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HomeMy WebLinkAboutSEPTEMBER 23, 1997 MINUTESCity of Virginia Beach "WORLD'S LARGEST RESORT CITY" CITY COUNCIL ~IA¥OR MEYERA E OBERNDORF At Large VICE ~4YOR WILLIAM D SESSO~IS JR At Large JOHN A BAUM Blackwater Borough I INWOOD 0 BRANCH 111 Virglma Beach l~m~ugh WILLIAM W H4RRISON JR Lvnnhaven Bowugh HAROLD HEISCHOBER At Large BARBARA M HENLEY Pungo Borough LOUIS R JONES BaysMe Borough REBA S ~fc( L4NAN Princess 4nne Borough NANCY K PARKER At Large LOUISA ~ STRAYHORN Kempswlle Borough JAMES K SPORE C~ty Manager LESLIE L LILLEY, Cay Attorney RUTH HODGES SMITH CMC ! AAE, C~ty Clerk CITY COUNCIL AGENDA CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH VIRGINI4 23456 9005 t757~ 427 4303 September 23, 1997 I. CITY MANAGER'S BRIEFINGS - Conference Room - 2:00 PM A, ENVIRONMENTAL RESTORATION INITIATIVES IN ELIZABETH RIVER BASIN Robert V Ogle, Norfolk Dtstrict Corps of Engtneers Be CSB COMPLEX AT BONNEY ROAD Donald V. Jelhg, Chatrman, Commumty Services Board II. REVIEW OF AGENDA ITEMS III. CITY COUNCIL CONCERNS IV. INFORMAL SESSION - Conference Room - 3:30 PM A. CALL TO ORDER- Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO EXECUTIVE SESSION L. ORDINANCES . . . . , . . . . 10. Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: a. Barry D. and Paula W. Knight Installment Purchase Agreement No. 1997-15 (BLACKWATER/PUNGO BOROUGHS) - 191.37 Acres - $301,551.00 b. George A. Waller - 308.66 Acres Installment Purchase Agreement No. 1997-16 - $845,386.00 (BLACKWATER BOROUGH) Ordinance to authorize the City Manager and the City Attorney to retain professional technical assistance in evaluating the Draft Environmental Impact Statement (DEIS) of the F/A- 18 move to Oceana Naval Air Station; and, TRANSFER $80,000 from the General Fund Reserve for Contingencies to the City Manager's FY 1997-1998 Operating Budget re finance costs. Ordinance to authorize the City Manager to enter into a 15-year lease with Corporate Center Three, L.L.C. and a revised Sublease with the Virginia Department of Health for office and clinic space in the Pembroke Three Building at 4452 Corporation Lane (BAYSIDE BOROUGH). Ordinance to APPROPRIATE $1,386,105 from the General Fund Balance and $89,630 from the Water and Sewer Fund Retained Earnings for the FY 1997-1998 gainsharing program. Ordinance to APPROPRIATE $86,200 from the Forfeited Asset Sharing Special Revenue Fund Balance to the FY 1997-98 Operating Budget of the Police Department re replacement and upgrading of equipment to enhance the enforcement capability of the Police Department's Marine Patrol operation. Ordinance to ACCEPT and APPROPRIATE a $7,000 Grant from the Virginia Department of Forestry, TRANSFER $7,000 from the Fiscal Year 1997-1998 General Fund Reserve for Contingencies - Grant Matches, for a total offS 14,000, to the Department of Planning's FY 97-98 Operating Budget re urban forestry work; and, estimated revenue from the Commonwealth be increased accordingly. Ordinance to TRANSFER $3,963 from the General Fund Reserve for Contingencies to reimburse the Water and Sewer Fund, as a charitable gift, to Habitat for Humanity re costs of water and sewer fees assocated with construction of a single-family dwelling at 2300 Seaboard Road (PRINCESS ANNE BOROUGH). (Sponsored by Mayor Meyera E. Oberndorf) Ordinance to authorize temporary encroachments into a portion of the City's right-of-way at 3756 Indian River Road by STERLING W. and BONNIE J. THACKER re maintaining a PVC fence until property is needed for the widening of Indian River Road (PRINCESS ANNE BOROUGH). CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY: Grand Limousine Ordinances to authorize: a, License Refunds: $10,983.80 License and Special Tax Refunds: $ 425.93 Tax Refunds: $13,526.33 M. PUBLIC HEARING- PLANNING 6:30 PM PLANNING BY CONSENT - To be determined during the Agenda Review Session. , . e , , e Application of BAITA DEVELOPMENT COMPANY, LLC for a Modification to the Greel~ Run Land Use Plan on the South side of Buckner Boulevard, 400 feet more or less East of Independence Boulevard re modi _fying the submitted site plan. dated June 27. 1996. ond developing the outp_ arcel designated "future development area" which is a portion of Parcel "H" Green Run PUD, containing 7.75 acres (KEMPSVILLE BOROUGH). Deferred: 9 September 1997 Staff Recommendation: DENIAL Recommendation: APPROVAL Application of MABLE C. BROCK for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision conform with all requirements of the City Zoning Ordinance on the South side of Indian River Road, 1020 feet more or less East of Princess Anne Road (PUNGO BOROUGH). Recommendation: APPROVAL Application of LINDA T. CHAPPELL for a Conditional Use Permit for a recreational and amusement facility of an outdoor nature (Haunted Hallowe'en Hayride and other related events 'year round) on the South side of Dam Neck Road, West of London Bridge Road (2599 Dam Neck Road), containing 20 acres (PRINCESS ANNE BOROUGH). Recommendation: APPROVAL Application of CROWN CENTRAL LEASING CORPORATION for a Conditional Use Permit for gasoline sales in conjunction with a eor~v~nien~e stor~ at the Northeast intersection of Independence Boulevard and Pembroke Boulevard (720 Independence Boulevard), containing 31,790.26 square feet (BAYSIDE BOROUGH). Recommendation: APPROVAL Application of BAYSIDE BAPTIST CHURCH for a Conditional Use Permit for a church parking lot expansion at the Northeast intersection of Pleasure House Road and Northampton Boulevard (1920 Pleasure House Road), containing 3.29 acres (BAYSIDE BOROUGH). Recommendation: APPROVAL Application of WIRELESS PCS, INC., Agent for AT&T WIRELESS PCS, INC. for a Conditional Use Permit for a monopol¢ tower on the South side of Newtown Road, 220 feet East of Cleeve Abbey (952 Newtown Road), 76.133 acres (BAYSIDE BOROUGH). Recommendation: APPROVAL Application of MARSHA LYNN BUILDING CORPORATION for a Change of Zoning District Classification from 0-2 Office District to Conditional A-18 Apartment District on the North side of Camelot Drive, 620 feet more or less East of First Colonial Road (1724 Camelot Drive), containing 10.059 acres (LYNNHAVEN BOROUGH) Staff Recommendation: DENIAL Recommendation: APPROVAL N. APPOINTMENTS BOARD OF BUILDING CODE APPEALS BOND REFERENDUM REVIEW COMMITTEE SENIOR SERVICES OF SOUTHEASTERN VIRGINIA 0. UNFINISHED BUSINESS P. NEW BUSINESS Q ADJOURNMENT CITY COUNCIL WORKSHOP: THE COMPREHENSIVE PLAN 3:00- 5:00 PM September 30, 1997 Princess Anne High School COMMUNITY CONVERSATIONS Princess Anne High School September 30, 1997 and October 21, 1997 6:00- 9:30 PM 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 Dca0 09/18/97cmd AGENDA\09-23-97.PLN www.virginia-beach.va.us MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia September 23, 1997 Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING in the Councd Conference Room, City Hall Building, on September 23, 1997, at 2:00 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, William W. Harrison, Harold Heischober, Barbara M Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf and Vice Mayor William D. Sessoms, Jr. Council Members Absent' Nancy K. Parker Louisa M. Strayhorn [ENTERED: 2'18 P.M.] [AS REGIONAL COMMISSIONER FOR TRT, A TI'ENDING AMERICAN TRANSPOR TA TION ALLIANCE IN CHICAGO] -2- CITY COUNCIL BRIEFINGS ENVIRONMENTAL RES TORA TION INITIA TIVES IN ELIZABE TH RIVER BASIN 2:00 P.M. ITEM # 42618 Craig Seltzer, Project Manager- U.S. Army Corps of Engineers, distributed information relative Environmental Restoration Initiatives in Elizabeth River Basin. Said information is hereby made a part of the record City Staff has expressed interest concerning a similar study in the Lynnhaven River. Mr Seltzer introduced Tom Yancey and Greg Steele with the US Army Corps of Engmeers - Planning Resource Branch; Marjorie Mayfield, Executive Director- Elizabeth Rtver Project; and, Maryilee Hawkins, Staff- Elizabeth River Project. In balancing the commercial and enviornmental demands of the River, the Corps study will buiM upon the efforts of the Elizabeth River Project, whose 120-member Watershed Action Team recently reached consensus on an 18-point Action Plan for restoring the Elizabeth River. The study will identify potential projects and establish federal interest, which will indicate any activities that can be cost-shared with local sponsors. The Reconnaissance effort was authorized by a Congressional Resolution in September 1995, sponsored by the Commonwealth and endorsed by the four cities in the Watershed. The Corps is 7 months into a 12-month Reconnaissance effort The Elizabeth River is approximately a 16J-mile basin. A report has been published and the two major recommendations of the report are. Wetland Restoration at 19 sites in the Basin and sediment cleanup in the southern branch of the Elizabeth River. With the utilization of slides, Mr. Seltzer displayed several of the Wetlands Restoration Sites: Intersection of Indian River and Military Highway: Phragmites control and tidal marsh restoration (at headwaters of Kings Creek. Potential uses: Natural area and habitat value; water access from adjointng neighborhoods; canoe launch; stormwater retention area. (1-2 acres). Elizabeth River Shores - Phragmites control an tidal marsh restoration Potential uses: Natural area and habitat value; water access from adjoining neighborhood; canoe launch. (I-2 acres). 1-64 Crossing of Eastern Branch - south shore: Phragmites eradication and wetland restoration. Potential uses. Natural area and habitat value; shoreline stabilization; water access from adjoining neighborhood; canoe launch; stormwater retention. (1-2 acres). City Park (Woodstock Neighborhood): Virginia Beach City Park wetland development/restoration. Potential uses: natural area and habitat value, outdoor classroom (Woodstock Elementary); shoreline stabilization; water access; canoe launch. (1-2 acres). Another major thrust in addition to Wetland Restoration is sediment restoration. In order to restore the River, the sediments must be cleaned up. Five different sites within the basin have been identified as being "hot spots" of sediment contamination. A map designating Scuffletown Creek as a candtdate for sediment/habitat restoration site in the southern branch of the Elizabeth River has been contatned within the Ctty Council's information package. The effects of sedimentation contamination are felt on a regional basis They are not localized effects. The aquatic organisms found in the shellfish and finfish that utilize the River feel the effects of sedimentation throughout the basin. These aquatic organisms do not know political boundaries. The next step would be the feasibility phase for the sediment contaminates in the River, as well as the nineteen restoration sites. The total study cost would be approximately $2,870,000 conducted over a 3-year period. The Federal contribution would entail $1,435,000 and the State/Local Match would be $1,435,000. The total contribution of Virginia Beach would entail $107,666, which represents 4% of the total cost of the feasibility effort. Over 'half of this contribution ($107,666) can be provided as "in-kind" services by the City Therefore, only $$3,000 would be requested in cash over a three year period. Fifty ($0%) percent of tidal wetlands in the River have been lost in the last 50 years The Corps of Engineers funds will be available during the next `fiscal year 1998. The Corps has the Presidential approval for $200,000 and is antictpating the City's funds to be made available for Fiscal Year 1999 (July 1998). The Corps of Engtneers is requesting a letter of intent from the City and a cost sharing agreement wtth all the local sponsors by March 1998. September 23, 1997 -3- CITY COUNCIL BRIEFINGS ENVIRONMENTAL RES TORA TION INITIA TIVES IN ELIZABETH I~VER BASIN ITEM # 42618 (Continued) COST ALLOCATIONS FOR FEASIBILITYPHASE TOTAL FY 98 FY 99 FY O0 FY Ol SUBTOTAL State $ 0 $288,300 $224,400 $168,300 $681,000 Chesapeake $ 0 $ 98,800 $ 78,400 $ 58,800 $236,000 Norfolk $ 0 $ 80,633 $ 89,733 $ 67,300 $237,666 Portsmouth $ 0 $ 61,133 $ 63,733 $ 47,800 $172,666 Virginia Beach $ 0 $ 41,633 $ 37,733 $ 28,300 $107,666 The differences in the cost allocations of the various cities involve a number of wetland restoration projects The City of Norfolk has 8 or 9 different restoration projects they wish to investigate. The site for sediment cleanup is within the political boundaries of the City of Chesapeake, therefore, they are contributing a greater proportion of the cost of that effort. This involves all the planning studies with additional funds required for the project This would be funded on a 65%/35% cost sharing basis with the local sponsors. The Federal government would provide the 65%. Much of the contamination tookplace approximately 100 years ago. Within the next month or two, the Corps of Engineers will present information to the other Cities involved (Norfolk, Chesapeake and Portsmouth). Clay Bernick has assisted in identifying the restoration sites tn Virginia Beach. It has been a very cooperative effort among the Cities. The Commonwealth of Virginia actually initiated the request to the Corps of Engineers. Mr. Tom Yancey advised the ecosystem of the Lynnhaven River has been changing over the years and a similar type study as the Elizabeth River can be developed to address some of these problems. There ts a two-fold planntng process which must be developed to implement projects (1) Reconnaissance and (2) Detailed Feasibility Study. The Reconnaissance Study is funded entirely by the Federal Government and is limited to a 12-month period of time. Then the City would have to make a financial commitment to share in the feasibility cost on a 50-50 basis. If the City determines it is interested in a Study, a letter of support requesting such a study must be written to the Corps of Engineers, indicating understanding of the planning process and willingness to participate as a sponsor depending upon the outcome of the Reconnaissance Study; and, Congressman Pickett's office should be contacted to request introduction of legislation to authorize a study Environmental restoration is a high priority item within the admimstration as far as planning studies are concerned. Of the 165 square miles in the tidal basin, 10-20 square miles are within the City of Virgima Beach. Relative the Elizabeth River, Mr Seltzer requested a letter of intent by November 1997, which basically would state the City's willingness to negotiate wtth the Corps on the cost of the feasibility effort. It is not legally binding In March 1998, the Corps wouM request the signing of a Cost Sharing Agreement with all the local sponsors, which would be a legally binding document. Mayor Oberndorf expressed appreciation to the Corps of Engineers for the excellent performance on behalf of the citizens of Virgtnia Beach regarding the Lake Gaston Pipeline and the areas from 8th to Rudee Inlet with relation to the Hurricane Protection Project. September 23, 1997 -4- ITEM # 42619 Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINL4 BE,4 CH CITY COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 23, 1997, at 3:42 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndor)5, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Absent: Louisa M. Strayhorn September 23, 1997 -5- ITEM # 42620 Mayor Meyera E. Oberndorf, 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 (~) (1). To-~it: Community Services Board - Personnel Matter 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: Lake Gaston Water Supply Project Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council voted to proceed into EXECUTIVE SESSION. Voting: I0-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 -6- ITEM # 42621 Mayor Oberndorf RECONVENED the BRIEFING SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 23, 1997, at 3:58 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R Jones, Reba S. McClanan, Mayor Meyera E. Oberndor~, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Absent: Louisa M. Strayhorn September 23, 1997 -7- Item VI-E. CER TIFICA TION OF EXECUTIVE SESSION ITEM # 42622 Upon motion by Councilman Harrison, seconded by Councilman Heischober, City Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE IVITH 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: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 Beso u on 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 # 42620 Page No. $ 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. Ruth Hodges Smith, CMC/AAE City Clerk September 23, 1997 -8- CITY COUNCIL BRIEFINGS CSB COMPLEX A T BONNEY ROAD 3:58 P.M. ITEM # 42623 Donald K ,lellig, Chairman - Community Services Board, with the utdization of charts, presented information relative the CSB COMPLEXAT BONNEY ROAD. Said information is hereby made a part of the record. Relative the consumers served, the Community Services Board rose from 5,369 consumers in Fiscal Year 1993 to 9,224 in Fiscal Year 1997, an increase of 71% During that same period of time, there was an equal increase in the expenditures for caring for their clients rising from $10,863,541 to $18,487,420. However, the City's contribution to the service was relatively static going from $3.8- MILLION to SS.O-MILLION. Therefore, the City's percentage decreased There were increased outside funds, grants from outside agencies, private collection of co-pays and State funding. At the end of each year, there were monies moved into the Fund Balance from $357,004 in Fiscal Year 1993 to $716,673 in Fiscal Year 1997. These funds were being accumulated for capital expenditures, i.e. computer systems, lands, and ultimately the centralized building The cumulative Fund Balance in FY 1997 is $3,150,467. COMMUNITY SER VICES BOARD PROGRAMS OFFERED MENTAL HEAL TH Office of Consumer & Family Affairs (Pembroke Office Park) Emergency Services (Pembroke Office Park) Child & Youth Services (Pembroke Office Park) Adult Outpatient Services (Pembroke Office Park) Older Adult Services (Wildwood Clinic) Wildwood Medical Clinic (Wildwood Clinic) Beach House (Magic Hollow) MENTAL RETARDATION/ DE VEL OPMENTALL Y DISABLED Case Management (Pembroke Office Park) Infant Program OVycliff Presbyterian Church) Respite Care (Pembroke Office Park) Residential Services (Pembroke Office Park) Employment Services (Pembroke Office Park) Skill Quest (Investors Place) SUBSTANCE AB USE Prevention/Early Intervention Services (Pembroke Office Park) Outpatient Services (Pembroke Office Park) Recovery Center- Detox (Detox Facility) Recovery Center- Day Support (Detox Facility) Jail Program (City Jait) Project link~Crisis Care/HIV Coordination (Pembroke Office Park) The growing demand for a challenged population having to receive care at multiple locations, there is httle opportunity for economies of scale. The CSB is aware of the .financial pressures of the City Government. The available supply of rental property has decreased over the last few years. The Community Services Board has enjoyed submarket rents in many of its properties. The CSB realized if they dtd not step back and review the growth, they would find themselves spending more on facilities and overhead rather than caring for the members of the community. Ten (10) to fourteen (14) acres are needed, which will.fit certain criteria' community compatibility, zoning, access, public transportation, infrastructure, location relative to population base, and cost. September 23, 1997 -9- CITY COUNCIL BRIEFINGS CSB COMPLEX A T BONNEY ROAD ITEM # 42623 (Continued) The Design Criteria entailed: Consumer Friendly Clinically Appropriate Reduce Redundancy Financially Feasible The City implemented the Architect & Engineer (A & E) procurement process and selected the firm of Paul Finch & Associates to perform the architectural design for this project. The notice to proceed was issued April 14, 1997. This was to implement the design and cost for the renovation of the Days Inn, Unclaimed Freight and Fuller properties to accommodate the relocation of the CSB programs into their existing facilities Paul Finch & Associates spent three months on this project. At that point, the Building Committee of the CSB became more directly involved in the analysis and assumed more responsibility, sharing more with management. Mr. Jellig advised Dr. Henry McCoy, Chairman - Budding Committee, and other members of the Community Services Board: William Brunke, Patricia Chapman and Stanley Sawyer were in attendance. There were weeks of 7'00 A.M. Meetings. The recommendation of the Building Committee to the Community Services Board was to build a new facility on the Bonney Road property. Mr. Jellig advised the current situation: Current Appropriation $14,200,000 Revised Project Cost $17,260,520 Increase $ 3,060,520 An integral part of this was a Pro Forma, which required no additional City funds, and has the Community Services Board utilize tts accumulated fund balance, and allow for the debt service to be handled with an appropriation of the Community Services Board, 20-year lease revenue bonds. The growth in patient care revenue was projected forwarded at 3%, the historical norm has been 10%. The rent is projected at today's rates of $700,000 going to the first year, which is submarket. The CSB has 36,000 feet rented at Pembroke ~ $8.85 per foot. The fund balance was utilized, but at no point did the fund balance go below $1.6-MILLION. We continue to add to the fund balance and in "year 15" of this project, the Community Services Board would be able to pay off the bonds and still leave $1. I-MILLION (3% of the patient services revenue for that year) in the fund balance. Patient care would be increased each and every year. Eliminating the patient revenue for the bonds would then infuse something in excess of $1-MILLION a year, which could then be returned to client care and not be dealing with either paying a mortgage, bonds, and rent. Therefore, the CSB has a demonstrated demand in this City that has grown and expects to continue to grow. This is a financially feasible project. Nevertheless, Mr. Jellig regrets the controversy this project has caused and accepts responsibility. Mr. Jellig advised the original architectural effort by CMSS was an overview of zoning compatibility, placement, et cetera, along with cost estimates for renovatton. CMSS was not involved in examining the Unclaimed Freight property nor did CMSS ever interact with the Board or the Building Committee. Part of the evolving process was if existing facilities are being renovated, particularly one which is substantially changing its use, without a more thorough investigation, there are some unknowns CMSS had requested to perform a more detailed study. Mr. Jellig believed there was opportunity for the Board to ask more penetrating questions. Mr. Jelhg advised the original request was for $12-MILLION However, after examining the other needs for this property (contractual fees, site preparation, City oversight cost and infrastructure), the appropriation was raised to $14,200,000. Dr. Dennis Wool, Executive Director - Community Services Board, advised in the original request, a portion of the fund balance ($2.2-MILLION) was contemplated to be used to cover the contingencies. September 23, 1997 - I0- CITY COUNCIL BRIEFINGS CSB COMPLEX A T BONNEY ROAD ITEM # 42623 (Continued) The City Attorney advised the City Council has made it clear to the City Staff all purchases by the City are to be fully disclosed and open. To his knowledge, all purchases have been fully disclosed and opened. In 1988, the Development Authority made a purchase about which City Council was concerned and there was not a disclosure of the ownership. A major real estate broker made some offers on behalf of the City As a result of this, City Council entered into a Memorandum of Understanding with the Development Authority relative procedures in the future. Delegate Croshaw introduced a Bill in the 1989 General Assembly saying all government aj~liations should be disclosed in real estate transactions The Bill did not pass; however, City Council made it clear to their staff that they expected all transactions to be disclosed. Mr. Jellig advised 26% of the CSB Budget is from City revenue. $500,000 is projected from the sale of Wildwood. The total funding availability for the total project will be provided to City Council. Copies of the Pro Forma with explanation of each item shall be provided to City Council. CMSS Architects were engaged by the staff The Building Committee was organized after procurement of CMSS Architects. Mr Jellig advised the City Staff, Paul Finch, and Finance have reviewed the $17.2-MILLION. figure and are comfortable with same. Due to the nature of the population serving and the need for some identity for Beach House, DeTox Center and other services, the footprint of the first.floor needs to be larger, but there is room for compromise. Paul Finch advised the agencies within the Community Services Board have been interviewed and have actually met with the clients of Beach House and some of the other agencies to discuss needs. The fact they wish their own entrance and identity can still be handled in one building. The population would not be mixed. It is a design process. It will not take any more space to give Beach House and SMllquest their own entrance, as well as others. The cost estimates and square footage have been developed based on the knowledge of how they do need to be separated. Three story construction will add to the cost for pile foundations, which geotechntcal information currently indicates are not needed for one or 2-story construction Initially it was estimated to entatl 132,000 square feet for needs includtng future growth for the next five to ten years. ~4 management review decreased this square footage to 115,000 This has been further reduced to 95,000 square feet. Mr. Finch feels comfortable with the square footage and the dollar amount of $17.2-MILLION. The City Attorney advised the purchase arrangement of this property, the contract as well as the deed is in the name of the City of Virginia Beach. Mr. Jelhg advised servicing the debt goes into the Pro Forma and the utilities are also contained within the Pro Forma. There are always funds remaintng at the end of each year. The projected utihties are included wtthin this $I 7.2-MILLlON figure. September 23, 1997 - 11 - ITEM # 42624 Mayor Meyera E. Oberndorf 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: Appointments - Boards and Commissions. Committee on School Construction School Division - Design Review Committee Community Services Board - Personnel Matter PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of pubhcly-held property, or of plans for the future of an institution which could affect the value of property owned or destrable for ownershtp by such instttution pursuant to Section 2.1-344(A)(3). To-Wit: Agricultural Reserve Program - Pungo Borough Telecommunication Sttes- Princess Anne Borough Community Services Board Site LEGAL MATTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requesting the proviston of legal advice by counsel pursuant to Sectton 2.1-344(A)(7). To-Wit: Carson Barco v. City of Virginia Beach Community Services Board - Legal Issues Upon motion by Vice Mayor Sessoms, seconded by Councilman Jones, Ctty Councd voted to proceed tnto EXECUTIVE SESSION (5:10 P.M.). Voting: I0-0 Council Members Voting Aye. John A Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wdliam D. Sessoms, Jr. Council Members Voting Nay' None Council Members Absent: Louisa M. Strayhorn September 23, 1997 - 12- FORMAL SESSION VIRGINIA BEA CH CITY CO UNCIL September 23, 1997 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, September 23, 1997, at 6:30 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, HaroM Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor Wdliam D. Sessoms, Jr. Council Members Absent: Louisa M. Strayhorn INVOCATION: The Reverend Terry Clark Emmanuel Lutheran Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Sessoms, being a Corporate Officer of Central Ftdehty 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 Central Fidelity Bank. The Vice Mayor regularly makes this Disclosure as he may or may not know of the Bank's interest in any application that may come before City Council. Vice Mayor Sessoms' letter of January I, 1997, zs hereby made a part of the record. September 23, 1997 - 13- Item V-E. CER TIFICA TION OF EXECUTIVE SESSION ITEM # 42625 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council CERTIFIED THE EXECUTIVE SESSlON TO BE IN ACCORDANCE MTH THE MOTION TO RECESS. Only pubhc bustness matters lawfully exempted from Open Meeting requirements by Virgima law were discussed in Executive Session to which this certification resolution applies; AND, Only such public business matters as were tdentified tn the motion convening the Executive Session were heard, discussed or constdered by Virginia Beach City Counctl. Voting: I0-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III,, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 Besolution 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 # 42624 Page No. 11 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 C, ity 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. Ruth Hodges S~ith, CMc/AAE City Clerk September 23, 1997 - 14- Item V-F. 1. MINUTES ITEM # 42626 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council APPROVED the Minutes of the INFOR31AL AND FOR3IAL SESSIONS of September 9, 1997. Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, IIL William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent. Louisa M. Strayhorn September 23, 1997 - 15- Item F-G.I. ADOPT el GENDA FOR FORMAL SESSION ITEM # 42627 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION September 23, 1997 - 16- Item VJ. PRESENT,4 TION ITEM # 42628 Mayor Oberndorf PRESENTED the GOVERNMENT FIN,4NCE OFFICERS ,4SSOCI,4TION CER TIFIC,4 TE OF ,4 CHIE VEMENT FOR EXCELLENCE IN FINANCIAL REPOR TING to: Patricia A. Phillips Director of Finance Mrs. Phillips was accompanied by Robert Hays, Senior Comptroller. The Certificate of Achievement is the highest form of recognition in governmental accounting and financial reporting, and its attainment represents significant accomplishment by a government and its management. September 23, 1997 1B/OB/97 22:86 To:RUTH SMITH UA BCH PUBLIC INFO OCl-l~7-19~J? 13:54 From:Barbara A. Morrison TEL' 757-427-4163 CiTY 0F RORNOKE Oct 427-4183 Page 1/1 8,97 15:01 No.O08 P.O1 54El E~3 2940 ~V~:INM~ FINAN~;~ OI~IGI~FtB' A,~,~OOIA'rlON · October 7, 1~7 Mary C. Kemp, Director of Town of He~ndon. Virginia P.O. Box Herndon, IC~rginia i/,2070 ~03) VA. GOVERNMENT FINANCI/OI~ICBRS' AS~OC~TION AWARD~ P~,OG~M RECIPIi~NTS The Virginia Oovez~t F~ Ofl=~.~rs' Association, st its Amtu~l Confefetlu~ held thin yem' in ChantUly, October 1-3, l~rT, presentexi program awards to those localities whose submissions wcrc Judgexi most innovative and applicable to other government. There nre Loc~lid~ with population gn~ater than 75,000, Loeallttes with population less than ?$,000, and Schools, Authorities and Utilities. In the category of' Localities with populadon~ greater than 75,000, this year's Ftr~t Place Winner h: Virginia Beach Finance D~parrment, for. its program entitled "Consolidated BUlinl~s System*. Virginia Beach coordlnaled with their ~endor for statlonet'y and office ~ppIies to develop an electwnio file. of monthly invoice data, ready for upload to tb~ ~ounts payable system. One ~eck is th~n wri~u for lhe entlr~ month's pttrchases, This innovative approach replaced a system of ~ecsiving hundreds of involc~ per mo~th and writirt~ rrm~ checks to pay those invoices. Savin~ from reduced admt~ive ~fforts and increased discounts approsch $200,000 ~w,,~ll¥. This system has s~ been expanded ~o other v~ndo~, thus inermstn~ those savL'~$. - Ms. 3'udkh C~nnon. Adminlstregv¢ Assistant, submltt~ th~ entry on behnlf of Vir$inia Beach. The Virginia Oov~rmnent FI~ Officers' Association Awards Program is des~ to reoogn~ the efforts of Vkginin governmental ~ organizations to improv~ liw delivery of ~ervices to their tntemnl and external 'customers' to promote efficiency and acco~ility in vs~ of public funds, and to e~O~c responstblc Innovative practlc~ in financial nomm~ment. -17- Item V-J PUBLIC COMMENT COMPREHENSIVE PLAN ITEM # 42629 The following registered to speak regarding the Comprehensive Plan: Mary Heinricht, 5016 Mosby Road, 23455- Phone: 460-0750, represented SAVE Mtchael Walker, 3405 Champlain Lane, 23452 -Phone: 486-4030 Verner Daniel, Charlottesville, Virginia - Phone: (804) 295-6106 Ted Goranson, 1976 Munden Point Road, 23457 - Phone' 426-6704 Carl Fisher, 1432 Sandbridge Road, 23456 - Phone: 426-7446 John P. Stasko, 909 Dwyer Court, 23454 - Phone: 426-0728 Clifford Hopkins, 2569 Tree Garden Way, 23456- Phone: 430-0142 Jim Clark, 1317 Mill Landing Road, 23457 - Phone: 426-5393 Nancy C. Johnson, 1148 Crystal Lake Drive, 23451 - Phone: 422-2834 Maury Jackson, 1125 Ditchley Road, 23451 - Phone: 428-1470 Marilyn Danner, 2601 West Landing Road, 23456- Phone: 426-7390 John B. Gallegos, 2897 Saville Garden Way, 23455 - Phone; 468-0358 Maxine Graham, 3057 South Sandpiper Road, 23456- Phone: 721-3000 Jane Bloodworth Rowe, 608 Ocean Lakes Drive, 23454 - Phone' 426-3053 Linda Anderson, 308 Sunfish Lane, 23456 - Phone' 426-5481 September 23, 1997 - 18- Item V-K. 1. PUBLIC HEARING ITEM # 42629a. `4 GRICUL TURAL PRESER VA TION PR OGR/IM Mayor Oberndorf DECL,4RED ,4 PUBLIC HE,4RING: ,4 GRICUL TURAL PRESER V,4 TION PR OGRAM (,4RP) (Blackwater and Pungo Boroughs) There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HE,4RING September 23, 1997 - 19- Item V-L. 1 ORDINANCES ITEM # 42630 Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED: Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations: Barry D and Paula W. Knight - 191.37 Acres Installment Purchase Agreement No. 1997-15 - $301,551 O0 (BLA CKWA TER/P UNGO BOROUGHS) George A Waller - 308.66 Acres Installment Purchase Agreement No. 1997-16 - $845,386.00 (BLA CKWA TER BOROUGH) Voting' 9-I Council Members Voting Aye: John A Baum, Ltnwood 0 Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louts R Jones, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D Sessoms, Jr Council Members Voting Nay' Reba S. McClanan Council Members Absent: Louisa M Strayhorn September 23, 1997 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRI CULTURAL LAND PRESERVATION EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $301,551 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $301,551; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 62 63 64 indebtedness under the Charter of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes the indebtedness a contractual obligation bearing the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 67 68 69 Virginia, on this 23RD day of SMP¥SMBMR , 1997. Adoption requires an affirmative vote of a majority of all members of the City Council. 7O 71 72 73 CA-97-6771 ordin\noncode\knight.orn R-1 August 28, 1997 74 75 76 77 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL S F I I NCY: ~a~ ~artn~ent - 78 79 8O CERTIFIED AS TO AVAILABILITY OF FUNDS: Director of Finance BARRY D. KNIGHT and PAULA W KNIGHT the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-15) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for · convenience of reference) Section Page RECITALS ........................................................... 1 AGREEMENTS ........................................................ 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ............................................. 1 Rules of Constmctmn .................................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ........... 4 Delivery of Deed of Easement .............................. 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ................................. 5 Registration and Transfer of this Agreement ................... 5 Mutilated, Lost, Stolen or Destroyed Agreement ............... 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City .................... 7 Representations and Warranties of the Seller .................. 8 Section Paee ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of C~ty and Tax Covenant of City ...................... 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar ................................. 9 Ownership of Agreement .................................. 9 Removal of Registrar and Appmntment of Successor Registrar ..................................... 10 Qualifications of Successor Registrar ....................... 10 Successor by Merger or Consolidation ...................... 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 Successors of City ...................................... 10 Parties in Interest ....................................... 10 Binding Effect ......................................... 11 Severability ........................................... 11 Prior Agreements Cancelled; No Merger ..................... 11 Amendments, Changes and Modifications ................... 11 No Personal Liability of City Officials ..................... 11 Govermng Law ........................................ 11 Notices ............................................... 11 Holidays .............................................. 12 Signatures and Seals .................................................... 13 EXHIBIT A- EXHIBIT B - EXHIBIT C- EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section EXHIBIT E- Transfer of Agreement - Schedule of Transferees Pa~e iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-15) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the day of , 199_ between BARRY D. KNIGHT and PAULA W. KNIGHT, Husband and Wife (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the C~ty. B. In fta~herance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements w~th respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. As used in this Agreement, the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means 0) the bona fide production of crops, ammal or fowl, including, but not hmited to, the production of frmts, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural actiwty, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, ~ncluding the sale of agricultural products as permitted by Section 401 of the Virginia Beach C~ty Zomng Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, V~rg~nia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City ~n perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the nghts of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of V~rg~nia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing ,199_. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other entity. "Purchase Price" means $ , the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the pnncipal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means, collectively, Barry D. Kmght and Paula W. Knight, Husband and Wife. "State" means the Commonwealth of Virginia SECTION 1.2 Rul¢~ of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in ~ts entirety. (b) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants" (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (1) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and 0i) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easerlaent. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement ~n the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ., 202_ [25-year maturity date]. The Purchase Price is $301,551. (b) Interest on the unpaid pnnc~pal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and ~ncluding ., 202_, at the rate of~% per annum. Interest shall be calculated on the bas~s of a 360-day year of twelve 30-day months. (c) Both the s~ngle installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable ~n lawful money of the Umted States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall fonvard all such interest payments by check or draft mailed to the person(s) appearing on the registration books of the City maintmned by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of pnncipal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid pnncipal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of th~s Agreement. (a) Until the Purchase Price and all ~nterest thereon have been paid ~n full, the City shall maintain and keep at the offices of the Registrar, registratmn books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period fi.om the-Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period fi.om the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilated. Lost. Stolen or Destroyed A_m'eement. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the ease of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the ease of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, [her or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (in lieu ofwhieh such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Ret~resentations and Warranties of the City. following representations and warranties: The City makes the the State. (a) The City is a body politic and corporate and a political subdivision of (b) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (e) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and wan'ant~es: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is reqmred as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no lltigat~on or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for whmh adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 230-74-4271 (for Barry D. Knight) and 230-88-7624 (for Paula W. Knight). The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intenl[ of (~ity and Tax q;ovenant of (~lty. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly, the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond" w~thin the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal ~ncome taxation. SECTION 5.2 Acknowledmuent of Seller with Re~ard to Tax Conseauences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel, dated the date hereof, to the effect that under existing laws, regulations, rulings and decisions, interest payable under this Agreement is not includable in the gross income of the Seller for federal income tax purposes, which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of dehvery of this Agreement and ~s otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby (including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel, with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registritr. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Owllership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement, may in good faith buy, sell, own and hold this Agreement, and may join ~n any action which any Registered owner may be entitled to take with like effect as ~f ~t did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may also engage, or have an interest, in any financial or other transaction w~th the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 Removal of Registrar 0nd Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar's duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which ~s authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or {T0n$olidation. If the Registrar is a bank, trust company or other financial institution, any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consohdated, or any corporation resulting from any merger or consohdation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the part~es hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors ofCi _ty. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is ~ntended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered 10 Owner and the Registrar, any right, remedy or claim under or by reason of thru Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled; No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafler have any fights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective fights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In addition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart of any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 NO Personal Liability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal hability or accountability by reason of the issuance thereof. SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other commumcations reqmred under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been 11 properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: C~ty Attorney Municipal Center Virginia Beach, VA 23456 Seller: Barry D. and Paula W Kmght 1852 Mill Lan&ng Road Virginia Beach, V~rg~nia 23457 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Hohdays. If the date for making any payment or the last date for performance of any act or the exercising of any fight, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or fight exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) (SEAL) Approved as to Legal Sufficiency: Approved as to Sufficiency of Funds: Deputy City Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,19 , by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by ., City Clerk of the City of Virginia Beach, V~rginia, on its behalf. (SEAL) My Commission Expires: Notary Public COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of V~rg~nia Beach, Virginia, this day of ., 19~., by (SEAL) My Commission Expires: Notary Public 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 ,, by (SEAL) My Commission Expires: Notary Pubhc 15 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 16 Th~s instrument was prepared by V~rgima Beach City Attorney's Office Exemption Claimed: § 58.1-81 l(A)(3) § 58.1-811 (C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this day of ,1997, by and between BARRY D. ~ and PAULA W. ~ (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by thc Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix $ to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, thc City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantors Development Rights (hereina~er defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPRq # 1387-12-6495, 2410-06-8816, 2410-65-4856, 2400-96-8172 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantors heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS. COVENANTS. CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any fight, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products fi.om horticultural, silvicultural or aquaculmral activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infi'astmcture improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (v0 assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. GRANTOR: Barry D. Knight Paula W. Knight (SE L) COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by Barry D. Knight and Paula W. Knight, Grantors. (SEAL) My Commission Expires: Notary Public EXHIBIT A pARCEL ONE: ALL THAT certain tract of land situated in the City of Virginia Beach (formerly Blackwater Magisterial District of Princess Anne County), in the State of Virginia, containing two hundred (200) acres, more or less, and bounded and described as follows, to wit: BEGINNING at a post in the middle of Baum's Road and running thence along a lead ditch S. 19 degrees 43' W. 1861.9 feet to a station, thence along said lead ditch S. 18 degrees W. 5383 feet to a comer, thence N. 86 degrees 25' W. 172 feet, thence S. 54 degrees 5' W. 90 feet, thence S. 73 degrees 5' W. 102 feet, thence S. 35 degrees 35' W. 51.5 feet, thence N. 67 degrees 10' W. 51 feet, thence S. 38 degrees 35' W. 58 feet, thence N. 67 degrees 25' W. 35 feet to a beech, thence S. 67 degrees 5' W. 217 feet to a beech, thence N. 81 degrees 25' W 328 feet to a gum, thence N. 84 degrees 10' W. 243 feet to a pine, thence N. 88 degrees 40' W. 29 feet to a comer, thence N. 18 degrees 4' E. 4745.7 feet to a station, thence along a ditch N. 18 degrees 4' E. 2729.5 feet to the middle of Baum's Road, and thence along the middle of said road S. 84 degrees 35' E. 1257.2 feet to the point of beginning. PARCEL TWO: ALL THAT certain piece, parcel or tract of land with the improvements thereon, situate, lying and being in the Pungo Borough, in the City of Virginia Beach, Virginia, and known, numbered and designated as Parcel 3, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Deed Book 1546, at Page 114, Pungo Borough, Virginia Beach, Virginia", dated 5 November, 1980, made by Bonifant Land Surveys, said plat being duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at Page 35. PARCEL THREE: ALL THAT certain lot, piece, or parcel of land, situate, lying, and being in the City of Virginia Beach, Virginia, and being known, numbered, and designated as Parcel 2, 6.11 acres, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Pungo Borough, Virginia Beach, Virginia", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35. pARCEL FOUR: ALL THAT certain piece, parcel or tract of land, with the improvements thereon, situate, lying and being in the Pungo Borough, City of Virginia Beach, Virginia, and known, numbered and designated as "21.19 acres" as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., D.B. 1546, p. 114, Pungo Borough," dated November 5, 1980, made by Bonifant Land Surveyors, and duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35, and also more particularly described and designated as "21.19 acres" on the plat entitled "Survey of Property of James Howard Salmons, Jr., Pungo Borough, Virginia Beach, Va." dated January 8, 1981, made by Bonifant Land Surveyors and recorded in the aforesaid Clerk's Office in Deed Book 2208, at page 1798. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith. IT BEING (as to PARCEL ONE) a portion of the same property conveyed to Barry D. Knight and Paula W. Knight, fi.om William James Kirby, Sr., et ux, by deed dated May 26, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book 3246, at page 729. IT BEING (as to PARCEL TWO) a portion of the same property conveyed to Barry D. Knight fi.om James H. Salmons, Jr., et ux, by deed dated May 6, 1981, duly recorded in the aforesaid Clerk's Office in Deed Book 2117, at page 252. IT BEING (as to PARCEL THREE) a portion of the property conveyed to Barry D. Knight fi.om Kevin M. Brunick, Trustee, by deed dated June 25, 1987, duly recorded in the aforesaid Clerk's Office in Deed Book 2648, at page 550. IT BEING (as to PARCEL FOUR) a portion of the property conveyed to Barry D. Knight fi.om The Bank of Tidewater, a Virginia corporation, by deed dated July 10, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book 2718, at page 1813. EXHIBIT B DESCRIPTION OF LAND [SEE ATTACHED] 17 EXHIBIT B PARCEL ONE: ALL THAT certain tract of land situated in the City of Virginia Beach (formerly Blackwater Magisterial District of Princess Anne County), in the State of Virginia, containing two hundred (200) acres, more or less, and bounded and described as follows, to wit: BEGINNING at a post in the middle of Baum's Road and running thence along a lead ditch S. 19 degrees 43' W. 1861.9 feet to a station, thence along said lead ditch S. 18 degrees W. 5383 feet to a comer, thence N. 86 degrees 25' W. 172 feet, thence S. 54 degrees 5' W. 90 feet, thence S. 73 degrees 5' W. 102 feet, thence S. 35 degrees 35' W. 51.5 feet, thence N. 67 degrees 10' W. 51 feet, thence S. 38 degrees 35' W. 58 feet, thence N. 67 degrees 25' W. 35 feet to a beech, thence S. 67 degrees 5' W. 217 feet to a beech, thence N. 81 degrees 25'W 328 feet to a gum, thence N. 84 degrees 10' W. 243 feet to a pine, thence N. 88 degrees 40' W. 29 feet to a comer, thence N. 18 degrees 4' E. 4745.7 feet to a station, thence along a ditch N. 18 degrees 4' E. 2729.5 feet to the middle of Baum's Road, and thence along the middle of said road S. 84 degrees 35' E. 1257.2 feet to the point of beginning. PARCEL TWO: ALL THAT certain piece, parcel or tract of land with the improvements thereon, situate, lying and being in the Pungo Borough, in the City of Virginia Beach, Virginia, and known, numbered and designated as Parcel 3, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Deed Book 1546, at Page 114, Pungo Borough, Virginia Beach, Virginia", dated 5 November, 1980, made by Bonifant Land Surveys, said plat being duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at Page 35. PARCEL THREE: ALL THAT certain lot, piece, or parcel of land, situate, lying, and being in the City of Virginia Beach, Virginia, and being known, numbered, and designated as Parcel 2, 6.11 acres, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Pungo Borough, Virginia Beach, Virginia", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35. pARCEL FOUR: ALL THAT certain piece, parcel or tract of land, with the improvements thereon, situate, lying and being in the Pungo Borough, City of Virginia Beach, Virginia, and known, numbered and designated as "21.19 acres" as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., D.B. 1546, p. 114, Pungo Borough," dated November 5, 1980, made by Bonifant Land Surveyors, and duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35, and also more particularly described and designated as "21.19 acres" on the plat entitled "Survey of Property of James Howard Salmons, Jr., Pungo Borough, Virginia Beach, Va." dated January 8, 1981, made by Bonifant Land Surveyors and recorded in the aforesaid Clerk's Office in Deed Book 2208, at page 1798. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith. IT BEING (as to PARCEL ONE) a portion of the same property conveyed to Barry D. Knight and Paula W. Knight, fi.om William James Kirby, Sr., et ux, by deed dated May 26, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book 3246, at page 729. IT BEING (as to PARCEL TWO) a portion of the same property conveyed to Barry D. Knight fi.om James H. Salmons, Jr., et ux, by deed dated May 6, 1981, duly recorded in the aforesaid Clerk's Office in Deed Book 2117, at page 252. IT BEING (as to PARCEL THREE) a portion of the property conveyed to Barry D. Knight from Kevin M. Brunick, Trustee, by deed dated June 25, 1987, duly recorded in the aforesaid Clerk's Office in Deed Book 2648, at page 550. IT BEING (as to PARCEL FOUR) a portion of the property conveyed to Barry D. Knight from The Bank of Tidewater, a Virginia corporation, by deed dated July 10, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book 2718, at page 1813. EXHIBIT C PERMITTED ENCkJ-MBRANCE$ [SEE ATTACHED] 18 EXHIBIT "C" PERMITTED ENCUMBRANCES . Taxes for the fiscal year 1997/1998 and any/all stormwatea' fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. . Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the fights granted to the City in the Deed of Easement. EXHIBIT "C" pERMITTED ENCUMBRANCES ALL PARCELS: , Taxes for the fiscal year 1997/1998 and any/all stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. . Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. pARCEL ONE: . Rights of others in and to the use of any drains and/or ditches located over, across, in or under the insured premises, and fights to enter upon said premises to maintain the same. . Title to that portion of the property lying below the mean high water mark, riparian rights of the named insured incident to the premises, and riparian fights of upper and lower riparian owners. , Rights of the Federal Government, the Commonwealth of Virginia and the City of Virginia Beach to regulate all marsMand meadowland or wetland contained within the bounds of the real estate described in Schedule A. 7. Rights of others in and to the waters of Smith Creek. 8. Right of drainage through ditch to Smith's Creek. . Easement granted Virginia Electric and Power Company by instrument recorded in Deed Book 873, at page 260. 10. The terms and provisions of the Timber Deed to J. W. Jones Lumber Company, Inc., recorded in Deed Book 3218, at page 762 (Virginia Beach), and in Deed Book 2909, at page 794 (Chesapeake). 11. Land Management Agreement recorded in Deed Book 3348, at page 379. 12. Agreement with the City of Virginia Beach, recorded in Deed Book 3385, at page 269, dedicating drainage easement as shown in Map Book 234, at page 87 for stormwater mn off. PARCEL TWO: [TO FOLLOW] PARCEL THREE: [TO FOLLOW] PARCEL FOUR: [TO FOLLOW] ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto ., without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which th~s Assignment is attached; and the Registered Owner hereby irrevocably d~rects the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certffies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 19 EXHIBIT E TRANSFER OF AGREEMENT- SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof an the books kept for such purpose and in the registrataon blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar , o , o 20 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN AGRICULTURAL LAND PRESERVATION EASEMENT AND THE ISSUANCE BY THE CITY OF ITS CONTRACT OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF $845,386 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been presented to the City Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $845,386; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1. The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 6% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7.50% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2. The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3. The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City's interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement. 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement. 60 4. The City Council hereby elects to issue the 61 62 63 indebtedness under the Charter of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 66 Adopted by the Council of the City of Virginia Beach, Virginia, on this 23P, D day of SSP¥SMBSR , 19 97 · 67 68 69 Adoption requires an affirmative vote of a majority of all members of the City Council. 70 71 72 73 CA-97-6772 \ordin\noncode \wal 1 er. orn R-1 August 28, 1997 74 75 76 77 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUF~FI C~ENC, Y: . Law Department 78 79 80 CE~IE.D AS TO AVAILABILITY OF FUNDS: Director of Finance l' GEORGE A. WALLER the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-16) TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Pa_ag.~ RECITALS ........................................................... 1 AGREEMENTS ....................................................... 1 ARTICLE 1 DEFINITIONS SECTION 1.1 SECTION 1.2 Definitions ............................................. 1 Rules of Construction .................................... 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 SECTION 2.2 Agreement to Sell and Purchase Development Rights ........... 4 Delivery of Deed of Easement .............................. 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 SECTION 3.2 SECTION 3.3 Payment of Purchase Price ................................. 5 Registration and Transfer of this Agreement ................... 5 Mutilated, Lost, Stolen or Destroyed Agreement ............... 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 SECTION 4.2 Representations and Warranties of the City .................... 7 Representations and Warranties of the Seller .................. 8 Section ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 SECTION 5.2 Intent of City and Tax Covenant of C~ty ..................... 9 Acknowledgment of Seller with Regard to Tax Consequences of Transaction ..................... 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 Appointment of Registrar .............................. 9 Ownership of Agreement ................................. 9 Removal of Registrar and Appointment of Successor Registrar ........................... 10 Qualifications of Successor Registrar ....................... 10 Successor by Merger or Consohdation ..................... 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7. ! 0 Successors of City ...................................... 10 Parttes in Interest ...................................... 10 Binding Effect ......................................... 11 Severabflity .......................................... 11 Prior Agreements Cancelled; No Merger ..................... 11 Amendments, Changes and Modffications ................... 11 No Personal Liability of City Officials ...................... 11 Governing Law ........................................ 11 Notmes ............................................... 11 Hohdays ............................................. 12 Signatures and Seals .................................................... 12 EXHIBIT A- EXHIBIT B - EXHIBIT C- EXHIBIT D - Form of Deed of Easement Description of Land Permitted Encumbrances Form of Assignment Section EXHIBIT E- Transfer of Agreement - Schedule of Transferees Page iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1997-16) THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") is made as of the~ day of ., 199_ between GEORGE A. WALLER (the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance (hereinafter defined in Section 1.1) to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Raghts (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1) which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideratmn, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 Definition~. As used in this Agreement, the following terms have the following meanings, unless the context clearly indmates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. "Business Day" or "business day" means a day on which (a) banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach, Virginia, a body pohtic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City, which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the fights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation" means, collectively, (1) the Open Space Land Act, Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and (2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December I in each year, commencing , 199_. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately acres, and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing, by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust, partnership, public body or other en. tity. "Purchase Price" means $845,386, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. "Seller" means George A. Waller. "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of C0nstruCt~orl. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. Co) The terms "agree" and "agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter, masculine or feminine gender shall be deemed to have been made ~n all such genders, and (i0 ~n the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to $~11 and Purchase Devel0pm~nt Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2 2 Delivery_ of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and dehver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded ~n the Clerk's Office of the Circuit Court of the City. ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on ,202_ [25-year maturity date]. The Purchase Price is $845,386. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue fi.om the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including ,202_, at the rate of~% per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the Umted States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft marled to the person(s) appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection (a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unhmited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement; and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe, the ownership of this Agreement. The Registrar, however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer, this Agreement may not be transferred by the Registered Owner prior to the expiration of a one (1) year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers (other than an Estate Settlement Transfer) on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer; provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name thru Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement, whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. SECTION 3.3 Mutilat_ed, Lost. Stolen or Destroyed A_m'eement. In the event that this Agreement is mutilated, lost, stolen or destroyed, the City and the Registered Owner (as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement; provided that, in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees, if any, in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement (~n lieu of which such substitute Agreement was issued) presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemmty provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. following representations and warranties: The City makes the the State. (a) The City is a body politic and corporate and a political subdivision of (b) The City has the necessary power and authority to acquire the Development Rights, to enter into this Agreement, to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement, and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller, constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller ~n accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller, will materially adversely affect the authority of the Seller to enter into, or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is (i) no provision of any existing mortgage, indenture, contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, dehvery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land (other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development R~ghts to be conveyed thereby. (0 The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Number of the Seller is 231-09-6765. The representations in subsections (f) and (g) above are made under penalties of perjury and the information contained therein may be d~sclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. (h) To the best of the knowledge, information and belief of the Seller, the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. in any financial or other transaction with the City, and may act as depository, trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the fight, subject to the terms of any agreement with the Registrar, to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instmrnent in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar's duties hereunder. The City shall have the sole fight to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either (a) the Department of Finance of the City, (b) an officer or employee of the City, or (c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger 0r Consohdatio.n. If the Registrar is a bank, trust company or other financial institutmn, any institution or corporation into which the Registrar hereunder may be merged or converted or with which ~t may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any) of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors. of.(~il;y. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 P...attics in Inlere,!;. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered Owner and the Registrar, any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City, the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. 10 SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior A~eements Cancelled: No Merger. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibiht~es relating to the Land, the Development Rights and the payment for the Development Rights. In addition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart of any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been properly given three Business Days after the same is mailed by certified mail, postage prepaid, return receipt requested, addressed to the person to whom any such notice, demand, request, approval, certificate or other communication is to be given, at the address for such person designated below: 11 City: with a copy to: Seller: Registrar: City Manager Municipal Center Virginia Beach, VA 23456 City Attomey Municipal Center Virginia Beach, VA 23456 George A. Waller 3340 Ives Road Virginia Beach, Virginia 23457 First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, V~rg~ma 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Agreement, shall not be a Business Day, such payment may, unless otherwise provided in this Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk 12 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: Beach, The foregoing instrument was acknowledged before me in the City of Virginia Virginia, this day of , 19 , by Notary Public My Commission Expires: 14 EXHIBIT A FORM OF DEED OF EASEMENT [SEE ATTACHED] 15 This instrument was prepared by Vlrg~ma Beach City Attorney's Office Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this day of ,1997, by and between GEORGE A. _W_3I,i,F~, and (marital status?) (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia (the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach, Virginia, as amended (the "City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS, in furtherance of the purposes of the Act and the Ordinance, the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development fights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS, the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights (hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN # 1480-18-7240 WHEREAS, the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS, the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith (the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantors heirs, personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity, all of the Development Rights with respect to the Land. TERMS. COVENANTS. CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantors heirs, personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity, or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use, it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and (2) that this Deed of Easement shall create a perpetual easement, running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits, vegetables, honey, grains, meat, poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii) the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any fights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland, and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv) reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. #[NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, AND , execute(s) this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and fights set forth herein. GRANTOR: George A. Waller (SE,S.L) (SEAL) COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this ~ day of ,1997, by George A. Waller and , Grantor. Notary Public (sn,~t,) My Commission Expires: EXHIBIT A PARCEL ONE ALL THAT certain tract of land situated in Blackwater Borough, Virginia Beach, Virginia, containing thirty-nine and five tenths (39.5) acres, and described as follows: BEGINNING at a post on a lane running S. 2 degrees W. 23 chains to a ditch; thence along the ditch N. 86 degrees W. 17.58 chains to a ditch between property now or formerly Webb and Bailey; thence along the ditch N. 15 ½ degrees E. 10 chains; thence N. 12 degrees E. 13 chains to a lane between property now or formerly Ives and Webb; thence along the lane S. 84 ~/4 degrees E. 17.50 chains to the beginning, all of which more fully appears by reference to a plat of the said land made March 4, 1905, by E. E. Burroughs, County Surveyor; PARCEL 2: ALL THAT certain tract, piece or parcel of land, situated and being in Blackwater Borough, Virginia Beach, Virginia, bounded and described as follows: BEGINNING at a station near property now or formerly A. L. Ives' gate 18 links fi.om a ditch running S. 83 degrees E. 17.04 chains to a poplar comer of property now or formerly Batchelder and Ives on property now or formerly of Y. B. Miller's line; thence 24 ½ degrees E. 7.94 chains to a gum stump; thence S. 22 ½ degrees E. 4 chains to a water oak; thence S. 36 ½ degrees E. 5.43 chains to an ash; thence S. 37 ½ degrees E. 1.60 chains to a gum; thence S 13 ~A degrees E. 1.63 chains to a gum; thence S. 16 ½ degrees E..43 chains at bend of ditch; thence S. 19 degrees W. 1.72 chains to a gum; thence S. 14 V2 degrees W. 3.74 chains to a water oak; thence S. 28 ~/n degrees W..99 chains to a gum; thence S. 33 degrees W..65 chains to a maple; thence S. 8 degrees W. 1.29 chains to a gum; thence S. 4 degrees W. 1.46 chains to a gum; thence S. 4 degrees W. 3.76 chains to a beech and a red oak; thence S. 2 ½ degrees W. 2.84 chains to a red oak; thence S. ¼ degrees E. 191 chains to a white oak, comer of'property now or formerly Batchelder and Baxter; thence N. 89 ~ degrees W. 15 chains to a station in a ditch; thence S. 79 lA degrees W. 1.22 chains to a comer now or formerly of Batchelder and Baxter; thence S. 9 lA degrees W. 1.50 chains to a gum; thence S. 10 degrees 4" W. 3.12 chains to a pine; thence N. 86 lA degrees W. 6.43 chains to a station on a ditch; thence N. 7 degrees E. 42.59 chains to the beginning, and containing 79 acres, 2 mods and 13 poles. There is excepted from the above description all of that 45.8 acres transferred to property now or formerly T. A. Ives by Herbert Realty Corporation by deed recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 160, page 136, reference to which is hereby made. ALL THAT certain tract, piece and parcel of land, situated in Blackwater Borough, Virginia Beach, Virginia, and bounded and described as follows: BEGINNING at a poplar and running N. 79 IA degrees E..96 chains to a beech; thence along a ditch S. 88 lA degrees E. 14.71 chains, S. 2 lA degrees W. 4.00 chains, S. 70 ~A E. 7.97 chains, S. 9 degrees E. 4.03 chains, S. 4 degrees W. 14.40 chains, S. 89 degrees W. 1.13 chains to a beech, S. 89 degrees W. 74 chains to a gum due west 4.00 chains to a gum, S. 89 degrees W. 1.21 chains to a gum, S. 88 degrees W. 1.82 chains to a pine; S. 88 degrees W. 2.77 chains to a gum; S. 88 degrees W. 1.97 chains to a gum, S. 88 degrees W. 2.69 chains to an oak, S. 88 degrees W. 2.26 chains to an oak, S. 88 degrees W. 1.87 chains to an oak, S. 88 degrees W. 4.63 chains to a pine; S. 88 degrees W. 1.19 chains to an oak; S. 88 degrees W. 6.70 chains to a maple, S. 88 degrees W. 44 chains to a post, S. 5 lA degrees W. 81 chains to a ditch, N. 80 ½ degrees W. 63 chains to a gum; thence along a ditch N. 80 lA degrees W. 3.52 chains, N. 17 ¼ degrees E. 1.56 chains, N. 74 degrees W. 10.91 chains, N. 35 degrees E. 3.58 chains to an oak stump, N. 36 ~A degrees E. 3.86 chains to a pine, N. 34 lA degrees E. 2.00 chains to a gum stump, N. 36 degrees E. 1.42 chains to a post, S. 86 % E. 36 chains to a gum, S. 86 ~A degrees E. 1.07 chains to a gum, S. 84 lA degrees E. 1.40 chains to an oak, S. 86 ¼ degrees E. 2.45 chains to a beech, S. 83 ¼ degrees E. 1.33 chains to a pine; N. 85 degrees E. 3.76 chains to a maple, N. 76 degrees E. 3.25 chains to an oak, N. 2 ~ degrees E. 7.05 chains to a gum, N. 13 degrees E. 3.65 chains to an oak, N. 9 ~/2 degrees E. 1.43 chains to the beginning, containing eighty and two-filths (80 2/5) acres, as shown by plat thereof made by E. E. Burroughs, County Surveyor, recorded April 4, 1906; PARCEL 4; ALL THOSE two certain tracts or parcels of land situate in Black Water Borough, Virginia Beach, Virginia, the same being bounded and described as follows: (a) A tract of open land containing twenty nine and five tenths (29.5) acres, located on the south side of the lane adjoining the lands now or formerly belonging to Webb, Ives and Whitehurst, now or formerly Amos L. Ives, and more particular described as shown on a survey and plat of same bearing date March 4, 1905, and made by E. E. Burroughs, County Surveyor, recorded in the Clerk's Office aforesaid, in Map Book 3, page 259; (b) That certain tract or parcel of woodland containing three acres located on the north side of the lane running through the lands now or formerly Ives, being bounded on the north, east and west by the land now or formerly belonging to Amos L. Ives and on the south by the said lane, the said three acres being the center block of three acres as shown on a plat dated November 16, 1903, and made by E. E. Burroughs, County Surveyor; PARCEL 5: ALL THAT certain piece or parcel of land with the buildings and improvements thereon, and the privileges thereto belonging, situated in Pungo Borough, Virginia Beach, Virginia, bounded and described as follows: COMMENCING at a post at the comer of property now or formerly Jonathan Wood's deceased, land, and adjoining the land now or formerly of Dr. Williams on the north; thence nmning in an east course to the land now or formerly ofI. B. Baxter; thence nmning south and various other courses to the land now or formerly of the said Wood; thence nmning in a west course to a comer; thence running in a north course to the beginning place; containing by estimation fifty (50) acres, more or less; PARCEL 6: ALL THAT certain piece or parcel of land, with the buildings and improvements thereon and the appurtenances thereto belonging, in Pungo Borough, Virginia Beach, Virginia, and known as the property now or formerly Amos L. Ives Home Tract, and bounded and described as follows: BEGINNING at a poplar, a running line with property now or formerly J. C. Emeis and a comer with another tract of the said property now or formerly of Amos L. Ives, purchased by B. F. Batchelder, Executor, and the said Ives Home Tract, which said poplar stands in the centre of a branch which divides the said Home Tract fi.om the lands now or formerly of J. C. Emeis, and extending in a line with said property now or formerly Ives-Batchelder Tract North 81 ~A degrees West 98 chains to a gum, North 28 ~A degrees West 10.03 chains to a post near property now or formerly Amos L. Ives gate; thence in a line with said Ives private road South 8 degrees 28 min. West to a point opposite the Northern line of another private road of said of property now or formerly Amos L. Ives running Westerly along the first mentioned private road, thence crossing the first mentioned private road, and along the Northern line of said other private road to a post in the line of property now or formerly Calvin Smith; North 17 ~A degrees East 3.88 chains to a maple; thence same course 4.13 chains to a gum, North 47 degrees West 5.37 chains to a post, North 44 ¼ degrees West 2.47 chains to a maple in property now or formerly Mrs. Sadie Holt's line; thence in line with said property now or formerly Holt North 15 ~A degrees West 46 chains to a beech; North 44 ¼ degrees West 1.45 chains to a pine stump North 38 ¼ degrees West .77 chains to a station; North 44 ~ degrees West 4.79 chains to a station, North 14 ¼ degrees West 3.64 chains to a station, North 1 ¼ degrees West 2.98 chains to a post in centre of a branch, North 28 degrees East .78 chains to a gum, North 31 ~A degrees East 2.02 chains to a gum, North 12 ¼ degrees West .95 chains to a gum, North 11 degrees West 1.49 chains to a maple; thence in a line with other swamp lands of the property now or formerly of said Amos L. Ives (supposed to be in the City of Chesapeake) North 21 ¼ degrees West 1.69 chains to an elm, North 37 Va degrees West .53 chains to a gum, North 40 degrees West 1.50 chains to a gum, same course .65 chains to a gum, North 37 Va degrees West 2.00 chains to a gum; same course 2.13 chains to a maple North 38 ½ degrees West 1.42 chains to a gum, North 36 ½ degrees West .73 chains to a gum, North 35 ¼ degrees West .72 chains to a gum, a running line on property now or formerly Y. B. Miller's line, and thence in a general Easterly course along a line of marked trees along the Southern line of said property now or formerly Y. M. Miller, Nellie Miller, W. L. Ives and P. W. Ives to a post in the line of other land of the property now or formerly of said Amos L. Ives, thence South 2 ½ degrees West 10.84 chains to a post at the edge of the high land; thence North 67 Va degrees East 7.20 chains to a post; thence along a line of marked trees South ½ degrees West .30 chains to a gum, South Va degrees East 1.77 chains to a gum, South 3.17 chains to a gum, South 3 ½ degrees West 1.23 chains to a gum, South ½ degrees East 1.74 chains to an ash in the mouth of a branch in property now or formerly J. C. Emeis Line; South 48 ½ degrees West 1.05 chains to a gum, in the mouth of said branch; and thence along a line of marked trees down the centre of the branch, dividing line between property now or formerly A. L. Ives and property now or formerly J. C. Emeis to the beginning poplar, containing two hundred and sixteen (216) acres, more or less; EXCEPTING, however, fi.om the above bounds a tract of land of nine (9) acres at the Southwest comer of the land hereby conveyed, and EXCEPTING also the graveyard 30 feet square in the yard of the house on the tract hereby conveyed; being a part of the land devised to the said Amos L. Ives by the Will of his father, Jesse Ives, Sr., in Will Book 5, page 112. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property conveyed to George a. Waller and , his wife, from Allen J. Gordon and Martin W. Boelens, Jr. Special Commissioners, by deed, dated May 17, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book , at page ~. 10 EXHIBIT B DESCRIPTION OF LAND,,,, [SEE ATTACHED] 16 EXHIBIT B PARCEL ONE: ALL THAT certain tract of land situated in the City of Virginia Beach (formerly Blackwater Magisterial District of Princess Anne County), in the State of Virginia, containing two hundred (200) acres, more or less, and bounded and described as follows, to wit: BEGINNING at a post in the middle of Baum's Road and running thence along a lead ditch S. 19 degrees 43' W. 1861.9 feet to a station, thence along said lead ditch S. 18 degrees W. 5383 feet to a comer, thence N. 86 degrees 25' W. 172 feet, thence S. 54 degrees 5' W. 90 feet, thence S. 73 degrees 5' W. 102 feet, thence S. 35 degrees 35' W. 51.5 feet, thence N. 67 degrees 10' W. 51 feet, thence S. 38 degrees 35' W. 58 feet, thence N. 67 degrees 25' W. 35 feet to a beech, thence S. 67 degrees 5' W. 217 feet to a beech, thence N. 81 degrees 25' W 328 feet to a gum, thence N. 84 degrees 10' W. 243 feet to a pine, thence N. 88 degrees 40' W. 29 feet to a comer, thence N. 18 degrees 4' E. 4745.7 feet to a station, thence along a ditch N. 18 degrees 4' E. 2729.5 feet to the middle of Baum's Road, and thence along the middle of said road S. 84 degrees 35' E. 1257.2 feet to the point of beginning. PARCEL TWO; ALL THAT certain piece, parcel or tract of land with the improvements thereon, situate, lying and being in the Pungo Borough, in the City of Virginia Beach, Virginia, and known, numbered and designated as Parcel 3, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Deed Book 1546, at Page 114, Pungo Borough, Virginia Beach, Virginia", dated 5 November, 1980, made by Bonifant Land Surveys, said plat being duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at Page 35. PARCEL THREE: ALL THAT certain lot, piece, or parcel of land, situate, lying, and being in the City of Virginia Beach, Virginia, and being known, numbered, and designated as Parcel 2, 6.11 acres, as shown on that certain plat entitled "Subdivision of Property of James Howard Salmons, Jr., Pungo Borough, Virginia Beach, Virginia", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35. PARCEL ]FOUR: ALL THAT certain piece, parcel or tract of land, with the improvements thereon, situate, lying and being in the Pungo Borough, City of Virginia Beach, Virginia, and known, numbered and designated as "21.19 acres" as shown on that certain plat entitled "Subdivision of Property of 3'ames Howard Salmons, Sr., D.B. 1546, p. 114, Pungo Borough," dated November 5, 1980, made by Bonifant Land Surveyors, and duly of record in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 145, at page 35, and also more particularly described and designated as "21.19 acres" on the plat entitled "Survey of Property of Sames Howard Salmons, Jr., Pungo Borough, Virginia Beach, Va." dated 3.anuary 8, 1981, made by Bonifant Land Surveyors and recorded in the aforesaid Clerk's Office in Deed Book 2208, at page 1798. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3) Nawney Silt Loam; or (4) Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith. IT BEING (as to Parcel One) a portion of the same property conveyed to Barry D. Knight and Paula W. Knight, fi.om William James Kirby, Sr., et ux, by deed dated May 26, 1993, duly recorded in the aforesaid Clerk's Office in Deed Book 3246, at page 729. IT BEING (as to Parcel Two) a portion of the same property conveyed to Barry D. Knight from James H. Salmons, Jr. and Gail E. Salmons, by deed dated May 6, 198 l, duly recorded in the aforesaid Clerk's Office in Deed Book 2117, at page 252. IT BEING (as to Parcel Three) a portion of the property conveyed to Barry D. Knight from Kevin M. Brunick, Trustee, by deed dated June 25, 1987, duly recorded in the aforesaid Clerk's Office in Deed Book 2648, at page 550. IT BEING (as to Parcel Four) a portion of the property conveyed to Barry D. Knight from The Bank of Tidewater, a Virginia Corporation, by deed dated July 10, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book 2718, at page 1813. EXHIBIT C PERMITTED ENCUMBRANCES [SEE ATTACHED] 17 EXHIBIT "C" pERMITTED ENCUMBRANCES Taxes for the fiscal year 1996/1997 and any/all Stormwater fees, which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. Such other restrictions and encumbrances which, in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. ASSIGNMENT EXHIBIT D FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto , without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assigrmaent is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement) to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents, warrants and certifies that there have been no amendments to such Agreement [except Date: Signature guaranteed: NOTICE: Signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. NOTICE: The signature on this Assigrmaent must correspond with the name of the Registered Owner as it appears on the registration books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 18 EXHIBIT E TRANSFER OF AGREEMENT- SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar, who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Registration of Transfer Name and Address of Transferee Registered Seller Tax I.D. No. of Transferee Signature of Registrar , , o 19 - 20 - Item V-L 2 ORDINANCES ITEM # 42631 Upon motion by Vice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED: Ordinance to authorize and direct the City Manager and the Ctty Attorney to retain professional technical assistance in evaluating the Draft Environmental Impact Statement of the F?A-18 move to Oceana Naval Air Station; and, TRANSFER $80,000 from the General Fund Reserve for Contingencies to the City Manager's FY 1997-1998 Operating Budget refinance costs. Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, IIL William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay' None Council Members Absent: Louisa M. Strayhorn September 23, 1997 1 2 3 4 5 7 8 10 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO RETAIN PROFESSIONAL TECHNICAL ASSISTANCE IN EVALUATING THE DRAFT ENVIRONMENTAL IMPACT STATEMENT ON THE F/A-18 MOVE TO OCEANA NAVAL AIR STATION, AND TRANSFERRING FUNDS IN THE AMOUNT OF $80,000 FROM THE GENERAL FUND RESERVE FOR CONTINGENCIES TO THE CITY MANAGER'S FY 1997-98 OPERATING BUDGET TO FINANCE THE COSTS OF SUCH ASSISTANCE 11 WHEREAS, in 1995, the Base Realignment and Closure 12 Commission (BRACC) recommended that the Navy's F/A-18s from Cecil 13 Field, Florida, be moved to other east coast naval air stations, 14 primarily Oceana; 15 WHEREAS, as required by federal law, a Draft 16 Environmental Impact Statement (DEIS) has been completed and 17 released subject to a 45-day review period, which can be extended 18 an additional 30 days; 19 WHEREAS, due to the highly specialized and technical 20 nature of the impact statement, it is in the City's best interests 21 to hire a firm with expertise in noise and accident potential zones 22 to help review the DEIS; and 23 WHEREAS, the cost of hiring expert assistance for this 24 review is estimated at $80,000 with funding to come from a transfer 25 from the General Fund Reserve for Contingencies. 26 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 27 OF VIRGINIA BEACH, VIRGINIA: 28 That the City Manager and the City Attorney are hereby 29 authorized and directed to retain professional technical assistance 30 in evaluating the Draft Environmental Impact Statement on the F/A- 31 18 move to Oceana Naval Air Station. 32 BE IT FURTHER RESOLVED: 33 That funds in the amount of $80,000 are hereby 34 35 transferred from the General Fund Reserve for Contingencies to the City Manager's FY 1997-98 Operating Budget to finance the costs of 36 such assistance. 37 38 Adopted by the Council of the City of Virginia Beach, Virginia, on the 23 day of September , 1997. 39 40 41 42 CA-6786 ORD I N\ NONCODE \ OCEANA. ORD R-1 PREPARED: 09/17/97 APPROVED AS TO CONTENT Management Serwces .~/ APPROVED AS TO LEGAL -l~epartment of Law - 21 - Item V-L.3 ORDINANCES ITEM # 42632 Upon motion by Vice Mayor Sessoms, seconded by Councilman Harrison, City Council ADOPTED: Ordinance to authorize the Ctty Manager to enter into a 5-year lease with Corporate Center Three, L.L.C and a revised Sublease with the Virginia Department of Health for office and clinic space in the Pembroke Three Building at 4452 Corporation Lane (B.SYSIDE BOROUGH) Vottng: 10-0 Council Members Vottng Aye' John ~t. Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndor~, Nancy K. Parker and Vice Mayor William D Sessoms, Jr. Council Members Voting Nay' None Council Members ~lbsent. Louisa M. Strayhorn September 23, 1997 1 2 3 4 5 6 7 8 9 10 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A REVISED SUBLEASE WITH THE VIRGINIA STATE DEPARTMENT OF HEALTH FOR OFFICE AND CLINIC SPACE CONTAINING 32,635 SQUARE FEET IN THE BAYSIDE BOROUGH FOR USE BY THE STATE HEALTH DEPARTMENT. 11 WHEREAS, the City of Virginia Beach (the 12 "City") desires to enter into a lease agreement (the "Lease") with 13 Corporate Center Three, L.L.C. (the "Landlord"), for the lease of 14 32,635 square feet of office and clinic space located in the 15 Pembroke Corporate Center Three building at 4452 Corporation Lane, 16 Virginia Beach, Virginia (the "Premises"), for use by the Virginia 17 State Department of Health (the "VDH"); and 18 WHEREAS, the City further desires to enter into 19 a sublease agreement (the "Sublease") with the VDH for sublease of 20 the Premises; and 21 WHEREAS, both the Lease and the Sublease are 22 for terms of fifteen (15) years, with two renewal options of five 23 (5) years per renewal; and 24 WHEREAS, the Lease and the Sublease will assist 25 the City in fulfilling its obligations under §32.1-30 of the Code 26 of Virginia (1950), as amended (the "Code"), to maintain a local 27 health department; and 28 WHEREAS, funding for the obligations under the 29 Lease and the Sublease is part of the Agreement between the City 30 and the VDH in satisfaction of the requirements of §32.1-31 of the 31 Code (the "Agreement ") , and 32 WHEREAS, by Ordinance No 97-2449K adopted June 33 3, 1997, City Council authorized and directed the City Manager to 34 enter into the Lease and the Sublease, in substantially the forms 35 attached to said Ordinance as Exhibit 1 and Exhibit 2; and 36 WHEREAS, the Lease has been fully executed by 37 the Landlord, but is conditioned upon the execution of the 38 Sublease; and 39 WHEREAS, agreement has now been reached with 40 State officials for the terms of the Sublease including some 41 substantive revisions to the form approved by Council on June 3, 42 1997, which provide for the termination of the existing lease with 43 the VDH and the payment, in addition to the City's obligations 44 under the Agreement, of a termination fee by the City for 45 terminating the existing lease with the VDH; and 46 WHEREAS, the City Manager seeks authorization to enter into 47 the revised Sublease. 48 THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL 49 OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 50 That the City Manager is hereby authorized and directed to enter 51 into the revised Sublease substantially in the form attached hereto 52 as Exhibit 1. 53 Adopted by the Council of the City of Virginia 54 Beach, Virginia on the 23 day of September , 1997. 55 56 57 CA-6784 NONCODE\CA6784.0R1 PREPARED: 9/17/97 58 59 60 61 62 63 64 65 APPROVED AS TO LEGAL SUFFICIENCY AND FORM City Attorney APPROVED AS TO CONTENTS Signature Department ~ A8 TO &VAIi.,AB/UTY OF FUNDS SUBLEASE AND TERMINATION AGREEMENT THIS SUBLEASE AND TERMINATION AGREEMENT, entered this 2nd day of May, 1997, by and between the CITY OF VIRGINIA BEACH (the "City") and the COMMONWEALTH OF VIRGINIA by the Department of Health (the "VDH"). WHEREAS, the City has entered into a lease of even date herewith between Corporate Center Three, L.L.C. (the "Landlord") and the City (the "Lease"), for space which the City wishes to sublet to the VDH and the VDH wishes to sublease from the City; and, WHEREAS, the City owns certain real property located at 3432 Virginia Beach Boulevard, Virginia Beach, Virginia, a portion of which is leased to the VDH until October 30, 2011 by lease dated November 1, 1986 which lease the parties wish to hereby cancel and terminate (the "Prior Lease"). NOW THEREFORE, WITNESSETH: That on and subject to the terms and provisions of the Lease, a copy of which is attached hereto and incorporated herein, the City doth sublet unto the VDH, the following property, to-wit: 32,635 square feet of rentable space located on the First and Second Floors in the office building known as Pembroke Corporate Center Three, 4452 Corporation Lane, Virginia Beach, Virginia 23462 (the "Premises"). The Premises are hereby leased to be used and occupied by the VDH and its agent or agents for such purpose or purposes as the VDH may now or hereafter be empowered by law to use the same, in any or all of the undertakings of the VDH and its agents or affiliates. This Sublease shall coincide with the term of the Lease and the rent payable hereunder shall be in the amount payable by the City as set forth in the Lease. 1. Subject to the terms and provisions of the Lease, the City covenants and agrees that it will require the Landlord to do or permit the following: A. To deliver quiet possession of the Premises to the VDH on the effective date of this Sublease. B. To deliver the Premises in good repair suitable to the use for which they are leased and warrant that all plumbing, heating, air-conditioning, electrical and mechanical devices and appliances (if provided by the Landlord) of every nature upon the Premises are in good repair and working order. -1- C. To keep the Premises and all plumbing, heating, air-conditio~ng, electrical and mechanical devices and appliances (if provided by the Landlord) of every nature upon the Premises in good repair and in working order at the expense of the Landlord during the tenancy of this Sublease and to provide heat, air-conditioning, electricity, water and sewer, and janitorial services on the premises at the Landlord's expense during the tenancy of this Sublease. D. If the Premises are damaged by fire or otherwise, but not so as to render the Premises untenantable, upon being notified so to do by the VDH or its duly authorized agent, to repair and restore, as promptly as possible, the Premises to their former condition, in which event there shall be a prorata abatement of the rent for the period during which the repairs and restoration are being completed, for the portion of the Premises not usable by the VDH during such period. E. That in the event of the failure of the City or the Landlord to make such repairs and restoration within a reasonable time aider notice, then the VDH may terminate this Sublease or proceed to make, or cause to be made, such repairs at the expense of the Landlord and deduct the cost thereof from ensuing rentals as they become due or collect such cost from the Landlord in any manner which may be provided by law. F. To equip and make such alterations and additions to the Premises and the equipment therein belonging to the Landlord as shall be necessary at all times to comply with the provisions of Federal, State and Local laws, ordinances, and regulations pertaining to health, safety, fire, and public welfare. G. The VDH may make such alterations, modifications, additions and/or improvements upon or to the Premises and may install or remove such fixtures and partitions as the VDH may deem proper: provided, however, that any such alterations shall require the prior written consent of the Landlord, which consent shall not be withheld unreasonably, and any structural alterations of the roof, foundation or exterior walls shall require the prior written consent of the Landlord. All materials used in such alterations, modifications, additions or improvements, and all fixtures and partitions made and/or installed by the VDH shall remain the property of the VDH and, upon termination of this Sublease, may, at the VDH's option., be removed. 2. The VDH covenants and agrees: A. To pay the rent herein provided for in the manner herein provided, without the necessity of demand being made therefor by the City. B. At the termination of this Sublease, to deliver peacefully the Premises in as good order and repair as the same was at the beginning of this Sublease, reasonable wear and tear expected, subject to the agreement of the Landlord to make repairs and restoration as elsewhere herein provided. 3. It is mutually covenanted and agreed by the City and the VDH subject to the terms of the Lease: -2- A. That for the purpose of this Sublease, it is mutually understood and agreed that where the words 'repair' and/or 'restoration' are used, the same shall be deemed to include the replacement of broken or cracked glass. B. That if the Premises be so damaged by fire or otherwise as to render the same, in the opinion of the VDH, untenantable, for the purpose or use the VDH has Subleased same, this Sublease shall terminate as of the date of such damage, destruction or casualty upon the VDH's giving written notice of that fact to the City at the address set forth below: and provided that the VDH agrees to remove all of its property from the Premises within thirty (30) days. C. That in the event that by operation of law the VDH shall cease to exist, or the powers of the VDH shall be so construed as not to permit the VDH to continue to use the Premises herein demised for the purpose for which they shall have been used, then in that event, this Sublease and all responsibility and liability of the VDH of whatever kind hereunder shall terminate. D. That a written notice of seven (7)months shall be given by the VDH should it desire to vacate the Premises at the termination of this Sublease and should the City desire possession at the termination of tlus Lease, a six (6) month notice shall be required to be given by the City; and in the event no such notice is given by either party, then this Sublease shall continue in force from year to year at the same annual rental and subject to all the terms, conditions, and covenants herein contained. E. That any and all notices affecting this Sublease may be served by the parties hereto or their duly authorized agents, as effectively as if the same were served by any officer authorized by law to serve notices; and the return of such person of the time and manner of the service thereof shall have the same force and effect as to any legal proceedings based thereon as the return of any officer authorized by law to serve notices. F. This written Sublease constitutes the entire agreement between the City and the VDH regarding the demise of the property herein described and no agent of either party has any authority to alter, amend, or waive any of the terms hereof, unless such amendment be in writing and consented to and signatured by the parties hereto. 4. The City hereby designates: James C. Lawson Whose address is: Office of Real Estate, Room 170 Operations Building Virginia Beach, Virginia 23456 as the agent of the City and directs that any and all notices hereunder, when served upon the said Agent, -:3- shall have the same force and effect as if served upon the City in person; and The VDH hereby designates: Virginia Beach Health Department Whose address is: and, Whose address is: 4452 Corporation Lane Virginia Beach, Virginia 23462 Department of Health Office of Purchasing and General Services 1500 East Main Street, Room 217 Richmond, Virginia 23218-2448 as the Agent of the VDH for the purpose of accepting notice as may be herein provided. The City directs that the payment of all rents to accrue hereunder shall be paid to: The Landlord at: P. O. Box 2218 Virginia Beach, Virginia 23462 or to such other party and such other place as the Landlord or the City may from time to time designate in writing. The City shall provide the VDH with copies of all notices given or received by the City in connection with the Lease and/or this Sublease. 5. Special covenants: A. This Sublease is conditioned upon and subject to all state laws and continuation of the State- local health department affiliation now in existence; and this sublease shall be canceled automatically in the event of termination of the State-local health department affiliation now in existence, or in the event the local, State, or Federal government fails to appropriate or allocate sufficient funds for the purpose of continuation of this Sublease. B. To the extent necessary and/or appropriate, (i) the rights and obligations of the City under the Lease shall be deemed to be the fights and obligations of the VDH under this Sublease, and (ii) the obligations of the City under this Sublease shall be deemed to be the obligations of the Landlord under the Lease. Nothing in the preceding sentence, however, shall be construed to be a waiver of any fight which the City or the VDH has against the other under this Sublease in the event the VDH, the City or the Landlord shall fail to perform under either the Lease or this Sublease. 6. The Prior Lease shall be canceled, terminated and of no further force or effect on the later of the commencement date of this Sublease or the date the City's property located at 3432 Virginia Beach Boulevard is vacated by the VDH. A. In consideration of such termination, the City covenants and agrees to pay to the VDH, in addition to any amounts due to the VDH under any State-local health department affiliation, the sum of Four Hundred Twenty Thousand and 00/100 Dollars ($420,000.00) in 14 annual installments of Thirty Thousand and 00/100 Dollars ($30,000.00) each, the first such installment to be due and payable on November 1, 1997 and subsequent installments shall be paid on the first day of November of each year through November 1, 2010. Payments shall be delivered to the Commonwealth of Virginia, Department of Health, at its headquarters located at 1500 E. Main Street, Richmond, Virginia 23219 or to such other place as VDH may from time to time direct. B. In consideration of the agreement set forth in Section 6(A) above, the Commonwealth of Virginia by the VDH hereby waives and releases any and all claims and causes of action it has or may have against the City arising out of or in connection with, the termination of the Prior Lease. C. Notwithstanding the preceding subsection 6(B) above, such waiver shall be null and void and any claims and causes of actions the Commonwealth of Virginia may assert shall be revived in the event that the City at any time fails to comply with the termination terms or fails to pay any installment of the termination consideration in a timely fashion. In addition, the Commonwealth reserves the right to assess interest penalties against the City at the then-prevailing statutory legal rate of interest set forth in Va. Code {}6.1-330.53. IN WITNESS WHEREOF, the parties hereto have affixed their signatures and seals. This Sublease arrangement is recommended this~ day of ,1997. VIRGINIA STATE DEPARTMENT OF HEALTH By: (Virginia Beach Health Director) APPROVED AS TO FORM: By: (Assistant Attomey General) -5- COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ,, to-wit: The foregoing Sublease and Termination Agreement was acknowledged before me by on the~ day of 997, in the jurisdiction aforesaid. Notary Public My commission expires: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF , to-wit: The foregoing Sublease and Termination Agreement was acknowledged before me by on the~ day of 1997, in the jurisdiction aforesaid. COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ,, to-wit: The foregoing Sublease and Termination Agreement was acknowledged before me by on the, day of 997, in the jurisdiction aforesaid. Notary Public My commission expires: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF , to-wit: The foregoing Sublease and Termination Agreement was acknowledged before me by on the~ day of 997, in the jurisdiction aforesaid. Notary Public My commission expires: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF , to-wit: The foregoing Sublease and Termination Agreement was acknowledged before me -7- by on the ~ day of ,1997, in the jurisdiction aforesaid. Notary Public My commission expires: RECOMMEND APPROVAL: DIVISION OF ENGINEERING AND BUILDINGS RECOMMEND APPROVAL: DEPARTMENT OF GENERAL SERVICI3 By: By: Director Director APPROVED BY THE GOVERNOR Pursuant to {}2.1-504.2 of the Code of Virginia (1950), as amended, and by the authority delegated to me under Executive Order 31 (94) ,dated October 25, 1994, I hereby approve acquisition of the demised premises and termination of the Prior Lease pursuant to this Sublease and Termination Agreement and the execution of this instrument for and on behalf of the Governor of Virginia. Secretary of Administration (Date) G ~DATA~FORMSXDEEDS\WORKING\CA6784 SUB - 22 - Item V-L. 4 ORDINANCES ITEM # 42633 Upon motton by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to APPROPRIATE $1,386,105 from the General Fund Balance and $89,630 from the retatned earings of the Water and Sewer Fund for the FY 1997-1998 gainsharing program. Voting: 10-0 Council Members Voting Aye: John A Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wtlliam D. Sessoms, Jr Council Members Voting Nay: None Council Members Absent' Louisa M Strayhorn September 23, 1997 AN ORDINANCE TO APPROPRIATE FUNDS IN THE AMOUNT OF $1,386,'105 FROM THE GENERAL FUND BALANCE AND $89,630 FROM THE WATER AND SEWER FUND RETAINED EARNINGS FOR THE GAINSHARING PROGRAM WHEREAS, it is desire of the City Council to continue the Gainsharing Program for the employees of Virginia Beach which w~ll allow employees to share in savings reahzed through organizational improvements; 10 WHEREAS, there are sufficient funds available in the General Fund Balance to continue the Ga~nsharing Program while maintaining the policy level of funding ~n the Debt Service Reserve Fund; and 11 12 earnings WHEREAS, there are also sufficient funds available in Water & Sewer Fund retained 13 14 15 16 NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, that funds in the amount of $1,386,105 and $89,630 be appropriated from the General Fund Balance and the Water and Sewer Fund Retained Earnings, respecbvely, for the Gainsharing Program. 17 18 19 BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, that checks for Gainsharing savings be issued to all eligible permanent and part-time employees on October 31, 1997, in accordance w~th the City's Gainshanng Policy. 20 This ordinance shall be in effect from the date of its adoption. 21 22 Adopted by the City Council of the City of Virginia Beach, Virginia on the 23 day of Septembez: , 1997. APPROVED AS TO CONTENT Walter C. Kraer~~... Department of Management Services APPROVED AS TO ;, LEGAL SUFFICIEN.$Y I-HSTORIC INDIVIDUAL GAINSHARING AMOUNTS FOR FULL-TIME EMPLOYEES 1993 $319.00 1994 $258.00 1995 $218.00 1996 $304.00 1997 $224.00 - 23 - Item V-L.$ ORDINANCES ITEM # 42634 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Councd ADOPTED: Ordinance to APPROPRIATE $86,200 from the Forfeited Asset Sharing Special Revenue Fund Balance to the FY 1997-98 Operating Budget of the Police Department re replacement and upgrading of equipment to enhance the enforcement capability of the Police Department's Marine Patrol operation. Voting: 10-0 Council Members Vottng Aye: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 AN ORDINANCE TO APPROPRIATE $86,200 OF FUND BALANCE IN THE FORFEITED ASSET SHARING SPECIAL REVENUE FUND TO THE FY '1997-98 OPERATING BUDGET OF THE POLICE DEPARTMENT WHEREAS, the number of personal watercraft registered ~n the Commonwealth of V~rgima has doubled between 1994 and 1996, accounbng for 36% of all reported boabng accidents, 8 9 10 WHEREAS, the City of V~rg~nia Beach has a greater concentrabon of personal watercraft than any other area of the Commonwealth and has expenenced a dramabc increase ~n accidents and injuries arising from ~mproper operabon of personal watercraft, 11 12 WHEREAS, drug forfeiture funds, once appropnated, may be used for traimng and equipment to enhance the enforcement capab~hty of the Police Department, and 13 14 WHEREAS, sufficient funds are available to be appropriated from the fund balance of the Forfeited Asset Sharing Special Revenue Fund, 15 16 17 18 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that $86,200 be appropriated from fund balance of the Forfeited Asset Shanng Special Revenue Fund to the FY 1997-98 Operating Budget of the Pohce Department for replacement and upgrading of equipment to enhance the enforcement capabdity of the Police Department's Manne Patrol operabon 20 Th~s ordinance shall be effective on the date of its adoption 21 22 Adopted by the Council of the C~ty of Virg~ma Beach, V~rg~n~a, on the September , 1997 23 of 23 24 25 26 27 APPROVED AS TO CONT~E~T Walter 6¢l~aemer, Jr Resource and Management Services Admimstrator Department of Management Services APPROVED AS TO LE~:~/',L SUFF:CgE~''''',:Y ", - 24 - Item V-L. 6 ORDINANCES ITEM # 42635 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ,4DOPTED: Ordinance to ,4 CCEPT and ,4PPROPRI,4 TEa $7,000 Grant from the Virginia Department of Forestry, TRANSFER $7,000 from the Fiscal Year 1997-1998 General Fund Reserve for Contingencies - Grant Matches for a total of $14,000 to the Fiscal Year 1997-1998 Operating Budget of the Department of Planning for urban forestry work; and, estimated revenue from the Commonwealth be increased accordingly. Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, William W Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay. None Council Members Absent: Louisa M. Strayhorn September 23, 1997 AN ORDINANCE TO ACCEPT AND APPROPRIATE A GRANT IN THE AMOUNT OF $7,000 FROM THE VIRGINIA DEPARTMENT OF FORESTRY AND TO TRANSFER $7,000 AS MATCHING FUNDS FROM GENERAL FUND RESERVE FOR CONTINGENCIES - GRANT MATCHES FOR A TOTAL APPROPRIATION OF $14,000 TO THE FISCAL YEAR 1997-1998 OPERATING BUDGET OF THE DEPARTMENT OF PLANNING 7 8 9 10 11 WHEREAS, the Commonwealth of Virginia's Department of Forestry has provided a grant in the amount of $7,000 to help continue a temporary Environmental Planning Technician I position to support the Department of Planning's urban forestry work, allow for the development of an urban forestry riparian demonstration project, and the purchase of supplies to support volunteer urban forestry efforts in the City of Virgima Beach, 12 13 WHEREAS, this grant requires a cash match of $7,000 which is available in the Fiscal Year 1997-1998 General Fund Reserve for Contingencies - Grant Matches; 14 15 16 17 WHEREAS, the work to be provided through these resources will significantly enhance the opportunity to restore, enhance and conserve the valuable urban forest resource within the City and thereby provide a unique opportunity to augment the physical appearance of the City, ~ncrease environmental education, and improve environmental qualily. 18 19 20 21 22 23 24 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that a $7,000 grant from the Commonwealth of Virginia's Department of Forestry is hereby accepted and appropriated to the Fiscal Year 1997-1998 Operating Budget of the Department of Planning for urban forestry work, and $7,000 in matching funds is transferred from the Fiscal Year 1997-1998 General Fund Reserve for Contingencies - Grant Matches to the Fiscal Year 1997-1998 Operating Budget of the Department of Planning for urban forestry work; 25 26 BE IT FURTHER ORDAINED that estimated Revenue from the Commonwealth be increased by th&'same amount of the grant of $7,000; and 27 28 29 BE IT FURTHER ORDAINED that a temporary Environmental Planning Technician I position be continued in Fiscal Year 1997-1998 within the Department of Planning to carry out the work of this grant 30 31 Adopted the ~ Beach, Virginia. 23 day of September 1997, by the Council of the City of Virginia APPROVED AS TO CONTENT Department of Management Serwces _ '- ' I III _ II APPROVED AS TO - 25- Item V-L. 7 ORDINANCES ITEM # ~2656 Upon motion by Vtce Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to TRANSFER $3,963 from the General Fund Reserve for Contingencies to reimburse the Water and Sewer Fund, as a charitable gift, to Habitat for Humanity re costs of water and sewer fees associated with construction of a single-family dwelling at 2300 Seaboard Road (PRINCESS ANNE BOROUGH) Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood 0 Branch, IlL William W. Harrison, Jr., HaroM Heischober, Barbara M. Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent. Louisa M. Strayhorn September 23, 1997 Requested by Mayor Meyera E. Oberndorf AN ORDINANCE AUTHORIZING THE TRANSFER OF $3,963 FROM THE GENERAL FUND RESERVE FOR CONTINGENCIES FOR THE PURPOSE OF REIMBURSING THE WATER AND SEWER FUND FOR THE COSTS OF WATER AND SEWER FEES ASSOCIATED WITH THE CONSTRUCTION OF A HABITAT FOR HUMANITY SINGLE-FAMILY DWELLING WHEREAS, South Hampton Roads Habitat for Humanity, Inc. 10 ("Habitat for Humanity"), a local affiliate of Habitat for Humanity 11 International, endeavors to improve housing opportunities for low- 12 income, working families in the City of Virginia Beach by 13 constructing single-family homes built with the labor of volunteers 14 and the families who purchase these homes; 15 WHEREAS, Habitat for Humanity is constructing a single- 16 family dwelling at 2300 Seaboard Road in the Princess Anne Borough; 17 WHEREAS, the costs of construction of this single-family 18 dwelling will include water and sewer fees in the amount of $3,963; 19 and 20 WHEREAS, the City of Virginia Beach wishes to show its 21 support for this project by reimbursing the Water and Sewer Fund, 22 as a charitable gift to Habitat for Humanity, for the costs of such 23 water and sewer fees. 24 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 25 OF VIRGINIA BEACH, VIRGINIA: 26 That City Council hereby authorizes the transfer of 27 $3,963 from the General Fund Reserve for Contingencies for the 28 purpose of reimbursing the Water and Sewer Fund, as a charitable 29 gift to Habitat for Humanity, for the costs of water and sewer fees 30 associated with construction of a single-family dwelling at 2300 31 Seaboard Road in the Princess Anne Borough. 32 33 Adopted by the Council of the City of Virginia Beach, Virginia, on the __ 23_ day of September , 1997. 34 35 36 37 CA-6782 ORDIN~NONCODE[HABIT2. ORD R-1 PREPARED: 09/09/97 38 39 40 41 APPROVED AS TO CONTENT: Management Ser~ APPROVED AS TO LEGAL SUFFICIENCY: Law Department - 26- Item V-L. 8 ORDINANCES ITEM # 4263 7 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize temporary encroachments tnto a portion of the City's right-of-way at 3756 Indian River Road by STERLING W. and BONNIE J. THACKER re maintaining a PVC fence until property ts needed for the widening of Indian River Road (PRINCESS ANNE BOROUGH The following conditions shah be required: The temporary encroachment shah be constructed and maintained in accordance with the laws of the Commonwealth of Vtrginta and the City of Virginia Beach and in accordance with the Ctty of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location. . The temporary encroachment and use herein authorized shall termtnate upon notice by the City of Virgtnia Beach to the applicants that the City intends to use the right-of-way within a reasonable period of time afier the date of such notice and such intended use requires the removal of the Fence and/or the ~4djacent Fence; that within thirty (30) days after such notice is gtven, such temporary encroachment shall be removed from the City's right-of-way known as Indian River Road by the apphcants and such use shall cease; and the applicants shah bear aH costs and expenses of such removal and cessation The applicants shall indemnify and hold harmless the City of Vtrginia 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 locatton or extstence of such temporary encroachment or the use of any portion of the Ctty's right-of- way by the apphcants, their guests, invitees, employees, contractors and agents . The applicant shall obtain and keep in force such tnsurance as is necessary to adequately insure the City against liability for the existence of the temporary encroachment into and uses of the City's right-of-way, by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable and shall carry the provtsion that the tnsurance will not be cancelled or materially modified without thtrty (30) days written notice to the City's Risk Management Office. The Ctty reserves the right to review such insurance policy or policies and to require tncreased coverage every five (5) years during the extstence of the temporary encroachment into and uses of the City's right-of-way; provided, however, such increased coverages shall be commensurate with that required by the City for stmtlar temporary encroachment tnto and uses of the City's right-of-way The apphcant assumes all responsibilities and liabihties, vested or contingent, with relation to the temporary encroachment and use herein authorized. September 23, 1997 - 27- Item V-L. 8 ORDINANCES ITEM # 42637 (Continued) No permisston or authority is given to the applicants to permit the maintenance or construction of any encroachment other than that specified herein and to the limtted extent specified herem, nor to permit the maintenance and construction of any encroachments by any one other than the applicants The applicants agree to maintain the temporary encroachment and any portion of the City's right-of-way so as not to become unsightly or a hazard. The City, upon revocatton of such authority and permisston 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 occupted if it were owned by the applicants, and tf such removal shall not be made within the ttme specified by the City, the Ctty shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment ts allowed to conttnue thereafter, and shall collect such compensatmn and penalties in any manner provided by law for the collection of local or state taxes. . This Agreement shall remain in full force and effect, except as modified hereby, with all references made therein to "wooden fence" betng construed to be the "Adjacent Fence" as described heretn. Voting' I0-0 Council Members Voting Aye: John A. Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K Parker and Vice Mayor Wtlham D Sessoms, Jr Council Members Voting Nay' None Council Members Absent: Louisa M Strayhorn September 23, 1997 1 Requested by Department of Publmc Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OFTHE RIGHT-OF-WAY OF INDIAN RIVER ROAD BY STERLING W. AND BONNIE J. THACKER, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Sterling W. and Bonnie J. Thacker desire to 10 maintamn an existing fence mn the Cmty's rmght-of-way Located at 11 3756 Indian Rmver Road. WHEREAS, City Councml ms authormzed 12 13 pursuant to §~ 15.1-316 and 15.1-893, Code of Virgmn~a, 1950, as amended, to authormze a temporary encroachment upon the City's 14 rmght-of-way subject to such terms and condmtmons as Council may 15 prescrmbe. 16 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY 17 OF VIRGINIA BEACH, VIRGINIA: 18 19 20 That pursuant to the authormty and to the extent thereof contained in §§ 15.1-316 and 15.1-893, Code of Virgmnma, 1950, as amended, Sterlmng W. and Bonnme J. Thacker, their hemrs, assigns 21 and successors mn title are authormzed to mamntamn a temporary 22 encroachment for a fence in the C~ty's right-of-way as shown on the 23 map entitled: "EXHIBIT B, PLAN SHEET 1 OF 2" and "EXHIBIT B, PLAN 24 25 SHEET 2 OF 2" copmes of which are on file mn the Department of Public Works and to which reference ms made for a more particular 26 descrmption; and 27 BE IT FURTHER ORDAINED, that the temporary encroachments 28 are expressly sublect to those terms, cond~tmons and crmteria 29 30 contamned in the Agreement between the City of Vmrg~nma Beach and Sterlmng W. and Bonnme J. Thacker dated July 30, i[997 (the 31 "Agreement") a copy of which ~s attached hereto and mncorporated by 32 reference; and 33 BE IT FURTHER ORDAINED that the City Manager or hms 34 authorized designee is hereby authormzed to execute the Agreement. 35 BE IT FURTHER ORDAINED, that this Ordmnance shall not be 36 mn effect untml such time as STERLING W. AND BONNIE J. THACKER and 37 the City Manager or hms authorized designee have executed the 38 Agreement and the Agreement has been recorded mn the Clerk's offmce 39 of the C~rcu~t Court. 40 41 Adopted by the Councml of the Cmty of V~rg~nma Beach, Virginia, on the 23 day of September , 1997. 42 CA-~ 43 SBURNS kHAYES \,TN_ACKER. ORD 44 R-1 45 PREPA~RED: AUGUST 25, 1997 APP ,VED TO CONTEN S DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORM 7 CITY ATTORNEY SETTLEI~NT ~REEI~ENT THIS SETTLEMENT AGREEMENT is made as of the 15th day of January, 1997, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the "City"), and STERLING W. THACKER and BONNIE T. T~ACKER, husband and wife (the "Thackers"). W~EREAS, the City and the Thackers have been litigating a condemnation proceeding pending in the Circuit Court of the City of Virginia Beach, Virginia (the "Court"), styled CITY OF VIRGINIA BEACH V. STERLING W. T~ACKER, et al, etc., AT LAW NO. CL96-356 (the "Litigation"), involving certain real property and improvements thereon located in the City along Indian River Road, more particularly described in the Litigation pleadings (the "Property"); and WHEREAS, the City and the Thackers have reached an agreement to settle the Litigation. NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises and undertakings set forth herein, the City and the Thackers do hereby agree as follows: 1. The trial date for the Litigation shall be continued to August 19, 1997 (the "Trial Date"), pending satisfaction of the obligations and conditions set forth in paragraphs 3,4 and 5 below (the "Obligations and Conditions"). Upon satisfaction of all of the Obligations and Conditions prior to June 19, 1997, the City and the Thackers shall execute all documents necessary to conclude the Litigation by means of an Agreement After Certificate or other appropriate documents and procedure to fully vest title to the Property in the City and conclude the litigation. If the Obligations and Conditions are not satisfied prior to June 19, 1997, the City and the Thackers anticipate that a trial will be conducted on the Trial Date, although satisfaction after June 19, 1997, but prior to the Trial Date will not preclude the conclusion of the Litigation as outlined herein. 2. The total purchase price to be paid by the City to the Thackers for the Property is $12,000, $11,000 of which has already been paid into Court and distributed to the Thackers. The remaining $1,000 shall be paid by the City at the time appropriate documents and pleadings are filed with and an appropriate order is entered by the Court to conclude the Litigation in accordance with paragraph 1 above. 3. The City and the Thackers acknowledge that there is existing PVC fencing (the "Fences") located on the Property and on the City's right-of-way adjacent to the Property on the West (the "Adjacent Property"). On or before March 1, 1997, the Thackers agree to apply for an encroachment permit or permits and a fence permit (if necessary) and provide all necessary supporting documentation to enable the Thackers to keep the Fences in their current location and to continue the existing uses of portions of the Property and the Adjacent Property as pasture pursuant to the terms of an encroachment agreement substantially in the form attached hereto (the "Encroachment"). The City will waive the application fees normally charged in connection with processing the Encroachment application and any required fence permit application. The City shall make available at no cost to the Thackers, the plats and drawings for the Gum Swamp Bridge Project (CIP 2-122) as they affect the Property and the Adjacent Property to enable the Thackers to copy same for use in the application process. 4. The Thackers acknowledge that obtaining the Encroachment is subject to approval by City Council and that there is no guarantee of approval by City Council. City staff, however, will process the Encroachment application promptly and in good faith with a recommendation to City Council for approval. City staff will also process any required fence permit application promptly. 5. Any portion of the Fences located on City-owned property adjacent to the Property on the East shall be removed by the Thackers. 6. The City (to the extent permitted by law) and the Thackers agree to cooperate in good faith with each other and to diligently pursue the approval of the Encroachment to satisfy the Obligations and Conditions so that the Litigation can be concluded in accordance with the terms set forth in this Agreement. 7. The City and the Thackers acknowledge that this Agreement represents the entire understanding of the parties with respect to the settlement of the Litigation, and the terms hereof shall not be modified in any way without the written consent of all parties. 8. This Agreement shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. Approved as to Content: Public Works/Real Estate CITY OF VIRGINIA BEACH By: ~. City Manager/Designee Certified as to Availability of Funds: Finance Department ~hacker (SEAL) Approved as to Legal Sufficiency: e p. ~fhacker G \ \~ayle\wp\work\thacker agr THIS AGREEMENT, made this day of , 1997, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia (the "City" and for indexing purposes, the "Grantor"), party of the first part; and STERLING W. THACKER and BONNIE T. THACKER, husband and wife (the "Thackers" and for indexing purposes, the "Grantees"), whose address is 3756 Indian River Road, Virginia Beach, Virginia 23456, and their respective heirs, assigns and successors in title, collectively, party of the second part. W I T N E S S E T H: WHEREAS, the Thackers owned certain real property more particularly described on Exhibit A attached hereto (the "Property") which has been condemned by the City for present and future road widening and related public purposes; and WHEREAS, the Thackers had constructed on the Property prior to the taking of same by the City a PVC fence (the "Fence") which is not required to be moved at the present time; and WHEREAS, the Thackers have constructed additional PVC fencing (the "Adjacent Fence") in the Indian River Road right-of- way to the west of the Property (the "Adjacent Property") to replace wooden fencing for which an encroachment agreement was previously approved by the City which Agreement is duly recorded GPIN #'S 1484-10-1671 1484 -01-8054 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 2610, at page 640 (the "Prior Agreement"); and W~EREAS, it is the desire of the Thackers to maintain the Fence and the Adjacent Fence in their present location within the City's right-of-way and to continue the existing uses of portions of the Property and the Adjacent Property as pasture as temporary encroachments pursuant to the terms of this Agreement, and the Thackers have requested that the City grant a temporary encroachment to facilitate such temporary encroachments within a portion of the City's right-of-way known as Indian River 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 City, receipt of which is hereby acknowledged, the City doth grant to the party of the second part a temporary encroachment to use a portion of the City's right-of-way known as Indian River Road for the purposes of permitting the Fence and the Adjacent Fence to remain and continuing the existing uses of portions of the Property and the Adjacent Property as pasture. It is expressly understood and agreed that the temporary encroachment and use herein authorized shall be 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 encroachment into a portion of the City's right-of-way known as Indian River Road as shown on that certain plat entitled: "#," a copy of which is attached hereto as Exhibit "B" and to which reference is made for a more particular description. It is further expressly understood and agreed that (i) the temporary encroachment and use herein authorized shall terminate upon notice by the City to the party of the second part that the City intends to use the right-of-way within a reasonable period of time after the date of such notice and such intended use requires the removal of the Fence and/or the Adjacent Fence; (ii) that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right-of-way known as Indian River Road by the party of the second part and such use shall cease; and (iii) the party of the second part shall bear all costs and expenses of such removal and cessation. It is further expressly understood and agreed that the party of the second part, jointly and severally, 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 or the use of any portion of the City's right-of-way by the party of the second , part, or their guests, invitees, employees, contractors, and agents. The party of the second part agrees to obtain and keep in force such insurance as is necessary to adequately insure the City against liability for the existence of the temporary encroachments into and uses of the City's right-of-way, by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable and shall carry the provision that the insurance will not be cancelled or materially modified without thirty (30) days prior written notice to the City's Risk Management Office. The City reserves the right to review such insurance policy or policies and to require increased coverage every five (5) years during the existence of the temporary encroachments into and uses of the City's right-of-way; provided, however, such increased coverages shall be commensurate with that required by the encroachments into and uses of City for the City' s similar temporary right -of -way. The party of the second part assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment and use herein authorized. 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 or use other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any , encroachment or use 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 temporary encroachment and any portion of the City's right-of-way used by the party of the second part so as not to become unsightly or a hazard. It is further expressly understood and agreed that upon revocation of the authority and permission so granted herein, the City 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 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 if such 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 everyday 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 taxes. The Prior Agreement shall remain in full force and effect, except as modified hereby, with all references made therein to "wooden fence" being construed to be the "Adjacent Fence" as described herein. IN WITNESS WHEREOF, the Thackers have caused this Agreement to be executed by their signatures and seals duly affixed. Further, that the City has caused this Agreement to be executed in its name and on its behalf by its City Manager/or authorized Designee of the City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTE ST: City Clerk By (SEAL) Sterling W. Thacker By (SEAL) Bonnie T. Thacker STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that , City Manager/Authorized Designee of · the City Manager of the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing date on the day of , 19__, has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk of the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing date on the day of , 19 , has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that Sterling W. Thacker and Bonnie T. Thacker, whose names are signed · to the foregoing writing, , 19 · bearing date the day of , , have acknowledged the same before me in my City and State aforesaid. Given under my hand this 19 . day of My Commission Expires: Notary Public G.\...\deeds\working\rp3S69.agr / / / / / / SITE SCALE I'.~,00' LIBATION MAP I I I I I I I I / / ! ! /~/ ii IiI iI 1~ iI // ! ! / / ! / / ! ! / ! ! / I I I I I I I I I I I I I ii/I I LOCATION FOR STERLING W. AND BONNIE J. THACKER ENCROACHMENT AT 3756 INDIAN RIVER ROAD SCALE: 1" = 400' / / PREPARED BY P/W ENG. DRAFT. 8 /13 /97 THIS AGREEMENT, made this~day of C~.~ , 1997, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia (the "City" and for indexing purposes, the "Grantor"), party of the first part; and STERLING W. THACKER and BONNIE.T. THACKER, husband and , wife (the "Thackers" and for indexing purposes, the "Grantees"), whose address is 3756 Indian River Road, Virginia Beach, Virginia 23456, and their respective heirs, assigns and successors in title, collectively, party of the second part. WITNESETH: WHEREAS, the Thackers owned certain real property more particularly described on Exhibit A attached hereto (the "Property") which has been condemned by the City for present and future road widening and related public purposes; and WHEREAS, the Thackers had constructed on the Property prior to the taking of same by the City a PVC fence (the "Fence") which is not required to be moved at the present time; and WHEREAS, the Thackers have constructed additional PVC fencing (the "Adjacent Fence") in the Indian River Road right-of-way to the west of the Property (the "Adjacent Property " )to replace wooden fencing for which an encroachment agreement was previously approved by the City which Agreement is duly recorded in the Clerk's Office GPIN #'s 1484-10-1671 1484-01-8054 Exhibit B, Plan Sheet 1 of 2, and the plat entitled: PLAT TO ACCOMPANY ENCROACHMENT PERMIT SHOWING IMPROVEMENTS ALONG INDIAN RIVER ROAD AS SHOWN ON "LAND MANAGEMENT DRAINAGE PLAN AND DEDICATION PLAT OF PROPERTY OF STERLING W. THACKER AND BONNIE J. THACKER", dated October 22, 1986, Scale: 1" =50', prepared by Rouse-Sirine Assocites, LTD, attached hereto as Exhibit B, Plan Sheet 2 of 2, to which references are made for a more particular description. It is further expressly understood and agreed that (i) the temporary encroachment and use herein authorized shall terminate upon notice by the City to the party of the second part that the City intends to use the right-of-way within a reasonable period of time after the date of such notice and such intended use requires the removal of the Fence and/or the Adjacent Fence; (ii) that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right-of-way known as Indian River Road by the party of the second part and such use shall cease; and (iii) the party of the second part shall bear all costs and expenses of such removal and cessation. It is further expressly understood and agreed that the party of the second part, jointly and severally, 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 or the use of any portion of the City's right-of-way by the party of the second part, or their guests, invitees, employees, contractors, and agents. the temporary encroachments into and uses of the City's right-of-way, by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable and shall carry the provision that the insurance will not be canceled or materially modified without thirty (30) days prior written notice to the City's Risk Management Office. The City reserves the right to review such insurance policy or policies and to require increased coverage every five (5) years during the existence of the temporary encroachments into and uses of the City's right-of-way; provided, however, such increased coverages shall be commensurate with that required by the City for similar temporary encroachments into and uses of the City's right-of-way. The party of the second part assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachments and uses herein authorized. 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 or use other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment or use 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 temporary encroachment and any portion of the City's right-of-way used by the party of the second part so as not to become unsightly or a hazard. It is further expressly understood and agreed that upon revocation of the authority and permission so granted herein, the City 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 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 if such 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 encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. The Prior Agreement shall remain in full force and effect, except as modified hereby, with all references made therein to "wooden fence" being construed to be the Adjacent Fence" as described herein. IN WITNESS WHEREOF, the Thackers have caused this Agreement to be executed by their signatures and seals duly affixed. Further, that the City has caused this Agreement to be executed in its name and on its behalf by its City Manager/or authorized Designee of the City Manager and its seal be hereunto affixed and attested by its City Clerk. (SEAL) LEGAL SUFFICt 7';~TM llll CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager ATTEST: City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: By ~EAL) S~rling W. Tha(k[r · ) I! , a Notary Public in and for the City and State aforesaid, do hereby certify that , City Manager/Authorized Designee of the City Manager of the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing date on the~ day of ,19 , has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . Notary Public My Commission Expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk of the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing EXHIBIT A All that certain lot, tract or parcel of land together with the improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, designated and described as "PARCEL 004 NOW OR FORMERLY STERLING W. THACKER & BONNIE,,T. THACKER, TAKE AREA: 42,960.83 S.F., 0.986 AC." as shown on that certain plat entitled: "PLAT SHOWING PROPERTY TO BE ACQUIRED FOR INDIAN RIVER ROAD, GUM SWAMP BRIDGE PROJECT (CIP 2-122) BY THE CITY OF VIRGINIA BEACH, VIRGINIA FROM PARCEL 004 STERLING W. THACKER & BONNIEy. THACKER (D.B. 2710, PG. 2056) PRINCESS ANNE BOROUGH - VIRGINIA BEACH, VIRGINIA", Scale: 1" = 50', dated September 22, 1993, made by Meridian Associates, Inc., which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 246, at page 2, to which reference is made for a more particular description. It being a part of the same property conveyed to the Sterling W. Thacker, et ux, from J. Baldwin Smith, III, unmarried, et al, by Deed dated January 28, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book 2710, at page 2056. 0 ,V', 3NI'I H3.LVW ~ &0~ &.~.~HS N~fqd ,T,I~IHX~ PLAT TO ACCOMPANY ' ENCROACHMENT PERMIT SHOWING IMPROVEMENTS ALONG INDIAN RIVER ROAD AS SHOWN ON "LAND MANAGEMENT DRAINAGE PLAN AND DEDICATION' PLAT OF PROPERTY OF II STERLING W. THACKER AND BONNIE d. THACKER KEMPSVILLE BOROUGH-VIRGINIA BEACH~ VIRGINIA SCALE: I" 50' = OCTOBER ~Z, 1986 F~OUSE -- $11~INE ASSOCIATES, LTD. 9URVEY'ORS AND ENOINEER~ VIRGINIA BEACH, VIRGINIA (DB. 2554, P 775 ) - 28 - Item V-L. 9. ORDINANCES ITEM # 42638 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY: Grand Limousine Vottng' I0-0 Council Members Voting Aye: John A Baum, Linwood 0 Branch, III, William W Harrison, Jr, Harold Hetschober, Barbara M Henley, Louis R Jones, Reba S. McClanan, Mayor Meyera E. Oberndo~ Nancy K. Parker and Vtce Mayor William D. Sessoms, Jr. Councd Members Vottng Nay. None Council Members Absent: Louisa M Strayhorn Items 9 and 10 were voted upon in ONE MOTION. September 23, 1997 - 29 - Item V-L. lO.a.b.m ORDINANCES ITEM # 42639 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinances to authorize: License Refunds: $10,983.80 License and Special Tax Refunds: Tax Refunds: $ 425.93 $13,526.33 Voting' 10-0 Council Members Voting Aye: John A. Baum, Linwood 0 Branch, III, William ~ Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor Wilham D. Sessoms, Jr. Council Members Voting Nay: None Councd Members Absent: Louisa M. Strayhorn September 23, 1997 FORM NO C A 8 flFV 3~ AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following apphcabons for license refunds, upon certiflcabon of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Alhson & Edge PC 770 Lynnhaven Pkwy 135 Va Beach VA 23452 Bolan, Joseph B 1011 Barnacle Court Va Beach VA 23451 Chesapeake Controls Inc 1220 Executive Blvd 108 Chesapeake VA 23320 Charlotte Camera Brokers Inc 2400 Park Road S-G Charlotte NC 28203 1997 Audit 2,798 00 1995 Audit 129 97 1994-97 Audit 141 51 1996-97 Audit 170 35 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $3,239 83 of the C~ty of V~rg~n~a Beach on the 23 2,798 00 129 97 141 51 17O 35 Cerhfled as to Payment ~ //'J .J~rt 15 Vau~han/../ - Commissioner of the Revenue Approved as to form ('L--'~sI~ L L, Ile~'- C~ty Attorney were approved by the Council day of September ,19 97 Ruth Hodges Smith C~ty Clerk 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 certrfication of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Lattuca, Samuel C & Trudy 1108 Eaglewood Dr~ve Va Beach VA 23454 S M Lawrence Co Inc P O Box 638/245 Preston St Jackson TN 38302-0638 1995 Audit 11 64 11 64 1995-96 Audit 51 38 51 38 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $63 02 of the C~ty of V~rg~n~a Beach on the 23 D.t~ert,f,ed as tp~av.~en~/ ""~Rc;~m IsPs i oVna~, r~o;~h e Revenue -- Approved as to form C~ty Attorney were approved by the Council day of September ,19 97 Ruth Hodges Smith C~ty Clerk 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 applicabons for license refunds, upon cerhficat~on of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Ad Ventures Adverbs~ng Inc 448 V~k~ng Dnve Va Beach VA 23452 Agnos, Peter G 524 Longdale Crescent Chesapeake VA 23325 Fnedmans Inc P O Box 8025 Savannah GA 31412 Kinney Shoe Corporation P O Box 2731 Harnsburg PA 17105 1995-97 Audit 1995-97 Audit 1994-97 Audit 1995-97 Audit Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $2,274 33 of the C~ty of V~rg~n~a Beach on the 23 19 99 19 99 8OO 72 800 72 376 36 376 36 1,077 26 1,077 26 Cerbfled as to Payment ~:~b'~rt P Vaughan Commissioner of the-Revenue Approved as to form 'L-'~sI,~ L L, Ile~' C~ty Attorney ~ were approved by the Council day of September ,19 97 Ruth Hodges Smith City Clerk 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 cerbfication of the Commismoner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Malbon, Luther R 3161 Newbndge Road Va Beach VA 23456 Nee, Margente P & Wdham D 827 Cathedral Drive Va Beach VA 23455 Omnkosky, T~mothy A & M~d~a N 828 Old Cutler Road Va Beach VA 23454 1994 Audit 19 98 1995-96 Audit 1995-97 Audit 60 33 66 99 19 98 60 33 66 99 Th~s ordinance shall be effecbve from date of adopbon The above abatement(s) totaling $147 30 23 of the C~ty of V~rg~n~a Beach on the Cerbfled as to Payment ~:h:~" P V aughan Commissioner of th'e-Re'venu' -'" - ' e Approved as to form C~ty Attorney were approved by the Council September day of ,19 97 Ruth Hodges Smith City Clerk FORM NO C A 1~ REV 3'N AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following apphcations for hcense refunds, upon certification of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Pockets of V~rg~n~a Inc 4848 Va Beach Blvd Va Beach VA 23462 V~ewtron~cs Service Co Inc 329 Va Beach Blvd Va Beach VA 23451 1995-97 Audit 1995-97 Audit 156 92 70 83 156 92 70 83 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $227 75 of the C~ty of V~rg~n~a Beach on the 23 Certified as to Payment Robert P Vaugl'~,,7 Commissioner of the Revenue Approved as to form ~L'~sf~e L L,IT~y"' ~ C~ty Attorney were approved by the Council day of September ,19 97 Ruth Hodges Smith City Clerk FOFIM NO C~ A ~ ~IEV 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 cerhfication of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Paragon Steakhouse Restr Inc 10200 W~llow Creek Road San D~ego CA 92131 Pets Bed & Breakfast Ltd 4601 Staghorn Dnve Va Beach VA 23456 Wdhelmsen L~nes USA Inc 7737 Hampton Blvd Norfolk VA 23505 1994-96 Audit 1,094 99 1996-97 Audit 84 35 1996-97 Audit 2,476 13 1 ,O94 99 84 35 2,476 13 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $3,655.47 of the C~ty of V~rg~n~a Beach on the 23 Certified as to Payment ~,Ro~ert P Vaughan/c_~ Commissioner of the Revenue Approved as to form C~ty Attorney were approved by the Council day of September ,19 97 Ruth Hodges Smith City Clerk FORM NO C ~. B REV AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for I~cense refunds, upon certiflcabon of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Fraz~er, Thomas J Jr 925 Preddy Creek Road Barbourswlle VA 22923 Fraz~er, Thomas J Sr 925 Preddy Creek Road Barbourswlle VA 22923 Manne Electromcs Inc Rt 33 Box 160 Hartfleld VA 23071 Mccoy, Raymond Jr 1560 Beachv~ew Dnve Va Beach VA 23464 1996-97 Audit 1996-97 Audit 1994-95 Audit 167 86 Th~s ordinance shall be effective from date of adoption The above abatement(s) totaling $1,439 12 of the C~ty of V~rg~n~a Beach on the 10 00 1,226 19 167 86 1995 Audit 35 07 10 00 23 1,226 19 35 O7 Cerbfled as to Payment ~:b~ert P Vaughr~_.~/' Commissioner of the Revenue Approved as to form 'lL~sr.~ L blley '"~ C~ty Attorney were approved by the Council day of Septer. bez: ,19 97 Ruth Hodges Smith C~ty Clerk AN ORDINANCE AUTHORIZING LICENSE AND SPECIAL TAX 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 and special tax refunds, upon cert~hcation of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Spy Store Of V~rg~n~a Inc 324 Scarlet Oak Dnve Va Beach VA 23452 Wh~tfleld, Clarence 4401 Lmdenwood Court Va Beach VA 23456 1995-96 Audit 1994-96 Audit 69 07 10 O0 69 O7 10 O0 Th~s ordinance shall be effective from date of adoption. The above abatement(s) totaling $79 07 of the C~ty of V~rg~n~a Beach on the 23 Cerhhed as to Payment ~---~R~bert P Vaugh~' Commissioner of the Revenue Approved as to form were approved by the Councd day of September ,19 97 Ruth Hodges Smith C~ty Clerk AN ORDINANCE AUTHORIZING LICENSE AND SPECIAL TAX 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 and special tax refunds, upon cerbflcation of the Commissioner of the Revenue are hereby approved NAME LICENSE DATE BASE YEAR PAID PENALTY INTEREST TOTAL Brookstone Incorporated 17 R~vers~de Street Nashua NH 03062 Checkers Dnve-ln Restr Inc P O Box 1079 Clearwater FL 34617 Cutch~ns, Joey Lee P O Box 1196 Mechamcswlle VA 23111 Glomar Ltd 757 Harns Point Dr~ve Va Beach VA 23455 1995 Audit 1994-95 Sp Tax 1995-97 Audit 1994 Audit Th~s ordinance shall be effective from date of adoption. The above abatement(s) totaling $283 84 of the C~ty of V~rg~n~a Beach on the 23 65 21 65 21 21 99 21 99 150 oo 15O O0 46 64 46 64 Cerbfled as to Payment ~-'R~bert P Vaughan Commissioner of the Revenue Approved as to form L~'~I,~ L L,Ile~- '"'" C~ty Attorney ~ were approved by the Council day of Sept4ember ,19 97 Ruth Hodges Smith C~ty Clerk FORM NO C A 7 AN ORDINANCE AUTHORIZING TAX REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE TREASURER FOR PAYMENT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA That the following applications for tax refunds upon certification of the Treasurer are hereby approved: Tax Type Ticket Exonera- Date Penalty Int. NAME Year of Tax Number tion No. PaId Total Burnside, Bruce D. & Sandra Sargent, Henry & Betty Sargent, Henry & Betty Sargent, Henry & Betty B. Sargent, Henry & Betty B. Sargent, Henry & Betty B. Sargent, Henry & Betty B. Burnside, Bruce D. & Sandra Burnside, Bruce D. & Sandra Chesson, Betty S. Lake, John K. & Brenda B. Virginia Beach United Methodist Virginia Beach United Methodist Virginia Beach United Methodist Virginia Beach United Methodist Virginia Beach United Methodist Virginia Beach United Methodist Virginia Beach United Me%hodist Virginia Beach United Methodist Virginia Beach United etc. Trus Virginia Beach United etc. Trus Virginia Beach United Methodist Virginia Beach United Methodist Creeds Associates, Inc. Creeds Associates, Inc. Barnes, Patricia V. Barnes, Patricia V. 3arnes, Patricia V. 3arnes, Patricia V. Barnes, Patricia V. Barnes, Patricia V. Ballentine, Earl W. & Katherine First Lynnhaven Baptist Church Dam Neck Properties Dam Neck Properties Dozier Family L. C. Kinser, Robert R. 96(2/2) RE 96-016452-4 05/23/96 95(1/2) RE 95-103581-5 12/05/94 95(2/2) RE 95-103581-5 06/05/95 96(1/2) RE 96-105115-4 12/05/95 96(2/2) RE 96-105115-4 06/05/96 97(1/2) RE 97-106360-3 12/05/96 97(2/2) RE 97-106360-3 06/05/97 97(1/2) RE 97-016679-0 11/15/96 97(2/2) RE 97-016679-0 05/12/97 97(2/2) RE 97-021329-4 01/29/97 97(2/2) RE 97-068590-7 06/05/97 96(1/2) RE 96-124187-8 11/22/95 96(2/2) RE 96-124187-8 05/28/96 97(1/2) RE 97-125547-9 11/15/96 97(2/2) RE 97-125547-9 05/22/97 97(1/2) RE 97-125548-8 11/15/96 97(2/2) RE 97-125548-8 05/22/97 97(1/2) RE 97-125549-7 11/15/96 97(2/2) RE 97-125549-7 05/22/97 96(1/2) RE 96-124186-9 11/22/95 96(2/2) RE 96-124186-9 05/28/96 96(1/2) RE 96-085455-6 11/22/95 96(2/2) RE 96-085455-6 05/28/96 96(1/2) RE 96-026136-7 12/05/95 96(2/2) RE 96-026136-7 06/05/96 97(1/2) RE 97-006497-1 12/05/96 97(2/2) RE 97-006497-1 05/22/97 96(1/2) RE 96-006376-8 12/05/95 96(2/2) RE 96-006376-8 05/14/96 95(1/2) RE 95-006245~8 11/18/94 95(2/2) RE 95-006245-8 05/26/95 97(2/2) RE 97-005663-1 05/30/97 97(2/2) RE 97-039187-7 05/22/97 97(1/2) RE 97-028374-3 12/05/96 97(2/2) RE 97-028374-3 06/05/97 97(2/2) RE 97-048988-9 05/28/97 97(2/2) RE 97-089487-9 03/31/97 12.86 15.32 15.32 15.97 15.97 17.28 17.28 100.09 100.09 24.09 915.56 1395.45 1395.45 494.10 494.10 915.00 915.00 786.90 786.90 1054.50 1054.50 349.08 891.00 106.16 106.16 22.33 22.33 21.74 21.74 20.86 20.86 414.56 936.68 3.66 3.66 25.25 18.53 Total: $13,526.33 Th~s ordinance shall be effective from date of adoption. The above abatement(s) totaling $13,526.33 were approved by the Council of the C~ty of V~rg~n~a Beach on the 23_day of September., 1997 Ruth Hodges Smith C ~ty Clerk Approved as to form: - 30- Item V-M. PUBLIC HEARING ITEM # 42640 PLANNING Mayor Oberndorf DECLARED a PUBLIC HE,4RING on: PLANNING 1. B,4IT,4 DEVELOPMENT COMP,4NY, LLC MODIFIC,4 TION TO GREEN RUN L,4ND USE PL,4N 2. MABLE C. BROCK VARIANCE 3. LINDA T. CHAPPELL CONDITIONAL USE PERMIT 4. CROWN CENTRAL LE,4SING CORPORATION CONDITION,4L USE PERMIT 5. B,4 YSIDE BAPTIST CHURCH CONDITIONAL USE PERMIT 6. WIRELESS PCS, INC., A GENT FOR ,4 T & T WIRELESS PCS, INC. CONDITIONAL USER PERMIT 7. MARSH,4 LYNN BUILDING CORPORA TION CHANGE OF ZONING September 23, 1997 - 31 - Item V-M. 1. PUBLIC HEARING ITEM # 42641 PLANNING Correspondence dated September 19, 1997, from Attorney R. Edward Bourdon, Jr., Pembroke Office Park, Pembroke One-The Fifth Floor, Phone:499-8971, requesting DEFERRAL until the City Council Session of October 14, 1997, is hereby made apart of the record. Upon motion by Vice Mayor Sessoms, seconded by Councdman Harrison, City Council DEFERRED unttl the City Council Sesston of October 14, 1997, an Ordinance upon Application of BAITA DEVELOPMENT COMPANY, LLC for a Modification to the Green Run Land Use Plan: ORDINANCE UPON APPLICATION OF BAITA DEVELOPMENT COMPANY, LLC, FOR A MODIFICATION TO THE GREEN RUN LAND USE PLAN Ordinance upon application of Baita Development Company, LLC, for a modtficatton to the Green Run Land Plan on the south side of Buckner Boulevard for the purpose of modifying the submttted site plan dated June 27, 1996, and developing the outparcel designated "future development area" whwh is a portion of Parcel "H" Green Run PUD Satd parcel contains 7. 75 acres. KEMPSVILLE BOROUGH. Vottng: 10-0 Council Members Voting Aye: John A. Baum, Ltnwood 0 Branch, III, William W Harrison, Jr, HaroM Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay' None Council Members Absent: Louisa M. Strayhorn September 23, 1997 - 32 - Item V-M.2. PUBLIC HEARING ITEM # 42642 PLANNING Upon motion by Council Lady Henley, seconded by Councilman Baum, City Council APPROVED the Apphcation of MABLE C. BROCK for a Variance to Section 4. 4(b) of the Subdivision Ordinance which requires all lots created by subdivision conform with all requirements of the City Zoning Ordinance Appeal from Decisions of Admtnistrattve officers in regard to certatn elements of the Subdivision Ordinance, subdivision for Mabel C Brock Property is located on the south side of Indian River Road, 1020 feet more or less east of Princess Anne Road. PUNGO BOROUGH. The following conditions shah be required: The shed on the east side of proposed Parcel 2A and the residence on Parcel 2 are nonconforming in that they do not meet the side yard setback of 20 feet as required in the AG- I?AG-2 Agricultural District Any additions to these structures that fail to meet minimum setbacks or other requirements wtH require a variance from the Board of Zoning Appeals. The final plat is to show exact locations of septic systems and limits of existing drain fields. Reciprocal easements shah be provided as necessary for maintenance of existing systems. . Due to the close proximity of the two existing dwellings and the small amount of street frontage occupied, the existtng common driveway shall be maintained, rather than creating an addittonal access point onto Indian River Road Votzng: 10-0 Council Members Voting Aye' John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Me/nbers Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 - 33 - Item V-M.$. PUBLIC HEARING ITEM # 42643 PLANNING Attorney R. Edward Bourdon, Pembroke One, Phone: 499-8971, represented the applicant Upon motion by Council Lady McClanan, seconded by Vice Mayor Sessoms, City Council ADOPTED the Ordinance upon application of LINDA T. CHAPPELL for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF LINDA T. CHAPPELL FOR A CONDITIONAL USE PERMIT FOR A RECREATIONAL AND AMUSEMENT FACILITY OF AN OUTDOOR NATURE R09972134 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon apphcation of Linda T Chappell for a Conditional Use Permtt for a recreational and amusement facdtty of an outdoor nature on the south stde of Dam Neck Road, west of London Brtdge Road Said parcel ts located at 2599 Dam Neck Road and contams 20 acres more or less. PRINCESS ANNE BOROUGH. The following conditions shall be required: I. . This conditional use permit request is approved for Halloween hayrides and other related events open to the public year round Other acttvtttes may include hayrides, nature-oriented walking tours and spectal seasonal events such as Easter egg hunts. All tmprovements shown on the site plan submitted to Planmng Commission must be installed before operation of the hayride. A waiver of pavement, curbing and guttering for the proposed parking lots must be obtained from the Permit and Inspections office. All public activities, except parla'ng, must take place outside of the area designated as High Noise Zone 3 on the offictal zoning maps, as existing on the date of approval 5_ Thts facih~ shall close at Midnight. This Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~_ -third of September Nineteen Hundred and Ninety-Seven. September 23, 1997 - 34 - Item V-M.3. PUBLIC HEARING ITEM # 42643 (Continued) PLANNING Voting: 10-0 Council Members Voting Aye: John A. Baum, Ltnwood O. Branch, III, William W. Harrison, Jr., HaroM Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor Wilham D. Sessoms, Jr. Council Members Vottng Nay: None Council Members Absent: Loutsa M. Strayhorn September 23, 1997 - 35 - Item V-M. 4. PUBLIC HEARING ITEM # 42644 PLANNING Upon motion by Councdman Jones, seconded by Councilman Heischober, City Council ADOPTED an Ordinance upon Application of CROWN CENTRAl_, LE~4SING CORPORATION for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF CROWN CENTRAL LEASING CORPORA TION FOR GASOLINE SALES IN CONJUNCTION WITH A CONVENIENCE STORE R09972135 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Crown Central Leasing for gasoline sales in conjunction wtth a convenience store at the northeast intersection of Independence Boulevard and Pembroke Boulevard. Said parcel is located at 720 Independence Boulevard and contatns 31,790 26 square feet. BA YSIDE BOROUGH. The following conditions shall be required: . The property shall be developed in accordance with the submitted site plan and landscape plan, except as provided below. ao bo The existing access point on Independence Boulevard nearest to the intersection with Pembroke Boulevard shall be closed. The remaining access point may be moved to the center of the Independence Boulevard frontage. The landscape plan shall be revised to depict a single-access point on Independence Boulevard and the street frontage landscaping design shown along Independence Boulevard and Pembroke Boulevard shall be extended along all street frontage not occupied by points of ingress and egress. o Freestanding stgnage shall be hmited to the existing monument- style sign, or a replacement monument-style tn full conformance with current sign regulations. The stte shall conform wtth all applicable stormwater management requirements, which shall not be permitted to reduce landscaped open space as depicted on the submttted landscape plan. This Ordinance shall be effective tn accordance with Section 107 09 of the Zoning Ordinance Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-thtrd of September Ntneteen Hundred and Ntnet},-Seven. September 23, 1997 - 36- Item V-M. 4. PUBLIC HEARING ITEM # 42644 (Continued) PLANNING Voting' 10-0 Council Members Votmg Aye: John A. Baum, Linwood 0 Branch, IlL William W Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn Items 4, 5 and 6 WERE VOTED UPON IN ONE MOTION. September 23, 1997 -37- Item V-M.$. PUBLIC HEARING PLANNING ITEM # 42645 Upon motion by Councilman Jones, seconded by Councilman Heischober, City Council ADOPTED an Ordinance upon application of BA YSlDE BAPTIST CHURCH for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF BAYSIDE BAPTIST CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH PARKING LOT EXPANSION R09972135 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Bayside Baptist Church for a Condittonal Use Permit for a church parking lot expansion at the northeast intersection of Pleasure House Road and Northampton Boulevard. Satd parcel is located at 1920 Pleasure House Road and contains 3 29 acres BA YSIDE BOROUGH. The following conditions shall be required: The parking lot shall be constructed as depicted on the submitted stte plan entitled, "Site Plan, Parking Lot Addition, Baystde Baptist Church," dated March 1997 and prepared by AES Consulting Engineers. 2. Parking lot landscaping for the parking lot expansion shall meet or exceed current Ordinance requirements 3. The site shall comply with apphcable stormwater management requirements. This Ordinance 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 Twenff_ -third of September Nineteen Hundred and NineS-Seven Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M. Henley, Louis R Jones, Reba S McClanan, Mayor Meyera E Oberndorf, Nancy K. Parker and Vice Mayor William D Sessoms, Jr Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn Items 4, $ and 6 WERE VOTED UPON IN ONE MOTION. September 23, 1997 - 38- Item V-M. 6. PUBLIC HEARING ITEM # 42646 PLANNING Upon motion by Councilman Jones, seconded by Councilman Heischober, City Council ADOPTED an Ordinance upon Application of WIRELESS PCS, INC., for AT& T WIRELESS PCS, INC. for a Conditional Use Permit: ORDINANCE UPON APPLICA TION OF WIRELESS PCS, INC., A GENT FOR AT&T WIRELESS PCS, INC., FOR A CONDITIONAL USE PERMIT FOR A MONOPOLE TOWER R09972136 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Wireless PCS, Inc, agent for A T&T Wireless PCS, Inc, Inc., for a Conditional Use Permit for a monopole tower on the south side of Newtown Road, 220feet east of Cleeve Abbey Satd parcel is located at 952 Newtown Road and contains 76.133 acres. BA YSIDE BOROUGH. The following conditions shall be required: The proposed tower must be developed substantially tn accordance with site plan entitled Preliminary Site Plan for Williams Farm, revised August 8, 1997 Items of particular importance on the plan include the drawings of the proposed tower, the tree preservation area and the note concerntng no homes being built within 200 feet of the tower. . The proposed tower cannot exceed 135feet in height and must utilize an E series or Unicell antenna on the top tier. The second tier of antennas, if used, must be flush-mounted as depicted on the submitted plan. The applicant must record deed restrictions on all of the property surrounding the proposed compound to ensure that no additional homes are developed within 200feet of the proposed tower. . Except for those trees located within the fenced compound, no trees shall be removed from .5 acre leased area of the site. The final site plan submitted to the Development Services Center must identify the tree preservation area in LARGE BOLD TYPE. o A variance to the 200-foot setback requirement and landscape requirements will need to be considered by the Board of Zontng Appeals. The approved tower must be designed to accommodate at least one ad&tional user If a secondary user chooses to use the tower, flush-mounted antennas as depicted on the submitted plan must be used. This Ordinance shah be effective tn accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-third of September Nineteen Hundred and NinetF-Seven. September 23, 1997 - 39 - Item V-M. 6. PUBLIC HEARING ITEM # 42646 (Continued) PLANNING Voting 10-0 Council Members Voting Aye: John A Baum, Linwood O. Branch, III, William W. Harrison, Jr, Harold Hetschober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor Wdliam D. Sessoms, Jr Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn Items 4, 5 and 6 WERE VOTED UPON IN ONE MOTION. September 23, 1997 - 40 - Item V-M. 7. PUBLIC HEARING ITEM # 42647 PLANNING Attorney R. J. Nutter, II, 4425 Corporation Lane g420, Phone' 518-3200, represented the applicant Upon motion by Councilman Harrison, seconded by Councilman Branch, City Council,/tDOPTED the Ordinance upon Application of MARSHA LYNN BUILDING CORPORA TION for a Change of Zontng District Classificatton: ORDINANCE UPON APPLICATION OF MARSHA LYNN BUILDING CORPORATION FOR A CHANGE OF ZONING FROM 0-2 TO CONDITIONAL A- 18 Z09971086 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Marsha Lynn Building Corporation for a Change of Zoning District Classification from 0-2 Office District to Conditional A-18 Apartment District on certain property located on the north side of Camelot Drive beginning at a point 620 feet more or less east of First Colontal Road The proposed zoning classtficatton change to A-18 ts for multi-faintly land use at a density no greater than 18 dwelling units per acre The Comprehensive Plan recommends use of this parcel for office use in accordance with other Plan pohcies Said parcel is located at 1724 Camelot Drive and contains 10.059 acres. L YNNHA VEN BOROUGH The following con&tion shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. This Ordinance shall be effecttve in accordance wtth Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twen~-third of September Nineteen Hundred and Ninety-Seven. Voting' 10-0 Council Members Vottng Aye. John A. Baum, Linwood O. Branch, I[I, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R Jones, Reba S. McClanan, Mayor Meyera E Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr Council Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 THIS AGREEMENT, made this 22nd day of July, 1997 by and between MARSHA LYNN BUILDING CORPORATION, a Virginia corporation, contract purchaser of the property described on Exhibit A attached hereto, and HILLHAVEN PROPERTIES, LTD, an Oregon corporation, the owner of the property described on Exhibit A attached hereto (hereinafter collectively referred to as "Grantors"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantors have initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the Grantors' property from 0-2 (Office) to A-18 (Apartment) on certain property which contains a total of 10.059 acres, more or less, located in the Lynnhaven Borough of the City of Virginia Beach, Virginia, more particularly described in the attached Exhibit A (hereinafter the "Property"); and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including multi-family and office purposes, through zoning and other land development legislation; and WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, including those listed above, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned A-18 are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing A-18 zoning district by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the Prepared by Mays & Valentine, L L P 4425 Corporation Lane, Suite 420 V~rgima Beach, VA 23462 physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said inslrun~ent is consented to by the-Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.1- 431, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property if developed for a use permitted under the A-18 zoning classification, and hereby covenant and agree that these Proffers shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Grantors shall not construct more than one hundred eighteen (118) residential dwelling units on the Property. 2. The Grantors shall develop the Property substantially in accordance with the site plan entitled "Preliminary Site Plan of Proposed Lot 2-B, Subdivision of Residual Parcel 2, Subdivision of Property of Hillhaven Properties, Ltd. for Marsha Lynn Building Corporation," dated March 24, 1997, last revised June 23, 1997, prepared by John E. Sifine & Associates, Ltd., a copy of which has been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach (the "Site Plan"). 3. The design, external building materials and colors of the fourplex style buildings on the Property shall be the same as those displayed on the rendering entitled "Marsha Lynn Bldg. Corp., Chancellor's Walk Four Plex Unit," dated April 18, 1997, prepared by Mark Bradley Associates, a copy of which has.been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach. As indicated on such rendering, the exterior of the fourplex style buildings shall be all brick. 4. The design, external building materials and colors of the townhouse style buildings on the Property shall be the same as those displayed on the rendering entitled "Marsha Lynn Bldg. Corp., Chancellor's Walk," dated April 18, 1997, last revised .~une 11, 1997, prepared by Mark Bradley Associates, a copy of which has been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach. As indicated on such rendering, the exterior of the townhouse style buildings shall be all brick. 5. The Grantors shall maintain a minimum 35-foot buffer along the northern boundary of the Property ("Buffer Area"). Within the northernmost 17.5 feet of the Buffer Area, Grantors shall install Category IV landscaping consisting of (a) existing plants and trees which shall be preserved, and (b) Leyland Cypress trees planted no further apart than eight feet. During construction, the Grantors shall install protection barriers satisfactory to the Planning Director of the City of Virginia Beach to protect existing trees and large plants in the northernmost 17.5 feet of the Buffer Area. Installation of such landscaping in the northernmost 17.5 feet of the Buffer Area shall be completed no later than the date of completion of the fences described in paragraph 6 below. 6. The Grantors shall install a solid 8-foot fence approximately 17.5 feet south of the northern boundary line of the Property and a solid 6-foot fenc~ along the predominantly east and west borders of the Property as shown on the Site Plan. The Grantors shall construct additional solid 8-foot fences along the eastern boundary line of the Property between the eastern terminus of the 8ofoot fence depicted on the Site Plan and the northern boundary line of the Property and along the western boundary line of the Property between the western terminus of the 8-foot fence depicted on the Site Plan and the northern boundary line of the Property, provided that the Cn-antors receive any necessary variances from the City of Virginia Beach and the construction of such fences will not require removal of existing trees from the Buffer Area. The building materials used for the fences shall be the same as those displayed on the Site Plan. Construction of the fences shall be completed prior to commencement of framing of any residential dwelling units on the Property. 7. The air conditioning units serving the 10 northernmost residential dwelling units on the Property shall be "vertical discharge" units designed to dissipate any noise and exhaust vertically rather than horizontally. No air conditioning units serving such 10 northernmost dwelling units shall be reciprocating engine systems such as the York Triathalon reciprocating engine cooling system or equivalent systems. 8. The design and height of the streetlights installed by the Grantors on the Property shall be substantially as shown on the rendering entitled "Proposed Streetlights for Chancellor Walk" dated July 22, 1997, a copy of which has been exhibited to the City Council of the City of Virginia Beach and is on file in the Planning Department of the City of Virginia Beach. 9. Except to the extent required by the City of Virginia Beach for subdivision or site plan approval, ~rantors shall not grant any utility easements within 17.5 feet of the northern boundary line of the Property. 10. On each private access drive built on the Property, the northernmost residential dwelling units served by such access drive shall be constructed prior to the other residential dwelling units served by the same access drive. 11. The Grantors shall not install or permit any trash dumpsters on the Property, and will include detailed restrictions regarding the handling and disposal of trash in the condominium instruments governing each of the dwelling units on the Property. 12. The Grantors shall not permit the installation or maintenance of basketball backboards or skateboard ramps on the Property. 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 zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. WITNESS THE FOLLOWING SIGNATURES AND SEALS. MARSHA LYNN BUILDING CORPORATION, a Virginia corporation By: ~~AL) Donald L. Moore, President HILLHAVEN PROPERTIES, LTD., an Oregon corporation (SEAL) st^t oF viaar i^ or mon ^ The foregoing instrument was acknowledged before me this ~ day ofJ U lt,J , 1997, by Donald L. Moore, as President of Marsha Lynn Building Corporation, a Virginia ~'orporation, on behalf of the corporation. Notary Public My Commission Expires: CITY/COUNTY/OF .L,/~~/~_ ~,~ ~~ to-wit: ~.The foregoing instrument was acknowledged before me this~5 r~y of by t '~/-'/~///~xr~.. '~j,,z~ .~'. , as ~"'~~~~ Hillhaven ~ Ltd., an 0~~ co~o~a~ion,~6~b-~h'ai'f 6f the corporatJsn. Cd ' ' {.,) My Commission Expires: ,,/~/~//~;~ EXHIBIT A ALL THAT certain lot, piece or parcel of land situate, lying and being in the City of Virginia Beach, Virginia and more particularly bounded and described as follows, to-wit: Beginning at a point in the northeastern comer of the intersection of First Colonial Road and Camelot Drive as shown on a plat recorded in M.B. 122, Pg. 42 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; thence, departing the eastern line of First Colonial Road, following the northern right-of-way line of Camelot Drive, N. 76° 39' 48" E. 385.00' to a point, thence S. 14° 28' 49" E., 29.99' to a point, thence N 76° 39' 48" E., 225.45' to the Tree Point of Beginning; thence, departing the aforementioned right-of-way line N. 14° 28' 49" W. 481.30' to a point; thence, S. 89° 31' 51" E. 1016.92' to a point; thence, S. 11 o 48' 07" E. 442.42' to a point; thence, S. 76° 39' 48" W. 508.28' to a point, thence N. 14° 27' 25" W. 95.02' to a point on the proposed northeastern right-of-way line Camelot Drive; thence, following the aforesaid right-of-way line along a curve to the left having a radius of 160.00' a distance of 249.75' to a point thence S 76° 34' 48" W., a distance of 297.27' to the Tree Point of Beginning. The aforedescribed parcel lies wholly within the City of Virginia Beach, Virginia and contains 438,177 sq. ft. or 10.0591 acres. Being a part of the same property conveyed to HILLHAVEN PROPERTIES, LTD., an Oregon corporation by deed from P. C. Associates, a Virginia general partnership, dated March 1, 1989, filed for record March 1, 1989, in Deed Book 2808, Page 449. 8771 - 41 - Item V-N. 1. APPOINTMENTS ITEM # 42648 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS: BOARD OF BUILDING CODE APPEALS BOARD REFERENDUM REVIEW COMMITTEE SENIOR SER VICES OF SOUTHEASTERN VIRGINIA September 23, 1997 - 42 - Item V-O. RECESS INTO EXECUTIVE SESSION ITEM # 42649 Mayor Meyera E. Oberndorf 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: Appointments - Boards and Commissions: Committee on School Construction School Division - Design Review Committee PUBLICLY-HELD PROPERTY. Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownershtp by such institution pursuant to Sectton 2.1-344(A)(3). To- Wit: Agricultural Reserve Program - Pungo Borough Telecommunication Sites - Princess Anne Borough Hampton Roads Agricultural Research and Extension LEGAL MA TTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable littgation, or other specific legal matters requesting the provision of legal advice by counsel pursuant to Section 2.1-344(A)(7). To-Wtt' Carson Barco v. City of Virginia Beach Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council voted to proceed into EXECUTIVE SESSION (8:07 P.M.). Voting. 10-0 Council Members Voting Aye: John A Baum, Linwood O. Branch, III, William W Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Nancy K. Parker and Vice Mayor William D. Sessoms, Jr. Councd Members Voting Nay: None Council Members Absent: Louisa M. Strayhorn September 23, 1997 - 43 - ITEM # 42650 Mayor Oberndorf RECONVENED the FORMAL SESSION of the VIRGINIA BEA CH CITY COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday, September 25, 1997, at 9:15 P.M. Council Members Present: John A Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndo~ Nancy K. Parker and Vice Mayor William D Sessoms, Jr. Council Members Absent' Louisa M. Strayhorn September 23, 1997 - 44 - Item V-P. CER TIFICA TION OF EXECUTIVE SESSION ITEM # 42651 Upon motion by Vice Mayor Sessoms, 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 tdentified in the motton convening the Executive Session were heard, discussed or considered by Vtrginia Beach City Council Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood 0 Branch, III, William W. Harrison, Jr, Harold Heischober, Barbara M. Henley, Louis R. Jones, Reba S McClanan, Mayor Meyera E. Oberndorf, Nancy K. Parker and Vice Mayor William D Sessoms, Jr. Council Members Voting Nay: None Council Members Absent' Louisa M. Strayhorn *Verbal Vote September 23, 1997 CERTIFICATION OF EXECUTIVE SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION, pursuant to the affirmative vote recorded in ITEM # 42649 Page No. 42 and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the governing body that such Executive Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; and, Co) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by Virginia Beach City Council. u o "ges S-mi , CMC AAE City Clerk September 23, 1997 - 45 - Item V-Q. ADJOURNMENT ITEM # 42652 Mayor Oberndorf DECLARED the City Council Meeting ADJOURNED at 9:20 P.M. Chief Deputy City Clerk  ~E- - City Clerk Meyera E. Oberndorf Mayor Ctty of Vtrgtnia Beach Virginia September 23, 1997