the City and State aforesaid, do hereby coettfy that GEORGE L. HA~BURY, Ctty Manager, and RICHARD d. WEDBON, City Cleek,fo~ the ClT~ VIRGINIA BEACH, VIRG%N{A, whose names as such era signed to the foregoing Deed, bearing date on the .~.~.~/day of J~nua4.~, 1977, have acknowledged the same befere me In my City and State aforesaid.(,~ GIVEH under~y hand this ,~ay of d~nua~y. ~g77. -3- SEP.-IS'gB(TUE) 08:27 GITY ATTORNEY ANNEX TEL:TS7 565 1167 P. O07 STAT~ OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit; for the City and State aforesaid, do hereby cel'ttfy that , President, and ~a. 'C~'~ , Secreta~. for Lmrasan Realty ~orp,, whose names as )uch are s(gnm~ to the forgoing Deed, bearing date on the . ~ay of ~mnuary, %977, have acknowledged the same before me tn ~y City and State mfore~Md. .m STATE OF VIRGINIA CITY OF NORFOLK, to-wit: and for the City a~d State.aforesaid, do hereby certify that ~_,,~. '~ ' Presld ' '., GIVEN under my bend this y.~ day of ~. Xg77. .4- m m EXHIBIT B (DESCRIPTION OF LEASED PREMISES) [TO BE COMPLETED BY BIDDER] 2O EXHIBIT C (DESCRIPTION OF ANTENNA FACILITIES AND GROUND FACILITIES) [TO BE COMPLETED BY BIDDER] 21 EXHIBIT D (MEMORANDUM OF LEASE) 22 EXHIBIT E (AS-BUILT DRAWINGS AND INVENTORY OF EOUIPMENT) [TO BE ATTACHED AT LESSOR'S OPTION] Communication Tower Lease Agreement (Pleasant Ridge Tower Site) City of Virginia Beach, Lessor and ,, Lessee ,199_ wmm\telecomm\pungo.lse TABLE OF CONTENTS Leased Premises ............................................................ 1 Term Rent Security Deposit ............................................................ 3 Governmental Approval ...................................................... 3 Use of Premises ............................................................ 4 Equipment Upgrade ......................................................... 7 Interference ............................................................... 7 Termination ............................................................... 7 Cure by Lessor ............................................................. 9 Condemnation ............................................................. 9 Defense and Indemnification .................................................. 9 Insurance Assignment and Sublease ................................................... 11 Notices Miscellaneous Provisions .................................................... 13 Tests and Constructions ..................................................... 14 RF Compliance ........................................................... 15 Marking and Lighting Requirements ........................................... 15 Waiver of Lessor's Lien ..................................................... 15 Brokers Taxes LEASE AGREEMENT THIS LEASE is made as of the day of ., 199_, by and between the City of Virginia Beach, a municipal corporation of the Commonwealth of Virginia and , a ., having its principal place of business in ("Lessee"), WITNE$$ETH: WHEREAS, Lessor is the owner of a parcel of land (the "Owned Premises") situated in the City of Virginia Beach, Virginia, legally described on the attached Exhibit A, on which a municipal communications tower (the "Tower") is located; and; WHEREAS, Lessee is a telecommunications carder, as defined in Section 3 of the Communications Act of 1934 (47 U.S.C. § 153), and is licensed to provide personal wireless telecommunications service to the general public within the City of Virginia Beach; and WHEREAS, Lessee desires to lease space on the Tower and a portion of the aforesaid parcel for the purpose of constructing, operating and maintaining certain facilities for the purpose of providing personal wireless telecommunications service to the general public; Now, therefore, for good and valuable consideration, the parties do hereby agree as follows: 1. Leased Premises. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, space on the Tower at a height of between two hundred (200) and two hundred fifteen (215) feet above ground level, and a portion of the aforesaid parcel (the "Leased Premises"), as described in Exhibit B attached hereto, together with easements for vehicular and pedestrian access and the installation, maintenance and replacement of necessary utilities, wiring, cables and other conduits for the purpose of constructing, maintaining and operating radio communications facilities, including antennas, connecting cables and appurtenances (collectively, the "Antenna Facilities"), as shown on the attached Exhibit C, and for the construction, maintenance and operation of an accessory building housing equipment to be used in conjunction with the Antenna Facilities (the "Ground Facilities"), as shown on the attached Exhibit C. The Antenna Facilities and Ground Facilities shall collectively be referred to as the "Lessee Facilities." 2. Term. The initial term of this Lease shall be ten (10) years, commencing on the date of issuance of the building permit authorizing construction of the Lessee Facilities, or any portion thereof (the "Commencement Date"), and ending on a date ten (10) years after the Commencement Date (the "Initial Term"). At the option of Lessee, this Lease may be extended for two (2) additional renewal periods of five (5) years each (the "Renewal Terms") on the same terms and conditions as set forth herein. This Lease shall automatically be extended for each successive Renewal Term unless Lessee notifies Lessor of its intention not to renew at least sixty (60) days prior to commencement of the succeeding Renewal Term. 3. Rent. (a) Lessee shall pay to Lessor as rent for the Leased Premises the sum of Dollars ($ ) per year. Rent for the first year of this Lease shall be paid within ten (10) days of the Commencement Date, and Rent for the remainder of the term shall be paid annually in advance on each anniversary of the Commencement Date. Rent shall be increased annually as described hereafter. (b) The Rent shall be increased annually effective as of each anniversary of the Commencement Date by an amount equal to the percentage increase in the CPI over the prior CPI for the month twelve (12) months prior to the adjustment date, but not to exceed five per cent (5%) in any year. "CPI" means the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items, issued by the Bureau of Labor Statistics for the United States Department of Labor (1982-84 = 100). If the CPI is converted to a different standard reference base or otherwise revised, the adjustment set forth in this paragraph shall be made with the use of the conversion formula published by the Bureau of Labor Statistics. (c) For each additional antenna installed by Lessee beyond the initial array depicted in Exhibit C, Lessee shall pay an additional fee of Dollars ($ .) per year, prorated in the event such an antenna is installed on other than an anniversary of the Commencement Date, which mount shall increase annually under the same terms provided hereinabove and shall become part of the Rent. No such additional antennas not shown in Exhibit C may be installed without the consent of Lessor, which consent shall not be unreasonably withheld, delayed or conditioned. (d) In accordance with requirements of Section 15.2-2101 of the Code of Virginia, upon execution of this Lease by Lessee, Lessee shall reimburse Lessor for the cost of publishing the advertisement for bids for the use of the Leased Premises. (e) Lessee shall pay to Lessor all actual and reasonable increased costs of maintenance of the Leased Premises directly attributable to Lessee's use and occupancy thereof within thirty (30) days of presentation to Lessee of an itemized statement delineating such costs, accompanied by reasonable documentation supporting such costs. (f) Lessee shall pay Lessor a late payment charge equal to five percent (5%) of the late payment for any payment not paid when due. Lessor shall provide Lessee with written notice of non-receipt of any amounts due within five (5) days of the due date. Any amounts not 2 paid when due shall bear interest at the rate of one per cent (1%) per month from the date which is five (5) days after the mailing of such notice until paid. (g) Subject to the provisions of Paragraph 5(d) and Paragraph 9(b), in the event of termination of this Lease, all prepaid Rents shall be refunded to Lessee, without interest, within sixty (60) days of the effective date of such termination. 4. Security Deposit. Upon commencement of this Lease, Lessee shall deposit with Lessor the sum of Five Thousand Dollars ($5,000), which shall be fully refunded to Lessee upon the timely removal of the Lessee Facilities, and related equipment, and the repair and the restoration of the Leased Premises in accordance with the terms of this Lease. If the Lessee Facilities and related equipment are not removed to the reasonable satisfaction of Lessor within sixty (60) days after the termination or expiration of this Lease, they shall be deemed abandoned and shall become the property of Lessor and Lessee shall have no further rights thereto. Lessee has notified Lessor that the following entities have an interest in the Antenna Facilities and related equipment because of financing arrangements with Lessee: If Lessor removes the Lessee Facilities or any portion thereof, Lessor must give written notice to Lessee and the listed entities at the addresses provided, informing them that the Lessee Facilities or portion thereof, have been removed and will be deemed abandoned if not claimed by said entities and the storage fees and other reasonable costs paid within thirty (30) days. 5. Governmental Approval. (a) Lessee's right to use the Leased Premises is contingent upon Lessee obtaining all certificates, permits, zoning and other approvals (whether discretionary or ministerial), specifically including, without limitation, a conditional use permit and site plan approval, that may be required by any federal, state, or local authority, for Lessee's use to take place at the Leased Premises ("Governmental Approvals"). It shall be the sole and entire responsibility of Lessee to determine what Governmental Approvals are needed for the construction and operation of the Lessee Facilities. Lessor agrees to reasonably cooperate with Lessee (at no cost to Lessor) in its efforts to obtain such approvals; provided, however, that Lessor's agreement to cooperate shall not in any way limit or otherwise affect the authority or discretion of Lessor's governing body, or any department, division, officer or employee of Lessor, in the conduct of its or his duties with respect to any such Governmental Approval and provided further, that Lessor shall not be required to join, be joined, or otherwise participate as a party in any judicial or administrative action brought by Lessee, or any person or entity claiming under Lessee, in which the denial or conditions of any Governmental Approval is in issue. Lessee hereby expressly acknowledges and agrees that neither the execution of this Lease by Lessor nor any act by Lessor or any of Lessor's officers, agents or employees or its governing body in anticipation or in furtherance of the execution of this Lease, shall entitle Lessee to any Governmental Approval, whether discretionary or ministerial, and Lessee shall not be entitled to reimbursement of any costs or expenses of any kind or nature made or incurred in expectation of, or preparation for, the use of the Leased Premises. (b) Lessee warrants that it has performed, or caused to be performed, a radio frequency emissions study ("RF Study") showing that Lessee's intended use will not interfere with any existing communications facilities, or any such facilities being planned by Lessor as of September 1, 1998, and that such RF Study was conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia. Lessee shall, prior to the issuance of a building permit for any of the Lessee Facilities, deliver a copy of such RF study to Lessor. Lessor shall, upon request of Lessee, provide such information regarding Lessor's communications facilities as is necessary for Lessee to avoid interference with such facilities. (c) If any application for a necessary Governmental Approval is denied, or if any certificate, permit, license, or other Governmental Approval issued to Lessee is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority so that Lessee will be unable to use the Leased Premises for Lessee's intended purpose, and all administrative and judicial appeals of such action have been exhausted or the time for filing of such appeals has expired, both Lessor and Lessee shall have the right to terminate this Lease by written notice to the other, and upon such termination, this Lease shall become null and void. (d) Notwithstanding the provisions of subparagraph (c), in the event of termination by Lessee pursuant to subparagraph (c), Lessee shall be liable to Lessor for Rent for a period of 120 days from the date of such termination, unless such termination is by reason of the denial of a conditional use permit or other approval of a discretionary nature by Lessor's governing body. Nothing in this subparagraph shall relieve Lessor of its duty to mitigate its damages in the event of termination by Lessee. 6. Use of Premises. (a) Lessee may use the Leased Premises for the installation, operation, and maintenance of the Antenna Facilities and the Ground Facilities for the transmission, reception and operation of a communications system and uses incidental thereto, and for the storage of related equipment, in accordance with the terms of this Lease. Lessee may erect and operate such Antenna Facilities and Ground Facilities as are depicted on the attached Exhibit C, and may expand such Antenna and Ground Facilities only with Lessor's consent, which consent shall not be unreasonably denied, delayed or conditioned, and only after Lessor has obtained, at Lessee's expense, a certified evaluation indicating that each antenna will not interfere with the signals of existing antennas or with antennas being planned by Lessor as of September 1, 1998, and that the Tower can structurally support the antennas and related equipment. In connection therewith, Lessee shall have the fight to do all work necessary to prepare, maintain and alter the Leased Premises for Lessee's business operations under this 4 Lease and to install transmission lines connecting the antennas to the transmitters and receivers. If Lessor fails to respond in writing in the manner provided in this Lease for the giving of notices within fifteen (15) days following the receipt of Lessee's request for such approval, such request shall be deemed to have been approved by Lessor; provided, however, that if such approval requires the issuance of a new or modified conditional use permit, the provisions of Paragraph 5(a) of this Lease shall apply. (b) Lessee shall, at its sole cost and expense, construct, operate and maintain the Antenna Facilities and Ground Facilities in accordance with the standards and specifications of the City of Virginia Beach, all applicable City ordinances, permits and other requirements, and all applicable FCC rules and regulations. Lessee's installation of the Antenna Facilities and construction of the Ground Facilities shall be in accordance with the plans approved by Lessor, which approval shall not be unreasonably withheld, denied or conditioned. Any damage done to the Owned Premises or any other property of Lessor during installation or operation of the Lessee Facilities shall be repaired at Lessee's expense within thirty (30) days after notification of damage. Title to the Lessee Facilities shall be held by Lessee, and all such Lessee Facilities shall be deemed to be the personal property of Lessee and not fixtures. Lessee shall have the right to remove all Lessee facilities at its sole expense on or before the expiration or earlier termination of this Lease, provided that Lessee shall be required to repair any damage and to restore the Leased Premises to their original condition, ordinary wear and tear, casualty and the acts or omissions of Lessor or third parties excepted. (c) All modifications or improvements of the Leased Premises made for Lessee's benefit shall be at the Lessee's expense, and such improvements shall be maintained in a good state of repair by Lessee at Lessee's expense. The Antenna Facilities shall, at all times and at Lessee's expense, be painted such color as Lessor deems appropriate. (d) Lessee shall provide Lessor with as-built drawings of the equipment and improvements installed on the Leased Premises showing the actual location of all Antenna Facilities and Ground Facilities and of all other improvements installed on Lessor's property by Lessee in connection with this Lease. The drawings shall be accompanied by a complete and detailed inventory of all equipment, personal property, Ground Facilities and Antenna Facilities to be placed on the Leased Premises or other property of Lessor in connection with this Lease. At Lessor's option, such as-built drawings and inventory may be attached to this Lease as Exhibit E. (e) Lessee shall, at its expense, maintain any equipment on or attached to the Leased Premises in a safe condition, in good repair and in a manner reasonably suitable to Lessor so as not to conflict with the use of the other property of Lessor, subject to the provisions of Paragraph 8 of this Lease. Lessor shall maintain, at its sole expense, access roadways to the Leased Premises in a condition which will allow pedestrian and vehicular access under normal weather conditions; provided, however, that Lessee shall be responsible for the repair of any damage or deterioration caused by Lessee's use of such roadways. (f) Lessee, at all times during this Lease, shall have reasonable access during normal working hours to the Leased Premises in order to install, operate, and maintain its Lessee Facilities; provided, however, that Lessor's express written permission shall be required in order for Lessee to access the Antenna Facilities located on the Tower. Lessor shall, when requested by Lessee to grant such access, respond as soon as is reasonably practicable, and such permission shall not be unreasonably withheld. If it is necessary for Lessee to have access to the Leased Premises at some time other than the normal working hours of Lessor, Lessor may charge Lessee for whatever actual and reasonable expense, including employee wages, that Lessor may incur in providing such access. For purposes of this Paragraph 6(f), "normal working hours" are Monday through Friday from 8:00 a.m. to 5:00 p.m. Lessor designates the following person as the contact person for requests under this subparagraph: (g) Lessee shall install utilities to serve the Antenna Facilities and Ground Facilities in the location shown on Exhibit B at Lessee's sole expense. Lessee shall separately meter all utilities associated with its use of the Leased Premises and shall promptly pay all costs for such utility services. Lessor shall, without charge to Lessee, sign such documents as may be required by utility providers to provide such service to the Leased Premises, including the grant of permits required by Lessor or a utility provider to provide service as provided herein. (h) Lessor warrants and agrees that: (i) Lessor owns the Owned Premises and has rights of access thereto; (ii) Lessor has full right to make and perform this Lease; and (iii) Lessee, upon paying the rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Leased Premises for the purposes herein contemplated. Lessor shall not cause or permit any use of the Owned Premises which materially and unreasonably interferes with or impairs the operation of the communications facilities or the quality of the communications services being rendered by Lessee from the Leased Premises, nor shall Lessor have unsupervised access to the Leased Premises, except in the event of an emergency requiring immediate access to the Leased Premises. (i) Lessee shall remove the Lessee Facilities upon termination of this Lease unless Lessor otherwise agrees, in writing, and shall restore the affected area to its original condition, ordinary wear and tear, casualty and the acts or omissions of Lessor or third parties excepted. 6 Such removal shall be done in a workmanlike manner and without interference or damage to any other equipment. All costs and expenses for such removal and restoration shall be borne by Lessee. 7. Equipment Upgrade. Lessee may update or replace the Antenna Facilities or the Ground Facilities, or both, from time to time with the prior written approval of Lessor, which approval shall not be unreasonably withheld, delayed or conditioned, provided that any change in their location is satisfactory to Lessor. Lessee shall submit to Lessor a detailed proposal for any such replacement facilities and any supplemental materials as may be requested for Lessor's evaluation and approval. 8. Interference. (a) Lessee's installation, operation, and maintenance of the Antenna Facilities and Ground Facilities shall not damage or interfere in any way with Lessor's current operations or with operations planned by Lessor as of September 1, 1998. If the Lessee Facilities cause interference to such operations, Lessee shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated in a reasonable time, or if, in the sole judgment of Lessor, the interference materially compromises the ability of Lessor's system to receive and broadcast public safety communications, so as to jeopardize the public safety, Lessee shall immediately cease operating the Lessee Facilities to the extent necessary to stop the interference. If the interference cannot be eliminated within thirty (30) days, Lessor may terminate this Lease. (b) Subsequent to the installation of the Lessee Facilities, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Owned Premises or property contiguous thereto owned or controlled by Lessor, if such equipment is likely to cause interference with Lessee's operations. In the event interference occurs, Lessor agrees to take all action necessary to eliminate such interference within thirty (30) days. If the interference cannot be eliminated within thirty (30) days, Lessee may terminate this Lease. 9. Termination. (a) Except as otherwise provided herein, this Lease may be terminated upon sixty (60) days written notice to the other party as follows: (i) by either party upon a default in the performance of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of the default (without, however, limiting any other rights of the parties pursuant to any other provisions hereof); (ii) subject to the provisions of Paragraph 5(c) of this Lease, by Lessee if it is unable to obtain or maintain any license, permit or other Govemmental Approval necessary for the construction or operation of the Lessee Facilities or of Lessee's business; 7 (iii) by Lessee if the Lessee Facilities are destroyed or damaged by an act of God so as to, in Lessee's judgment, substantially impair Lessee's effective use of the Lessee Facilities, upon thirty (30) days' written notice to Lessor, which notice must be given within thirty (30) days of the date of such destruction or damage. If Lessee so terminates this Lease, Lessee shall be entitled to reimbursement of prepaid Rent covering the period subsequent to the date of destruction or damage; (iv) by Lessor, upon six (6) months' notice, if it determines that a potential user which is a public safety agency of the federal or state government or of the City of Virginia Beach cannot obtain another adequate location; (v) by Lessor, if after a public hearing, the Virginia Beach City Council determines that Lessee's use of the Leased Premises is not in compliance with any applicable ordinance, or state or federal law, or any conditions of any Governmental Approval, and Lessee fails to cure such noncompliance within thirty (30) days after such determination is rendered. Such failure shall be a default of Lessee's obligations under the terms of this Lease; (vi) by Lessee, if Lessee is unable to occupy and utilize the Leased premises due to an action of the FCC, including, without limitation, a take-back of channels or change or reallocation of the frequencies at which Lessee may operate its communications facilities which renders Lessee's operation of its communications facilities at the Leased Premises obsolete; or (vii) by Lessee within ninety (90) days of the execution of this Lease if Lessee determines that the Leased Premises are not suitable for its operation for economic or technological reasons, including, without limitation, signal interference. For purposes of this subdivision, "economic reasons" shall not include the availability of an equivalent site at commercial terms more favorable to Lessee than are contained in this Lease. (b) The parties shall give notice of termination in writing. Lessee shall be liable to Lessor for all Rent and other consideration under Paragraph 3 of this Lease for the period of this Lease prior to said termination date. (c) Upon termination or expiration of this Lease, Lessee shall have sixty (60) days from the date of termination or expiration to remove the Lessee Facilities and related equipment from the Leased Premises and to restore the Leased Premises to their condition prior to installation of the Lessee Facilities, ordinary wear and tear and damage caused by casualty, Lessor or third parties excepted. 10. Cure by Lessor. In the event of any default of this Lease by Lessee not cured by Lessee within the applicable cure period, Lessor may at any time, after notice, cure the default for the account of and at the expense of Lessee. If Lessor is compelled to pay or elects to pay any sum of money or to do any act which will require the payment of any sum of money or is compelled to incur any expense, including reasonable attorney fees in instituting, prosecuting or defending any action to enforce the Lessor's rights under this Lease, the sums so paid by Lessor, with all interest, costs and damages shall be deemed to be Additional Rental and shall be due from the Lessee to Lessor on the first day of the month following ten days' written notice by Lessor and submission by Lessor to Lessee of an itemized statement, with supporting evidence, of Lessor's costs and expenses. 11. Condemnation. In the event the Leased Premises is taken by eminent domain by the state or federal government, or any instrumentality thereof, or by the City of Virginia Beach, this Lease shall terminate as of the date title to the Leased Premises vests in the condemning authority. In the event a portion of the Leased Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event this Lease is not thereby terminated, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of the Leased Premises. Lessor and Lessee shall each be entitled to pursue its own separate awards in the event of a taking of the Leased Premises. 12. Defense and Indemnification. (a) Lessee agrees to defend, indemnify and hold harmless Lessor and its elected officials, officers, employees, agents, and representatives from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, arising from the negligence, willful misconduct, or other fault of Lessee. Lessee shall defend all claims arising out of Lessee's use of the Leased Premises and out of the installation, operation, use, maintenance, repair, removal, or presence of Lessee's Antenna Facilities, equipment and related facilities on the Leased Premises. In no event shall the liability of Lessee under this Sub- paragraph include damages for lost profits, consequential or punitive damages. (b) Without limiting the scope of Subparagraph (a) above, Lessee shall be solely responsible for and will defend, indemnify, and hold Lessor, its agents, officers and employees harmless from and against any and all claims, costs, and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the Leased Premises associated with Lessee's use of hazardous materials. For purposes of this Lease, "hazardous materials" shall be interpreted broadly and specifically include, without limitation, asbestos, fuel, batteries or any hazardous substance, waste, or materials as defined in any applicable federal, state, or local environmental or safety statute, ordinance, regulation or requirement. Lessor represents that, to the best of its knowledge and belief, it has received no notice of any action, suit, proceeding or claim concerning a release of hazardous substances on 9 or affecting the Leased Premises, and that, to the best of its knowledge and belief, there is no release of hazardous substances on or affecting the Leased Premises which would render the Leased Premises unsuitable for the purposes contemplated by this Lease. Lessor agrees to notify Lessee of any such release as soon as reasonably practicable after receiving notice thereof. Notwithstanding the foregoing, it shall be the responsibility of Lessee to determine whether or not there are any adverse conditions, including, without limitation, a release of any hazardous substance on or affecting the Leased Premises which would prevent Lessee's proposed use thereof, and in no event shall any liability of Lessor for any such condition include damages for lost profits, consequential or punitive damages. (c) Lessee represents and warrants that its use of the Leased Premises will not generate, and Lessee will not store or dispose of on the Leased Premises, nor transport to or over the Leased Premises on the property of Lessor, any hazardous materials other than those ordinarily used in the provision of communications services as permitted hereunder and in compliance with all applicable laws, unless Lessee specifically informs Lessor thereof in writing twenty-four (24) hours prior to such storage, disposal or transport or otherwise as soon as Lessee becomes aware of the existence of hazardous materials on the Leased Premises. (d) Lessor and Lessee release each other and their respective principals, officers, directors, employees, representatives and agents, from any claims for damage to any person or to the Leased Premises or to the Lessee Facilities thereon caused by, or that result from, risks insured against under a standard all risk insurance policy. Lessor and Lessee shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. (e) Lease. The obligations of this Paragraph shall survive the expiration or termination of this 13. Insurance. (a) During the Initial Term and Renewal Terms of this Lease, Lessee shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance. All policies other than those for Worker's Compensation shall be written on an occurrence and not on a claims made basis. The coverage amounts set forth below may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. i. Worker's compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. 10 ii. Comprehensive commercial general liability insurance with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage; and broad form property damage coverage. Lessor shall be named as an additional insured under such policy. iii. Automobile liability insurance covering all owned, hired and non-owned vehicles in an amount not less than One Million Dollars ($1,000,000), combined single limits. (b) Certificates of insurance for each insurance policy required to be obtained by Lessee in compliance with this paragraph shall be filed with Lessor annually during the term of the Lease. Lessee shall immediately advise Lessor of any claim or litigation that may result in liability to Lessor. (c) All insurance policies maintained pursuant to this Lease shall contain the following endorsement: "At least thirty (30) days prior written notice shall be given to Lessor by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the parties named in the Lease." (d) All insurance shall be written by insurers licensed to conduct the business of insurance in the Commonwealth of Virginia and rated A- or better by Best. (e) Lessee shall require that each and every one of its contractors and their subcontractors who perform work on the Leased Premises carry, in full force and effect, workers' compensation, comprehensive public liability and automobile liability insurance coverages of the type which Lessee is required to obtain under the terms of this paragraph with like limits of insurance. 14. Assignment and Sublease. (a) This Lease, and the fights hereunder, may not be sold, assigned, or transferred at any time by Lessee except upon prior written notice to Lessor; provided, however, that Lessee may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease, without Lessor's consent. Lessee shall have the right to sublet under this Lease without Lessor's consent. Upon notification to Lessor by Lessee of any such assignment or subletting, ll Lessee shall be relieved of all future performance, liabilities and obligations under this Lease. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. (b) This Lease shall run with the property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. 15. Notices. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, or by a nationally recognized overnight courier, addressed as follows or if sent by facsimile to the facsimile number set forth below, with a hard copy contemporaneously mailed as previously specified: If to Lessor to: With a copy to: If to Lessee, to: City Manager Municipal Center, Building One 2401 Courthouse Drive Virginia Beach, Virginia 23456 Fax No. City Attorney Municipal Center, Building One 2401 Courthouse Drive Virginia Beach, Virginia 23456 Fax No. With a copy to: Attn: Fax No. Attn: Fax No. 12 Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. 16. Miscellaneous Provisions. (a) This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease shall be effective only if made in writing and executed and acknowledged by both parties. (b) Each party agrees to cooperate with the other in executing or having executed any documents (including a Memorandum of Lease in a form acceptable to both parties attached hereto as Exhibit D, Non-Disturbance Agreement, easement agreements, or other documents) necessary to protect its rights or use of the Leased Premises. Either party may record a Memorandum of Lease or easement agreement, but neither party may record this Lease. (c) This Lease shall be construed in accordance with the laws of the Commonwealth of Virginia. Any court action relating to this Lease may be maintained only in the Circuit Court of the City of Virginia Beach or United States District Court for the Eastern District of Virginia. (d) If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. The parties intend that the provisions of this Lease be enforced to the fullest extent permitted by applicable law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. (e) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their representative capacities as indicated. (f) The submission of this document for examination does not constitute an offer to lease or a reservation of or option for the Leased Premises and shall become effective only upon execution by both parties. (g) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. (h) The parties understand and acknowledge that Exhibit A (Description of Owned Premises), Exhibit B (Description of Leased Premises) and Exhibit C (Description of Antenna Facilities and Ground Facilities) may be attached to this Lease in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, Exhibits A, B and C may be replaced by the parties with final, more complete exhibits which shall be agreed to and conformed by the parties. 13 (i) This Lease shall be governed as to all matters, whether of validity, interpretation, obligations, performance or otherwise, exclusively by the laws of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. (j) During the performance of this Lease, the Lessee agrees that it will not discriminate against any employee or applicant for employment because of race, religion, color, sex, handicap or national origin, except where religion, sex, handicap or national origin is a bona fide occupational qualification or consideration reasonably necessary to the normal operation of the Lessee. The Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. The Lessee, in all solicitations or advertisements for employees placed by or on behalf of the Lessee, will state that such Lessee is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements herein. Lessee agrees to comply with the good faith minority business efforts required by the Virginia Beach City Code. (k) Lessee hereby certifies that it did not, directly or indirectly, enter into any combination or arrangement with any person, firm or corporation or enter into any agreement, participate in any collusion, or otherwise take any action in restraint of free, competitive bidding for this Lease in violation of any of the laws of the United States or the Commonwealth of Virginia. (1) Lessee represents and wan'ants that, as of the date of its execution of this Lease, it was the holder of a valid license issued by the Federal Communication Commission to construct and operate radio transmitting facilities within a territory including the City of Virginia Beach pursuant to Section 309 (h) of the Communications Act of 1934 (47 U.S.C. § 309 (h)). Lessee hereby agrees that, if for any reason, such license is revoked or otherwise terminated, it will immediately so notify Lessor, and Lessee shall have the fight to terminate this Lease pursuant to Paragraph 9 (a) (ii) of this Lease. 17. Tests and Constructions. Lessee shall have the fight following the full execution of this Lease to enter upon the Owned Premises for the purpose of making appropriate engineering and boundary surveys, inspections, soil test borings or other reasonably necessary tests. In the event of any inconsistency between this Lease and any survey performed, Lessor shall make such amendments to this Lease and adjustments in the location of Leased Premises as shall be reasonably necessary for Lessee's use and satisfactory to Lessee. If the title search or the survey discloses any matters which Lessee deems unsuitable or which interfere with Lessee's use and enjoyment of the Leased Premises, Lessor shall cure such defects within sixty (60) days. If Lessor does not or cannot cure such defect within such sixty (60) days, Lessee shall 14 have the right, without obligation, to terminate this Lease and render it null and void from the date of termination. 18. RF Compliance. Subsequent to the installation of the Lessee Facilities, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Owned Premises or property contiguous thereto owned or controlled by Lessor, if such equipment is likely to cause the Owned Premises to exceed the FCC radiated power density maximum permissible exposure ("MPE") limits for workers and the general public. Such excess radiated power densities shall be deemed a material breach by Lessor. In the event excess radiated power densities occur, Lessor agrees to take or to cause any subsequent lessee or licensee whose use of the Owned Premises results in the FCC specified MPE limits being exceeded to promptly take all mitigation action necessary to eliminate such excess radiated power densities within thirty (30) days. In the event Lessor fails to comply with this paragraph, Lessee may terminate this Lease and/or pursue any other remedies available under this Lease, at law, and/or at equity, including injunctive relief. Lessee shall operate the Lessee Facilities in a manner that will not cause the Owned Premises to exceed the FCC specified MPE. 19. Marking and Lighting Requirements. (a) Lessor shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC, provided that if the requirement for compliance results from the Lessee Facilities, Lessee shall pay for such reasonable costs and expenses (including for any lighting automated alarm system). Should Lessee be cited because the Owned Premises is not in compliance and, should Lessor fail to cure the conditions of noncompliance, Lessee may either terminate this Lease or proceed to cure the conditions of noncompliance at Lessor's expense, which amounts may be deducted from the Rent. (b) If lighting requirements apply and a lighting automatic alarm system has been installed by Lessor, Lessor shall allow Lessee to bridge in to the system to permit a parallel alarm or to install a second alarm if a bridge would interfere with Lessor's alarm. Lessee shall be responsible for the cost and expense of maintaining the bridge or parallel alarm. Notwithstanding anything in this Paragraph 19(b), the responsibility for compliance with FAA and FCC requirements shall remain with Lessor as provided in Paragraph 19(a) above. (c) Any facilities or equipment constructed or installed by Lessee for the purposes contemplated by this paragraph shall be property grounded according to the reasonable standards of Lessor. 20. Waiver of Lessor's Lien. (a) Lessor waives any lien rights it may have conceming the Lessee Facilities which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. 15 (b) Lessor acknowledges that Lessee has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Lessee Facilities (the "Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 21. Brokers. Lessor and Lessee represent to each other that they have not negotiated with any real estate broker in connection with this Lease. Lessor and Lessee agree that, should any claim be made against the other for a real estate broker's commission, finder's fee or the like by reason of the acts of such party, the party upon whose acts such claim is based shall indemnify and hold the other party free and harmless from all losses, damages, claims and expenses in connection therewith. 22. Taxes. Lessee shall be responsible for paying all personal property taxes assessed upon the Lessee Facilities and for paying taxes on its leasehold interest pursuant to Virginia Code Section 58.1-3203, or any successor statute. IN WITNESS WHEREOF, the parties hereto have respectively executed this Lease to be effective as of the date hereinabove stated. CITY OF VIRGINIA BEACH ATTEST: by City Manager or Designee City Clerk 16 APPROVED AS TO LEGAL SUFFICIENCY: APPROVED AS TO CONTENT: Department of Law LESSEE by Title: STATE OF VIRGINIA: CITY OF VIRGINIA BEACH I, hereby certify that Virginia Beach, whose name as ., a Notary Public in and for the City and State aforesaid, do , of the City of such is signed to the foregoing Lease Agreement, has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this __ day of STATE OF Notary Public My Commission Expires: 17 CITY OF I, hereby certify that named Lessee, whose name as such acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this __ day of , a Notary Public in and for the City and State aforesaid, do of the above- is signed to the foregoing Lease Agreement, has Notary Public My Commission Expires: 18 EXHIBIT A (DESCRIPTION OF OWNED PREMISES) All that certain lot, piece or parcel of land lying, being and situate in the City of Virginia Beach, Virginia, having the Geographic Position Identification Number (GPIN) 2412-20-9656. See attached deed for a more complete property description. 19 SEP.-l$'981TUE) 08:25 CITY ATTORNEY ANNEX TEL:7$7 $63 1167 P. O02 SEP,-l$'98(TUEI 08:25 CITY ATTORNEY ANNEX TEb:7$7 $6~ 1167 P, O0~ EXHIBIT B (DESCRIPTION OF LEASED PREMISES) 20 EXHIBIT C (DESCRIPTION OF ANTENNA FACILITIES AND GROUND FACILITIES) [TO BE COMPLETED BY BIDDER] 21 EXHIBIT D (MEMORANDUM OF LEASE) 22 EXHIBIT E (AS-BUILT DRAWINGS AND INVENTORY OF EOUIPMENT) [TO BE ATTACHED AT LESSOR'S OPTION] - 13- AGENDA RE VIE W SESSION ITEM # 440 79 Ordinance in the Petition of WELDON T., JR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment of a portion of an unnamed street beginning at the Southeast corner of the Norfolk and Southern Railroad right-of- way, containing 8,198.5 square feet (DISTRICT 2 KEMPSVILLE). The City Attorney referenced a revised Ordinance, which shall be delivered by Attorney Edward Bourdon prior to the Formal Session. ITEM # 44080 Application of ALLEN R. BAER for a Conditional Use Permit. for a car wash and automotive repair on the South side of Tiffany Lane, 180 feet more or less West of Princess Anne Road, containing 2.546 acres (DISTRICT 7- PRINCESS ANNE). This item shall be discussed during the Formal Session. ITEM # 44081 Applications of COXCOM, INC., dba COX COMMUNICATIONS HAMPTONROADS re the North side of Princess Anne Road, West of Ferrell Parkway (2636 Princess Anne Road), containing 1.69 acres (DISTRICT 7 - PRINCESS ANNE) a. Change of Zoning District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District b. Conditional Use Permit for a fiber optic transmission facility Council Lady Parker referenced the future parking area is included to replace the parking lot when Princess Anne Road/Ferrell Parkway is widened and provide additional parMng, if needed, by the applicant. However, there is only a ftfteen-foot buffer between the edge of this area and the neighborhood. Usually in commercial development, a wider buffer is required. Robert d. Scott, Director of Planning, advised there is a large unknown relative the widening of Princess Anne Road. If it is decided that all the right-of-way is taken off the northern side then that back parking lot is probably going to be necessary to make the plan feasible because parking in the front, of what was the post office, will be displaced. However, if the right-of-way is taken from the other side or split evenly, it may not be necessary to relocate that parking lot and if that is case the buffer is going to be needed. ITEM # 44082 J. 5 Applications re Rosemont Road, 1300feet more or less North of Dam Neck Road (DISTRICT 7- PRINCESS ANNE): ROSEMONT COMMERCE PARK, L.L.C. and ARBOR TREE EXPERTS, INC. for a Chan~e of Zoning District Classification from R-5D Residential Duplex District to Conditional I-1 Light Industrial District on the East side of Rosemont Road, containing 25. 67 acres bo ARBOR TREE EXPERTS, INC. for a Conditional Use Permit for processing woody vegetation and storage of same on property East of Rosemont Road and North of Dam Neck Road, containing approximately 14 acres Council Lady Henley advised the applicant's attorney has indicated on the Conditional Use Permit for processing woody vegetation, agreement to an additional condition not to grind the mulch after 5:00 P.M. and same not be a seven-day operation. September 22, 1998 - 14- AGENDA RE VIE W SESSION ITEM # 44083 Application of O & R, INC., a Virginia Corporation, and/or Assigns for a Change of Zoning District Classification from R-lO Residential District to A-12 Apartment District with a PD-H Overlay on the West side of Salem Road, North of Lynnhaven Parkway, containing 12.186 acres (DISTRICT 1 - CENTER VILLE). Council Lady Eure advised she had met with the applicant twice. He has reduced the project by twelve units and widened the streets. Council Lady Eure advised she wouM have no objections. Mr. Scott advised the parcel of property on the corner (approximately one-third of an acre) is owned by the City of Virginia Beach. The applicant, David S. Russotto, was interested in landscaping same and proposed to seek the City 's permission. Mr. Russotto 's intentions are for the parcel to remain City property. Council Lady Eure advised the applicant wishes to display to City Council the plan for this property. Council Lady McClanan advised she would vote a VERBAL NAY on this application. This item will be discussed during the Formal Session. ITEM # 44084 ,I. 7. Applications of VIRGINIA BEACH DEVELOPMENT AUTHORITY for Change of Zoning District Classification re the North side of Holland Road at the intersection with South Independence Boulevard (DISTRICT 3 - ROSE HALL) from P-1 Preservation District to I-1 Light Industrial District, containing 22. 928 acres from B-2 Community Business District to I-1 Light Industrial District, containing 2.1109 acres This item will be discussed during the Formal Session. The City Manager advised, at the request of Vice Mayor Sessoms, to establish ground rules, Don Maxwell - Director of Economic Development, will limit his presentation to 15 minutes. Each of the speakers will be limited to 3 minutes with additional time for rebuttal. ITEM # 44085 J. 8 Ordinance to AMEND and REORDAIN Sections 2, 4, 7 and 9 of the Airport and Noise Attenuation and Safety Ordinance (Appendix I) of the City Code re renaming Airport Noise Zones and Aircraft Accident Potential Zones; and, requiring new disclosures in connection with certain real estate transactions. Vice Mayor Sessoms advised he had been contacted by the Tidewater Board of Realtors. They must train approximately 300 relators. To ensure fair and correct disclosure remains paramount to the real estate transaction, TAR requests the City Council place an effective date of November 1, 1998, on the requirement of any disclosures in connection with the amended zones. The City Attorney advised the Ordinance shall be amended under Section 9 to reflect an effective date of November 1, 1998. ITEM # 44086 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT A GENDA: J. 1. Ordinance in the Petition ofWELDON T., ,IR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment of a portion o fan unnamed street beginning at the Southeast corner of the Norfolk and Southern Railroad right-of-way, containing 8,198. 5 square feet (DISTRICT 2 - KEMPSVILLE). September 22, 1998 - 15- AGENDA RE VIE W SESSION ITEM # 44086 (Contnued) Applications of COXCOM, INC., dba COX COMMUNICATIONS HAMPTON ROADS re the North side of Princess Anne Road, West of Ferrell Parkway (2636Princess Anne Road), containing 1.69 acres (DISTRICT 7- PRINCESS AYNE) Change ofZoning District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District b. Conditional Use Permit for a fiber optic transmission facility bo Applications re Rosemont Road, 1300feet more or less North of Dam Neck Road (DISTRICT 7 - PRINCESS ANNE): ROSEMONT COMMERCE PARK, L.L.C. and ARBOR TREE EXPERTS, INC. for a Chan~e of Zoning District Classification from R-5D Residential Duplex District to Conditional I-1 Light Industrial District on the East side of Rosemont Road, containing 25.67 acres ARBOR TREE EXPERTS, INC. for a Conditional Use Permit for processine woody vegetation and storage of same on property East of Rosemont Road and North of Dam Neck Road, containing approximately 14 acres Ordinance to AMEND and REORDAIN Sections 2, 4, 7 and 9 of the Airport and Noise Attenuation and Safety Ordinance (Appendix I) of the City Code re renaming Airport Noise Zones and Aircraft Accident Potential Zones; and, requiring new disclosures in connection with certain real estate transactions. Ordinances re the new Air Installations Compatible Use Zones (AICUZ) : AMEND and REORDAIN Section 221.1 of the City Zoning Ordinance (CZO) re specific standards for certain conditional uses AMEND the official City Zoning Map, without change in the official zoning designation, to reflect the new AICUZ Item No. 5 will be APPROVED, BY CONSENT, with additional conditions. Item No. 8 shall be AMENDED, BY CONSENT, to reflect an effective date of November 1, .1998, under Section 9. September 22, 1998 -16- CITY COUNCIL CONCERNS $:07 P. M. ITEM # 44087 Council Lady Henley in last week's City Council Agenda, she and Councilman Weeks forwarded Council Members a copy of an agenda for a RETREAT on September 18 and 19, 1998, with the PENTRAN Board relative the possible merger with Tidewater Transportation Commission. Council Members Weeks and Henley are in the process of assimilating the background information over the past three or four years for discussion at the next City Council Session. The City delayed acting on the Memorandum of Intent. ITEM # 44088 Council Lady McClanan inquired when a JOINT MEETING of City Council and the School Board will be scheduled. The City Manager advised the tentative date is Friday, October 9, 1998,from 3:00 P.M. with a break for dinner and completion in the early evening. Vice Mayor Sessoms advised his son would be returning from College and he would be unable to attend. ITEM # 44089 Council Lady Eure inquired relative attendance at the Hampton Roads ~4irport .4dvisory Breakfast on October 15, 1998. ITEM # 44090 Council Lady Eure advised the meeting scheduled for September 23, 1998, relative St. Matthews (application of SAINT M~4 TTHEWS C~4 THOLIC CHURCH for a Conditional Use Permit approved 9/8/98). However, the applicant has withdrawn the representation of Barbara W. White, Principal- St. Matthews, and will have School Board representation in addition to an attorney. This meeting has been RESCHEDULED for October 13, 1998. City staff has been very generous in providing information. ITEM # 44091 Council Lady Eure referenced correspondence from Delegate Owen Pickett to the City Manager relative the $4.8 7-MILLION for the housingprogram including funds for code enforcement. Council Lady Eure inquired whether additional Code Enforcement officers would be hired. Council Lady Eure would like this considered. The City Manager did not believe additional officers would be hired but he will provide a report. The City Manager advised the City was proposing to speak relative additional officers during the budget process; however, this particular funding is more for ongoing housing rehabilitation programs. ITEM # 44092 Council Lady McClanan advised she had a request from a citizen, Elaine Hall, to be sponsored to speak concerning her church, Bow Creek Presbyterian, and the church being allowed to have more than two flee markets during the year. September 22, 1998 -17- ITEM # 44093 Vice Mayor William D. Sessoms, Jr., called to order the INFOR3,1AL SESSION of the VIRGINIA BEACH CITYCOUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 22, 1998, at 5:12 P.M.. Council Members Present: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members ~4bsent: Mayor Meyera E. Oberndorf September 22, 1998 - 18- ITEM # 44094 Vice Mayor William D. Sessoms, Jr., entertained a motion to permit City Council to conduct its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion or consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees pursuant to Section 2.1-344 (A) (1). To Wit: Boards and Commissions: Community Services Board Development Authority Wetlands Board LEGAL MA TTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requesting the provision of legal advice by counsel pursuant to Section 2.1-344(A)(7). To- Wit: FLSA Cases - Bailey, Acosta, et al v. City of Virginia Beach Upon motion by Council Lady Parker, seconded by Councilman Heischober, City Council voted to proceed into EXECUTIVE SESSION. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William ~ Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 - 19- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL September 22, 1998 6:00 P.M. Vice Mayor W. D. Sessoms called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, August 25, 1998, at 6:00 P.M. Council Members Present: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Absent: Mayor Meyera E. Oberndorf [OBSERVING ROSH HASHANAH ENTERED: 7:29 P.M. INVOCATION: The Reverend Sidney Nelson, Ph.D. St. Timothy Lutheran Church Chaplain - Fort Story PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Sessoms, being a Corporate Officer of Wachovia Bank, disclosed there were no matters on the agenda in which he has a "personal interest", as defined in the Act, either individually or in his capacity as an officer of Wachovia Bank. The Vice Mayor regularly makes this Disclosure as he may not know of the Bank's interest in any application that may come before City Council. Vice Mayor Sessoms' letter of January 1, 1998, is hereby made apart of the record. September 22, 1998 - 20- Item V-E. CERTIFICATION OF EXECUTIVE SESSION ITEM # 44095 Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Executive Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 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 # 44094, Page 18, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the governing body that such Executive Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by Virginia Beach City Council. ~th Hodges 8/mith, CMC/AAE City Clerk September 22, 1998 Item V-F. 1. - 21 - MINUTES ITEM # 44096 Upon motion by Council Lady Eure, seconded by Council Lady Parker, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSIONS of September 8, 1998. Voting: 9-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Abstaining: William W. Harrison, Jr. Council Members Absent: Mayor Meyera E. Oberndorf Councilman Harrison ABSTAINED as he was not in attendance during the City Council Session of September 8, 1998. September 22, 1998 - 22 - Item V-F. 2. MINUTES ITEM # 44097 Upon motion by Council Lady Eure, seconded by Council Lady Parker, City Council APPROVED the Minutes of the SPECIAL FORMAL SESSION of September 15, 1998. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 - 23 - Item V-G. ADOPT AGENDA FOR FORMAL SESSION ITEM # 44098 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION September 22, 1998 - 24- Item V-H. 1. PUBLIC HEARING ITEM # 44099 Vice Mayor William D. Sessoms DECLARED A PUBLIC HEARING: EXCESS CITY REAL ESTATE PROPERTY Adjacent to 2201 Bierce Drive (DISTRICT 7 - PRINCESS ANNE) There being no speakers, Vice Mayor Sessoms CLOSED THE PUBLIC HEARING. September 22, 1998 - 25 - Item V-I. ORDINANCES ITEM # 44100 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council APPRO VED IN ONE MOTION, Ordinances 1,2, 3, 4, 6 and 7. Item 1.3. was DEFERRED, BY CONSENT, SIXMONTHS, until the City Council Session of March 23, 1999. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara bt. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 Item V-L1. - 26- ORDINANCES ITEM # 44101 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council ADOPTED: Ordinance to declare approximately 13,171 square feet of City- owned property as EXCESS PROPERTY adjacent to 2201 Bierce Drive; and, authorize the City Manager to dispose of same in sale to the adjacent property owner (DISTRICT 7 - PRINCESS ANNE). Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 1 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 AN ORDINANCE DECLARING CERTAIN PROPERTY EXCESS AND AUTHORIZING CITY MANAGER TO DISPOSE OF SAME TO THE ADJACENT PROPERTY OWNER WHEREAS, by Certificate recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2401, page 1838. An Amended Ceffificate was recorded in Deed Book 2467, page 1845. The final order was entered by the Circuit Court on December 30, 1985, and recorded in Deed Book 2473, page 1279, the City of Virginia Beach acquired title in and to the real property described in Exhibit A attached hereto; and WHEREAS, the City Council is of the opinion that the property is in excess of the needs of the City of Virginia Beach and should be sold to the adjacent landowner; Michael P. Caffyn, NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the property is hereby declared to be in excess of the needs of the City of Virginia Beach and that the City Manager is hereby authorized to execute the attached Quitclaim Deed and convey the property to Michael P. Caffyn. The following property shall be sold and is more particularly described as follows: All that certain lot, piece or parcel of land situate in the Princess Anne Borough of the City of Virginia Beach, Virginia, and designated and described as "PHYSICAL SURVEY OF 13,171 SQUARE FEET ADJACENT TO LOT 1393 RED MILL FARM, SECTION 23/SOUTH SHORE ESTATE 2201 BIERCE DRIVE VIRGINIA BEACH, VIRGINIA FOR MICHAEL P. CAFFYN" a copy of which is on file with the City of Virginia Beach/Department of Public Works/Office of Real Estate. This ordinance shall be effective from the date of its adoption. Adopted by the Council of the City of Virgima Beach, Virginia, on the __ September, 1998. 22 jdew/lawson/caffyn.ord R-1 PREPARED: 06/23/98 A~~D AS TO CONTENT P~{l~lic Works APPROVED AS TO LEGAL SUFFICIENCY l~nt °f t~w f day of 866L'--Nnf-~ '~ 'DN3 A~I Ag (]31iVd~dd ~ I I / / / / I I I I I I I I ! I I ~ I I I ? I I I I I ~v6g'~.~' x ,o~.~' x ,6z / / ... / iI "./.. i / /~. / / / / eee / / / / / / / / / / / / / / / / / / / ,O09'L ",,L: ~ ~ NOLI.~O01 Item V-L2. -27- ORDINANCES ITEM # 44102 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council ADOPTED: Ordinance to AMEND Section 2-6 of the City Code re the Resort Area Advisory Commission (RAAC), changing the name to Resort Advisory Commission (RAC) ; changing the responsibility of the Commission with respect to the Tourism Growth and Investment Special Revenue Fund (TGIF); and, amending the Commission's By-laws. Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf Item V-L 3. September 22, 1998 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 AN ORDINANCE TO AMEND SECTION 2-6 THE CITY CODE PERTAINING TO THE RESORT AREA ADVISORY COMMISSION, TO CHANGE THE RESPONSIBILITY OF THE COMMISSION WITH RESPECT TO THE TOURISM GROWTH AND INVESTMENT SPECIAL REVENUE FUND, AND TO APPROVE AMENDMENTS TO THE COMMISSION'S BYLAWS BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 2-6 of the City Code is hereby amended and reordained to read as follows: Sec. 2-6. Resort e~ee advisory commission. (a) There is hereby created the resort arca advisory commission which shall consist of at least eleven (11) but not more than nineteen (19) members. The members of the commission shall be appointed by the city council to serve terms of three (3) yearsT A chairman and a vice-chairman shall be elected from the commission by its members. Ail members shall be residents of the city. (b) The composition, governance and administration of the commission shall be in accordance with its bylaws, dated September 22. 1998. and incorporated by reference herein, tcrms and ccnditicns cf which bylaws shall not be amended without the prior ccnscnt approval of city council. (c) Thc This ordinance supercCd~$ the resolution adopted by city council on April 2, 1984, which established and appointed a resort area advisory commission, ~ ...... ~-~ ..... ' .... ~ ...... ~.. appointment of a BE IT FURTHER ORDAINED: That the Resort Advisory Commission shall no longer be responsible for "oversight" of the Tourism Growth and Investment Special Revenue Fund (the "Fund"), but shall instead be responsible 35 36 37 38 39 40 41 42 43 44 45 46 4? for monitorin9 the Fund and providin9 recommendations to City Council regarding the use of the Fund; and BE IT FURTHER ORDAINED: That City Council hereby approves amendments to the Commission's bylaws as set forth in Exhibit A, a copy of which is attached hereto and incorporated by reference. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 22nd day of September, 1998. CA-7116 DATA/ODIN/PROPOSED/02-006B.ORD RI PREPARED: September 3, 1998 APPROVED AB TO CONTENTB: Convention and Visitor Development APPROVED AS TO LEGAL SUFFICIENCY: Department of Law 2 Exhibit A RESORT A--RE-A ADVISORY COMMISSION BYLAWS ARTICLE I PURPOSE · · · · · · · · · The general purpose of the Resort Advisory_ Commission shall be to review and make recommendations to Ci _t3, Council regarding (i) projects and issues associated with the Oceanfront Resort Area, and (ii) such other resort and/or tourism-related prqiects and issues as the Council may refer to the (~ommission. In carrying out this purpose, the Commission's goal shall be to support the Ci_ty Council's efforts to realize its vision of Virginia Beach as a quality resort destination that: encourages responsible enjoyment of its invaluable natural assets by residents, day visitors, and tourists; draws on all of its ocean and bay beaches and inland bays. lake, and rivers to establish the City as a water-oriented recreation destination; provides a growing stream oft0urism-generated tax revenues to help meet the City's needs for schools, highways, and social services; offers a diversity of cultural, entertainment, recreational, and educational tourism venues in an integrated and well-designed manner; attracts visitors from a wide spe¢C'um of income and age groups and serves each group with courtesy and distinction; establishes a distinctive identi _ty at each gateway tO the City and extends this distinctive character along routes linking our major resort attractions and venues: encourages private investment in tourism development and offers an environment conducive to profitable operation of small and large-scale resort businesses: competes successfully year-round for the best state and regional conferences. trade shows and conventions; and enhances its beachfront residential neighborhoods and minimizes conflicts between visitors and residents in these neighborhoods. Specifically. the Commission shall: serve as City Council's citizen advisory_ panel on tourism-development challenges and Opportunities; serve as an incubator for tourism-development projects and programs: serve as the conduit to the ¢0url¢il for resor~ plans and initiatives; monitor the Tourism Growth and Investment Special Revenue Fund to insure that expenditures are consistent with Council policy; build consensus among the diverse interests having a stake in our tourism industry_; assist City staff and Council to integrate the diverse mix of resor~ programs and projects into a consistent, unified, tourism-development plan; be an advocate for quality_ desi_ma in both public and private re~ort development; and 2 monitor implementation of Gouncil-end0rsed resort projects, programs and policies to insure consistency with the Gouncil's resort vision. ARTICLE II MEMBERS Section 1. Number. The Commission shall consist of at least eleven (11) but not more than nineteen (19) members, and shall include at least one (1) member from each of the following associations: the Hotel/Motel Association, the Virginia Beach Restaurant Association, and the Resort Retailers Association. The Commission shall also include th~ elected leader of, or a designated rep_ resentative appointed by and from. each of the following organizations: the Virginia Beach Division of the Hampton Roads Chamber of Commeme. the Virginia Beach Council of Civic Organizations. and the Resort Leadership Council. Finally. the Commission ,hall include at least three (3) desi_m~ professionals who have expertise in the fields of architecture, urban design, land use planning, landscape architecture, transportation planning, or other design fields important to realizing the purpose of the Commission. All members shall be appointed by City Council. *' ....... *' .... ~ ........ ~ ~"- ~ ~ ....... ~--- ~'' ' --~ '~ .... ~-- ~11 members shall be appointed for a te~ of t~ec (3) ye~s:: pr0vided~ however, that, ~n accord~ce with ~ 2-3 of thc CiW Code, no member shall be appointed to se~e more th~ t~ee (3) consecutive ~cc (3) ye~ ~ ' No~ithsta dig ,he abo the te~s of the t~ee (3) elected leaders (or desi~ees) shall be consistent with the te~s of office of such elected leaders within their respective org~izafions, Section 3. Qualifications. All members shall be residents of the City. The overall membership should --A*~A, ' ...... persons with ~owledge or expe6ence in the fields ofb~ing ~d tin--ce, tomsm development, recreation ~d entenaiment, co~ercial real estate, advertising, business m~agement, real estate law. or other ~eas ~i~uely related to the pu~ose of the Qo~issiO~, Additionally, ~ve~ ~ffo~ should be made to have geo~cal, raciol, ~d ethic representation on ~e Co~ission reflective of the entire Gity. Section 4. Chairman and Vice-Chairman. A Chai ,rr,,an (or Vice-Chai ,~an in the Chai ,~an's absence) shall preside over the meetings of the Commission. Chairma~ and Vice-Chairmala shall be appointed by a majority vote of the Commission and shall serve for a term of one (1) year. The Chairma~ and Vice-Chairrtu~ may be re-elected for additional terms. 'Section 5. Attendance. Attendance records shall be kept at each meeting of the Commission and an annual report of the attendance of the members shall be filed with the City Clerk by June 30 of each year for review by City Council. No member shall accumulate an annual total of more than three (3) absences (not to exceed one-fourth of the total number of meetings). If this limitation is exceeded for reasons other than personal illness, death, or other unusual purposes, the appointment shall be terminated automatically, or as otherwise prescribed by law. Section 6. Vacancies. A vacancy caused by death, resignation, termination, expiration, or otherwise shall be filled by City Council for the unexpired term thereof, or in the case of an expiration, for three (3) years, within thirty (30) days of said vacancy. Notwithstanding the above, if, immediately prior to a vacancy, the Commission consists of more than eleven (11) members, City Council shall not have to fill the vacancy. MEETINGS Section 1. Regular meetings. The Commission shall meet at least once a month at a time and location to be determined by the Chai ,r-,~,an upon consultation and coordination with the other members. Section 2. Special meetings. A special meeting may be called by the Chai ,rlnan or five (5) members of the Commission, or may be convened by City Council, to consider any matter that, in the determination of the Chai ,rman, the members, or City Council, needs to be addressed prior to a regular meeting. Any recommendation to the City Council. adopted by the (~ommission. shall immediately submitted in writing to the City Manager who shall transmit it to City Council. Section 3. Requirements. A majority of Commission members shall be present in order for any meeting to be held. All actions of the Commission shall be conducted at a regular or special meeting and, with the exception of reports as indicated in Article IV below, shall require a majority vote of those members present; 4 ARTICLE IV REPORTS Section 1. Annual Report. Within forty-five (45) days of the end of the fiscal year, the Commission shall prepare and submit an annual report of its activities, recommendations, and proposals, including a financial statement, if applicable, to the City Manager who shall transmit same to City Council. Interim reports to City Council may be provided when deemed appropriate or necessary by the Commission, City Council, or thc City Manager. Section 2. Tourism Growth and Investment Special Revenue Fund Report. By October 15th &each year. the Commission shall prepare and submit an Annual Tourism Growth and Investment Special Revenue Fund (TGIF) Report to the Ci_ty Manager who shall transmit it to the Ci_ty Council. This Report shall include the Commission's evaluation of the status of the TGIF Special Revenue Fund and its recommendations for the use of the TGIF in the upcoming budget cycle, This Report shall als0 include Commission recommendations for non-TGIF-financed operating and capital budgeting initiatives that are c0nsi~ent with the Commission's purpose, Section 3. Requirements. All reports shall be approved by a majority of the members of the Commission. The Commission shall present a summary_ of any required report directly to the City Council at a public meeting. In any report to the Council, the Commission shall identify any conflicts that its report may have with the opinions of other City agencies. ARTICLE V COORDINATION Section 1. City_ Departments, The Commission shall work with and through the Department of Convention and Visitor Development which shall, in close cooperation with the City Manager's Office. be responsible for coordinating the efforts of the Commission with other City departments; ~, .... o, ..... ,, ....... oo.,,.o (1) to ensure that there is no unnecessary duplication of efforts;i (2) to enable the Commission to review the recommendations and proposals of c,t.hcr City agcnc~ca departments for compatibility (or incompatibility) with Commission objectives;: (3) to enable City departments tO review and provide comments on Commission-generated proposals or initiatives; and (-3-) (4) to ensure timely implementation of projects and programs. Section 2. Other City_ Agencies. The Commission and the Department ~hall make a special effort to establish open lines ofc0mmunication with other City agencies involved in the formulation and implementation &various components of the City Council's resort and tourism policies including, but not limited to, the following: the Development Authority, the Planning Commission, the Shore 5 Drive Advisory_ Commission, the Beach Events Steering Committee, the Advertising Advisory. Council. the City Manager's Resort Area Task Force, and other City agencies that may have an interest in specific elements of the Council's resort and tourism policies, ARTICLE VI SUBCOMMITTEES The of the Commission shall have the authority to appoint subcommittees, comprised of members of the Commission and non-members with special expertise, to study and review specific areas of concern and to report back to the full Commission for such action as the Commission shall deem appropriate. ARTICLE VII AMENDMENTS No alteration, amendment, or repeal of these Bylaws or any section hereof shall be effective without the prior consent of City Council. ARTICLE VIII TERMINATION The Rc,~c~ Azca Ad-,5~c, ry Commission shall terminate automatically at midnight on A-ug~ 31, 19%° J_llllf,_J_Q~,.9_~, unless terminated by City Council prior to that date. These Bylaws [as amended] are hereby adopted as of this 22nd day of September, 1998, by the Council of the City of Virginia Beach, Virginia. G:'~U SF. JI.~L.~A II B~,W P~WORi~ R. AA C. ByL 6 - 28 - Item V-L3. ORDINANCES ITEM # 44103 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council DEFERRED SIX MONTHS, TO THE 23 MARCH 1999, CITY COUNCIL SESSION: Ordinance to authorize a temporary encroachment into a portion of the City's right-of-way by GREA T NECK BAPTIST CHURCH to construct and maintain two (2) directional signs at the intersections of Great Neck Road/Old Donation Parkway and Inlynnview Road (DISTRICT 5 - L YNNHA YEN Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, Ill, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 Item V-L4. - 29- ORDINANCES ITEM # 44104 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council ADOPTED: Ordinance to authorize a temporary encroachment into a portion of the City's drainage easement, known as Canal No. 2, by HERMES ABRASIVES, Ltd. to construct and maintain an eight-foot (8') chain link fence at Viking and Avenger Drives (DISTRICT 6 - BEA CH), subject to: The following conditions shall be required: o 6. The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location. The temporary encroachment shall terminate upon notice by the City of Virginia Beach to the applicant and, within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's drainage easement known as Canal No. 2 by the applicant and the applicant shall bear all costs and expenses of removal. The applicant shall indemnify and hold harmless the City of Virginia Beach, its agents and employees from and against all claims, damages, losses and expenses, including reasonable attorney's fees in case it shall be necessary to ftle or defend an action arising out of the location or existence of such temporary encroachment. No permission or authority is given to the applicant to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachments by any one other than the applicant. The applicant agrees to maintain the temporary encroachments so as not to become unsightly or a hazard. The applicant must obtain a permit from the Development Services Center prior to commencing any construction within the City's drainage easement. The applicant agrees to remove the encroachment within a reasonable amount of time as directed by the City and at no expense to the City. If, in the event the applicant refuses or is unable to remove the encroachment, the applicant understands the City will authorize the removal of the encroachment and all expenses will be charged to the applicant to recover the cost of the encroachment removal. September 22, 1998 - 30- Item V-I.4. ORDINANCES ITEM # 44104 (Continued) The City, upon revocation of such authority and permission so granted, may remove any such temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-of-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by the applicant; and if such removal shall not be made within the time specified by the City, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachments are allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE A TEMPORARY ENCROACHMENT INTO A PORTION OF A CITY DRAINAGE EASEMENT KNOWN AS CANAL NO. 2 BY HERMES ABRASIVES ,ITS HEIRS, ASSIGN AND SUCCESSORS IN TITLE WHEREAS, Hermes Abrasives, desires to construct and maintain an 8' chain link fence into the City's drainage easement known as Canal No. 2. WHEREAS, City Council is authorized pursuant to §~ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachment upon the City's drainage easement subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in §~ 15.2-2009 and 15.2107, Code of Virginia, 1950, as amended, Hermes Abrasives, its heirs, assigns and successors in title are authorized to construct and maintain a temporary encroachment for an 8' chain link fence in the City's drainage easement as shown on the map entitled: "EXHIBIT NLAP OF PARCEL 08 OCEANA WEST INDUSTRIAL PARK SCALE: 1" = 30' JANUARY 3, 1998 BASGIER AND ASSOCIATES A PROFESSIONAL CORPORATION ENGINEERS-SURVEYORS- PLANNERS VIRGINIA BEACH, VIRGINIA," a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and 33 34 35 36 37 38 39 4O 41 Hermes Abrasives, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as Hermes Abrasives and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia on the 22 day of September , , 1.998. 42 43 44 45 CA-# 'Z SBURNS \ LAWSON/HERME S. ORD R-1 PREPARED: SB DEPARTMENT APPROVED AS TO LEGAL ' ~CITY ATTO[~N~Y 2 PREPkRED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(a) (3) AND 58.1-8111c) (4) REIMBURSEMENT AUTHORIZED LrNDER SECTION 25-249 THIS AGREEMENT, made this 4th day of August , 19 98 , by and between the CITY OF VIRGINIA BEACH, VIRGINIA, municipal corporation, GRANTOR, party of the first part, and Hermes Abrasives, LTD, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, GRANTEE, party of the second part. W I TNE $ SETH: That, WHEREAS, the party of the first part is %he owner of a drainage easement known as Canal No. 2; That, WHEREAS, it is proposed by the party of the second part to construct and maintain an 8' Chain Link Fence in the City's drainage easement. WHEREAS, in constructing and maintaining such chain link fence, it is necessary that the said party of the second part encroach into a portion of the existing City drainage easement known as Canal No. 2; and said party of the second par% has requested that the party of the first part grant a temporary encroachment to facilitate such 8' chain link fence within a portion of the City's drainage easement known as Canal No.2. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to %he party of the second part and for the further consideration of One Dollar ($t.00), in hand paid, to the said party of the first part, receipt of which is hereby acknowledged, the party of the first part doth grant to the party of the second part a temporary encroachment to use a portion of the City's drainage easement known as Canal No. 2 for the purpose of constructing and maintaining a chain link fence. It is expressly understood and agreed that such temporary encroachment will be constructed and maintained in accordance with the laws of 'the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location and is more particularly described as follows, to wit: Aun area of encroachment into a portion of the City's drainage easement known as Canal No. 2 as shown on that certain plat entitled: "EXHIBIT FlAP OF PARCEL 08 OCEANA INDUSTRIAL PARK SCALE; 1" = 30' JANUARY 3, 1998 BASGIER AND ASSOCIATES A PROFESSIONAL CORPORATION ENGINEERS-SURVEYORS-PLANNERS VIRGINIA BEACH, VIRGINIA," a copy of which is at'tached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the temporary encroachment herein authorized shall terminate upon notice by the City of Virginia Beach to the party of the second part, and that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's drainage easement known as Canal NO. 2 by the party of the second part; and tha~ the party of the second part shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the party of the second part shall indemnify and hold harmless the City of Virginia Beach, its agents and employees, from and against all. claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of such temporary encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the party of the second part. It is further expressly understood and agreed that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the party of the second part must obtain a permit from the Development Services Center prior to commencing any construction within the City's drainage easement. It is further expressly understood and agreed that the owner agrees to keep the City free and harmless from liability as a result of the encroachment. It is further expressly understood and agreed that the owner agrees to remove the encroachment within a reasonable amount of time as directed by the City and at no expense to the City. If, in the event, the owner refused or is unable to remove the encroachment, the owner understands the City will authorize the removal of the encroachment and all expenses will be charged to the owner to recover the cost of the encroachment removal. It is further expressly understood and agreed that the owner shall maintain the encroachment to prevent it from becoming unsightly or a hazard. It is further expressly understood and agreed that the party of the first part, upon revocation of such authority and permission so granted, may remove any such encroachment and charge the cost thereof to the party of the second part, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the party of the second part to remove such temporary encroachment; and pending such removal, ~he party of the first part may charge the party of the second part compensation for the use of such portion of the City's drainage easement encroached upon the equivalent of what would be 4 the real property tax upon the land so occupied if it were owned by the party of ~he second part; and if such removal shall not be made within the time ordered herein above by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state ~axes. APPROVED AS TO LEGAl- SUFFiC!ENCY CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk David ' President Hermes Abrasives, LTD STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify 5 that THE CITY MANAGER. , CITY MANAGER/AUTHORIZED DESIGNEE OF My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me date this day of , 19 , by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this V-~ day of ~~ ,1998, by David J. Potter, President, Hermes Abrasives, LTD. My Commission Expires: Notary Public L--S TE - LOCATION MAP SCALE: 1" = 1,600' I b ~, ............. ~ ~-~-~~~~. ~ ~- ..................... ' ............ I ~ "",,., ,~ ' "ACCESS~" ' ' ....... ~ ....... ..-..~ ~ ",~.,-.~/. .......... ,.. ....... . /' '~Z" "'s.'""" '¥ ~ '~ ~ t ' . ........ -- -~-~ - --~ 98--5-353_LAWSON PREPARED BY P/W ENG. DRAFT. 01-JUN-1998 I Hermes Abrasives, Ltd. 528 Viking Drive Virginia Beach, Virginia 23452 Item V-I. 5. - 31 - ORDINANCES ITEM # 44105 Attorney Hayden DuBay, owner - Church Point Commons, represented the applicant Upon motion by Councilman Jones, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize temporary encroachments into a portion of the City's right-of-way by CHURCH POINT COMMONS, L.L.C. to construct and maintain a shopping center sign at 1700 Pleasure House Road near First Court Road (DISTRICT 4 ~ BAYSIDE), subject to: The following conditions shall be required: o 6. o The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location. The temporary encroachment shall terminate upon notice by the City of Virginia Beach to the applicant and, within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right-of-way known as Pleasure House Road the applicant and the applicant shah bear all costs and expenses of removal. The applicant shall indemnify and hoM harmless the City of Virginia Beach, its agents and employees from and against all claims, damages, losses and expenses, including reasonable attorney's fees in case it shall be necessary to ftle or defend an action arising out of the location or existence of such temporary encroachment. Nothing herein contained shall be construed to enlarge such permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachments by any one other than the applicant. The applicant agrees to maintain the temporary encroachments so as not to become unsightly or a hazard. The applicant agrees that no open cut of the public roadway shall be allowed except under extreme circumstances. Such exceptions shall be submitted to the Highway Division, Department of Public Works, for final approval. The applicant must obtain a permit from the Development Services Center prior to commencing any construction within the City's right-of-way. Prior to issuance of a Highway permit, the applicant must post a performance bond in accordance with the engineer's cost estimate. September 22, 1998 - 32- Item V-I. 5. ORDINANCES ITEM # 44105 (Continued) The applicant shall obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The applicant must also carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500, 000), combined single limits of such insurance policy or policies. The applicant must provide endorsements providing at least thirty (30) days'written notice to the Cityprior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment 10. Any above-ground temporary encroachment shall conform to the minimum setback requirements, as established by the City Traffic Engineer's Office. The sign must be located at least ten feet (10') from the sidewalk. 11. The applicant shall submit for review and approval a survey of the area being encroached upon, certified by a registered professional engineer or a certified licensed land surveyor and/or "as built"plans of the temporary encroachment, sealed by a registered professional engineer, of the temporary encroachment, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. 12. The City, upon revocation of such authority and permission so granted, may remove any such temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-of-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by the applicant; and if such removal shall not be made within the time specified by the City, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachments are allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. 13. The size of the sign and placement thereof shall comply with the City's Zoning Ordinance. Voting: 6-4 Council Members Voting Aye: Linwood O. Branch, III, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: Margaret L. Eure, Reba S. McClanan, Nancy K. Parker and A. M. "Don" Weeks Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 REQUESTED by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF THE RIGHT-OF-WAY BY CHURCH POINT CONiMONS, LLC, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Church Point Commons, LLC, a limited liability company desires to construct and maintain a shopping center sign into the City's right-of-way located at Pleasure House Road. WHEREAS, City Council is authorized pursuant to ~ 15.2- 2107 and 15.2-2009, Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the City's right-of-way subject to such terms and conditions as Council may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in ~ 15.2-2107 and 15.2-2009, Code of Virginia, 1950, as amended, Church Point Commons, LLC, their heirs, assigns and successors in title are authorized to construct and maintain a temporary encroachment for a shopping center sign in the City's right-of-way as shown on the map entitled: "Exhibit For Sign Encroachment For Church Point Commons" a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachment is expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and Church Point Cormmons, LLC, (the "Agreement") which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the City Manager or his authorized designee is hereby authorized to execute the Agreement. 34 35 36 37 38 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as Church Point Commons, LLC and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 22 day of September , 1998. 39 4O 41 42 CA-# Z/Z ~ pdej esu/encroach/chur ch. pt R-1 PREPARED: 8/7/98 VED AS TO CONTENTS APPROVED AS TO LE(~tL 2 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEI~WI'ED FROM RECORDATION TAXES UNDER SECTION 58.1-811 (aX3) AND 58.1-811(¢)(4) REIMBURSEMENT AUTItORIZED UNDER SECTION 25-249 THIS AGREEMENT, made this ,P, da/tday of .~7~'~7 , 19qod, by and between the CITY OF VIRGINIA BEACH, VIRCflNIA, a municipal corporation, Grantor, party of the first part, and CHURCH POINT COMMONS, LLC., ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, Grantee, party of the second part. WITNE $ $ETH: That, WHEREAS, the party of the second part is the owner of that certain lot, tract, or parcel of land designated and described as "Section 9, Parcel W, Thoroughgood" and being further designated and described as "1700 Pleasure House Road. Virginia Beach- Virginia 23455 · GPIN 1479-34-5791" and That, WHEREAS, it is proposed by the party of the second part to construct and maintain a proposed sign in the City of Virginia Beach; and WHEREAS, m constructing and maintaining such proposed sign, it is necessary that the said party of the second part encroach into a portion of an existing City right-of-way known as Pleasure House Road, and said party of the second part has requested that the party of the first part grant a tempora,-y encroachment to facilitate such proposed sign within a portion of the City's fight-of- way known as Pleasure House Road. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the party of the second part and for the further consideration of One Dollar ($1.00), in hand paid, to the said party of the first part, receipt of which is hereby acknowledged, the GPlN 1479-34-5791 party of the first part doth grant to the party of the second part a temporary encroachment to use a portion of the City's right2of-way known as Pleasure House Road for the purpose of constructing and maintaining such proposed sign. It is expressly understood and agreed that such temporary encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location and is more particularly described as follows, to wit: An area of temporary encroachment into a portion of the City's fight-of-way known as Pleasure House Road as shown on that certain plat entitled: "EXHIBIT FOR SIGN ENCROACHMENT FOR CHURCH POINT COMMONS", a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the temporary encroachment herein authorized shall terminate upon notice by the City of Virginia Beach to the party of the second part, and that wilhin thirty (3 0) days after such notice is given, such temporary encroachment shall be removed from the City's fight-of-way known as Pleasure House Road by the party of the second part; and that the party of the second part shall bear ali costs and expenses of such removal. It is further expressly understood and agreed that the party of the second part shall indemnify and hold harmless the City of Virginia Beach, its agents and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of such temporary encroachment. 2 It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the party of the second part. It is further expressly understood and agreed that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the party of the second part agrees that no open cut of the public roadway shall be allowed except under extreme circumstances. Such exceptions shall be submitted to the Highway Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the party of the second part must obtain a permit from the Development Services Center prior to commencing any construction within the City's right-of-way. It is further expressly understood and agreed that prior to issuance of a Highway permit, the party of the second part must post a performance bond in accordance with the engineer's cost estimate. It is further expressly understood and agreed that the party of the second part shall obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the party of the first part, and all insurance policies must name the party of the first part as additional named insured or loss payee, as applicable. The party of the second part also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The party of the second part will provide endorsements providing at least thirty (30) days written notice to the party of the first part prior to the cancellation or termination of, or material change to, any of the insurance policies. The party of the second part assumes all- responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. It is further expressly understood and agreed that any above ground temporary encroachments shall conform to the minimum setbacks requirements, as established by the City Traffic Engineer's Office. The sign must be located at least ten (10) feet from the sidewalk. It is further expressly understood and agreed that the party of the second part shall submit for review and approval, a survey of the area being encroached upon, certified by a professional engineer, and/or "as built" plans of the temporary encroachment, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. It is further expressly understood and agreed that the party of the first part, upon revocation of such authority and permission so granted, may remove any such temporary encroachment and charge the cost thereof to the party of the second part, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the party of the second part to remove such temporary encroachment; and pending such removal, the party of the first part may charge the party of the second part compensation for the use of such portion of the City's right-of-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by the party of the second part; and ffsuch removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment is allowed to continue thereafter, and shah collect such compensafon and penalfes in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Church Poim Commons, LLC has caused this Agreement to be executed in its name-and on its behalf by Hayden I. DuBay, President, with due authority to bind said parmership. Further, that the City of Virginia Beach ha~ caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affmed and attested by its City Clerk. ClTY OFVIRGINIABEACH (SEAL) ATTEST: By City Manager/Authorized Designee of the City Manager City Clerk 5 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrmnent was acknowledged before me this ., 19 ,by MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. My Commission Expires: Notary Public STATE OF VIRGINIA C1TY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me fl~is .,by City Clerk for THE CITY OF VIRGINIA BEACH. dayof ,, by RUTH HODGES SMITH, My Commission Expires: Notary Public 6 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this ~/.'.~ day of (/t~5 /4~00 HAYDEN I. DUBAY, PRESIDENT, on behalf of 1 9 CHURCH POINT COMMONS, LLC. Notary Pt~blic My Commission Expires: ,~/i~VED AS .TO CONTENT DEPARTMENT 7 LOCATION MAP SC, AJ.E: 1" = 1~600' ~. , ,%l ,---, c, ; '---Il. © ~0,' c .,-,O© , ? \ \ \ ! I J~ LOCATION MAP FOR ENCROACHMENT FOR ~ CHURCH POINT COMMONS SIGN AT 700 PLEASURE HOUSE ROAD ~ ~ JI. 111111 III I FIRST COURT ROA SCALE 1"=50' LAKE SITE INFORMATION: ZONING G-PIN RECORDED IN; B-2 # 1'1.79-34-$ ?~1 MB. 180, P. 45 EXHIBIT FOR SIGN ENCROACHMENT FOR CHURCH POINT COMMONS EXHIBIT "A" EXAMI:'L[:; OF EXISTING SIGN AT TI tOROUGtlGOOD COMMONS. TI-IE NEW SIGN WILIJ BE MADE WITIt T}IE SAM[~ MATERIALS. TI.tIS SIGN IS APPROXIMATELY 13.5 F[';I:;T FI?,.OM '-FILE BUII~I)ING AND q FEET FROM TIlE SIDLWALK EXHIBIT E - 33 - Item Vd. 6. a/b. ORDINANCES ITEM # 44106 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council ADOPTED: Ordinances to provide for the lease of portions of City property re constructing, maintaining and operating wireless telecommunications facilities: 5023 Providence Road (DISTRICT 2 - KEMPSVILLE) 1848 Pleasant Ridge Road (DISTRICT 7- PRINCESS ANNE) Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. 34. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 AN ORDINANCE TO PROVIDE FOR THE LEASE OF A PORTION OF THE CITY PROPERTY LOCATED AT 5023 PROVIDENCE ROAD, IN THE KEMPSVILLE DISTRICT, FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING WIRELESS TELECOMMUNICATIONS FACILITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: ARTICLE I. There shall be granted, in the mode prescribed by Article 1, Chapter 21, Title 15.2 of the Code of Virginia, as amended, upon the conditions hereinafter specified, a lease of property more fully described in the attached document entitled "Communication Tower Lease Agreement, City of Virginia , Lessee," for the purpose Beach, Lessor, and of constructing, telecommunications maintaining facilities, and operating wireless including antennas, connecting cables and appurtenances and for the construction, maintenance and operation of an accessory building housing equipment to be used in conjunction with the aforesaid facilities. ARTICLE II. That upon approval of this Ordinance by the City Council, it shall be the duty of the City Clerk to cause to be advertised once per week for four successive weeks, in a newspaper having general circulation in the City, a descriptive notice of the proposed ordinance, and in addition the Clerk shall, by such advertisement, invite bids for the privileges and rights proposed to be granted by such ordinance, which bids shall be in writing and shall be delivered to the Mayor, or in the absence of the Mayor, to the Vice-Mayor, in open session at the day and hour of the next regular meeting of the City Council to be held after such advertisement is completed, which bids shall then be presented to the City Council by the Mayor, or in the absence of the Mayor, by 33 34 35 36 37 the Vice-Mayor, to be dealt with and acted upon in the manner prescribed by law. Such advertisement shall expressly reserve the right to reject any and all bids, and the successful bidder shall be required to pay all costs of advertising such ordinance in addition to the sum bid by it. 38 39 Adopted by the Council of the City of Virginia Beach, Virginia, on the 22 day of September , 1998. 40 41 42 43 44 45 46 47 48 49 50 CA-98-7151 wmm~ordres~kempstow.ord R-1 September 14, 1998 APPROVEDA~TO CONTENT: Public Utilit~s ~epartment APPROVED AS TO LEGAL Department of Law 1 2 3 4 5 6 7 8 AN ORDINANCE TO PROVIDE FOR THE LEASE OF A PORTION OF THE CITY PROPERTY LOCATED AT 1848 PLEASANT RIDGE ROAD, IN THE PRINCESS ANNE DISTRICT, FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING WIRELESS TELECOMMUNICATIONS FACILITIES 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: ARTICLE I. prescribed by Article 1, There shall Chapter 21, be granted, in the mode Title 15.2 of the Code of Virginia, as amended, upon the conditions hereinafter specified, a lease of property more fully described in the attached document entitled "Communication Tower Lease Agreement, City of Virginia , Lessee," for the purpose Beach, Lessor, and of constructing, telecommunications maintaining and facilities, including operating antennas, wireless connecting cables and appurtenances and for the construction, maintenance and operation of an accessory building housing equipment to be used in conjunction with the aforesaid facilities. ARTICLE II. That upon approval of this Ordinance by the City Council, it shall be the duty of the City Clerk to cause to be advertised once per week for four successive weeks, in a newspaper having general circulation in the City, a descriptive notice of the proposed ordinance, and in addition the Clerk shall, by such advertisement, invite bids for the privileges and rights proposed to be granted by such ordinance, which bids shall be in writing and shall be delivered to the Mayor, or in the absence of the Mayor, to the Vice-Mayor, in open session at the day and hour of the next regular meeting of the City Council to be held after such advertisement is completed, which bids shall then be presented to the City Council by the Mayor, or in the absence of the Mayor, by 34 35 36 37 38 the Vice-Mayor, to be dealt with and acted upon in the manner prescribed by law. Such advertisement shall expressly reserve the right to reject any and all bids, and the successful bidder shall be required to pay all costs of advertising such ordinance in addition to the sum bid by it. 39 40 Adopted by the Council of the City of Virginia Beach, Virginia, on the 22 day of September , 1998. 41 42 43 44 45 46 47 48 49 50 51 CA-98-7149 wmm\ordres\pungo.ord R-1 September 14, 1998 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUF ICI NCY: · ~ , ~ Dep~artment o~ Law - 2 - 34 - Item V-L 7. ORDINANCES ITEM it 44107 Upon motion by Councilman Harrison, seconded by Councilman Jones, City Council ADOPTED LICENSE REFUNDS $6,650.69 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, Harold Heischober, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 FORM NO. CA. B REV. 3/88 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE INTEREST TOTAL YEAR PAID ANIMAX LTD 1998 08/13/98 2.33 0.00 2.33 BENNETT, ROBERTA D 1998 01/08/98 27.66 0.92 28.58 BETZLER, BROOKE S 1995-1998 AUDIT 60.08 0.00 60.08 BOVVLES GREGGORY, DDS PC 1996-1998 AUDIT 4.23 0.69 4.92 COASTLAND CORP 1996-1998 AUDIT 4.66 1.01 5.67 COX, ETHEL F 1998 08/18/98 9.82 0.00 9.82 DAVID, DAVID M DR. PC 1996-1998 AUDIT 48.48 0.00 48.48 DEARBORN, GERALDINE E 1996-1997 AUDIT 2,166.38 223.60 2,389.98 GAJETON, RHONDA L 1996-1998 AUDIT 6.00 0.00 6.00 GALEO CORP 1998 08/18/98 227.43 7.58 235.01 GLOBAL NETVVORKS INC 1995-1997 AUDIT 34.80 0.00 34.80 GLOSSON, DANIEL W 1995-1998 AUDIT 0.10 0.00 0.10 HECHTKOPF, JOHN J 1998 08/12/98 10.97 0.37 11.34 INGENUITY PROP LTD II 1998 03/12/98 56.12 1.87 57.99 KEMPSVILLE PHARMACY OF VA INC 1996-1997 AUDIT 50.73 11.23 61.96 LION HEART PROMOTIONS INC 1995-1998 AUDIT 333.66 0.00 333.66 MASTER AUTO INC 1998 08/13/98 98.10 3.26 101.36 MAYMAR I NTERNTL FOOD MART CO 1995-1997 AUDIT 126.25 26.92 153.17 MCDANIEL, EPHRAIM SPENCER 1998 08/12/98 1.11 0.00 1.11 MORRIS FOODS LTD 1996-1997 AUDIT 17.65 3.97 21.62 RICHARDSON, KERRY/YEAGER, AND 1998 08/17/98 59.59 1.98 61.57 RITE AID OF VA INC 1998 08/17/98 75.00 0.00 75.00 SIRON, ALEJANDRO R 1998 08/13/98 8.00 0.27 8.27 SISSON, JOHN R JR 1998 08/17/98 20.00 0.66 20.66 TALLMAN, TRACY C 1998 08/13~98 2.40 0.00 2.40 TEE & GEE INC 1996-1998 AUDIT 695.10 20.88 715.98 This ordinance shall be effective from date of adoption. The above abatement(s) to $4,451.86 were City of Virginia Beach on the 22 day Certified ,as to_~pay~ ~ Philip [J.'Kellam Commissioner of the Revenue Approved as to form: he,lie' L. Lilley City Attorney approved by the Council of the of September ,19 98 Ruth Hodges Smith City Clerk FORM NO C A 8 REV. NAME ALCARINC AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: LICENSE DATE BASE INTEREST TOTAL YEAR PAID 1995-1998 AUDIT 20.00 0.00 20.00 1996-1998 AUDIT 213.66 11.66 225.32 1996-1998 AUDIT 82.14 0.00 82.14 1997-1998 AUDIT 1.13 0.05 1.18 1996-1997 AUDIT 6.25 0.00 6.25 1996-1998 AUDIT 103.10 7.38 110.48 1996-1997 AUDIT 86.40 0.00 86.40 1997-1998 AUDIT 845.06 112.63 957.69 1995-1998 AUDIT 30.00 0.00 30.00 1996-1997 AUDIT 460.55 0.00 460.55 1996-1998 AUDIT 55.06 12.84 67.90 1997-1998 AUDIT 22.12 0.92 23.04 1997-1998 AUDIT 20.74 0.69 21.43 1996-1998 AUDIT 85.36 10.67 96.03 1996-1998 AUDIT 10.00 0.42 10.42 AUCTION SERVICES INC BLOSSER BROTHERS MECHANICAL DOMINION ARCHERY INC FAIR HORIZONS INC FELLERS, JAMES & LAMM, STELLA FREEDOM CO INC GIGLIOTTI FRANK B DDS PC GOOD, KELLY A HAYES CONSTRUCTION CO OF VA KELLAM-EATON-HUEY INSUR AGENC ONE HOUR PHOTO CO POOR FOLKS TREE SERVICE INC PYLE REALTY INC RAMOS, EDGAR T This ordinance shall be effective from date of adoption. The above abatement(s) to $2,198.83 were City of Virginia Beach on the 22 day approved by the of September Certified as/to pay~nt:/~/,~/ , Philip J. Kel[am Commissioner of the Revenue Approved as to form: lie'L. Lilley"' City Attorney Council of the ,19 98 Ruth Hodges Smith City Clerk Item V-J. - 35- PUBLIC HEARING ITEM # 44108 PLANNING Vice Mayor William D. Sessoms, Jr. DECLARED a PUBLIC HEARING on: PLANNING 1. WELDON T., JR. AND GERTRUDE A. BYRNS STREET CLOSURE 2. SUE D. FRANCE NON-CONFORMING USE 3. ALLEN R. BAER CONDITIONAL USE PERMIT 4. COXCOM, INC. CONDITIONAL CHANGE OF ZONING CONDITIONAL USE PERMIT a. ROSEMONT COMMERCE PARK, L.L.C. AND ARBOR TREE EXPERTS b. ARBOR TREE EXPERTS, INC. CHANGE OF ZONING CONDITIONAL USE PERMIT 6. 0 & R, INC. CHANGE OF ZONING 7. VIRGINIA BEACH DEVELOPMENT AUTHORITY CHANGES OF ZONING 8. AIRPORT NOISE ZONES AND AIR CRAFT A CCIDENT POTENTIAL ZONES AMEND/Sections 2, 4, 7 and 9 CITY CODE 9. AICUZ AMEND/Section 221.1 CZO AMEND/Official Zoning Map September 22, 1998 - 36- Item PUBLIC HEARING ITEM # 44109 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council APPROVED in one motion Items 1, 2, 4a/b, 5a/b, 8 and 9 of the PL4NNING BY CONSENT. Item 1 was AUTHORIZED FOR FINAL APPROVAL, BY CONSENT (REVISED ORDINANCE) Item 2 was DEFERRED, BY CONSENT, until the City Council Session of October 13, 1998. Item 5b. was APPROVED, BY CONSENT, with additional condition. Item d. 8 was ADOPTED, BY CONSENT, as amended (Section 9. Effective Date of November 1, 1998.) Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 -37- Item V-J. 1. PUBLIC HEARING ITEM # 44110 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council A UTHORIZED FINAL APPROVAL, B Y CONSENT, of an Ordinance upon application of WELDON T., JR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment ora portion of an unnamed street: Petition of Weldon T., Jr. and Gertrude A. Byrne for the discontinuance, closure and abandonment of a portion of an unnamed street beginning at the southeast corner of the Norfolk and Southern Railroad right-of-way and running in an easterly direction a distance of163.97 feet. Said parcel is 50 feet in width and contains 8,198.5 square feet. DISTRICT 2 - KEMPSVILLE. Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara 3/1. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 SYKES, CARNES, BOURDON & AHERN, P. C. ATTORNEYS AT LAW ORDINANCE NO. IN THE MATTER OF CLOSING, VACATING AND DISCONTINUING THAT CERTAIN 8,198+ SQUARE FEET OF EXCESS, UNIMPROVED, UNNAMED, CITY RIGHT-OF-WAY ADJACENT TO 100 SOUTH LOWTHER DRIVE, DESIGNATED "50' DEDICATED TO PRINCESS ANNE CO. IF AND WHEN NEEDED FOR STREET" (DB 857, PG 270) ON THAT PLAT ENTITLED "RESUBDIVISION OF SITE 2 & 3 SUBDIVISION OF PROPERTY OF 'NORMAN P. SCOTT'" DATED 4/16/97, PREPARED BY T.E.S., INC. WHEREAS, it appearing by affidavit that proper notice has been given by WELDON T. BYRNS, JR. and GERTRUDE A. BYRNS, that they would make application to the Council of the City of Virginia Beach, Virginia, on April 29, 1998, to have those portions of the hereinafter described streets discontinued, closed and vacated; and WHEREAS, it is the judgment of the Council that the portions of said streets be discontinued, closed and vacated; NOW, THEREFORE, SECTION I BE IT ORDAINED by the Council of the City of Virginia Beach, Virginia, that the hereinafter described portion of a street be discontinued, closed, and vacated: ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATE, LYING AND BEING IN THE KEMPSVILLE BOROUGH OF VIRGINIA BEACH, VIRGINIA as shown and designated "50' DEDICATED TO PRINCESS ANNE CO. IF AND WHEN NEEDED FOR STREET (DB 857, PG 270)" on that plat entitled "RESUBDIVISION OF SITE 2 & 3 SUBDIVISION OF PROPERTY OF 'NORMAN P. SCOTT'" dated 4/16/97, prepared by T.E.S., INC. which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 264, at Pages 19 & 20. Said parcel of land being that certain 8,198+ Square Feet of excess, unimproved, unused, unnamed right-of-way adjacent to 100 South Lowther Drive, as shown and designated as "50' DEDICATED TO PRINCESS ANNE CO. IF AND WHEN NEEDED FOR STREET (DB 857, PG 270) CLOSED BY CITY COUNCIL" as indicated on that certain plat entitled "RESUBDIVISION OF LOT 3A RESUBDIVISION OF SITE 2 & 3 SUBDIVISION OF PROPERTY OF 'NORMAN P. SCOTT', VIRGINIA BEACH, VIRGINIA", which plat is to be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, upon adoption of this Ordinance, and which is made a part hereof by reference. GPINNO: 1467 33 2814 SYKES, CARNES, BOURDON & AHERN, P. C. ATTORNEYS AT LAW SECTION II A certified copy of this Ordinance shall be filed in the Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the City of Virginia Beach as GRANTOR and Weldon T. Byrns, Jr. and Gertrude A. Byres, husband and wife, as GRANTEE. SECTION III This Ordinance shall be effective upon the recordation of this Ordinance and the subdivision plat entitled "RESUBDIVISION OF LAT 3A RESUBDIVISION OF SITE 2 & 3 SUBDIVISION OF PROPERTY OF 'NORMAN P. SCOTT', VIRGINIA BEACH, VIRGINIA", in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia. SECTION IV Adopted: AUTHORIZED FINAL APPROVAL - SEPTEMBER 22, 1998 STCLOSUR BYRNS ORDINANC - 38- Item V-J.2. PUBLIC HEARING ITEM # 44111 PIMNNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council DEFERRED TWO WEEKS, TO THE 6 OCTOBER 1998, CITY COUNCIL SESSION: Application of SUE D. FRANCE for an enlargement of a non-conforming use at 1741 London Bridge Road re the demolition, relocation and enlargement of one of two non-conforming, single-family dwellings on one lot, containing 1.51 acres (DISTRICT 6- BEACH). Resolution Authorizing the Relocation and Enlargement of a nonconforming use on property located at 1741 London Bridge Road DISTRICT 6- BEACH. Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 - 39 - Item V-J.3. PUBLIC HEARING ITEM # 44112 PLANNING Attorney R. E. Bourdon, Pembroke One, Fifth Floor, Phone: 499-8971, represented the applicant Michelle Burgess, 1769 River Rock Arch, Phone: 4 71- 7149, registered in Opposition Upon motion by Council Lady Henley, seconded by Councilman Branch, City Council ADOPTED an Ordinance upon Application of ALLEN R. BAER for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF ALLEN R. BAER FOR A CONDITIONAL USE PERMIT FOR A CAR WASH AND AUTOMOTIVE REPAIR R09982222 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application o fAllen R. Baer for a Conditional Use Permit for a car wash and automotive repair on certain property located on the south side of Tiffany Lane, 180feet more or less west of Princess Anne Road. Said parcel contains 2.546 acres. DISTRICT 7 - PRINCESS ANNE. The following conditions shall be required: The hours of operation for the automotive repair facility shall be 8 AM - 9 PM and the car wash service hours shall be 8 AM - 8 PM, or dark, whichever is earlier.. All lighting for the site must be directed in toward the site and designed and installed so as to prevent glare into the adjacent areas. All signs for the development must be reviewed and approved by the Planning Director prior to their submission for sign permit approval. Any free-standing sign shall be monument style. 4. The berm adjacent to Princess Anne Road and along the Southern property line must be 3feet (3') in height. 5. Garage bays must be kept closed during repair of vehicles. 6. No outside storage of vehicles in a state of obvious repair will be permitted on this site. If vehicles in this condition require storage, then such vehicles shall be stored within a building. A six-foot (6') high woodprivacyfence must be installed along the Southwest property line between the site and the EduCate Center and along the Southern property line, adjacent to the residential area. 8. The car wash service shall have a setback of thirty-five feet (35') from the property line to provide a buffer. 9. No body nor paint work shall be performed in the repair facility. 10. There shall be no loud music or noise at the facility, which can be heard outside. September 22, 1998 - 40- Item V-d.$. PUBLIC HEARING ITEM # 44112 (Continued) PI..4NNING This Ordinance shall be effective in accordance with Section 107 0~) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of September, Nineteen Hundred and Ninety-Eight. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, IlL Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 - 41 - Item V-J. 4a/b. PUBLIC HEARING ITEM # 44113 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council ADOPTED Ordinances upon application of COXCOM, INC., dba COX COMMUNICATIONS HAMPTON ROADS for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF COXCOM, INC., DBA COY COMMUNICATIONS HAMPTON ROADS FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG-2 TO CONDITIONAL B-2 Z09981112 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of CoxCom, Inc., dba Cox Communications Hampton Roads for a Change of Zoning District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District on the north side of Princess Anne Road, west of Ferrell Parkway. The proposed zoning classification change to Conditional B-2 is for commercial land use. The Comprehensive Plan recommends use of this parcel for suburban residential/low density at densities that are compatible with single-family use in accordance with other Plan policies. Said parcel is located at 2636 Princess Anne Road and contains 1.69 acres. DISTRICT 7 - PRINCESS ANNE. The following condition shah be required: 1. An Agreement encompassing proffers shah be recorded with the Clerk of Circuit Court. ORDINANCE UPON APPLICATION OF COXCOM, INC., DBA COX COMMUNICATIONS HAMPTON ROADS FOR A CONDITIONAL USE PERMIT FOR A FIBER OPTIC TRANSMISSION FACILITY R09982223 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of CoxCom, Inc., dba Cox Communication Hampton Roads for a Conditional Use Permit for a fiber optic transmission facility on the north side of Princess Anne Road, west of Ferrell Parkway. Saidparcel is located at 2 63 6Princess Anne Road and contains 1.69 acres. DISTRICT 7- PRINCESS ANNE The following conditions shah be required: 1. AH equipment shall be located within a fully-enclosed building. All lighting shall be directed toward the interior of the site and shall be designed so as to shieM adjacent properties from light and glare. Where adjacent to a residential or apartment district without an intervening street, alley or body of water greater than twenty-five feet (25') in width, a minimum fifteen-foot (15') setback shah be required along aH lot Hnes adjoining such residential or apartment district, and Category lV landscape screening shaH be required. No building or structure or vehicular parking surface shall be located within such setback. Existing vegetation may serve as required landscaping if deemed appropriate during site plan review. September 22, 1998 - 42 - Item V-d. 4a/b. PUBLIC HEARING ITEM # 44113 (Continued) PLANNING 4. The entire site shall be brought into conformance with current landscaping requirements. The future parking area shown on the site plan shall not be developed unless plans for Ferrell Parkway Phase II expansion necessitate relocation of existing parking. The existing buffer of trees along the Eastern property line remain until then. These Ordinances shah be effective in accordance with Section 107 (J) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-second of September, Nineteen Hundred and Ninety-Eight. Voting: 10-0 (By Consent) Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William IV. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 City of Virginia Beach In Reply Refer To Our File No. DF-4691 DATE: September 14, 1998 TO: FROM: Leslie L. Lilley DEPT: City Attorney William M. Macali ~.~,&.. DEPT: City Attorney Conditional Zoning Application - CoxCom, Inc. The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 22, 1998. I have reviewed the subject proffer agreement, dated August 21, 1998, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. WMM/ Enclosure THIS AGREEMENT, made this o~l.dFday off'~Ck~ta.,~ 1998, by and between CoxCom, Inc., a Delaware Corporation ("Grantor"), and the CITY OF VIRGINIA BEACH, a Municipal Corporation of the Commonwealth of Virginia ("Grantee"). WITNES SETH: WHEREAS, the Grantor have initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia by petition addressed to the Grantee, changing the classification of Grantor's property from AG-I to B-2 Conditional on certain property containing a total of 1.621 acres, more or less, in the Princess Anne Borough, of the City of Virginia Beach, Virginia, more particularly described in the attached Exhibit A called the "Property'; and WHEREAS, this Agreement has been proffered by the Grantor and accepted by the Grantee and such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2-2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW, THEREFORE, the Grantor, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby makes the following declaration of conditions and restrictions as to the physical development and operation Document prepared by: Willcox & Savae;e, P.C. of the property and governing the use thereof and hereby tenders the following covenants running with the said Property, which shall be binding following the approval of Grantor's rezoning Petition by Grantee upon the Property and upon all parties and persons claiming'under or through the Grantor, its heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Property shall be used as a fiber optic transmission facility, business studios, offices or clinics; child care or child care education center; church (with a conditional use permit requirement); financial institution; medical or dental offices and clinics; museum or art gallery; or public building and grounds, and for no other use. 2. When the Property is developed, it shall be developed substantially as shown on the Exhibit entitled "Preliminary Plan of CoxCom, Inc.", prepared by MSA (Miller-Stephenson & Associates, P.C.), dated April 29, 1998, as revised, it being the same exhibit submitted to City Council and on file in the Planning Department of the City of Virginia Beach, Virginia. 3. When the Property is developed, Grantor shall install landscaping upon the premises substantially as shown on the Exhibit entitled "Preliminary Plan of CoxCom, Inc." prepared by MSA (Miller-Stephenson & Associates, P.C.), dated April 29, 1998, as revised, said exhibit being the same exhibit submitted to City Council and on file in the Planning Department of the City of Virginia Beach, Virginia, as such landscaping may be modified pursuant to the approval of the landscaping plan by the Historic Review Board, as required under condition 7 of the Certificate of Appropriateness dated June 10, 1998 relating to the Property. The City shall not issue a final certificate of occupancy until the aforesaid landscaping is installed. 4. property. Grantor shall not permit the installation of any communication towers on the 5. The external building materials and appearance of the buildings shall be as set forth in the building elevation entitled "Offices and Switch Facility for Cox Fibernet Proposed Front Side Elevation and Proposed Brick Sign Pylon" and dated 4/30/98, it being the same exhibit submitted to City Council and on file in the Planning Department, and in the conditions included in the Certificate of Appropriateness dated June 10, 1998 relating to the Property. 6. The Grantor shall provide a thirty-foot ingress/egress easement at the rear of the Property for access to Fen'ell Parkway by the owner of the property abutting the Property along its northwest line, if such abutting property no longer has access to Princess Anne Road. 7. Further conditions may be required by the Grantee during detailed Site Plan and/or Subdivision review and administration of applicable City Codes by all cognizant city agencies and departments to meet all applicable City Code requirements. All references herein above to zoning districts and to regulations applicable thereto refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date of conditional zoning amendment is approved by the Grantee. The Grantor covenants and agrees that (1) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions, including (i) ordering in writing of the remedying of any noncompliance with such conditions and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision ofthe Zoning Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, the Grantor shall petition to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shown by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and that they shall be recorded in the Clerk's Office ofthe Circuit Court of'the City of Virginia Beach, Virginia, and indexed in the name of the Grantor and Grantee. WITNESS the following signature and seal: COXCOM, INC. Name: Franklin Ro Bowers Title: Vice President and General Hanager Exhibit A Prope::y of CoxCom, Inc. 2636 Princess Anne Road G?IN 1494-64-7845-0000 ALL THAT certain tract, piece or parcel of land, located on Princess Ann~' Road in the Borough of Princess Anne, City of Virginia Bcach, Stale of Virginia, and mor~ particuJ,'Lrly'describcd un a cci'lain plat entil, icd, "Survey of Properly of l:lernie L. Fink, located near Princess Anne, Princcs~ Anne blorough, Virginia Beach, Virginia", Scale: I" ~ 50', daled Scplember I I, 1068, and made by W. B. Gailup, Surveyor and mom parlicuJ,~rly described as follows: BEGI~"NING at a point on thc norll)er~l side of Princess Anne Road at a pin located seven tenths (7/10) ol'a more or I~ss, wcsl ofNo~ Landin~ Road; th¢~c¢ ~l~m 5~id poin~ of b~inninB, Nurth 31~46' district of 496.92 ft~t to a pi~; thencc Nord~ 28~fi2' W~I a dismncc of 170.47 foci to a pin: d~ence South 30°IS'45"WtH a distance o~ 545.39 f¢¢! to a pin Ioca~d on the no~)trn sid~ u~ Princess Am~e Road; thence continuing along thc north:rly side of Princess Am)¢ l(oad, South 43~44'30 · a to Ih~ said point of b~gim~ing. ' E st ~ distance of 139.1 CITY of/ytko~n~ ~'eat/~ to-wit: Subs.ibe.~ ~n~ ~,~o~n to ~.n~ ~c~now~e?,~ to before me ..is ~ t~+.~y oC ~~o~ 1998, by. f~fl' ~'/,', ~, ~O~te~, F'~ ~e~'~e~Ceh.~CoxCom, Inc. Nota~ Public ~ My commission expires: .. ~g~)'~ ,..~ c,.gOO / - 43 - Item V-J. Sa/b/ PUBLIC HEARING ITEM # 44114 PLANNING Attorney R. E. Bourdon, Pembroke One, Fifth Floor, Phone: 499-8971, represented the applicant The following registered in OPPOSITION Wally Sherbon, 4949 Admiration, Phone: 4 74-4103, represented New Life Presbyterian Church Kelly Anderson, 3324 Dam Neck Road, Phone: 468-53 75, represented Buckner Farms and New Life Church Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council ADOPTED Ordinances upon application of ROSEMONT COMMERCE PARK, L.L.C. and ARBOR TREE EXPER TS, INC. for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF ROSEMONT COMMERCE PARK, L.L.C. & ARBOR TREE EXPERTS FOR A CHANGE OF ZONING FROM R-5D TO CONDITIONAL A- 1 Z09981113 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH Ordinance upon application of Rosemont Commerce Park, L.L. C. & Arbor Tree Experts, Inc., for a Change of Zoning District Classification from R- 5D Residential Duplex District to Conditional I-1Light lndustrial District on certain property located on the east side of Rosemont Road, 1300feet more or less north of Dam Neck Road. The proposed zoning Classification change to Conditional I-1 is for industrial land use. The Comprehensive Plan recommends use of this parcel for business park use in accordance with other Plan policies. Said parcel contasin 25. 67 acres. DISTRICT 7 - PRINCESS ANNE. The following condition shah be required: 1. An Agreement encompassing proffers shah be recorded with the Clerk of Circuit Court. ORDINANCE UPON APPLICATION OF ARBOR TREE EXPERTS, INC. FOR A CONDITIONAL USE PERMIT FOR PROCESSING WOODY VEGETATION AND STORA GE OF SAME R09982224 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Arbor Tree Experts, Inc.,for a Conditional Use Permit for processing woody vegetation and storage of same on certain property located 1257feet more or less west of Rosemont Road, 1300feet more or less north of Dam Neck Road. Said parcel contains 14 acres more or less. DISTRICT 7 - PRINCESS ANNE ROAD. The following conditions shah be required: 1. Hours of operation shah not exceed 7 AM to 6 PM. 2. AH equipment, raw materials and finished goods will be stored in designated storage areas or within a building. 3. No outside storage of unrelated materials, inoperative vehicles or equipment shah be permitted. September 22, 1998 - 44 - Item V-J. 5a/b/ PUBLIC HEARING ITEM # 44114 (Continued) PLANNING 4. The storage yard shah be enclosed, except for necessary openings for ingress and egress, with Category Vl screening. 5. No grinding operations shah be performed after 5 PM or on Sundays. *6. This approval shah be subject to City Council's determination in thirty (30) days if the application shouM - or should not - be scheduled for RECONSIDERATION. These Ordinances shah be effective in accordance with Section 107 (]) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-second of September, Nineteen Hundred and Ninety-Eight. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, Iii,, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and ,4. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf *Citizens had registered in OPPOSITION after the APPROVAL, BY CONSENT. Condition No. 6 was ADDED. September 22, 1998 COrM NO. P.S. ~%~ City of Virginia Beach · , .~ INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-4662 DATE: September 14, 1998 TO: FROM: Leslie L. Lilley DEPT: City Attorney William M. Macali ~,L~4/t DEPT: City Attorney RE: Conditional Zoning Application - Leon T. Carrington, Sr. and Rosemont Commerce Park, LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 22, 1998. I have reviewed the subject proffer agreement, dated March 30, 1998, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. WMM/ Enclosure PREPARED BY: S CARNES, BOURDON & AHERNPC ~T'I'ORNEYS ~ LAW LEON T. CARRINGTON, SR., Executor of the Estate of Viola Ciementine Carrington, Deceased and ROSEMONT COMMERCE PARK, LLC, a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 30* day of March, 1998, by and between LEON T. CARRINGTON, SR., Executor of the Estate of Viola Clementine Carrington, Deceased, Property Owner and ROSEMONT COMMERCE PARK, LLC, a Virginia limited liability company, Contract Purchaser, hereinafter collectively referred to as GRANTORS; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, GRANTEE, party of the second part. WlTNESSETH: WHEREAS, Property Owner is the owner of a certain parcel of property located in the Princess Anne Borough of the City of Virginia Beach, containing approximately twenty-five and sixty-seven-one hundreds (25.67) of an acre and described in Exhibit "A" attached hereto and incorporated herein by this reference, said property hereinafter referred to as the "Property"; and WHEREAS, the GRANTORS have initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the GRANTEE so as to change the Zoning Classification of the Property from R-SD Residential District to I-1 Industrial District; and WHEREAS, the GRANTEE'S policy is to provide only for the orderly development ot land for various purposes through zoning and other land development legislation; and WHEREAS, the GRANTORS acknowledge that the competing and sometime-, incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the eff'ects ot change that will be created by the GRANTORS' proposed rezoning, certain reasonable conditions governing the use of the Property for the protection of the community that are no1 ~REPARED BY: .~,RNES. BOURDON ',HERN. PC ;'INEYS AT LAW generally applicable to land similarly zoned are needed to resolve the situation to which GRANTORS' rezoning application gives rise; and '~ WHEREAS, the GRANTORS have voluntarily proffered, in writing, in advance of~ prior to the public hearing before the GRANTEE, as a part of the proposed amendment to Zoning Map with respect to the Property, the following reasonable conditions related to physical development, operation, and use of the Property to be adopted as a part of s amendment to the Zoning Map relative and applicable to the Property, which has a reasonal relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the GRANTORS, their successors, personal representativ, assigns, Grantees, and other successors in title or interest, voluntarily and without a requirement by or exaction from the GRANTEE or its governing body and without any elemc of compulsion or quid P.m..quo for zoning, rezoning, site plan, building permit, or subdivisi~ approval, hereby make the following declaration of conditions and restrictions which sE restrict and govern the physical development, operation, and use of the Property and herel covenant and agree that this declaration shall constitute covenants running with the Propert which shall be binding upon the Property and upon all parties and persons claiming under through the GRANTORS, their successors, personal representatives, assigns, Grantees, at other successors in interest or title: 1. When the Property is developed, it shall be developed substantially as shown ~: the exhibit entitled "REZON1NG EXHIBIT OF CARRINGTON PROPERTY FOR ARNHOL] MARKETING, Virginia Beach, Virginia, revised 7-17-98', prepared by Hoggard-Em Associates, P.C., which has been exhibited to the Virginia Beach City Council and is on file wit the Virginia Beach Department of Planning (hereinafter "Site Plan"). 2. When the Property is developed, GRANTORS shall install street trees within th Public Right-of-Way, as well as install earthen berms and landscaping within the twenty foo (20') landscape buffers located adjacent to and on both sides of the public right-of-way a depicted on the "Site Plan". 3. Entrance Landscaping shall be installed on the east side of the stormwate~ management lake as depicted on the "Site Plan". PREPARED BY: iS CARNES, BOURDON & AHERN. PC AT3'ORNEYS ATLAW 4. All freestanding signs shall be brick monument style signs as depicted on the "Site Plan". No neon lighting visible from Rosemont Road or the proposed public right-of-way depicted on the "Site Plan" shall be permitted on the Property. 5. The buildings constructed on each of the lots depicted on the "Site Plan" shall have either brick, split-face block, or Dryvit as the exterior surface of the front, with the remainder of the building of the same material or, painted block or metal. All exterior surfaces shall have an earth tone color. 6. Further conditions may be required by the GRANTEE during detailed Site Plan and/or Subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to R-SD and I-1 Districts and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the GRANTORS and allowed and accepted by the GRANTEE as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of ~ comprehensive implementation of a new or substantially revised Zoning Ordinance unti specifically repealed. The conditions, however, may be repealed, amended, or varied by writter instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach Virginia, and executed by the record owner of the Property at the time of recordation of suct instrument, provided that said instrument is consented to by the GRANTEE in writing a: evidenced by a certified copy of an ordinance or a resolution adopted by the governing body o: the GRANTEE, after a public heating before the GRANTEE which was advertised pursuant t¢ the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinane~ or resolution shall be recorded along with said instrument as conclusive evidence of su¢i consent, and if not so recorded, said instrument shall be void. The GRANTORS covenant and agree that: PREPARED BY: ~S CARNES, BOURDON &AHERN. PC ~TTORNEYS ~ LAW (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be ve~ with all necessary authority, on behalf of the governing body of the City of Virginia Be~ Virginia, to administer and enforce the foregoing conditions and restrictions, including authority (a) to order, in writing, that any noncompliance with such conditions be remedied, (b) to bring legal action or suit to insure compliance with such conditions, including mandat or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proeeedinl (2) The failure to meet all conditions and restrictions shall constitute cause to d~ the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to th~ provisions, the GRANTORS shall petition the governing body for the review thereof prior instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence conditions attaching to the zoning of the Property, and the ordinances and the conditions may made readily available and accessible for public inspection in the office of the Zoni: Administrator and in the Planning Department, and they shah be recorded in the Clerk's Office the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of ti GRANTORS and the GRANTEE. 4 PREPARED BY' :ES CARNES. BOURDON & AHERN. PC ATTORNEYS ATLAW WITNESS the following signature and seal: of Viola Clementine the Estate Deceased STATE OF VIRGINIA CITY OF ~ , to-wit: The foregoing instrument was acknowledged Leon T. Carrington, Sr., Executor of the Estate of Viola me this ~ I 5~day of March, 1998, b,. Deceased. Notary Public My Commission Expires: c~. ~ O - z-oct PROFFERS ROSEMON'T GRANTOR: Rosemont Commerce Park, LLC, a Virginia limited liability company r,.------- (SFAL) Jam~__.~/~l. Amhold, ~lanaging Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 31" day of March, 1998, James M Arnhoid, Managing Member of Rosemont Commerce Park, LLC, a Virginia lira liability company. My Commission Expires: Notary Public CO;,.!,V.', ~ ?'?:'-'~ ,~,~: ~xii ~ ;, .':. ', .-,',.(.,,-.L'-'Y PROFFER~ ROSEMONT PREPARED BY: KES CARNES, BOURDON & AHERN. PC ATTORNEYS ATLAW PREPARED BY KES CARNE$.BOURDON & AHERNPC A'CTORNEYSAILAW All those certain pieces or parcels of land, with the buildings and improvements thereon, lying, situat~ and being in the City of Virginia Beach, Virginia, and being known, numbered and designated Parcel 428 and 429, as shown on that certain plat entitled "Boundary Line Survey of Shirley Buckner; John Walter Carting, ton; Viola C. Carfington, etc.", made by John E. Sirine ant Associates, Ltd., which plat is duly recorded in the Clerk's Office of the Circuit Court of the City Virginia Beach, Virginia, in Map Book 152, at Page 32. SAVE AND EXCEPT that portion of the properly conveyed to the City of Virginia Beach in De~ Book 3319, at Page 1124. GPIN NO.: 1495-04-6715-0000 PROFFERS ROSEMONT 7 Item V-J. 6. PUBLIC HEARING - 45 - ITEM # 44115 David S. Rossotto, President 0 & R, Inc., represented the applicant. Upon motion by Council Lady Eure seconded by Councilman Branch, City Council ADOPTED an Ordinance upon application of 0 & R, INC., a Virginia Corporation, and/or Assigns for a Change of Zoning District Classification: ORDINANCE UPON APPLICATION OF 0 & R, INC., A VIRGINIA CORPORATION, AND/OR ASSIGNS FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R- 10 TO A- 12 Z09981114 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of O & R, Inc., a Virginia Corporation, and/or Assigns for a Change of Zoning District Classification from R-10 Residential District to A-12 Apartment District with a PD-H2 Overlay on the west side of Salem Road beginning at a~point 120feet more or less north of Lynnhaven Parkway. The proposed zoning classification change to A-12 with a PD-H2 Overlay is for multi-family land use at a density no greater than 12 dwelling units per acre. The Comprehensive plan recommends use of this parcel for suburban residential~low density at densities that are compatible with single-family use in accordance with other plan policies. Said parcel contains 12.19 acres. DISTRICT 1 - CENTER VILLE. The following conditions shah be required: The site shah be developed in substantial accordance with the submitted site plan entitled, "Preliminary Layout for Wynd Crest for O&R" dated September 1, 1998. The referenced plan identifies the overall layout of the project, including the location of roads, residential structures, landscaping, B.M.P.s, open space and pedestrian access ways. Minimum setbacks, parking and signage requirements and minimum open space provisions are outlined below: The fence setback from Salem Road shah be variable in width, averaging at a minimum fifteen feet (15'); the minimum fence setback along Salem Road will be eight feet (8'). The minimum fence setback from Lynnhaven Parkway will be fifteen feet (15'). b. The minimum building setback from Lynnhaven Parkway and Salem Road shah be thirty feet (30'). c. The minimum building setback from any adjoining property line shall be ten feet (10'). d. The minimum setback between units shah be six feet (6'). eo Each dwelling unit shah have a minimum of two (2)parking spaces, spaces inside the garage shall be counted toward this requirement, as shown on the submitted plans. No less than 362 total assignable parking spaces, including thirty (30) guest spaces, must be provided for the development. f. A maximum of l15 units may be developed on the site. g. A minimum of 29.78% of the site shall beforpassive recreational, landscaped open space as depicted on the site plan. h. Maximum building height is thirty-five feet (35'). September 22, 1998 Item V-J. 6. PUBLIC HEARING - 46- ITEM # 44115 (Continued) Any identification signage shah be located on the face of the wall along Salem Road and/or Lynnhaven Parkway and shah be externally illuminated. Sign size shah adhere to Section 605 of the City Zoning Ordinance. Any accessory structures shall adhere to the established setbacks. o 6. The site shall be developed in substantial accordance with the submitted landscape plan entitled, "Conceptual Landscape Plan for Wynd Crest for O&R ", dated 22 June 1998. Each of these plans shall be modified as noted in condition itl above. The revised plans must show the larger planting bed planned on the outer perimeter of the project and must include specific information regarding the plant material to be used within the planting bed. Additionally, the plan must also show an increase in the size of the London Plane trees planned for the perimeter of the project. The submitted plans depict the use of trees 1-3/4 to 2 inches in caliper atplanting. The revisedplan shall identify trees in this area being a minimum of 2-1/2 to 3 inches in caliper at planting. The site shah be developed in substantial accordance with the architectural renderings and materials submitted with this request. The plans include the illustrations of the bungalow style homes entitled "Plans 1, 2, 3, 4 and 5 developed by Kaufman Meeks Partners Inc. dated 22 June 1998" which are on.file with the Planning Department and have been presented to the Virginia Beach Planning Commission and City Council. A decorative garden style wall constructed of high grade architectural vinyl with a cedar shake exterior.finish, not to exceed six feet (6'.) in height, shall be installed around the perimeter of the site as depicted on the submitted plans. The applicant must submit detailed landscape plans for the entrance to the project on Salem Road and for the city-owned property located at the intersection of Salem Road and Lynnhaven Parkway. The plans must be reviewed and approved by the Planning Director or his designee prior to final site plan approval. A one-foot (1 ') no-ingress/egress easement must be established along both Salem Road and Lynnhaven Parkway except at the approved entrance depicted on the submitted plans. Prior to final plan approval, all interior property lines must be vacated. This Ordinance shah be effective in accordance with Section 107 (/) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of September, Nineteen Hundred and Ninety-Eight. September 22, 1998 -47- Item V-J. 6. PUBLIC HEARING ITEM # 44115 (Continued) Voting: 8-2 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: Reba S. McClanan and Nancy K. Parker Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 - 48- Item V-J. 7. PUBLIC HEARING ITEM # 44116 The following registered in SUPPORT of the application: Don Maxwell, Director - Economic Development Bill Cashman, Consultant - Langley and McDonald, spoke relative the traffic study Paul Michaels, 3883 Brickhouse Court, Phone: 498-9014, President - Coastal Training Technologies GeraM Divaris, 1 Columbus Center, Suite 200, Phone: 497-2113 Brian Winfield, 1348 Harris Road, Phone: 340-6536 Traci B. Ratclif~, 303 Elderwood Court, Phone: 456-9665, employee of Coastal Training Technologies Michael Wagner, Director of International Operations for Coastal Training Technologies Jamie Pierce, 601 Mango Drive, Phone: 463-6676, employee of Coastal Training Technologies Nancy Kondas, 1692 Church Point Lane, Phone: 460-1927, Director of Production - Coastal Training Technologies Phil Price, Vice President- Marketing and Sales, Coastal Training Technologies Fernando Saienz, General Manager - Coastal Operations in Brazil Jill Pate, 1404 Woodscape Lane, Phone: 495-6160 Leslie Vieiga, 2508 Lemming Court, Phone: 471-2308, employee of Coastal Training Technologies Mike Callan 4108 Duncannon Lane, Phone: 486-4620 Eric Hauser, Esq., 1 Columbus Center, Suite 800, Phone: 437-5358, Attorney for Coastal The following registered in OPPOSITION: Jimmy M. Hargrove, 516 Woodlake Road, Phone: 486-2183 Attorney Paul Thomas, 1812 Baltic Avenue, Phone: 491-4141, represented Windsor Woods residents and presented petitions in OPPOSITION. Sheila Ferguson, 496 Woodlake Road, Phone: 340-3965 Wally Erb, 150 Cayuga Road, Phone: 497-7451 Tom Beda, 4636 McGregor Drive, Phone: 499-3974 Shane J. Cudd, 480 Woodlake Road, Phone: 340-5419 Harry Hall, 4505 Par Drive, Phone: 499-2766 Fred Adams, 1548 Edgewater Drive, Phone: 467-2775 Margaret Jeffries, 508 Woodlake Road, Phone: 340-5250, presented petitions in OPPOSITION. Mark A. Forget, 520 Woodlake Road, Phone: 463-8256 Kathryn S. O'Dell, 508 South Gladstone Drive, Phone: 463-6551 Kelly Vance, 509 OM Forge Circle, Phone: 498-6518 Scott Vance, 509 Old Forge Circle, Phone: 498-6518 Charles E. Ketchee, 517 Pondview Circle, 486-8644 Upon motion by Vice Mayor Sessoms, seconded by Councilman Jones, City Council ADOPTED Ordinances upon application of VIRGINL4 BE`4CH DEVELOPMENT,4 UTHORITY for Changes of Zoning: ORDINANCE UPON APPLICATION OF VIRGINIA BEACH DEVELOPMENT A UTHORITY FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM P-1 TO I-1 Z09981115 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Virginia Beach Development Authority for a Change of Zoning District Classification from P-1 Preservation District to I-1 Light lndustrial District on certain property located on the north side of Holland Road at the intersection with South Independence Boulevard. The proposed zoning classification change to I-1 is for industrial land use. The Comprehensive Plan recommends use of this site for a business park in accordance with other Plan policies. Said parcel contains 22.928 acres. DISTRICT 3 - ROSE HALL AND, September 22, 1998 Item V-d. 7. - 49- PUBLIC HEARING ITEM # 44116 (Continued) ORDINANCE UPON APPLICATION OF VIRGINIA BEACH DEVELOPMENTAUTHORITYFORA CHANGE OF ZONING DISTRICT CLASSIFICATION FROM B-2 TO I-1 Z09981115 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Virginia Beach Development Authority for a Change of Zoning District Classification from B-2 Community Business District to I-1 Light Industrial District on certain property located on the north side of Holland Road at the intersection with South Independence Boulevard. The proposed zoning classification change to I-1 is for industrial land use. The Comprehensive Plan recommends use of this parcel for a business park in accordance with other Plan policies. Said parcel contains 2.1109 acres. DISTRICT 3 - ROSE HALL. These Ordinances shall be effective in accordance with Section 107 09 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of September, Nineteen Hundred and Ninety-Eight. Voting: 8-2 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Mayor Meyera E. Oberndo~ Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: Reba S. McClanan and A. M. "Don" Weeks Council Members Absent: Harold Heischober Councilman Heischober had DISCLOSED his intention to ABSTAIN, as he owns property immediately adjacent to the land subject to this proposed application. The City Attorney has advised that he is not able to participate in this transaction. However, he left at 7:30 P.M and was absent for the vote. September 22, 1998 Item V-J. 8. - 50- PUBLIC HEARING ITEM # 44117 PLANNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council ADOPTED, AS AMENDED: Ordinance to AMEND and REORDAIN Sections 2, 4, 7 and 9 of the Airport and Noise Attenuation and Safety Ordinance (Appendix I) of the City Code re renaming Airport Noise Zones and Aircraft Accident Potential Zones; and, requiring new disclosures in connection with certain real estate transactions (Section 9 of the Ordinance shall be effective 1 November 1998). Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 AN ORDINANCE AMENDING THE AIRPORT AND NOISE ATTENUATION AND SAFETY ORDINANCE (APPENDIX I) TO RENAME AIRPORT NOISE ZONES AND AIRCRAFT ACCIDENT POTENTIAL ZONES AND TO REQUIRE NEW DISCLOSURES IN CONNECTION WITH CERTAIN REAL ESTATE TRANSACTIONS SECTIONS AMENDED: SECTIONS 2, 4, 7, AND 9 OF THE AIRPORT AND NOISE ATTENUATION AND SAFETY ORDINANCE (APPENDIX I) BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Sections 2, 4, 7, Attenuation and Safety Ordinance and 9 of the Airport and Noise (Appendix I) of the City of Virginia beach be, and hereby are, amended and reordained to read as follows: Sec. 2. Purpose and intent. (a) The intent of city council and the purpose of this ordinance are to: (1) Protect the public health, safety and welfare from the adverse impacts associated with excessive noise from flight operations at NAS 0ceana/ALF Fentress and the potential for aircraft accidents associated with proximity to airport operations; (2) Insurc Ensure that the construction of residential use group buildings or portions thereof, '~;hich arc located within those areas of Virginia Beach that arc likely to be affected by aircraft noise associated with flight operations at NAS 0ceana/ALF Fentress7 provide for appropriate sound reduction to minimize the impact of such noise on occupants; and 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 (3) ~%se~e Ensure that purchasers, rent~rs or lessees of property within airport noise zones and aircraft accident potential zones are aware of the associated noise levels and the hazards which may endanger the lives and property of the occupants of such property. The acoustical performance standards set forth in this ordinance deal with noise attenuation in construction. The disclosure requirements set forth in this ordinance deal with disclosure to potential purchasers, renters or lessees of the existence of associated aircraft noise and the potential for aircraft accidents associated with proximity to airport operations. (b) The designation of any parcel of land as lying in an airport noise zone or in an aircraft accident potential zone, or both, shall be in addition to, and not in lieu of, the zoning district classification of such parcel, such that any parcel of land situated within an airport noise zone or in an aircr~f$ accident potential zone, or both, shall also lie in one or more of the zoning districts established pursuant to section 102 of the city zoning ordinance [Appendix A] and shall be subject to all applicable provisions of this ordinance and the city zoning ordinance. 57 58 59 60 61 62 63 Sec. 4. Airport noise zones and boundaries. (a) The boundaries of the airport noise zones shall be as shown on the zoning map as adopted and amended by city council. (b) For purposes of administering and enforcing the provisions of this ordinance, there shall be four (4) airport noise zones and three (3) aircraft accident potential zones: Airport noise zones shall be as follows: 2 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 (1) Noise Zone Ldn; (2) Noise Zone (3) Noise Zone (4) Noise Zone less than 65 dB 65-~D 7__~0 dB Ldn; 70-q~ 75 dB Ldn; greaser than 75 dB Ldn or grcatcr~ Aircraft accident potential zones shall be as follows: (1) CZ - Clear Zone (an area extending outward from the threshold of an active runway which possesses a high Potential for accidents); (2) Apz-I - Aircraft Accident Potential Zone I (an area extending outward from a clear zone which posses a significant potential for accidents): and (7) APZ-II - Aircraft Accident Potential Zone II (An area extending outward from either a clear zone or aircraft accident potential zone I which possesses a measurable potential for an accident. The purpose of the establishment of four (4) airport noise zones and three (3) aircraft accident potential zones is to distinguish between the severity of the level of noise impacts so that appropriate acoustical performance standards can be employed to mitigate the adverse impacts of aircraft noise and to faciliSate accurate identification of such zones. Each of the four (4) airport noise zones and three (3) aircraft accident potential zones shall be designated on the zoning map as adopted and amended by city council. Sec. 7. Exemptions. The acoustical performance standards specified in section 5 and the disclosure requirements set forth in section 9 of this ordinance shall not apply to the construction of residential use 3 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 group buildings in Noise Zone ~ less than 65 dB Ldn or buildings or structures classified in the Virginia Uniform Statewide Building Code as use group B (business, offices), E(educational), F (factory and industrial), I (institutional), M (mercantile), S (storage, warehouse), and U (utility and miscellaneous). Sec. 9. Disclosure. (a) Effective November 1, 1998, A~y any person marketing property for sale. rental or lease within ~.V~'~A~--A ~v..~ ..... .-., 2 ~ 3 any noise zone or accident potential zone shall provide written disclosure to all prospective purchasers, renters or lessees that such property is within an aircraft accident zone or an area affected by aircraft noise. Such written notification shall also be placed in all sales contracts and leases. The foregoing requirement shall not apply to property sold or leased solely for agricultural purposes. (b) The department of planning shall make available information explaining the effect of the designation of such aircraft accident and airport noise zones and any applicable building requirements. 112 113 114 115 116 117 118 119 120 121 122 123 124 125 Adopted by the Council of the City of Virginia Beach, Virginia, on the 22nd day of September, 1998. CA-7107 wmordres\appi.ord R-2 September 22, 1998 APPROVED AS TO CONTENT: Department of Planning APPROVED AS TO LEGAL SUFFICIENCY: 4 Department of Law - 51 - Item V-J. 9.a/b. PUBLIC HEARING ITEM # 44118 PLdNNING Upon motion by Councilman Heischober, seconded by Councilman Branch, City Council ADOPTED: Ordinances re the new Air Installations Compatible Use Zones (AICUZ): AMEND and REORDAIN Section 221.1 of the City Zoning Ordinance (CZO) re specific standards for certain conditional uses AMEND the official City Zoning Map, without change in the official zoning designation, to reflect the new AICUZ Voting: 10-0 (By ConsenO Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W. Harrison, Jr., Harold Heischober, Barbara 3/I. Henley, Louis R. Jones, Reba S. McClanan, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf September 22, 1998 4 5 AN ORDINANCE TO RENAME AIRPORT NOISE AND AIRCRAFT ACCIDENT POTENTIAL ZONES SECTION AMENDED: CITY ORDINANCE SECTION 221.1 ZONING 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 221.1 of the Code of the City of Virginia Beach, Virginia, is hereby amended and reordained to read as follows: Sec. 221.1. Specific standards for certain conditional uses located within airport noise and aircraft accident Potential zones. (a) Legislative intent. The intent of city council and the purpose of this section are to protect the public health, safety and welfare from the adverse impacts associated with excessive noise from flight operations at nearby airports and military air facilities and potential aircraft accidents by limiting certain conditional uses which are incompatible due to their location within airport noise and aircraft accident potential zones. (b) Standards. In addition to the procedural requirements and standards set forth in section 221 hereinabove, the following standards shall apply to the following conditional uses in airport '~ ~ ^- ~ areater than 75 dB Ldn. 70-75 dB Ldn and 65- noise zones .-., .... _ 70 dB Ldn. as shown on the map entitled AICUZ prepared by the City of Virginia Beach. Conditional uses located in airport noise zone less ~han 65 dB Ldn shall not be subject to the provisions Qf Shis S~Ction. Key to Table of Standards 3 2 34 35 Aircraft Accident Potential Zone Characteristic 36 37 38 39 cz (clear zone) An area extending outward from the threshold of an active runway which possesses a high potential for accidents. 40 41 42 APZ- I An area extending outward from a clear zone which possesses a significant potential for accidents. 43 44 45 46 APZ-II An area extending outward from either a clear zone or aircraft accident potential zone I which possesses a measurable potential for an accident. 47 48 49 50 51 52 53 54 acci~cnt zonc. Airport Zone Characteristic cz Clear zone (all in noise zone ~ greater than 75 dB Ldn) 55 56 57 APZ-I 3/greater than 75 dB Ldn Aircraft accident potential zone I, noise zone ~ greater than 75 dB Ldn 58 59 60 APZ-I 2/70-75 dB Ldn Aircraft accident potential zone I, noise zone ~ 70-75 dB Ldn 61 62 63 64 APZ-II 3/greater than 75 dB Ldn Aircraft Acci~ont accident potential zone II, noise zone ~ greater than 75 dB Ldn 65 66 67 APZ-II 2/70-75 dB Ldn Aircraft accident potential zone II, noise zone ~ 70-75 dB Ldn 68 2 70 71 72 73 74 75 76 77 78 79 8O 81 82 Compa t ibi 1 i ty Y Y '~" (a) y (.n.) (b) Y (3) (c) N Characteristic Compatible Compatible with acoustical treatments for roof/ceiling/exterior walls 39 STC, doors/windows 25 STC. Compatible with acoustical treatments for roof/ceiling/exterior walls 44 STC, doors/windows 33 STC. Compatible with acoustical treatments for roof/ceiling/exterior walls 49 STC, doors/windows 38 STC. Not compatible 83 84 85 86 87 88 NOTES: (1) Aircraft accident potential zones apply only to military airfields. (2) Not all areas of Virginia Beach lie in an aircraft accident potential zone. 89 use c 9O 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 APZ/Noise Zone Auditoriums , assembly, union, & bingo halls I 3 I 2 II 3 II 2 ~ G M I/>75 1/70- II/>75 II/70- >75 70- 65- dB Ldn 75 dB dB Ldn 75 dB dB Ldn 7~ dB 70 dB Ldn Ldn Ldn Ldn N N N N N N Y (Gb) Y (Ma) Child care centers N N N N N N Y (~b) Y (Ma) Churches and chapels N N N N N N Y(~h) Y(Ma) Clubs, private or athletic N N N N N Y(~c) Y(~b) Y(Ma) Colleges and universities N N N N N N Y (~b) Y (Mm) Convalescent homes N N Commercial marinas N Y N N N N Y (~b) Y (Mm) Y Y Y Y Y Y Dormitories N N Eating/drinking N N establishment N N N N Y(~h) Y(Ma) N N N Y(~g) Y(~h) Y(Ma) Explosives manufac- N turing, storage and distribution N N N N Y Y y Family care homes N N N N N N Y(~b) Y(Ma) 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 Fraternity and N N sorority houses Group homes N N Homes for aged, N N disabled or handicapped Hospitals & N N sanitariums Hotels & motels N N Indoor recreational N N facilities Fraternal lodges N N Maternity homes N N Mobiles home parks N N Museums and art N N galleries Monasteries and N N convents Multiple family N N dwellings Nurses' homes & N N similar housing Outdoor recreation- al facilities -amphitheaters N N -campgrounds N N -sports arenas N N -music halls N N -auction facilities N N N N N N Y(~b) Y(Ma) N N N N Y (~b) Y (Ma) N N N N Y (~b) Y (M~) N N N N Y(~b) Y(Ma) N N N Y(a~) Y(~) Y(Ma) N Y(~) Y Y(~) Y y N N N Y(a~) Y(~h) Y(Ma) N N N N Y(~) Y(Ma) N N N N Y(~) Y(Ma) N N N N Y(~) Y(Ma) N N N N Y(~) Y(Ma) N N N N Y (~b) Y (Ma) N N N N Y (~b) Y (Ma) N N N N N Y N Y Y Y Y Y N N N N Y Y N N N N N Y N N N N N Y Passenger terminals N Y Y Y Y Y Y Y Pet rol eum N N N N N Y Y Y processing Private lodges N N N N N Y (ac) Y (~b) Y (Ma) Private schools N N N N N N Y (~b) Y (Ma) Satellite wagering N N N N N Y (ac) Y (~b) Y (Ma) facility Shelter for farm N N N N N N Y (~b) Y (M~) employees Attached dwellings N N N N N N Y (~b) Y (Ma) ( t ownhouse s ) Social centers N N N N N N Y (~b) Y (Ma) Theaters for live N N N N N N Y(~b) Y(Ma) product ion (c) Permitted uses and vested rights. The provisions of this section shall not affect any uses permitted any person by right or any vested rights of any person under existing law. 4 156 157 158 159 160 Nothing in this section shall be construed to affect the provisions of any recorded easement entered into between the United States of America, acting by and through the Department of the Navy, and any owner or occupant of property located within an aircraft accident potential zone or an airport noise zone. 161 162 163 164 165 166 Adopted by the City Council of the City of Virginia Beach on this 22nd day of September, 1998. CA-98-7106 wmordres\45-221-1.ord R-1 July 30, 1998 APPROVED AS TO CONTENT Department of Planning APPROVED AS TO LEGAL SUFFICIENCY Department of Law 1 2 3 4 AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP BY THE REDESIGNATION OF AIRPORT NOISE ZONES AND ACCIDENT POTENTIAL ZONES 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 WHEREAS, the Secretary of the Navy has issued a Record of Decision pursuant to which 156 aircraft are to be relocated from Cecil Field to the Oceana Naval Air Station; and WHEREAS, the relocation of such aircraft will result in a change in the airport noise zones and accident potential zones presently delineated on the official zoning map; and WHEREAS, in order to accurately reflect the aforesaid changes, it is necessary to delineate new airport noise zones and accident potential zones on the official zoning map; and WHEREAS, the public necessity, convenience, general welfare and good zoning practice so require; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the official zoning map of the City of Virginia Beach be, and hereby is, amended to redesignate airport noise zones and accident potential zones within the City, as shown on a series of sheets marked and identified as such, displayed before the City Council this date, and on file in the Department of Planning. 23 24 25 26 27 28 29 30 31 Adopted by the Council of the City of Virginia Beach, Virginia, on this 22nd day of September, 1998. CA-98-7108 wmm\ordres~aicuz.com July 30, 1998 R-2 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Planning Department Law Department Item V-K. 1. APPOINTMENTS ITEM # 44119 Upon NOMIN,4TION by Vice Mayor Sessoms, City Council ,4PPOINTED: Robert G. Jones 4 Year Term 09/01/98 - 08/31/2002 DEVELOPMENT,4 UTHORITY Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, Margaret L. Eure, William W Harrison, Jr., Barbara 3/1. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and `4. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Harold Heischober September 22, 1998 Item V-K.2. - 53 - APPOINTMENTS ITEM # 44120 Upon NOMINATION by Vice Mayor Sessoms, City Council APPOINTED: John A. Baum AND, REAPPOINTED: Edward A. Barco B. W. "Rod'Rodriguez 5 Year Terms 10/01/98 thru 09/30/2003 WETLANDS BOARD Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, II[, Margaret L. Eure, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and A. M. "Don" Weeks Council Members Voting Nay: None Council Members Absent: Harold Heischober September 2Z 1998 - 54 - Item V-Md. NEW B USINESS ITEM # 44121 B Y CONSENSUS, CITY COUNCIL WILL NOTBE REPRESENTED NOR DESIGNATE ANY VOTING DELEGATE: (The Mayor will send correspondence re issues.) National League of Cities (NLC) Annual Conference - December 1 - 5, 1998 - Kansas City, Missouri September 22, 1998 Item V-M.2. - 55 - NEW B USINESS ITEM # 44122 Council Lady McClanan sponsored M. Elaine Hall, 4113 Thalia Drive, Phone: 431-1709. Mrs. Hall is a member of the Bow Creek Presbyterian Church. A fewyears ago the Church provided for the Homeless one week from April through October. There are no funds provided from the City for this purpose. The Church has personal reasons to raise funds i.e a twenty-six year oM member who is awaiting a kidney transplant. The Church also provides land to assist the Volunteers of America in raising funds for the homeless. The Session to raise funds decided to utilize their land on Rosemont Road and Plaza Trail i.e. Christmas Tree sellers. Mrs. Hall created flea markets on the land for donations. This has been developed into the largest flea market in Virginia Beach but conducted for only two days per year. The Church had conducted these flea markets for four days per year previously to assist the Boy Scouts. There are only 60 to 100 members in the church. Mrs. Hall requested the City Council allow the Church to have four flea markets per year. City Council instructed the City Manager and City Attorney to review the city ordinance re the number of FLEA MARKETS allowable in a one-year period and advise BOW CREEK PRESB YTERIAN CHURCH ACCORDINGLY. September 22, 1998 - 56- Item V-N.P. ADJOURNMENT ITEM # 44123 Mayor Meyera E. Oberndorf DECL~4RED the City Council Meeting ADJOURNED at 10:30 P.M. oks, CMC/A/IE Chief Deputy City Clerk William D. Sessoms, Jr., Vice Mayor City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia September 22, 1998