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Home My WebLink AboutAPRIL 5, 2005 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYORMEYERA E. OBERNDORF, At-Large VICE MAYOR LOUIS R. JONES, Bayside - District" HARRY E. DIEZEL Kempsville - District 2 ROBERT M. DYER, Centerville - District I REBA S. McCLANAN. Rose Hall - District 3 RICHARD A. MADDOX, Beach - District 6 JIM REEVE, Princess Anne - District 7 PETER w: SCHMlDT, At-Large RON A. VIllANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESUE L. UUEY CiTY CLERK - RUTH HODGES SMITH, MMC CITY COUNCIL AGENDA 05 APRIL 2005 I. CITY MANAGER'S BRIEFINGS - Conference Room - 1. RESORT AREA MOBILITY PLAN (RAMP) a. TRAFFIC AND CIRCULATION Dean Block, Director, Department of Public Works CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, ViRGINIA 23456-8005 PHONE:(757) 427-4303 FAX (757) 426-5669 E-MAIL: Ctycncl@vbgov.com 1:00PM b. BUS RAPID TRANSIT (BRT) Michael Townes, Executive Director - Hampton Roads Transit (HRT) 2. JOINT LAND USE STUDY (JLUS) POLICY COMMITTEE (Council Direction) II. COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA ITEMS V. INFORMAL SESSION - Conference Room - 4:30PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION - Council Chamber - 6:00P.M. A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. INVOCATION: Pastor Mark Rueter Foundry United Methodist C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS March 22, 2005 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARINGS 1. LEASE OF CITY PROPERTY a. Giovanni's Restaurant - 2006 Atlantic Avenue b. Keifers Bar and Grill- 2218 Atlantic Avenue c. Rockfish Cafe - 1601 Atlantic Avenue 2. BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT Law enforcement and criminal processing ($173,406) I. PUBLIC COMMENT 1. CITYVIEW right-of-way alignment for Constitution Drive Extended J. CONSENT AGENDA K. ORDINANCES/RESOLUTION 1. Ordinances to RENEW existing franchises: a. GIOVANNI'S RESTAURANT, a sidewalk cafe, at 2006 Atlantic Avenue from May 1, 2005 to April 30, 2006 b. KEIFER'S BAR & GRILL, an open air cafe, at 2218 Atlantic Avenue from May 1, 2005 to September 30, 2006 c. ROCKFISH BOARDWALK BAR and SEA GRILL, a connector park cafe, at 1601 Atlantic Avenue from May 1, 2005 to April 30, 2010 2. Ordinances re the City Code: a. AMEND~ 34.9 and ADD~ 34-35 re closure of swimming pool gates b. AMEND and REORDAIN~ 21-321.2 re maximum speed limits in designated neighborhoods: Acredale Bayville Park Birdneck Point Church Point Croatan Hermitage Road Lake James Larkspur Milburn Manor Thoroughgood Bay1ake Pines/Baylake Beach Bellamy Manor Brighton on the Bay Country Haven Fairfield L & J Garden Lake Shores Little Neck Stratford Chase 3. Ordinance to AUTHORIZE the City Manager to execute an agreement between the City and the Virginia Housing Development Authority (VHDA) to participate in the SP ARC (Sponsoring Partnerships and Revitalizing Communities) home ownership program. 4. Ordinances to AUTHORIZE temporary encroachments into portions of City owned rights-of-way: a. Lake Joyce by P. DARRELL MCKOWN, JR. to construct and maintain a deck, treated wood access, rip rap and existing wood bulkhead at 4217 Battery Road. (DISTRICT 4 - BA YSIDE) .b. Windsor Woods by WILLIAM S., SR. and BONNIE M. OSBORN to construct and maintain a pier, bulkhead and deck at 4025 W. Colonial Parkway. (DISTRICT 3-ROSE HALL) 5. Resolution REQUESTING that the Commonwealth Transportation Commissioner REFUSE applications of Adams Outdoor Advertising re permits to cut trees and other vegetation in the right-of-way of Virginia Beach Boulevard between Rosemont Road and Lynn Shores Drive and to schedule a Public Hearing for interested citizens to state their VIews. L. PLANNING 1. Application of WEDGE WOOD ASSOCIATES, L.L.c., for a Chanf!e ofZoninf! District Classification from A-12 Apartment District to Conditional A-24 Apartment District with a PD-H2 Planned Development Overlay District on Bonney Road, Dolton Drive and Alicia Drive DISTRICT 2 - KEMPSVILLE Deferred: March 22, 2005 Recommendation: APPROVAL M. APPOINTMENTS Community Policy and Management Team - CSA At Risk Community Services Board Francis Land House Board of Governors Health Services Advisory Board Human Rights Commission Investment Partnership Advisory Committee Minority Business Council ' Open Space Subcommittee Parks and Recreation Commission Performing Arts Theatre Advisory Committee Personnel Board The Planning Council Towing Advisory Board N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT ********************************** PUBLIC COMMENTS Non-Agenda Items ********************************** ** * * * * * * * * If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) *********** 2005-2006 RESOURCE MANAGEMENT PLAN SCHEDULE EVENT TOPIC LOCATION DATE Workshop Debt and Financial Capacity; Quality Council April 12, 2005 Physical Environment Conference Room Workshop Safe Community and Quality Council April 14, 2005 Orf?anization Conference Room Workshop Quality Education & Lifelong Learning; Council April 19, 2005 Constitutional Officers Conference Room Public Hearing Bayside High April 21, 2005 School 6:00 PM Workshop Economic Vitality, Cultural and Council April 26, 2005 Recreational Opportunities; Family and Conference Room Youth Opportunities Public Hearing Council Chamber April 26, 2005 6:00 P.M Reconciliation Council May 3, 2005 Workshop Conference Room Adoption of FY City Council Vote on Resource Council Chamber May 10, 2005 2005-2006 Management Plan 6:00 P.M. Resource Management Plan Agenda/3/31/05\gw www.vbgov.com MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 5 April 2005 Mayor Meyera E. Oberndorf called to order the City Manager's Briefing re RESORT AREA MOBILITY PLAN (RAMP) in the Council Conference Room, City Hall, on Tuesday, April 5, 2005, at 1:00 P.M. Council Members Present: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Peter W. Schmidt, Ron A. Villanueva and James L. Wood Council Members Absent: Jim Reeve [Entered: 1: 15 P.M] Rosemary Wilson [Entered: 1:15 P.M, , stuck in traffic] - 2- CITY MANA GER 'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Traffic and Circulation ITEM # 53748 1 :00 P.M. Dean Block, Director - Department of Public Works, advised this is one of a series of presentations regarding the City Council Vision for the Resort Area. Today's discussion will entail traffic and circulation of the Resort Area Mobility Plan (RAMP). Included in his presentation will be a brief update of the Laskin Road Gateway project. Mr. Block, with the utilization of a map, outlined the boundaries of the study area. Council GoalslVision for Resort Area First Class Year 'Round Resort Tourism Growth Access for City Residents Renewal/Revitalization New Attractions/Venues/Gateways Mass Transit/Pedestrian-Friendly Upgrade quality Expand and Support year 'round residential neighborhoods Healthy High quality TransportationIMobility Where does it fit in? Virginia Beach - a "Drive to" city Bring people to Oceanfront, park Current mobility system is dysfunctional As the Council's Goals/Visions are achieved, more cars are coming Challenge: Design mobility system to support vision, provide capacity and flexibility Recognize: no approach will be perfect or please everyone and no solution will be final. Mr. Block displayed graphs illustrating the various levels of service: A: Free Flow Operations; B: Reasonably Free-Flow; C: Stable Operations; D: Borderline Unstable; E: Extremely Unstable,' and F: Breakdown. The Graphs were entitled: Current Reality Trends (No Build) - Network Volumes and Average Delay/Vehicle, Entire Roadway Network (peak hour volumes depicted in "red" and average delay/vehicle at each intersection within the Network) Level of Service on North/South Roadways within the Resort Area (No -Build Conditions): Atlantic, Pacific, Birdneck. Level of Service on East/West Roadways within the Resort Area (No- Build Conditions): 17th, 19h, 2]'1, 22nJ and 31st.) April 5, 2005 - 3 - CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Traffic and Circulation ITEM # 53748 (Continued) RAMP Goals Develop a comprehensive mobility plan that supports City Council Goals/Vision Incorporate current and projected demand Insure the plan can be implemented in phases as driven by need over 15-20 years. Assumptions (2005-2026) tructure 'par mg, on-street as approprzate Strengths/Weaknesses of Current Systems Strengths Weaknesses Arterial System/Logical Gateways cause defined Arterials not adequate development Partial grid system exists Lack of "By-Pass" Transit exists Breaks in grid Congestion peaks in Summer Minimal/inconsistent right-of-way Uncertain Water and Sewer facilities Many above ground utilities Seasonal transit system Parking strategy not fully implemented Vision stays constant and high priority Transit upgrade/transit connection westward Dome site redevelopment/parking Additional net hotel rooms (+/-2000) 3000 new dwelling units Additional retail/office/restaurants/venues Background traffic growth S d k' Ii Strategy Treat as overall system/urban network Address Pacific and Atlantic when practical Phase improvements Recognize storm water and utility needs incrementally Improve arterials; strengthen function Enhance existing grid Plan for transit Incorporate pedestrian and aesthetic improvements Management speed through design Optimize traffic signals Plan and Implement year 'round transit Implement parking strategy April 5, 2005 -4- CITY MANA GER 'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Traffic and Circulation ITEM # 53748 (Continued) Translating Strategy to Action 1st Phase 2005-2010 Birdneck Road (General Booth Boulevard to Norfolk Avenue) Laskin Road Phase I (Republic Road to Oriole Drive) Laskin Road Phase II (Oriole Drive to Little Neck Creek) Laskin Road Gateway Norfolk Avenue/Birdneck Road intersection Initial multi-modal/aesthetic improvements to 1 gth Street Traffic signal upgrades Upgrade transit system *The majority of these are already funded, are included in the Capital Improvement Program and moving toward implementation. The NorfolkAvenue/BirdneckRoad intersection is notfunded as a part ofBirdneck Road and will require some additional funding. This is not an expensive project. The initial multi- modal/aesthetic improvements to 1 gth Street ( if City Council decides to move in this direction) would be linked in some manner to the upgrade of the transit system and would need to be funded in some fas hion to complement this other work. Traffic signal upgrades are funded. Over the next several years, the financial demands on the City Council would be fairly modest and the City would still be making progress, The next ten (10) years are critical. 2nd Phase 2010-2020 l'lh Street/Virginia Beach Boulevard improvements 2010-2012 Pacific Avenue/Atlantic Avenue gridlock issue 2(Jh Street extension Arctic Avenue improvements from l'lh Street to 22nd Street Some residential street upgrades/aesthetics Continue to upgrade transit system 3'd Phase 2020-2026 Parks Avenue linkage Birdneck Road (Norfolk Avenue to Laskin Road) Continued residential street upgrades/aesthetics Continue to upgrade transit system Maps illustrating these three (3) phases were displayed. Graphs illustrating the various levels of service and conditions with phased improvements: A: Free Flow Operations; B: Reasonably Free-Flow; C: Stable Operations; D: Borderline Unstable; E: Extremely Unstable; and F: Breakdown depicted North/South Roadways within the Resort Area (Atlantic, Pacific and Birdneck) and East/West Roadways within the Resort Area ( l'lh, 19th, 2Ft, 22nd, and 3JS!) April 5, 2005 -5- CITY MANA GER 'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Traffic and Circulation ITEM # 53748 (Continued) Laskin Road Gateway 3(fh Street 90% plans; permitting underway; right-of-way Construction move forward in 2005 31'1 Street Retail analysis Developing range of alternatives Public participation Spring/Early Summer Mr. Block advised depending on the timing, financial assistance might be available in the Urban Program on Virginia Beach Boulevard. There is probably one critical issue ahead of this that is not currently programmed: the Lesner Bridge. Depending upon the City Council's choice on Atlantic and Pacific, a fairly small amount or a large amount offunds might be involved. In 1996, a study concerning upgrading Pacific Avenue illustrated a cost of $60-MILLION" Mr. Block estimates this cost would now be $80 to $100- MILLION to develop into a major thoroughfare with capacity significant to move all the traffic. The City Manager advised that according to the surveys at the Oceanfront, participants are citing the difficulty of getting into the region as a reason of not returning to the Oceanfront, Mr. Block advised if the comprehensive approach is taken on Pacific Avenue to redo and make adequate the long term capacity needs versus a one-way pair, it would entail approximately 15 to 20 times the cost. The cost of one-waying would be approximately $5 to $6-MILLION Mr. Block advised if only the one-way pairing is done and no other improvements anywhere in the system, Atlantic and Pacific would work very well and other parts of the system would begin to degrade, A graph shall be provided Members of City Council. Relative the Lesner Bridge, there is a recommendation to begin planning in the upcoming fiscal year and the City has requested the Virginia Department of Transportation (VDOT) include the Lesner Bridge in the City Council's 6-year plan. If "money were no object" the design would entail ten (l0) years, with acquiring right-of-way, building and permitting. However, currently funds are not available. Relative this RESORT AREA MOBILITY PLAN (RAMP), the study was accomplished with the assistance of outside expertise and by City Staff Mr. Block shall advise the cost. Council Lady McClanan advised residents of the Northend have advised some of the best retail at the Oceanfront is located on Laskin Road. Council Lady McClanan advised a company, with visionary ideas, is corresponding with City Council and wishes to develop off Laskin Road. The opinions of the residents who live and work here should be considered. Mr. Block advised many public meetings have been held and additional meetings will be provided. April 5, 2005 - 6- CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Bus Rapid Transit 2:13 P.M. ITEM # 53749 Councilman Maddox advised the vast majority of business owners in the Resort are tenants. They do not own the land. Vice Mayor Jones advised approximately $40-MILLION was expended on Atlantic Avenue over the last ten (10) years. Vice Mayor Jones is going to find it difficult to spend $75-MILLION to tear all this up. Councilman Maddox concurred and one-waying should be tried in the beginningfor a for lesser cost of approximately $5-MILLION The Bus Rapid Transit (BRT) has been the subject of much speculation and misinformation. This Briefing encompasses the future of transit in Virginia Beach and the region. This transit is commencing at the Resort due to an aging trolley fleet which needs replacement, Any viable transportation in the City needs an east- west component. The notion of being able to connect economic engines in our City is a strong idea. An efficient Resort transportation system is needed. This would also be a means of moving convention delegates throughout the Resort. This Briefing is the culmination of 2-years of study and is a conservative analysis. The financial model utilizes the most expensive BRT model, route as well as a conservative replacement cost for the trolleys ($350,000 each). Twenty-two (22) stakeholder meetings have been conducted in the last twelve (12) months (Visions "twice ", the Chamber of Commerce, Resort Advisory Commission and their Transportation Subcommittee, Hotel/Motel Association "five times ", Retail and Restaurant Association. Councilman Maddox distributed a Vehicle Analysis: Vehicle Analysis Cost Passengers Per Passenger Cost Standard HRT Bus $ 350,000.00 $ 350,000.00 $ 700,000.00 45 28 105 $ 7,777. 78 12,500.00 6,666.67 Trolley BRT Vehicle Councilman Maddox read into the record correspondence from Senator Kenneth W. Stolle dated April 1, 2005. Said letter is hereby made a part of the record. The $10-MILLION that was included in the Governor's budget for the BRT program was the largest earmarked for a mass transit program outside Northern Virginia. The funding cannot be used for any purpose other than BRT. The General Assembly supported this appropriation largely based on the merits of the program and because of the resolution adopted by the majority of City Council supporting the prioritization of this program. Councilman Maddox introduced the representatives in attendance: Chad Edison from AECOM, William Cashman - Principal Transportation Planner - and Ray Amaruso - URS, Inc.; Michael Townes, Executive Director, Lester Durant and Jayne Whitney - Chief Development Officer - representing Hampton Roads Transit. April 5, 2005 - 7- CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Bus Rapid Transit ITEM # 53749 (Continued) Mr. Cashman advised URS is a consultingfirm with Parsons, Brinkerhoff under contract to Hampton Roads Transit to provide services for Bus Rapid Transit (BRT) for Virginia Beach. There are some policy decisions that will be part of this process. Replacement of Trolley Fleet Future of Public Transportation in Virginia Beach - connectivity Comparative Costs High Quality Transit Service The BRT Project Study Area encompasses the North/South alternatives (Atlantic & Pacific Avenues - Rudee Inlet to 4(Jh Street) and East/West alternative (connection to convention center) 19'h Street. 'Year round service to The Aquarium is also being included. Key Physical Characteristics of BRT Dedicated lanes Unique vehicle with increased capacities Distinctive station identity and canopies Expedited bus boarding Off- vehicle fare collection (proof of payment) Real time passenger information Key Operational Characteristics of BRT Year-round service (Currently seasonal service) Improved headway management TraLncsignalqueuejumps Flexible service plans responding to seasonal demands Preferred BRT Route - Atlantic Avenue BRT vehicles in dedicated lanes from Rudee Inlet to 25th Street 25th to 4(Jh Street: southbound BRT shares lane with traLnc Retains two-way auto traLnc on Atlantic Avenue Continuous service to Aquarium No BRT lanes on Pacific Avenue BRT connection to Convention Center via 19'h Street April 5, 2005 -8- CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Bus Rapid Transit ITEM # 53749 (Continued) Mr. Cashman advised there will be thirty (30) total stations (I 6 pylon and 14 shelters - includes one stop at Town Center, one at Lynnhaven Mall and three stops at the Aquariumlcampgrounds. The stations will be designed to fit into existing streetscape fabric. All stations will have ticket vending machines. Shelter Stations will include passenger information displays. Shelter stations will have a 8' x 24' canopy. Striping/Signs/Signals components Striping: pavement markings for Atlantic and 1 gth. 112-inch bus lane marker (two per block) Signs: "BRT" Only" ground mounted signs Signals: New signal heads. BRT transmitter/emitters (2 per BRT vehicle). Opticom priority controls installed on all signals on Atlantic Avenue. Fare Collection Components Ticket vending machines (TVM) One at every station No TVM's on BRTvehicles Power feeds and wire connections included TVM's weather protected TVM's will be able to accept credit/debit cards, issue change and time stamps "Proof of payment" system All BRT vehicles will have a GPS transponder. All stations with a shelter have 'real-time' passenger information signs. All stations with shelters have audible announcements for ADA compliance. Radios on all vehicles with a connection to the Hampton Roads Transit Dispatch. There is anticipated a total fleet of eighteen (I 8) BRT Vehicles for 2007. The Budgeted cost of$700, 000 per vehicle includes exterior color and graphics. The Bus dimensions are 60' long by 100" wide. Other components would entail the following stations located at Town Center and Lynnhaven Mall. There would be some relocation of trees/ street furniture and sidewalk pavers. BRT Capital Cost Estimate Stations (Pylons/Shelters/Pads) Roadway (Signs/Striping/Signals) Fare Collection (TVM's/Site prep) ITS and Communications Vehicles Total Capital Cost Estimate = Funding Sources: City Share State earmark for BRT $21.4-MILLION* $ll.4-MILLION $10 -MILLION *Maintenance facility costs will be funded by HRT and include federal funds April 5, 2005 -9- CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Bus Rapid Transit ITEM # 53749 (Continued) BRT Projected Ridership - 2007 Ridership Market Projected BRT Ridership Total Non-Convention Ridership 591,700 Total Convention Center Ridership * 215,600 Total Annual Ridership Projection 807,340 *Convention Center Ridership based on 151 Event days Revenue Projection Methodology Revenue forecasts based on $1.50 fare (current HRT bus fare) A registration fee of $5. OO/attendee/day is proposed for all non-local convention events. Unlimited BRT use during event. Revenue projections include state and federal support for 26.5% of Operating and Maintenance. Capital Cost Comparison: Trolley and BRT Existing trolley service vehicles need to be replaced - 23 trolleys have reached their useful life. The replacement cost = $8.050-MILLION To provide equivalent level of BRT service using trolley vehicles in the year 2007: 38 trolley vehicles would be required = $13.3-MILLION Total cost of BRT system Earmark State aid Net capital cost to City = $21.4-MILLION = $10.0-MILLION = $ll.4-MILLION Cost of BRT system to City Cost of replacing existing trolleys Net capital cost of BRT service to the City = $ll.4-MILLION = $ 8.050-MILLION = $ 3.35-MILLION Operating Cost Comparison: Trolley and BRT 2007 Dollars Current service Annual Trolley net cost to City $217,400 BRT Service: Annual BRT net cost to City = $457,500 Net annual investment of $240,100 buys year-round, high-quality BRT service April 5, 2005 - 10- CITY MANAGER'S BRIEFING RESORT AREA MOBILITY PLAN (RAMP) Bus Rapid Transit ITEM # 53749 (Continued) What is the total BRT Investment? Total Cost to City for BRTSystem Net Cost to City (Trolley replacement) Net Annualized Capital Cost to City Net Operating Cot to City $ll.4-MILLION $ 3.35-MILLION $345,000 $240,1 00 TOTAL NET ANNUAL COST TO CITY = $585,100 Michael Townes, Executive Director - Hampton Roads Transit, advised the standard rolling stock, the 40- foot bus, isfunded through the normal Capital Replacement program, substantially 80% Federal and 20% derived from a Capital Fund built by charging each City a proportionate share of its annual depreciation of our Capital assets. The City pays this with the Operating Fund which creates a pool utilized as a match. In the case of speciality vehicles such as the ferries operating on the Elizabeth River, the Electric Buses in downtown Norfolk and the trolley buses in Virginia Beach, the capital costs for all these vehicles has been borne directly by those jurisdictions. Mr. Townes advised re the Norfolk-Southern right-ofway acquisition, cordial and constructive discussions with the railroad are being conducted. Relative building additional park-n-ride facilities is the responsibility of the Virginia Department of Transportation (VDOT), The VDOT Regional District Administrator and the HRT President and Chief Executive Officer are working hard on a shared concept. James Ricketts, Director - Convention and Visitors Bureau, advised the cost of the Charter Buses are increasing rangingfrom $500 to $700 per day. This bus usually has a capacity offorty-jive (45) passengers. This is usually a negotiated item. Sometimes a convention meeting planner will pay, at times the City, and other times might be a combination of both. National conventions are anticipating reducing costs, Jayne Whitney - HRT's Chief Development Officer, stated, relative the BRT, a project of similar size to expand to other areas of the city would encompass approximately 2-~ years. BY CONSENSUS, a SPECIAL SESSION and PUBLIC HEARING, relative the Bus Rapid Transit Vehicles (BRT) shall be scheduledfor Tuesday, April 19, 2005, at 6:00 P.M., in the City Council Chamber, City Hall Buiding. April 5, 2005 - 11 - CITY MANAGER'S BRIEFING JOINT LAND USE STUDY (JLUS) POLICY COMMITTEE ITEM # 53750 3:45 P.M. The City Manager advised Robert J. Scott, Director of Planning and Deputy City Attorney MacaU will review the Joint Land Use Plan concerning the Summary of the AICUZ Overlay District and Summary of Understanding. The City Manager reviewed the schedule: SCHEDULE 03/15/05 City Council - Joint Land Use (JLUS) Workshop Briefing 03/17/05 Public Information Forum - 6:30 P.M. at Advanced Technology Center 03/22/05 City Council Public Hearing on JLUS 04/05/05 City Council provides direction to the JLUS Policy Committee Liaisons 04/07/05 Regional JL US Policy Committee meeting. Provide direction to EDA W to prepare FINAL DRAFT JLUS 04/18/05 Receive Final Draft JLUS from EDA W 04/21/05 Regional JLUS Policy Committee Meeting - Vote on JLUS 04/26/05 City Council Briefing on JLUS 05/03/05 or City Council Public Hearing on JLUS 05/10/05 OS/24/05 City Council vote on JLUS 06/05/05 Begin City process on affecting Comprehensive Plan and AICUZ Overlay Ordinance Mr. Scott advised this is a summarized version of information previously provided during the City Council JLUS Workshop with the Navy and City Staff on March 15, 2005. This is not a final position, additional public hearings will be scheduled. This document represents an understanding between the City and the Navy on the three (3) critical issues: AICUZ Overlay Ordinance general concept, Western Portion of Transition Area (Interfacility Traffic Area) and the Resort Area. Deputy City Attorney Macali reviewed the Summary of the AICUZ Overlay Ordinance The City will establish an AICUZ Overlay District. The District would include all areas within the City except the < 65 dB DNL Noise Zone. The Ordinance would not restrict the uses of property that are allowed by right per the City Zoning Ordinance (CZO). The Ordinance would not restrict the uses of property in the 65-70 dB DNL Noise Zone. April 5, 2005 - 12- CITY MANAGER'S BRIEFING JOINT LAND USE STUDY (JLUS) POLICY COMMITTEE ITEM # 53750 (Continued) However, sound attenuation would be required everywhere in the AICUZ Overlay District, (i.e. Noise Zones 65 dB DNL) for ALL residential development and for uses within the following use groups: Assembly Business (churches, movie theatres, bars, restaurants, bowling alleys, etc.); (banks, barber shops, car showrooms, professional offices, etc.); (schools through 12th grade); (hospitals, day care, nursing homes, etc.); and (department stores, drug stores, grocery stores, etc.) Educational Institutional Mercantile The restrictions would apply to development that requires approval by the City Council (i.e., rezonings and conditional use permits) in the 70-75 DNL Noise Zones and >75 dB DNL Noise Zones In the 70-75 dB DNL Noise Zones: Discretionary development (i.e., needing a rezoning or conditional use permit) would be allowed only if: It is compatible or conditionally compatible with the AICUZ recommendations in Table 2 (noise zones) and/or Table 3 (APZs) of OPNA V Instruction; or If not compatible or conditionally compatible, such development would be allowed only if the City Council makes a finding that no other reasonable development options exist that are compatible with the AICUZ recommendations in Table 2 and/or Table 3 exist. (In such cases, development must be at the lowest reasonable density or intensity, as determined by the City Council.) Special Areas: Western Portion of Transition Area (Interfacility Traffic Area) 65-70 dB DNL Noise Zone: Current zoning and Comprehensive Plan provisions retained. 70-75 dB DNL Noise Zone: Residential development requiring City Council approval, i.e., rezoning or by Conditional Use Permit allowed at a density no greater than one (1) dwelling unit per five (5) acres of developable land. April 5, 2005 -13 - CITY MANA GER 'S BRIEFING JOINT LAND USE STUDY (JLUS) POLICY COMMITTEE ITEM # 53750 (Continued) >75 dB DNL Noise Zone: Residential development limited to one (1) dwelling unit per fifteen (15) acres of developable land unless the City Council determines that such density is unreasonable and that no other use (non-residential) is reasonable. In such a case, allowed density would be the minimum reasonable density. Where the subject property lies within more than one Noise Zone, dwelling units must be located in lower Noise Zones if practicable. Resort Area The total number of residential units will not exceed the aggregate number of units allowed under current zoning. The City will endeavor to work with all stakeholders to reduce the number of residential units significantly below that number through zoning ordinance amendments. The Navy shall be among the stakeholders involved in the revision of the Oceanfront Resort Area Concept Plan dated June 28,1994. The AICUZ Overlay Ordinance would represent a significant increase in the extent to which AICUZ- related considerations govern land use decisions in Virginia Beach. It would also ensure that, in cases in which development may not be recommended by the AICUZ guidelines, the approval by the City Council will be at the lowest reasonable density or intensity. The Proposed Statement of Understanding was distributed to City Council. The City Attorney advised the Proposed Statement of Understanding is ajoint effort of the Navy (Captain Keeley) and the City staff. As a result of the Proposed Statement of Understanding, a concept of the AICUZ Overlay Ordinance was formulated. There are certain decision points within this Overlay. The Navy cannot compromise re its OPNA V Instructions and City Council's Liaisons and City staff have attempted to balance the Navy's and City's interest to develop a compromise, a "win-win" for both. There are no ordinances to ADOPT, rather concepts. In the "green" area depicted on the map, 65 to 70 dB area, there will be notification of noise attenuation matters both for residential and commercial; however, as to the OPNA V Instruction, the proposal is not to change the Comprehensive Plan. In the next area 70 to 75 dB, depicted in "yellow", rezonings or use permits would not be allowed which would violate the OPNA V Instructions. In the 75 dB and above, depicted in "brown ", and the APZ 's, the OPNA V Instructions would be followed and rezonings or use permits would not be allowed which would violate the OPNA V Instructions, unless to deny the rezoning would deprive the landowner of reasonable use of his/her property. In the Western Portion of the Transition Area (Interfacility Traffic Area), the Navy is concerned, ( depicted in "yellow'). In some areas, 1 dwelling unit per 5 acres might be allowed. Agricultural zoning would be maintained. This would be an 80% reduction in zoning. In the Resort Area, the concept of decreasing residential density in that area has been introduced. However, no ordinances have been brought forward. The City Attorney advised only a concept is requested to go forward as per City Council's direction. Councilman Reeve had proposed Navigation Easements. April 5, 2005 - 14 - CITY MANA GER 'S BRIEFING JOINT LAND USE STUDY (JLUS) POLICY COMMITTEE ITEM # 53750 (Continued) Mayor Oberndorfpolled the City Council Members present relative support of the Joint Land Use Study (JLUS) concept to move forward: Mayor Oberndorf wants to be sure the understanding with the Navy is their awareness of their value to Virginia Beach in National Defense as well as an Economic engine. Council Lady McClanan expressed concern re density at the Oceanfront, conflict with the Navy, the redevelopment strategy, and evaluation of the Transition Area. The Navy is a great partner to the City. April 5, 2005 -15 - CITY COUNCIL LIAISON REPOR TS 5:14 P.M. ITEM # 53751 Council Members Wood and Schmidt, Liaisons to the Virginia Beach Performing Arts Center, distributed their written report (which is hereby made a part of the record). Councilman Wood clarified May 12, 2005, is the actual groundbreaking of the Theatre and on May 27, 2005, proposals will be received to determine whether a private entity will be involved in the management and booking of the performances. ITEM # 53752 Vice Mayor Jones and Council Members Diezel and Dyer, Liaisons to the City Council for Major and Local Road projects and Strategy distributed their report: Major State Roads Present Status Hampton Roads 2026 Regional Transportation Plan Approved Hampton Roads 2030 Regional Transportation Plan Team meeting on regular basis Southeastern Parkway and Greenbelt: Draft Environmental Impact Statement was sent to the Federal Highway Administration in December 2004 with their Record of Decision anticipated in the Spring 2005 Review State Budget for Transportation Local Road Projects Present Status Continuing to transition management of State Urban Roadway program to the City through First Cities Initiative Continuing to develop Congestion RelieflTraffic Safety program based on additional tax revenues Fundingfor some Transition Area roadway projects proposed in FY 2005/06 Capital Improvement Program (West Neck Road and West Neck Parkway) ITEM # 53753 Council Members Wood and Schmidt, Liaisons to the Virginia Aquarium & Marine Science Center, distributed their report, which is hereby made a part of the record. April 5, 2005 -16 - CITY COUNCIL LIAISON REPORTS ITEM # 53753 (Continued) Present Status The initial phase of the landscaping project for the East Parking Lot is complete. Areas that will be affected by the Pedestrian Bridge project will be planted after the bridge is constructed. Light Pole installation is scheduled for May The estimated cost of the Pedestrian Bridge project has increased by $l-MILLIONto be approved in the FY 2006 Operating Budget. In the meantime, Parsons Brinckerhoff is working on their scope of services. Near-future actions A letter of agreement has been signed between the Aquarium Foundation and the architectural firm of Chermayeff, Sollogub & Poole (CSP) for the renovation and new exhibits project at the Aquarium. Substantial completion is expected of the schematic design phase in May. Design, development and creation of construction documents will commence in June. Unresolved Issues/Issues under study The Aquarium is working with the City to evaluate five (5) proposed sites for the Animal Care Annex (Stranding Center) Mayor Oberndorf advised Virginia Wesleyan College has launched a partnership with the Virginia Aquarium for the construction of a Research Vessel, ($300,000 to be financed one-halfby the Aquarium Foundation and one-halfby the College). ITEM # 53754 Councilman Maddox, Liaison to the Convention Center, advised a delay associated with the opening. It will not be open in early May due to logistical problems and the delivery delay of wood from South America as well as other problems. However, it will be open in time for the High School graduations. One of the scheduled events will have to be held in the old Pavilion. A written report shall be provided to Members of City Council Session by April 12, 2005. April 5, 2005 -17- CITY COUNCILCOMMENTS 5:14 P.M. ITEM # 53755 Mayor Oberndorf advised the Pet Palooza, outside of Princess Anne Middle School, is arranged and conducted by the Animal Control Staff. People who have adopted dogs from Animal Control were requested to have their dogs participate in a contest of which dog had the best picture and story. The one who won had a lame dog. She continually rolled over in appreciation. A business owner of a shop at Hilltop "Miz Bones" makes extraordinary gifts for dogs. She presented the winner with a tiara, collar and a tapestry bed. Rabies shots were given and the microchip was installed in many pets to identify ownership, ITEM # 53756 Councilman Villanueva referenced the Virginia Beach Defense and Security Consortium Reception, scheduled April 6, 2005, 5:30 P.M., at the Advanced Technology Center. April 5, 2005 -18 - AGENDA RE VIE W SESSION 4:30 P.M. ITEM # 53757 K.2. Ordinances re the City Code: a. AMEND9 34,9 and ADD9 34-35 re closure of swimming pool gates Councilman Reeve requested this item be DEFERRED INDEFINITELY, re his concern for enforcement. This is a singular incident in a singular neighborhood. ITEM # 53758 Deputy City Attorney Macali distributed an alternative version: Resolution REQUESTING that. the Commonwealth Transportation Commissioner REFUSE applications of Adams Outdoor Advertising re permits to cut trees and other vegetation in the right-of- way of Virginia Beach Boulevard between Rosemont Road and Lynn Shores Drive and to schedule a Public Hearingfor interested citizens to state their views. Deputy City Attorney Macali advised the map depicts Virginia Beach Boulevard as not being a Federal Aid Primary Highway. Virginia Beach is a Federal Aid Urban Highway. The Statute states the trees can be cut on Federal Aid Primary Highways. Therefore, this Statute does not apply and the Commonwealth Transportation Commissioner has no jurisdiction or authority to issue this permit to cut trees and other vegetation. Therefore, the Resolution has been amended. The City Clerk has been directed to transmit a certified copy of this Resolution to the Commonwealth Transportation Commissioner. ITEM # 53759 BY CONSENSUS, thefollowingshall compose the CONSENT AGENDA: ORDINANCES/RESOLUTION K.l. Ordinances to RENEW existingfranchises: a. GIOVANNI'S RESTAURANT, a sidewalk cafe, at 2006 Atlantic Avenue from May 1, 2005 to April 30, 2006 b. KEIFER'S BAR & GRILL, an open air caje, at 2218 Atlantic Avenuefrom May 1,2005 to September 30,2006 c. ROCKFISH BOARDWALK BAR and SEA GRILL, a connectorparkcaje, at 1601 Atlantic Avenuefrom May 1, 2005 to April 30,2010 April 5, 2005 - 19- AGE N DA REV I E W S E S S ION 4:30 P.M. ITEM # 53759 (Continued) K.2. Ordinances re the City Code: a. AMEND~ 34.9 and ADD~ 34-35 re closure of swimming pool gates b. AMENDandREORDAIN ~ 21-321.2 re maximum speed limits in designated neighborhoods: Acredale Bayville Park Birdneck Point Church Point Croatan Hermitage Road Lake James Larkspur Milburn Manor Thoroughgood Baylake PineslBaylake Beach Bellamy Manor Brighton on the Bay Country Haven Fairfield L & J Garden Lake Shores Little Neck Stratford Chase K.3. Ordinance to AUTHORIZE the City Manager to execute an agreement between the City and the Virginia Housing Development Authority (VHDA) to participate in the SPARC (Sponsoring Partnerships and Revitalizing Communities) home ownership program K.4. Ordinances to AUTHORIZE temporary encroachments into portions of City owned rights-ofway: a. Lake Joyce by P. DARRELL MCKOWN, JR. to construct and maintain a deck, treated wood access, rip rap and existing wood bulkhead at 4217 Battery Road. (DISTRICT 4 - BAYSIDE) b. Windsor Woods by WILLIAM S., SR. and BONNIE M. OSBORN to construct and maintain a pier, bulkhead and deck at 4025 W. Colonial Parkway. (DISTRICT 3-ROSE HALL) Council Lady McClanan shall vote NAY on Item 2.b. (maximum speed limits) April 5, 2005 - 20- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL April 5, 2005 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEA CH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, April 5, 2005, at 6:00 P.M. Council Members Present: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Vice Mayor Louis R. Jones PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accountingfirm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and ofwhich she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council, Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare andfile the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes ths disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. April 5, 2005 - 21 - Item V- F. MINUTES ITEM #53760 Upon motion by Councilman Diezel, seconded by Council Lady Wilson, City Council APPROVED the Minutes of the FORMAL and INFORMAL SESSIONS of March 22, 2005. Voting: 10-0 Council Members Voting Aye: Harry M. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: James L. Wood Council Members Absent: None Councilman WoodABSTAINED, as he was not in attendance during the Formal Session of the City Council Meeting of March 22, 2005. April 5, 2005 - 22- Item V-G. ADOPT AGENDA FOR FORMAL SESSION ITEM #53761 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION April 5, 2005 - 23- Item V-H.1a/b/c PUBLIC HEARING ITEM #53762 Mayor Oberndorf DECLARED A PUBLIC HEARING: LEASE OF CITY PROPERTY Giovanni's Restaurant - 2006 Atlantic Avenue Keifer's Bar & Grill- 2218 Atlantic Avenue Rockfish Cafe -1601 Atlantic Avenue There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April 5, 2005 - 24- Item V-H.2. PUBLIC HEARING ITEM #53763 Mayor Oberndorf DECLARED A PUBLIC HEARING: Byrne Memorial justice Assistance Grant Law enforcement and criminal processing ($173,406) There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April 5, 2005 - 25 - Item V-I.J. PUBLIC COMMENT ITEM # 53764 Mayor Oberndorf INVITED PUBLIC COMMENT: CITYVIEW right-of-way alignment for Constitution Drive Extended The following registered in SUPPORT: Attorney R. E. Bourdon, Phone: 499-8971, represented the CityView development team and expressed appreciation for the vision and commitment with respect to the Town Center. Cityview represents a private investment in excess of $1 OO-MILLION Constitution Drive should be extended, as planned, from the southern terminus at Thalia Creek to the intersection of Bonney Road. This will offer immediate access to the core center of Town Center, without the necessity of traveling on Independence Boulevard. The alternatives proposed, especially Alternative F, may cause much of this opportunity to be lost, An alignment has been provided where the road could be shifted to the East, which is similar to Alignment A contained in the City's study. Attorney Bourdon distributed a concept of the proposed shifted alignment. Cecil Cutchins, 829 Greentree Arch, President of Olympia Development Corporation and developer of the Convergence Center. Aerial photographs and Convergence Center exhibits were distributed. This development produces $350,000 in annual real estate tax revenue. This Office park provides over 1600 jobs. The Convergence Center envisions doubling its current status. A map, dated June 1998, (Central Business District) was distributed. All of the planning was developed around this City document. The Convergence Center supports the original alignment connecting Constitution Drive to Bendix Road. Alternative A would go right through the parking lot and would be devastating. Mr. Cutchins distributed petitions containing 252 signatures supporting Flyover Alternative F and opposed to Alternative A, Said petitions are hereby made a part of the record. Timothy Robertson, 1101 South Bay Shore Drive, Phone: 228-3624, Olympia Development Corporation supported the original alignment Andrew Heatwole, 808 Newtown Road, Phone: 473-8575, one of the Principles of City View, opposed to east Alternative F and the 125-foot roadway section displayed during April 4, 2005, Public Information meeting. Phase A of the City View project is lost with Alternative F. Attorney Les Watson, One Columbus Center, Phone: 497-6633, represented the developers of the Convergence Center. Alternative A would be devestating to the Convergence Center. Alignment F would be catastrophic to others. The City should remain with the alignment, as planned, which provides tremendous access to and from the Town Center. The following registered in OPPOSITION: William Bailey, 4841 Rosecroft Street, represented the Virginia Beach Professional Firefighters Association and his family located in Kempsville. The Association is opposed to any diversion of traffic down Edwin Drive. There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC COMMENT. April 5, 2005 -26- Item V-K. ORDINANCES/RESOLUTION ITEM # 53765 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Items 1a/ble, 2b., 3, and 4a/b of the CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None Council Lady McClanan voted a VERBAL NAY on item K.2.b. (Maximum speed limits) April 5, 2005 - 27- Item V-K.1.a/b/c ORDINANCES/RESOLUTION ITEM # 53766 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to RENEW existingfranchises: a. GIOVANNI'SRESTAURANT, a sidewalk cafe, at 2006 Atlantic AvenuefromMay 1,2005 to April 30, 2006 b. KEIFER'S BAR & GRILL, an open air cafe, at 2218 Atlantic Avenue from May 1, 2005 to September 30, 2006 c. ROCKFISH BOARDWALKBAR and SEA GRILL, a connector park cafe, at 1601 Atlantic Avenuefrom May 1,2005 to April 30, 2010 Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 2 3 4 5 6 7 AN ORDINANCE TO GRANT A FRANCHI SE TO GIOVANNI'S RESTAURANT FOR THE OPERATION OF A SIDEWALK CAFE IN THE RESORT AREA WHEREAS, the City has adopted, and incorporated into a 8 franchise agreement, regulations for the operation of sidewalk 9 cafes on public property in the Resort Area; 10 WHEREAS, Giovanni's Restaurant (2006 Atlantic Avenue) has 11 submitted an application for the operation of a sidewalk cafe 12 and has paid the required application fee; 13 WHEREAS, representations made in the application comply 14 with the aforementioned regulations; and 15 WHEREAS, the Virginia Beach Convention and Visitors Bureau 16 and the Resort Advisory Commission have reviewed the application 17 and determined that the proposed cafe will have no detrimental 18 effect on the public health, safety, welfare, or interest, and 19 will enhance the festive atmosphere in the Resort Area; 20 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 21 OF VIRGINIA BEACH, VIRGINIA: 22 1. That a franchise is hereby granted to Giovanni's 23 Restaurant to operate an Atlantic Avenue sidewalk cafe at 2006 24 Atlantic Avenue from May 1, 2005, to April 30, 2006, conditioned 25 by the Grantee's execution of the Franchise Agreement and 26 compliance with all of the terms and conditions thereof. 26 2. That the City Manager, or his duly authorized 27 designee, is hereby authorized to enter into a one (1) year 28 franchise agreement with Grantee. 29 Adopted by the Council of the City of Virginia Beach, 30 Virginia, on the 5th day of April , 2005. CA-9579 GGjordresjGiovanni's.doc R-1 March 24, 2005 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: !JJ~ /I Ji~ City Attorney's Office 2 1 2 3 4 5 6 7 AN ORDINANCE GRANTING A FRANCHISE TO KEIFERS BAR AND GRILL FOR THE OPERATION OF A SIDEWALK CAFE IN THE RESORT AREA WHEREAS, the City has adopted, and incorporated into a 8 franchise agreement, regulations for the operation of sidewalk 9 cafes on public property in the Resort Area; 10 WHEREAS, Keifers Bar and Grill (2006 Atlantic Avenue), has 11 submitted an application for the operation of a sidewalk cafe 12 and has paid the required application fee; 13 WHEREAS, representations made in the application comply 14 with the aforementioned regulations; and 15 WHEREAS, the Virginia Beach Convention & Visitors Bureau 16 and the Resort Advisory Commission have reviewed the 17 applications and determined that the proposed cafe will have no 18 detrimental effect on the public health, safety, welfare, or 19 interest, and will enhance the festive atmosphere in the Resort 20 Area. 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 22 OF VIRGINIA BEACH, VIRGINIA: 23 1. That a franchise is hereby granted to Keifers Bar 24 and Grill, to operate an Atlantic Avenue sidewalk cafe at 2218 25 Atlantic Avenue from May 1, 2005, to April 30, 2006, conditioned 25 by the Grantee's execution of the Franchise Agreement and 26 compliance with all of the terms and conditions thereof. 27 2. That the City Manager, or his duly authorized 28 designee, is hereby authorized to enter into agreements for the 29 franchises granted by this ordinance. 30 Adopted by the Council of the City of Virginia Beach, 31 Virginia, on the ~rh day of April , 2005. CA-9578 GG/ordres/keiferscafe.doc R-1 March 23, 2005 ,.' '51- /1/ ~/( . p c:.~ APPROVED AS TO LEGAL 7ii;;/1;Vb), City Attorney's Office APPROVED AS TO CONTENT: Convention & Visitors Bureau 2 1 2 3 4 5 6 7 AN ORDINANCE TO RENEW THE EXISTING FRANCHISE OF ROCKFISH BOARDWALK BAR AND SEA GRILL FOR THE OPERATION OF AN OPEN AIR CAFE IN THE RESORT AREA WHEREAS, Rockfish Boardwalk Bar and Sea Grill (1601 8 Atlantic Avenue) a connector park cafe, (hereinafter "Grantee") 9 wishes to renew the existing Franchise Agreement for the 10 operation of an open air cafe at the oceanfront: 11 WHEREAS, the City has developed a franchise agreement 12 for the regulation of open air cafes that the above-listed 13 Grantee will be required to execute as a condition of franchise 14 renewal; and 15 WHEREAS, based upon Grantee's successful operation of 16 an open air cafe pursuant to a franchise during the past year, 17 the Virginia Beach Convention and Visitors Bureau recommends a 18 five-year renewal of the franchise of the foregoing Grantee. 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE 20 CITY OF VIRGINIA BEACH, VIRGINIA: 21 1. That a franchise is hereby granted to Rockfish 22 Boardwalk Bar and Sea Grill to operate an open air cafe at 1601 23 Atlantic Avenue from May 1, 2005, to April 30, 2010, conditioned 24 on Grantee's execution of the Franchise Agreement and compliance 25 with all of the terms and conditions thereof. 26 2. That the City Manager, or his duly authorized 27 designee, is hereby authorized to enter into a five (5) year 28 franchise agreement with Grantee. 27 Adopted by the Council of the City of Virginia Beach, 5th 28 Virginia, on the CA-9554 GGjordresjRockfishord.doc R-1 March 17, 2005 APPROVED AS TO CONTENT: v~Z- Convention & Visitors Bureau day of April , 2005. APPROVED AS TO LEGAL SUFFICIENCY: 2 - 28- Item V-K.2.a. ORDINANCES/RESOLUTION ITEM # 53767 The following registered in SUPPORT: Bobby Townsend, 2901 Heron Ridge Drive, Phone: 721-7297, President-Heron Ridge Estates Community Association, urged the Ordinance not be deferred. Martin K. Salasky, 2284 Lynx Drive, Phone: 426-5363, next door neighbor of resident not complying with closure of swimming pool gates. Within the vicinity of this home, resides approximately seventeen (I 7) children under the age of 12 and of those eight (8) are under the age of 6. Upon motion by Councilman Reeve, seconded by Councilman Dyer, City Council ADOPTED: Ordinances re the City Code: a. AMEND9 34.9 andADD9 34-35 re closure of swimming pool gates Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 2 3 4 5 6 7 8 9 REQUESTED BY COUNCILMEMBER JIM REEVE AN ORDINANCE TO AMEND SECTION 34-9 AND ADD SECTION 34-35 OF THE CITY CODE, PERTAINING TO THE CLOSURE OF SWIMMING POOL GATES SECTION AMENDED: SECTION ADDED: Section 34-9 Section 34-35 10 11 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 12 BEACH, VIRGINIA: 13 That Section 34 - 9 of the City Code is hereby amended and 14 reordained and Section 34-35 is hereby added, to read as 15 follows: 16 ART I CLE I. IN GENERAL 17 18 Sec. 34-9. Violations of provisions governing prosecutions, 19 notice, etc. 20 The provisions of the Virginia Uniform Statewide Building 21 Code shall govern the prosecution of violations relating to the 22 design and construction of swimming pools and installation of 23 related equipment. A violation of any other provision of this 24 chapter shall constitute a Class 3 misdemeanor7: provided, 25 however, that violations of Section 34-35 shall be punishable by 26 a fine of not more than three hundred dollars ($300.00) or 27 confinement in jail for not more than thirty (30) days, either 1 28 or both, and each day I s violation shall be deemed a separate 29 offense. 30 31 Sec. 34-35. Closure of swimming pool gates. 32 It shall be unlawful for any person to allow any gate in a 33 fence surrounding an outdoor swimming pool to remain unfastened 34 while the pool is not in use. 35 36 BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF 37 VIRGINIA BEACH, VIRGINIA: 38 That this ordinance shall take effect ninety (90) days 39 after the date of adoption. 40 41 Adopted by the City Council of the City of Virginia Beach, 42 Virginia, on this 5th day of April, 2005. OID/orders/proposed/poolgateadopted.doc R4 March 24, 2005 2 Item V-.K.2.b. ORDINANCES/RESOLUTION - 29- ITEM # 53768 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: b. AMEND and REORDAIN ~ 21-321.2 re maximum speed limits in designated neighborhoods: Acredale Bayville Park Birdneck Point Church Point Croatan Hermitage Road Lake James Larkspur Milburn Manor Thoroughgood Voting: 10-1 (By Consent) Council Members Voting Aye: Baylake Pines/Baylake Beach Bellamy Manor Brighton on the Bay Country Haven Fairfield L & J Garden Lake Shores Little Neck Stratford Chase Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones" RichardA. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: None April 5, 2005 1 2 3 4 AN ORDINANCE TO AMEND AND REORDAIN THE CITY CODE PERTAINING TO MAXIMUM SPEED LIMITS IN DESIGNATED NEIGHBORHOODS 5 SECTION AMENDED: ~ 21-31.2 6 That the Code of the City of Virginia Beach, Virginia, is 7 herby amended and reordained to read as follows: 8 9 Sec.21-321.2 Traffic calming via maximum speed limits in certain residential districts; penalty. 10 Pursuant to section 46.2-878.2 of the Code of Virginia, any 11 person who operates a motor vehicle in excess of the maximum speed 12 limit established for any portion of the following highways located 13 within the designated neighborhoods, on or after the effective 14 date, shall be guilty of a traffic infraction punishable by a 15 prepayable fine of two hundred dollars ($200.00), in addition to 16 other penalties provided by law. No portion of the fine shall be 17 suspended unless the court orders twenty (20) hours of community 18 service. 19 Effective as of February 12, 2001: 20 (1) L & J Garden: Norwich Avenue; Tajo Avenue; Fairlawn 21 Avenue; Dulcie Avenue. 22 (2) Acredale: Andover Road; Langston Road; Bonneydale Road; 23 Olive Road, Alton Road; Old Kempsville Road. 24 (3) Lake Shores: Jack Frost Road; Lake Shores Road. 25 (4) Little Neck: Harris Road. 1 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Effective as of August 14, 2001: (1) Lake Shores: Oak Leaf Lane, Tern Road; Lake Road S; Regina Lane; Meredith Road, School Road, Mosby Road, Frizzel Drive; Finn Road; Charla Lee Lane; Smith Farm Road. (2) Brighton on the Bay: Templeton Lane; Wivenhoe Way; Starr Way. (3) Baylake PinesjBaylake Beach: Ben Gunn Road; Indian Hill Road; Baylake Road; Rampart Avenue; Bayville Road; Lookout Road; Sandy Bay Drive. (4) Country Haven: Stewart Drive. Effective as of April 9, 2002: (1) Fairfield: Lord Dunmore Drive. (2) Bellamy Manor: Homestead Drive. Effective as of May 28, 2002: (1) Church Point: Church Point Road; Church Point Place; Timber Ridge Drive. Effective as of October 8, 2002: (1) Stratford Chase: Stratford Chase Drive; Minden Road; Violet Bank; Kittery Drive. (2) Bayville Park: Greenwell Road (From Shore Drive to First Court Road) . Effective as of November 12, 2002: (1) Milburn Manor: Davis Street. 2 50 (2) Lake James: Lake James Drive. 51 (3) Larkspur: Edwin Drive from Princess Anne Road to 52 Independence Blvd. 53 Effective as of April 6, 2004: 54 (1) Croatan: Croatan Road. 55 (2) Birdneck Point: Cardinal Road. 56 Effective as of April 5, 2005: 57 (1) Thoroughgood: Thoroughgood Drive. 58 (2) Hermitage Road. 59 Adopted by the City Council of the City of Virginia Beach, 60 Virginia, on this 5th day of April, 2005. CA9577 Ordres/proposed/21-321.2adopted.ord 2005 March 18, 2005 R-3 3 ~------------------------------------------------------------------ NEIGHBORHOODS PARTICIPATING IN PHASE III OF THE TRAFFIC CALMING PROGRAM, ORDINANCE 2619 LITTLE NECK HARRIS RD. . CITY OF VIRGINIA BEACH FEBRUARY 2005 PREPARED BY PUBUC WORKS ENGINEERING CNJD BURfA,U LAKE SHORES SAYLA/(E PINES/ SAYLAKE BEACH CHURCH POINT SAYV/HE PARK \ ("'\ ~ Z lAKE JAMES FAIRFIELD COUNTRY HAVEN ACREDALE * NEW NEIGHBORHOODS PROPOSED WITH THIS AGENDA lWRO]E~ffic calming.DGN M,].S. PREPARED BY PIN ENG. CADD DEPT. Rev. 1121105 I _. _ _ _ _ - -' - 30- Item V-K.3. ORDINANCES/RESOLUTION ITEM # 53769 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE the City Manager to execute an agreement between the City and the Virginia Housing Development Authority (VHDA) to participate in the SPARC (Sponsoring Partnerships and Revitalizing Communities) home ownership program Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 2 3 4 ORDINANCE NO. 5 6 7 8 AN ORDINANCE AUTHORIZING THE CITY 9 MANAGER TO EXECUTE AN AGREEMENT 10 BETWEEN THE CITY AND THE VIRGINIA HOUSING 11 DEVELOPMENT AUTHORITY TO PARTICIPATE IN 12 THE SP ARC HOME OWNERSHIP PROGRAM. 13 14 15 WHEREAS, the City of Virginia Beach, through its Department of Housing and 16 Neighborhood Preservation, currently operates several programs to promote home ownership for 17 low and moderate-income persons; 18 WHEREAS, the City desires to continue promoting its goal of home ownership 19 for its citizens with low and moderate incomes and for its municipal workforce to provide an 20 opportunity to live where they work; 21 WHEREAS, the Virginia Housing Development Authority ("VHDA") has 22 reserved funds which can be made available to qualified Virginia Beach low and moderate 23 income citizens and municipal workers through the City's participation in the VHDA's 24 Sponsoring Partnerships and Revitalizing Communities ("SP ARC") Home Ownership Program; 25 WHEREAS, the City's participation in the SPARC Home Ownership Program 26 requires the execution of an agreement with the VHDA; and 27 WHEREAS, the City's Department of Housing and Neighborhood Preservation 28 has determined that the City's participation in the SPARC Home Ownership Program will 29 provide an additional and much needed financing source for affordable home ownership 30 opportunities for its citizens and municipal workers. 1 31 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 32 OF VIRGINIA BEACH, VIRGINIA: 33 That the City Manager is hereby authorized to execute an agreement between the 34 City and the Virginia Housing Development Authority ("VHDA") to participate in the operation 35 of the VHDA's Sponsoring Partnerships and Revitalizing Communities ("SPARC") Home 36 Ownership Program in substantially the same form as attached hereto and with such additional 37 terms and conditions as may be acceptable to the City Manager and the City Attorney. 38 Adopted by the Council of the City of Virginia Beach, Virginia, on the 5th 39 day of Apri 1 ,2005. 40 41 42 43 CA-9480 44 Date February 21, 2005 45 HIOIDlREAL ESTATEIHNPADMINISPARCISPARCORDdoc 46 47 48 49 50 51 52 53 54 55 56 57 58 59 APPROVED AS TO CONTENT: Qh4t/n. /(fk."u fi,r ~ 1/'tR.;{~ epartment of Housing & Neighborhood Preservation APPROVED AS TO LEGAL SUF ICIENCY: 2 I VIRGINIA HOUSING DEVELOPMENT AUTHORITY SP ARC PROGRAM - Round 4 HOMEOWNERSHIP PROJECT PERMANENT MORTGAGE FINANCING COMMITMENT AGREEMENT THIS AGREEMENT, dated as of this 28th day of January, 2005, is made by and between the VIRlGNIA HOUSING DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (hereinafter referred to as the "Authority") and City of Virginia Beach (hereinafter referred to as the "Sponsor"), WIT N E SSE T H: WHEREAS, the Sponsor has applied to the Authority for mortgage loan financing for purchasers of single family dwelling homes (the "Homes") on the property described in the Sponsor's application (the "Application"), which is incorporated herein by reference; and WHEREAS, the Authority desires to provide such financing subject to the terms and conditions set forth below: 1. Reservation of Funds; Underwriting of Mortgage Loans. Subject to the terms and conditions herein, the Authority hereby agrees to reserve funds in the amount of Four Million Dollars ($4,000,000) to be used to provide mortgage loans under the Authority's SP ARC Program. The Sponsor hereby accepts such reservation, The mortgage loans to be financed with the Reserved Funds shall be originated by the Authority's Originating Agents (the "Originating Agents") in accordance with the Authority's Rules and Regulations for Single Family Mortgage Loans to Persons and Families of Low and Moderate Income (the "Rules and Regulations"). In order to be approved for financing under this Agreement, each application for a mortgage loan must satisfy and comply with all of the criteria and requirements in the Rules and Regulations and in this Agreement. 2. Reservation Period. Subject to the provisions hereof, the Reserved Funds will be reserved for the Sponsor until December 31,2005; provided that if any portion of the Reserved Funds are not committed for mortgage loans by December 31, 2005, such portion of the reserved Funds shall no longer be reserved for the Sponsor, except as the Authority may otherwise notify the Sponsor in writing. 3. Rate ofInterest and Term of Mortgage Loans. The interest rate(s) on the mortgage loans to be made from the Reserved Funds will be determined by the Authority at the time funds are reserved for each individual borrower and shall be as follows: $2,000,000 at one half percent (.50%) below the applicable rate for the Authority's tax-exempt bond program. $2,000,000 at one percent (1.0%) below the applicable rate for the Authority's tax-exempt bond program. The term of such mortgage loans shall be thirty (30) years. 4. Location and Completion of Homes. The Homes financed from Reserved Funds shall be of the type and number and shall be located as described in the Application. In the case of Homes to be constructed or rehabilitated by the Sponsor, such Homes shall be constructed or rehabilitated in accordance with this Agreement, the plans and specifications (or, in the case of rehabilitation, such other descriptions of work to be performed on the Homes as shall be acceptable to the Authority), and the minimum property standards of the U,S, Department of Housing and Urban Development. The sales prices (as determined in accordance with the Authority's Rules and Regulations) of the Homes shall not exceed the applicable maximum amounts allowed by the Authority for its tax-exempt bond program. 5. Eligibilitv of Purchasers, All purchasers must meet all the Authority's eligibility and underwriting requirements for its tax-exempt bond program. Notwithstanding anything to the contrary in the Rules and Regulations, all purchasers of Homes financed from Reserved Funds (a) shall not have had a present ownership interest (as defined in the Authority's Rules and Regulations) in his principal residence at any time during the three years preceding the date of execution of the mortgage loan documents and (b) shall have annual gross incomes not in excess of the applicable maximum amount allowed by the Authority for its tax- exempt bond program. Notwithstanding the foregoing, in the event Sponsor has elected in the Application to target persons or households with annual gross income below such limits, Sponsor shall comply with such election. 6. Reduction of Amount of Reserved Funds. Upon thirty (30) days prior written notice to the Sponsor, the Authority may at any time, and from time to time, reduce the amount(s) of the Reserved Funds in the event that the Authority determines that it is (i) unlikely that mortgage loans will be committed by December 31, 2004, (ii) or that the Sponsor has failed to comply with the terms of this Agreement. Upon request of the Authority, the Sponsor shall provide such information and records as the Authority may require in order to determine the status of Sponsor's prior and anticipated use of the Reserved Funds. 7. Announcements and Publicity. The Sponsor shall coordinate in advance with the Authority all announcements and other publicity relating to the Homes or the financing pursuant hereto. 8. Authorized Officer(s). The following person(s) is/are authorized, on behalf of the Sponsor, to engage in all transactions and dealings with the Authority under this Agreement: Sharon Prescott. The Authority reserves the right to designate from time to time one or more contacts at the Authority and, if so designated, Sponsor shall direct all communication with the Authority to such contact(s). 9. Designation of Originating Agents. Within 30 days of the date hereof, the Sponsor shall designate one or more Originating Agents who will, and have agreed to, originate the mortgage loans funded pursuant to this Agreement. In the event of failure by the Sponsor to so designate any Originating Agents, the Authority may exercise its rights under Section 6 hereof. During the course of the performance of this Agreement, Sponsor shall immediately notify the Authority of any additions or deletions from the designated list of Originating Agents, In the event that, at any time during the term of this Agreement, no Originating Agent shall be so designated or any and all Originating Agent or Agents so designated shall not be willing to continue to originate mortgage loans hereunder, the Authority may exercise its rights under Section 6 hereof. 10. Confidential Information, The Sponsor shall not, without the prior written approval of the Authority, require any mortgage loan applicant to execute any waiver or consent for the release to the Sponsor of any of such applicant's personal information or any other information or records relating to applicant or the loan application or to execute any other document authorizing the Sponsor to act on behalf of such applicant in connection with the loan application. Sponsor shall at all times respect the privacy of the mortgage loan applicants and shall not improperly interfere in the loan application process, 11. Conflict of Interest Provisions. No board member, officer or employee of Sponsor (or immediate family member of such individual) shall be eligible to receive an allocation of the reserved funds without the prior written approval of the Authority, 12. Miscellaneous. This Agreement constitutes the entire and final agreement between the parties with respect to the Reserved Funds and supersedes all prior negotiations. This Agreement may be amended only in writing signed by both parties. This Agreement shall be constructed in accordance with the laws of the Commonwealth of Virginia. All provisions contained herein are severable and should any provision be held invalid by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. 13. Acceptance of Agreement. This Agreement shall not be effective unless an executed original signed by an authorized officer of Sponsor is returned to the Authority within 30 days from the date hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, by their duly authorized representatives, as of the day and year first above written. (Sponsor) By: Its: Date: VIRGINIA HOUSING DEVELOPMENT AUTHORITY BY:~~L. U. Donald L. Ritenour Managing Director of Develop men ) - 31 - Item V-K.4.a. ORDINANCES/RESOLUTION ITEM # 53770 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE a temporary encroachment into a portion of the City property known as Lake Joyce to P. DARRELL MCKOWN, JR. to construct and maintain a deck, treated wood access, rip rap and existing wood bulkhead at 4217 Battery Road (DISTRICT 4 - BAYS/DE) The follOWing conditions shall be required: 1. The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City's specifications and approval. 2. The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 3. The applicant shall indemnify and hold harmless the City, 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 the temporary encroachment. 4. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the applicant. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. 6. The applicant must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within the encroachment area. 7. Prior to issuance of a right-ofway permit, the applicant must post a bond or other security in accordance with the engineer's cost estimate to the Office of Development Services Center/Planning Department. April 5, 2005 - 32- Item V-K.4.a. ORDINANCES/RESOLUTION ITEM # 53770 (Continued) 8. The applicant must obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The applicant agrees to carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant will provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 9. Any above-ground temporary encroachment must conform to the minimum setback requirements, as established by the City. 10. The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-of way encroached upon the equivalent of what would be the real property tax upon the land so occupied ifit were occupied by the applicant; and if such removal shall not be made within the time ordered herein above, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment is allowed to continue thereafter; and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 Requested by Department of Public Works 2 3 AN ORDI NANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO A PORTION OF THE CITY 6 PROPERTY LOCATED KNOWN AS 7 LAKE JOYCE LOCTED AT THE REAR 8 OF 4217 BATTERY ROAD BY P. 9 DARRELL MCKOWN, JR., HIS HEIRS, 10 ASSIGNS AND SUCCESSORS IN 11 TITLE 12 13 WHEREAS, P. Darrell McKown, Jr. desires to construct and/or maintain a dock, 14 treated wood access, rip rap and existing wood bulkhead within the City's property 15 located at the rear of 4217 Battery Road. 16 WHEREAS, City Council is authorized pursuant to ~~ 15.2-2009 and 15.2-2107, 17 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 18 City's property subject to such terms and conditions as Council may prescribe. 19 NOW, THEREFORE BE IT, ORDAINED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 That pursuant to the authority and to the extent thereof contained in ~~ 15.2- 22 2009 and 15.2-2107, Code of Virginia, 1950, as amended, P. Darrell McKown, Jr., his 23 heirs, assigns and successors in title are authorized to construct and/or maintain 24 temporary encroachments for a dock, treated wood access and rip rap and existing 25 wood bulkhead on the City's property as shown on the map entitled: "Exhibit A, 26 Proposed Revetment/Wharf LAKE JOYCE Location: 4217 Battery Road Virginia Beach, 27 VA 23455 Applicant Darrell McKown Date: August 12, 2004," a copy of which is on file 28 in the Department of Public Works and to which reference is made for a more particular 29 description; and 30 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 31 subject to those terms, conditions and criteria contained in the Agreement between the 32 City of Virginia Beach and P. Darrell McKown, Jr. (the "Agreement"), which is attached 33 hereto and incorporated by reference; and 34 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 35 is hereby authorized to execute the Agreement; and 36 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 37 time as P. Darrell McKown, Jr. and the City Manager or his authorized designee 38 execute the Agreement. 39 Adopted by the Council of the City of Virginia Beach, Virginia, on the 40 5th day of .7\.pril ,2005. 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 ~VED AS TO CONTENTS Es ~. ~<;~ NATURE fw RfJ)/ &s1aU DEPARTMENT APPROVED AS TO LEGAL SUFFIC& FORM tAlliPv ) CITY AT ORNEY CA-9516 PREPARED: 3/4/05 F:\Data\ATY\Ordin\NONCODE\PW ORDIN\CA9516 McKown,doc LAKE JOYCE 1470-80-2438 PREPARED BY PM' ENG. CADD DEPT. MARCH 9, 2005 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDA nON TAXES UNDER SECTION 58.I-81l(c) (3) THIS AGREEMENT, made this /B'"'day of ,~, 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and P. Darrell McKown. Jr., HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lot 7" as shown on that plat entitled, "SUBDIVISION NO 2 OF BAY LAKE PINES PRINCESS ANNE CO, VA. AND RE-SUBDIVISION OF PARCEL "c" OF SUBDIVISION OF No.1..BA YLAKE PINES," Scale 1"=100' dated December 1954, and being further designated and described as 4217 Battery Road, Virginia Beach, Virginia 23455; WHEREAS, it is proposed by the Grantee to construct and/or maintain a treated wood access, dock, rip rap and existing wood bulkhead "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Lake Joyce, at the rear of 4217 Battery Road, "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 1479-99-3562 1 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee 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 Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "Proposed Revetment/Wharf LAKE JOYCE Location: 4217 Battery Road Virginia Beach, VA 23455 Applicant: Darrell McKown Date: August 12,2004," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from The Encroachment Area in the event of an emergency or public necessity. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses 2 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 the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post a bond or other security, in accordance with their engineer's cost estimate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of 3 the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, P. Darrell McKown, Jr., the said Grantee has caused this Agreement to be executed by his signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its 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 4 (SEAL) ATTEST: City Clerk tf~~2P~fi STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2005, by DESIGNEE OF THE CITY MANAGER. , CITY MANAGER! AUTHORIZED Notary Public My Commission Expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2005, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. Notary Public My Commission Expires: 5 STATE OF lI. "~"t-I'-. '. CITY/COUNTY OF V, 1"'1' ft., 4. ~~wit: The foregoing instrument was acknowledged before me this 18 ~day of r ~'J ,2005, by P. Darrell McKown, Jr. My Commission Expires: APPROVED AS TO CONTENTS ~/YlY. C'0<wSM. GNATURE pbJ REd EItJi DEPARTMENT tL,~ Notary Public APPROVED AS TO LEGAL SUFFICIENCY AND FORM 6 1{{nN Ex h;b;t A " ~ " ~AKE .JOYCE City of Virginia Beach ...--- 8 O.2S' .,... f' .. J. t ..: ;' 1 STOR" . I ao SRICk !-taus:- r ~ if 421 7 .. . i'V,)C I r;. - ~l' ! Acc~-iS i , . J.B5'...; 48' I ' ~8.05' ;'fr-"jS8' ~ ~ I or; . ~ ...: 17.45' ,---= 22.05' I . '0!C1 .~~ j ~6t?tL::\ '-"'--~':;/~-d I QGREG~~: j6i7~MENS j,:'.ii}j'/ J' ~ .dl \40/ 0-\ # ,. .r':',.~":__~7:_ o~ I o....~' " ';. . .Stll(/107g ~rea" . "~SS10NA!. ~~ ... .~ :':'~ '~"".~~. ~l " -r;; -e1i-r-r&1z..' . . . . flrN'D/A/V' H.~// R.b.A~ ~ ..10. L-l~s.44' lie SCAl~ ~.~SpeIIOlVdA"'f7rF?'t' RO' R"~OQ.OO 1- _= 20:::=J. lIQ' ~D ~ ~ I [ ~dia.ent Pro~erty OWn.... I ! - . R. Wilson I \. F. Behrens I E.B.8~ I a.B' . Y~ ~ .. '0 C? "j' I I i PIN (Fi I I f- Z L..J ::t l.I.I Vl < w ~ t5 < 01 ~ t"'l ;( 01 ~ . Q Z in I I \ Adj:.icellt i F. SehIeu$! I I PIN (F) I PLAN view Page 2 o~ ,3 Proposed RevetmentIWharf LAKE JOYCE Location: 4217 Battery Road Virginia Beach, VA 2345! Applicant: Carrell Mc:K'o'w N Date: Augult12, 2004 .' .". '"I.' I "- , I -:> I r-: 1'/ Alii C)<.R; 0< {:Q. i~)Z/:5t4';Ei.) l1y t\/>...,... ,,// "J7/J./I, J/7~ I t::J v<-' ::~__r..{.~// c.. f) C"lVH..., 3/:Yt.'j . Proposed Revetment /Wharf - e e -33 - Item V-K.4.b. ORDINANCESIRESOLUTION ITEM # 53771 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE a temporary encroachment into a portion of the right-of-way by WILLIAMS. OSBORN, SR. and BONNIE M. OSBORN. to maintain a pier, bulkhead and deck at 4025 W. Colonial Parkway (DISTRICT 3 - ROSE HALL) The following conditions shall be required: 1. The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City's specifications and approval. 2. The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 3. The applicant shall indemnifY and hold harmless the City, 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 the temporary encroachment. 4. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the applicant. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. 6. The applicant must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within the encroachment area. April 5, 2005 - 34- Item V-K.4.b. ORDINANCES/RESOLUTION ITEM # 53771 (Continued) 7. The applicant must obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The applicant agrees to carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant will provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 8. Any above-ground temporary encroachment must conform to the minimum setback requirements, as established by the City. 9. The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-of- way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were occupied by the applicant; and if such removal shall not be made within the time ordered herein above, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment is allowed to continue thereafter; and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE A 4 TEMPORARY ENCROACHMENT INTO 5 A PORTION OF THE RIGHT-OF-WAY 6 LOCATED BEHIND 4025 W. 7 COLONIAL PARKWAY BY WILLIAM S. 8 OSBORN, SR. AND BONNIE M. 9 OSBORN, THEIR HEIRS, ASSIGNS 10 AND SUCCESSORS IN TITLE 11 12 WHEREAS, William S. Osborn and Bonnie M. Osborn desire to construct and 13 maintain a pier, bulkhead and deck within the City's right-of-way located behind 4025 14 W. Colonial Parkway, 15 WHEREAS, City Council is authorized pursuant to 99 15.2-2009 and 15.2-2107, 16 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 17 City's right-of-way subject to such terms and conditions as Council may prescribe. 18 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 That pursuant to the authority and to the extent thereof contained in 99 15.2- 21 2009 and 15.2-2107, Code of Virginia, 1950, as amended, William S. Osborn, Sr. and 22 Bonnie M. Osborn, their heirs, assigns and successors in title are authorized to 23 construct and maintain a temporary encroachment for a pier in the City's right-of-way as 24 shown on the map entitled: "Exhibit A, ENCROACHMENT SITE PLAN BULKHEAD, 25 PIER AND DECK FOR WILLIAM S. and BONNIE M. OSBORN LOT 13, BLOCK 1, 26 WINDSOR WOODS L YNNHAVEN BOROUGH VIRGINIA BEACH, VA (M.B. 76 PG. 12) 27 DATE: DECEMBER 16, 2004," a copy of which is on file in the Department of Public 28 Works and to which reference is made for a more particular description; and 29 BE IT FURTHER ORDAINED, that the temporary encroachment is expressly 30 subject to those terms, conditions and criteria contained in the Agreement between the 31 City of Virginia Beach and William S. Osborn, Sr. and Bonnie M. Osborn (the 32 "Agreement"), which is attached hereto and incorporated by reference; and 33 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 34 is hereby authorized to execute the Agreement; and 35 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 36 time as William S. Osborn, Sr. and Bonnie M. Osborn and the City Manager or his 37 authorized designee execute the Agreement. 38 Adopted by the Council of the City of Virginia Beach, Virginia, on the 39 -5- day of April ,2005. 40 41 APPROVED AS TO CONTENTS 42 Slrm (', ~""- 43 NATURE 44 pbJ RfoJ [.si;h 45 DEPARTMENT 46 47 APPROVED AS TO LEGAL 48 5 FI IENCY AND FORM 49 50 ITY AT RNEY 51 F:\J:a~\A'IY\ex:ain\NlIDE\J:w rnnlN\CA951s Q:t:cm.cb: 52 CA- CIS' ~ 53 PREPARED: 3/3/05 LAKE TRASHMORE LOT 13 GPIN 1487-10-0306 ...---. ...~ ". PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(c) (3) THIS AGREEMENT, made this(~cL-day of 11fl(r"L.., 2005, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and ,WILLIAM S. OSBORN, SR. AND BONNIE M. OSBORN THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lot 13, Block 1" as shown on that plat entitled, "SUBDIVISION OF WINDSOR WOODS SECTION 8-P ART 2 FOR LINEBERRY CONSTRUCTION CORPORATION KEMPSVILLE BOROUGH VIRGINIA BEACH, VIRGINIA SCALE 1"-100' APRIL, 1968" and being further designated and described as 4025 W. Colonial Parkway, Virginia Beach, Virginia 23452; WHEREAS, it is proposed by the Grantee to construct and maintain a timber bulkhead, an open-pile pier and a raised deck, "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right of way known as Thalia Creek "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 1487-10-0306-0000 1 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee 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 Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "ENCROACHMENT SITE PLAN BULKHEAD, PIER AND DECK FOR WILLIAM S. and BONNIE M. OSBORN LOT 13, BLOCK 1, WINDSOR WOODS L YNNHA VEN BOROUGH VIRGINIA BEACH, V A (M.B. 76 PG. 12) DATE: DECEMBER 16, 2004," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from The Encroachment Area in the event of an emergency or public necessity. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses 2 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 the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. 3 It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, William S. Osborn, Sr. and Bonnie M. Osborn, the said Grantee has caused this Agreement to be executed by their signature(s). Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its 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) ATTEST: City Clerk 4 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2005, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. Notary Public . My Commission Expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2005, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH. Notary Public My Commission Expires: STATE OF V' CITY/COUNTYOF . "1""3""'0-"_ fkl~-wit: The foregoing instrument was acknowledged before me this d'loLday of h-tw (~ , 2005, by William S. Osborn, Sr. ~~ My Commission Expires: J- 31 -d-OO '1 5 STATE OF V' \, A CITY/COUNTY OF .. I vj I k la-j l..lG~;~t: j The foregoing instrument was acknowledged before me this d~aay of J~cJ,-" , 2005, by Bonnie M. Osborn. ct:d...{.,-L-\..~'" Notary Public My Commission Expires: j~ - "3 I - ~o "-1 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM 9JafJ'l)t~ C. Cf-UR\/h. SIGNATURE P/JJ kiii I Es 1Zit- DEPARTMENT 6 '- ~~ ~~ ? THALIA CREEK EXTENDED PROPOSED PIER EXISTING ELEVA TED WOOD DOCK , C OHW AND BANK A n 77 ~or - ~ 10:0S:D 8~~1~HEAD "" I CXJO IPF , ex) . o o o o ~ N 57"23'10" W EXISTING DECK EXISTING PIER (HA TCHED) OHW A T EXISTING BULKHEAD ~ 2' RETURN TIE INTO EXISTING ~EXISTlNG BUU<HEAD ~~ ~f 8~ ~b' $ ~~ ~~': 8: 54, lLJ 0 : .31 cO Vic:i (/)0 ~~ (/)w (/) lLJo ~Lf) <(.() ~ ~ APO 2 (/)rvj z APO 1 o l[J (.() ~ 0.J rvj (J) 1 STY BRICK & FRAME #4025 " '. . LOT 13 . . . . " . . . . . . .. . .'. . . .0 '. . . '. . IPF IPF S 57"23'10" E 78.0' WEST COLONIAL P ARKWA Y @ 2004 WATERFRONT CONSULTING, INC. ALL RIGHTS RESERVED. PLAN VIEW SCALE 1" = 25' WA TERFRONT CONSUL TING, INC 1112 JENSEN DRIVE, STE. 206 VIRGINIA BEACH, VA 2.3451 PHONE: (757) 425-8244 FAX: (757) .31.3-9788 ENCROACHMENT SITE PLAN BULKHEAD, PIER AND DECK FOR WILLIAM S. and BONNIE M. OSBORN LOT 13, BLOCK 1, WINDSOR WOODS L YNNHA VEN BOROUGH VIRGINIA BEACH, VA (M.B, 76 PG. 12) DA TE: DECEMBER 16, 2004 E~ff(B'r A Site - Looking SE ~ita _ I I"\I"\~i"",,,, "-I\AI - 35 - Item V-K.5. ORDINANCES/RESOLUTION ITEM # 53772 Attorney John G. "Chip" Dicks, FutureLaw, L.L. c., 5547 Virginia Beach Boulevard, Norfolk, represented Adams Outdoor Advertising. Attorney Dicks and distributed a copy of his statement which is hereby made a part of the record. Jeanette Willen brink, 605 Hudgins Court, Phone; 497-0700, Member of the Virginia Beach Council of Garden Clubs and Beautification Commission, registered in OPPOSITION to pruning or mutilating the beautiful crepe myrtles. Upon motion by Council Lady Wilson, seconded by Council Lady McClanan, City Council ADOPTED, ALTERNATIVE VERSION: Resolution REQUESTING that the Commonwealth Transportation Commissioner REFUSE applications of Adams Outdoor Advertising re permits to cut trees and other vegetation in the right-of way of Virginia Beach Boulevard between Rosemont Road and Lynn Shores Drive and to schedule a Public Hearingfor interested citizens to state their views. Voting: 11-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None April 5, 2005 1 ALTERNATIVE VERSION 2 3 4 REQUESTED BY COUNCILMEMBER REBA S. McCLANAN 5 6 7 A RESOLUTION REQUESTING THE COMMONWEALTH 8 TRANSPORTATION COMMISSIONER TO DENY THE 9 APPLICATIONS OF ADAMS OUTDOOR ADVERTISING 10 FOR PERMITS AUTHORIZING THE CUTTING OF 11 CERTAIN TREES AND OTHER VEGETATION ON 12 VIRGINIA BEACH BOULEVARD 13 14 15 WHEREAS, pursuant to Section 33.1-371.1 of the Virginia Code, 16 Adams Outdoor Advertising (Adams) has filed applications with the 17 Virginia Department of Transportation (VDOT) , seeking the issuance 18 of permits to cut certain trees and other vegetation owned by the 19 City of Virginia Beach and located within the right-of-way of a 20 portion of Virginia Beach Boulevard in order to enhance the 21 visibility of its billboards in that area; and 22 WHEREAS, the permits sought by Adams would allow it, among 23 other things, to cut the City's crepe myrtle trees located within 24 the median and along the south side of Virginia Beach Boulevard 25 between Rosemont Road and Lynn Shores Drive so as to leave standing 26 approximately four feet (4') of each crepe myrtle tree, thus 27 eliminating all of the branches and foliage of such trees; and 28 WHEREAS, the statutes that authorize the Commonwealth 29 Transportation Commissioner to issue permits such as those sought 30 by Adams, Virginia Code Sections 33.1-371.1 and 33.1-353, apply 31 only to "signs, advertisements, or advertising structures [that] 32 are visible from the main traveled way of any interstate highway, 33 federal-aid primary highway as that system existed on June 1, 1991, 34 or national highway system highway;" and 35 WHEREAS, according to a map maintained and furnished to the 36 City by the Virginia Department of Transportation, the portion of 37 Virginia Beach Boulevard on which the billboards that are the 38 subject of Adams' applications is not an interstate highway, a 39 federal-aid primary highway as that system existed on June 1, 1991, 40 or a national highway system highway; and 41 WHEREAS, as a result of the facts set forth in the preceding 42 paragraph, the Commonwealth Transportation Commissioner does not 43 have the jurisdiction or authority to issue the permits sought by 44 Adams; and 45 WHEREAS, even if Virginia Code Sections 33.1-353 and 33.1- 46 371.1 did allow the permits to be issued, the stated purpose of 47 that Section is to allow, under certain limited circumstances, the 48 "selective pruning" of vegetation that obstructs motorists' view of 49 signs displayed on outdoor advertising structures, such that 50 neither the letter nor the spirit of the statute authorizes the 51 cutting of trees that do not significantly "obstruct" the 52 visibility of billboards; and 53 WHEREAS, the trees that Adams desires to cut do not 54 significantly obstruct motorists' view of the billboards, within 55 the meaning and intent of the statute, but impede visibility only 56 slightly and momentarily as motorists drive past the billboards; 2 57 and 58 WHEREAS, Virginia Code Section 33.1-371.1 requires that all 59 "pruning" shall be performed in a manner that beautifies the area 60 surrounding the billboards, and it is patently obvious to even a 61 casual observer that, rather than beautifying the area, the cutting 62 of the trees in the manner sought by Adams would seriously detract 63 from the visual appearance of the portion of Virginia Beach 64 Boulevard between Rosemont Road and Lynn Shores Drive; and 65 WHEREAS, the citizens of the City of Virginia Beach have, for 66 many years, enthusiastically and overwhelmingly supported the 67 City's ongoing beautification efforts, including the planting of 68 trees and other vegetation in and along the City's major 69 thoroughfares, and should be entitled to retain the benefits of 70 those efforts or, at a minimum, to have the opportunity to voice 71 their concerns in this matter to the Commonwealth Transportation 72 Commissioner, as the chief executive officer of VDOT and the 73 official statutorily charged with the duty to determine whether to 74 issue the permits requested by Adams; 75 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 76 OF VIRGINIA BEACH, VIRGINIA: 77 FIRST: 78 That the Commonwealth Transportation Commissioner be, and 79 hereby is, requested to refuse to act upon the applications sought 80 by Adams Outdoor Advertising upon the grounds that, in accordance 3 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 with Virginia Code Section 33.2-353 and 371.1, the Commonwealth Transportation Commissioner lacks the jurisdiction and authority to act upon such applications of Adams Outdoor Advertising for permits to cut the trees and other vegetation in the right-of-way of Virginia Beach Boulevard between Rosemont Road and Lynn Shores Drive; SECOND: That alternatively, the Commonwealth Transportation Commissioner be, and hereby is, requested to deny the aforesaid applications on the grounds that they fail to meet the criteria set forth in Virginia Code Section 33.1-371.1 and associated regulations; and THIRD: That, alternatively, the Commonwealth Transportation Commissioner schedule and conduct, at a suitable location within the City of Virginia Beach, a public hearing at which the citizens of the City of Virginia Beach and other interested parties have the opportunity to state their views concerning the aforesaid permit applications, both in favor of and in opposition to the issuance of such permits. The City Clerk certified copy of is hereby directed forthwith to transmit a this Resolution to the Commonwealth Transportation Commissioner. 4 104 Adopted by the City Council of the City of Virginia Beach on 105 the 5th day of April, 2005. CA-9587 OID\ordres\AdamsapplicationresALT.doc R-l April 5, 2005 5 - 36- Item V-L.J. PLANNING ITEM # 53773 Attorney R. J. Nutter, 1405 Blue Heron Road, Phone: 687-7500, represented the applicant, The Cornerstone project is a 48.8 acre parcel adjacent to 1-264. No wetlands are located on this site or within the AICUZ. Cornerstone is in the "shadow "of Town Center. The site plan reserves two (2) areasfor future right-of-way improvements. The density will be 19.6 units per acre. All streets are privately maintained with no cost to the City. Including the lakes, the application will provide 26% open space. The mutlifamily units, or "flats ", range in size from 800 to 1300 square feet and may be for sale or rent. This is the only unknown. The rest of the development is composed of 4-story stacked townhouses (55 feet tall) (for sale units) and 3-story townhouses (for sale units) Bryant B. Goodloe, 8809 Adams Drive East, Phone: 248-4846, Suffolk, Virginia Traffic Engineer. representing L.M. Sandler The following registered in OPPOSITION: William Bailey, 4841 Rosecroft Street, represented the Virginia Beach Professional Firefighters, Police Benevolent and Police Supervisors Associations. Mr. Bailey advised all three (3) organizations have banded together to oppose this project. The density is exceeding the City's capabilities for police and fire to respond Dan Baxter, 2001 Drumheller Court. Phone: 495-7224, President - Council of Civic Organizations, advised the density of this application would be a challenge to Fire, Police and Emergency Medical Service staff Attorney Thelma Carroll, 55903 Clear Springs Road, Phone: 420-5055, advised Inclusionary Zoning also known as Opportunity Based Housing is a tool for providing an adequate supply of safe, decent, attractive and diverse housing with a range of values, including owner-occupied and rental units to accommodate the present and future needs of all Virginia Beach residents as stated in the Comprehensive Plan Reverend Danny Reed, 739 Yarmouth, President - Empower Hampton Roads. Reverend Reed disagreed on the definition of affordable workforce housing. Members of Empower Hampton Roads enjoyed a engaging meeting with Art Sandler and members of the Sandler design and financing team. Empower Hampton Roads received a private presentation of the development and now have a fuller understanding of the Cornerstone development. Empower Hampton Roads is in opposition to the awarding of the density bonus. Tim McCarthy, 3845 Prince Phillip Circle, Phone: 486-3375, urged adoption ofInclusionary Zoning and develop more affordable housing within the community. Empower Hampton Roads is opposed to the density bonus requested by the Sandlers, without afull assurance of affordable Opportunity Based Housing in this complex (application of Wedge wood Associates, L.L.C.) Upon motion by Councilman Diezel, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of WEDGEWOOD ASSOCIATES, L.L.C., for a Conditional Change of Zoning: April 5, 2005 - 37- Item V-L.1. PLANNING ITEM # 53773 (Continued) ORDINANCE UPON APPLICATION OF WEDGEWOOD ASSOCIATES, L.L.c., FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM A-12 TO CONDITIONAL A-24 WITH A PD-H2 PLANNED DEVELOPMENT OVERLAY DISTRICT Z04051219 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Wedge wood Associates, L.L.c., for a Chan~e ofZoninfl District Classification from A -12 Apartment District to Conditional A-24 Apartment District with a PD-H2 Planned Development Overlay District on property located on the north side of Bonney Road and Dolton Drive, west of Alicia Drive (GPINS 14771112670000; -1133130000; -2122470000; -3112940000). The purpose is to develop a planned residential community. The Comprehensive Plan designates this site as being part of Strategic Growth Area 4 - Pembroke Area (Bonney Road West Corridor), suitable for mixed use development including residential consistent with the policies of the Comprehensive Plan. DISTRICT 2 - KEMPSVILLE The following condition shall be required: 1. Agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Fifth of April Two Thousand Five Voting: 9-2 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Robert M. Dyer and Reba S. McClanan Council Members Absent: None April 5, 2005 Prepared By/Return To: Faggert & Frieden, P.C. 222 Central Park Avenue, Suite 1300 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT, made this 25th day of March, 2005, by and between WEDGEWOOD ASSOCIATES, L.L.C., a Virginia limited liability company ("Grantor", to be indexed as grantor) and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, (the "City", to be indexed as grantee). . WIT N E SSE T H: WHEREAS, Grantor owns four (4) parcels of property located in the Kempsville District of the City, containing a total of approximately 48.8 acres and designated as Tracts 1,2,3 and 4 in Exhibit "A" attached hereto and incorporated herein by this reference. These four (4) parcels are hereinafter collectively referred to as the "Property"; and WHEREAS, Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the City so as to change the Zoning Classifications from A-12 to A-24 with a PD-H2 Overlay; and WHEREAS, the City's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, Grantor acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effect of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which Grantor's rezoning application gives rise; and WHEREAS, Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the City, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for by the A-24 Zoning District, the PD-H2 District and the adopted land use plan by the existing Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, Grantor, for itself, its successors, personal representatives, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the City or its governing body and without any element of compulsion or quid pro GPINs:1477-21-2247, 1477-11-1267, 1477-31-1294, 1477-11-3313 quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through Grantor, their successors, personal representatives, assigns, grantees, and other successors in interest or title and which will not be required of Grantor until the Property is developed: 1. Grantor agrees to develop the Property substantially in conformity with the Land Use Plan entitled, "Conceptual Development Plan Cornerstone" prepared by L.M. Sandler & Sons, Inc., dated August 2004, revised January 20, 2005, which Plan has been exhibited to the City Council and is on file in the Department of Planning (the "Plan"). 2. Grantor agrees to develop the multi-family and single family-attached dwelling units substantially in conformity with the elevations which have been exhibited to the City Council and are on file in the Department of Planning. It is recognized and understood that detailed building plans may change as the planning process progresses. The intent of the elevations is to demonstrate the architectural style and building quality. Final elevations for these structures shall be submitted to the Planning Director for review and approval prior to building plan approval. 3. Grantor agrees to reserve a ten (10) foot strip of land on the Property adjacent to and along the frontage of Bonney Road to allow for the ultimate seventy (70) foot right-of-way for Bonney Road in accordance with the City's Master Transportation Plan dated November 4, 1997. 4. Grantor shall design and construct only privately maintained streets and alleys within the proposed development of the Property. The street sections shall substantially conform with the development criteria prepared by L.M. Sandler & Sons, Inc., which has been exhibited to the City Council and is on file in the Department of Planning. Dwellings may be constructed with rear loading garages which will utilize a 15' collector alley. 5. Grantor shall record a Master Deed of Covenants, Conditions and Restrictions ("Restrictions") governing all the Property shown on the Plan as being rezoned to A-24/PD-H2 and excluding those areas reserved for acquisition by the City pursuant to paragraph 8 below. The Restrictions shall be enforced by a Mandatory Property Owners Association which will be responsible for maintaining all common areas including, but not limited to the "AMENITY AREAS," all Landscape Buffers, all Lakes and all BMPs. 6. The total combination of attached and multi-family units to be developed on the Property zoned A-24/PD-H2 may not exceed a maximum of 846 units. 7. Further conditions may be required by the City during detailed Site Plan review and administration of applicable City Codes by all relevant City agencies and departments to meet all applicable City Code requirements. 2 8. Grantor agrees to reserve the two portions of the Property described in this paragraph for possible acquisition by the City, to accommodate the expansion of 1-264 and construction of a potential future fly-over from 1-264, upon the following terms and conditions: (a) A variable width area adjacent to 1-264 consisting of:l: 3.4 acres, which area is described and shown on the Plan as "Area set aside for future expansion ofI-264 (3.4:l: ac.)" (the "Expansion Area"). Grantor shall reserve the Expansion Area from development and offer it for sale to the City upon the terms set forth in the Memorandum of Understanding between Grantor and the City dated March 25, 2005 (the "Memorandum of Understanding"). lfthe City desires to accept the offer, the City shall prepare and submit to Grantor a purchase agreement reasonably acceptable to Grantor and consistent with the terms and conditions of the Memorandum of Understanding on or before May 31, 2005 (the "Contract Date"). Grantor and the City shall diligently pursue and negotiate the purchase agreement in good faith. The purchase agreement shall provide, among other things, for a closing date of no later than September 30, 2005. If the City has not contracted to purchase the portion of the Property described herein by the Contract Date, the Grantor may terminate its offer to the City and add up to 66 additional units within the project. Any additional units shall be constructed using the three housing types set forth in the Grantor's application materials and shall be subject to review by the Planning Director to ensure consistency with the Plan. (b) A variable width area consisting of:l: 7.4 acres, located east of Bonney Road and west of a 66-foot wide utility easement in favor of Dominion Virginia Power, which area is described on the Plan as "Area to be held in reserve for potential future fly-over (7.4 :l: ac., 104 units)" (the "Flyover Area"). Grantor shall grant an option to the City for the purchase of the Flyover Area upon the terms and conditions set forth in the Memorandum of Understanding. Grantor and the City shall enter into an option agreement consistent with the terms and conditions of the Memorandum of Understanding, which establishes, among other things, the method for determining the fair market value of the Flyover Area. The option agreement shall further provide that, if the City has not exercised its rights under the option agreement and prepared to close on or before July 31, 2008, the City's option shall expire and Grantor may develop the Flyover Area in the manner indicated in the Plan. Grantor and the City shall diligently pursue and negotiate the option agreement in good faith. The above conditions, having been proffered by Grantor and allowed and accepted by the City as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the City in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the City, after a public hearing before the City which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 3 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. Grantor covenants and agrees that: (1) The Zoning Administrator of the City shall be vested with all necessary authority, on behalf of the governing body of the City, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of Grantor and the City. WITNESS the following signatures and seals: GRANTOR: WEDEGWOOD ASSOCIATES, L.L.C., a Virginia limited liability company By: --z- an D. ~:7.M ?anagageerl #~ Raymond L. Gottlieb, Manager (SEAL) By: (SEAL) 4 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this;;JS day of m~~h , 2005, by Nathan D. Benson, Manager of Wedgewood Associates, L.L.C., a Virginia limited liability company. X~/ de (7 ~~/~-..J Notaty Public My Commission Expires: PeL - "3 \. 2uoB STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: . The foregoing instrument was acknowledged before me this 2.-<; day of (YY~I"\ , 2005, by Raymond L. Gottlieb, Manager of Wedge wood Associates, L.L.C., a Virginia limited liability company. ~ . '& 'II ~~ Notary Public "',.... Kl\~:ri:~.ll.1. E\!:.;\~~3 NO~C4.F~'t PUf~:!jC COM~:'O:\~!'~t;:i~l.TH ~"-~:~ MY COMM1SSiOi'J ExPtF\~, My Commission Expires: be (- 3 'i 2-c}Ot) 5 EXHIBIT "A" TRACT! Situate, lying and being all that certain piece or parcel of land located in the City of Virginia Beach, Virginia, and being known as Parcel "A", having a Geographic Parcel Identification Number (GPlN) of 1477-21-2247, shown on a Boundary Survey prepared by LandMark Design Group dated July 30, 2004, and being more particularly described as follows: COMMENCING at a found nail lying at the intersection of the southwesterly right of way line of Alicia Drive (Map Book 196 at pages 43-45) and the northerly right of way line of Bonney Road (Map Book 196 at pages 43-45); thence along the said northerly right of way line of Bonney Road South seventy seven degrees thirty three minutes forty nine seconds West (S77033'49"W), a distance of eighty two and 59/100 (82.59) feet to a set iron pin; thence along a curve the left having a radius of four hundred five and 00/100 (405.00) feet, arc length of one hundred three and 01/100 (103.01) feet, delta angle of fourteen degrees thirty four minutes twenty five seconds (14034'25"), chord bearing of South seventy degrees sixteen minutes thirty six seconds West (S70016'36"W), and a chord length of one hundred two and 74/100 (102.74) feet to a found iron pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of twelve and 80/100 (12.80) feet to a found iron pin; thence North thirteen degrees fifty four minutes fourteen seconds East (N13054'14"E), a distance of eighteen and 24/100 (18.24) feet to a found iron pin, said pin being the true point and place of BEGINNING; thence continuing along the said northerly right of way line of Bonney Road the following six (6) courses: 1) South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of ninety five and 87/100 (95.87) feet to a found iron pin; 2) thence South fifty six degrees forty four minutes fifty nine seconds West (S56044'59"W), a distance of one hundred forty seven and 12/100 (147.12) feet to a found iron pin; 3) thence South fifty two degrees eighteen minutes twenty four seconds West (S52018'24"W), a distance of four hundred sixty three and 88/100 (463.88) feet to a found iron pin; 4) thence South fifty four degrees twenty eight minutes twenty four seconds West (S54~8'24"W), a distance of ninety eight and 69/100 (98.69) feet to a set iron pin; 5) thence along a curve to the right having a radius of four hundred thirty eight and 75/100 (438.75) feet, arc length of one hundred seventy six and 84/100 (176.84) feet, delta angle of twenty three degrees five minutes thirty five seconds (23005'35"), chord bearing of South sixty six degrees one minute eleven seconds West (S6600 1 ' 11 "W), and a chord length of one hundred seventy five and 64/100 (175.64) feet to a found iron pin; 6) thence along a curve to the right having a radius of six hundred twenty four and 00/1 00 (624.00) feet, arc length of two hundred fifty six and 11/100 (256.11) feet, delta angle of twenty three degrees thirty minutes fifty six seconds (23030'56"), chord bearing of South eighty nine degrees nineteen minutes twenty seven seconds West (S89019'27"W), and a chord length of two hundred fifty four and 31/100 (254.31) feet to a found concreted iron pin; thence departing the said northerly right of way line of Bonney Road North forty four degrees fourteen minutes seventeen seconds West (N44014'17"W), passing a found iron pin online at a distance of one thousand five hundred twenty two and 37/100 (1522.37) feet, for a total distance of one thousand eight hundred thirty two and 15/100 (1832.15) feet to a found concreted iron pin, said pin lying on the southerly right of way line of the Virginia Beach-Norfolk Expressway, Route 264; thence continuing along the 6 said southerly right of way line of the Virginia Beach-Norfolk Expressway South eighty five degrees seven minutes fifty three seconds East (S85007'53"E), a distance of one thousand one hundred thirty five and 96/100 (1135.96) feet to a found highway monument; thence South eighty three degrees thirteen minutes twenty seconds East (S83013 '20"E), a distance of three hundred and 17/100 (300.17) feet to a found highway monument; thence South eighty five degrees seven minutes fifty three seconds East (S85007'53"E), a distance of five hundred fifty one and 35/100 (551.35) feet to a found concreted iron pin; thence departing the said southerly right of way line of the Virginia Beach-Norfolk Expressway along the aforementioned southwesterly right of way line of Alicia Drive South forty four degrees thirty nine minutes thirty four seconds East (S44039'34"E), a distance of five hundred eighty seven and 80/100 (587.80) feet to a found concreted iron pin; thence departing the said southwesterly right of way line of Alicia Drive South thirteen degrees fifty four minutes fourteen seconds West (SI3054'14"W), a distance of one hundred eighty one and 67/100 (181.67) feet to a found iron pin, said point being the true point and place of BEGINNING and containing one million seven hundred twenty seven thousand seven hundred eighty six (1,727,786) square feet or thirty nine and 665/1000 (39.665) acres, more or less. TRACT 2 Situate, lying and being all that certain piece or parcel of land located in the City of Virginia Beach, Virginia, and being known as Parcel "B", having a Geographic Parcel Identification Number (GPIN) of 1477-11-1267, and being shown on a Boundary Survey prepared by LandMark Design Group dated July 30, 2004, and being more particularly described as follows: COMMENCING at a found nail lying at the intersection of the southwesterly right of way line of Alicia Drive (Map Book 196 at pages 43-45) and the northerly right of way line of Bonney Road (Map Book 196 at pages 43-45); thence along the said northerly right of way line of Bonney Road South seventy seven degrees thirty three minutes forty nine seconds West (S77033'49"W), a distance of eighty two and 59/100 (82.59) feet to a set iron pin; thence along a curve the left having a radius of four hundred five and 00/1 00 (405.00) feet, arc length of one hundred three and 01/100 (103.01) feet, delta angle of fourteen degrees thirty four minutes twenty five seconds (14034'25"), chord bearing of South seventy degrees sixteen minutes thirty six seconds West (S70016'36"W), and a chord length of one hundred two and 74/100 (102.74) feet to a found iron pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of twelve and 80/1 00 (12.80) feet to a found iron pin; thence North thirteen degrees fifty four minutes fourteen seconds East (N13054'14"E), a distance of eighteen and 24/100 (18.24) feet to a found iron pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of ninety five and 87/100 (95.87) feet to a found iron pin; thence South fifty six degrees forty four minutes fifty nine seconds West (S56044'59"W), a distance of one hundred forty seven and 121100 (147.12) feet to a found iron pin; thence South fifty two degrees eighteen minutes twenty four seconds West (S52018'24"W), a distance of four hundred sixty three and 88/100 (463.88) feet to a found iron pin; thence South fifty four degrees twenty eight minutes twenty four seconds West (S54"28'24"W), a distance of ninety eight and 69/100 (98.69) feet to a set iron pin; thence along a curve to the right having a radius of four hundred thirty eight and 75/100 (438.75) feet, arc length of one hundred seventy six and 84/100 7 (176.84) feet, delta angle of twenty three degrees five minutes thirty five seconds (23005'35"), chord bearing of South sixty six degrees one minute eleven seconds West (S6600 l' 11 "W), and a chord length of one hundred seventy five and 64/100 (175.64) feet to a found iron pin; thence along a curve to the right having a radius of six hundred twenty four and 00/1 00 (624.00) feet, arc length of two hundred fifty six and 11/100 (256.11) feet, delta angle of twenty three degrees thirty minutes fifty six seconds (23030'56"), chord bearing of South eighty nine degrees nineteen minutes twenty seven seconds West (S89019'27"W), and a chord length of two hundred fifty four and 31/100 (254.31) feet to a found concreted iron pin; thence South forty four degrees fourteen minutes seventeen seconds East (S44014'17"E), a distance of twenty five and 75/100 (25.75) feet to a found iron pin; thence along a curve to the right having a radius of six hundred thirty nine and 00/100 (639.00) feet, arc length of forty four and 05/100 (44.05) feet, delta angle. of three degrees fifty six minutes fifty nine seconds (3056'59"), chord bearing of North seventy eight degrees fifty minutes thirty one seconds West (N78050'31"W), and a chord length of forty four and 04/100 (44.04) feet to a set iron pin; thence North seventy six degrees fifty two minutes one second West (N76052'01 "W), a distance of seventy six and 02/100 (76.02) feet to a found concreted iron pin; thence North forty four degrees fourteen minutes seventeen seconds West (N44014'17"W), a distance of twenty seven and 82/100 (27.82) feet to a found concreted iron pin, said pin being the true point and place of BEGINNING; thence continuing along the said northerly right of way line of Bonney Road the following six courses: 1) North seventy six degrees fifty two minutes one second West (N76052'01"W), a distance of one hundred sixty nine and 04/100 (169.04) feet to a set iron pin; 2) thence North seventy four degrees fifty one minutes sixteen seconds West (N74051 , 16"W), a distance of one hundred fifty six and 26/100 (156.26) feet to a set iron pin; 3) thence North seventy one degrees thirteen minutes sixteen seconds West (N71013'16"W), a distance of one hundred twenty eight and 98/100 (128.98) feet to a set iron pin; 4) thence along a curve to the right having a radius of seven hundred twenty seven and 00/100 (727.00) feet, arc length of two hundred twenty eight and 391100 (228.39) feet, delta angle of eighteen degrees zero minutes zero seconds (18000'00"), chord bearing of North sixty two degrees thirteen minutes sixteen seconds West (N62013' 16"W), and a chord length of two hundred twenty seven and 46/100 (227.46) feet to a set iron pin; 5) thence North fifty three degrees thirteen minutes sixteen seconds West (N53013'16"W), a distance of one hundred fifty nine and 52/100 (159.52) feet to a set iron pin; 6) thence along a curve to the left having a radius of seven hundred eighty eight and 32/100 (788.32) feet, arc length of one hundred sixty three and 32/100 (163.32) feet, delta angle of eleven degrees fifty two minutes thirteen seconds (11 052' 13"), chord bearing of North fifty nine degrees nine minutes twenty two seconds West (N59009'22"W), and a chord length of one hundred sixty three and 03/100 (163.03) feet to a found concreted iron pin; thence departing the said northerly right of way line of Bonney Road North three degrees twelve minutes twenty two seconds West (N03012'22"W), a distance of six hundred fifty eight and 59/100 (658.59) feet to a found iron pin; thence South forty four degrees fourteen minutes seventeen seconds East (S44014'17"E), a distance of one thousand three hundred forty four and 19/100 (1344.19) feet to a found concreted iron pin, said pin being the true point and place of BEGINNING and containing two hundred eighty five thousand eight hundred forty one (285,841) square feet or six and 562/1000 (6.562) acres, more or less. 8 TRACT 3 Situate, lying and being all that certain piece or parcel of land located in the City of Virginia Beach, Virginia, and being known by the Geographic Parcel Identification Number (GPIN) of 1477-31-1294, shown on a Boundary Survey prepared by LandMark Design Group dated July 30, 2004 and being more particularly described as follows: BEGINNING at a found nail lying at the intersection of the southwesterly right of way line of Alicia Drive (Map Book 196 at pages 43-45) and the northerly right of way line of Bonney Road (Map Book 196 at pages 43-45); thence along the said northerly right of way line of Bonney Road South seventy seven degrees thirty three minutes forty nine seconds West (S77033'49"W), a distance of eighty two and 59/100 (82.59) feet to a set iron pin; thence along a curve the left having a radius of four hundred five and 00/100 (405.00) feet, arc length of one hundred three and 01/100 (103.01) feet, delta angle of fourteen degrees thirty four minutes twenty five seconds (14034'25"), chord bearing of South seventy degrees sixteen minutes thirty six seconds West (S70016'36"W), and a chord length of one hundred two and 74/100 (102.74) feet to a found iron pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of twelve and 80/1 00 (12.80) feet to a found iron pin; thence North thirteen degrees fifty four minutes fourteen seconds East (N13054'14"E), a distance of eighteen and 24/100 (18.24) feet to a found iron pin; thence departing the said right of way line of Bonney Road North thirteen degrees fifty four minutes fourteen seconds East (N13054' 14"E) a distance of one hundred eighty one and 67/100 (181.67) feet t6 a found concreted iron pin; thence along the aforementioned southwesterly right of way line of Alicia Drive North thirteen degrees fifty four minutes fourteen seconds East (N13054'14"E), a distance of five and 46/100 (5.46) feet to a found concreted iron pin; thence South forty four degrees thirty nine minutes thirty four seconds East (S44039'34"E), a distance of one hundred ninety eight and 34/100 (198.34) feet to a found nail, said nail being the true point and place of BEGINNING and containing sixteen thousand three hundred ninety eight (16,398) square feet or zero and 377/1000 (0.377) acres, more or less. TRACT 4 Situate, lying and being all that certain piece or parcel of land located in the City of Virginia Beach, Virginia, and being known by the Geographic Parcel Identification Number (GPIN) of 1477-11-3313, shown on a Boundary Survey prepared by LandMark Design Group dated July 30, 2004, and being more particularly described as follows: COMMENCING at a found nail lying at the intersection of the southwesterly right of way line of Alicia Drive (Map Book 196 at pages 43-45) and the northerly right of way line of Bonney Road (Map Book 196 at pages 43-45); thence along the said northerly right of way line of Bonney Road South seventy seven degrees thirty three minutes forty nine seconds West (S77033'49"W), a distance of eighty two and 59/100 (82.59) feet to a set iron pin; thence along a curve the left having a radius of four hundred five and 00/1 00 (405.00) feet, arc length of one hundred three and 01/100 (103.01) feet, delta angle of fourteen degrees thirty four minutes twenty five seconds (14034'25"), chord bearing of South seventy degrees sixteen minutes thirty six seconds West (S70016'36"W), and a chord length of one hundred two and 74/100 (102.74) feet to a found iron 9 I - - - pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of twelve and 80/100 (12.80) feet to a found iron pin; thence North thirteen degrees fifty four minutes fourteen seconds East (N13054' 14"E), a distance of eighteen and 24/100 (18.24) feet to a found iron pin; thence South sixty two degrees fifty nine minutes twenty four seconds West (S62059'24"W), a distance of ninety five and 87/100 (95.87) feet to a found iron pin; thence South fifty six degrees forty four minutes fifty nine seconds West (S56044'59"W), a distance of one hundred forty seven and 12/100 (147.12) feet to a found iron pin; thence South fifty two degrees eighteen minutes twenty four seconds West (S52018'24"W), a distance of four hundred sixty three and 88/100 (463.88) feet to a found iron pin; thence South fifty four degrees twenty eight minutes twenty four seconds West (S54<28'24"W), a distance of ninety eight and 69/1 00 (98.69) feet to a set iron pin; thence along a curve to the right having a radius of four hundred thirty eight and 75/100 (438.75) feet, arc length of one hundred seventy six and 84/100 (176.84) feet, delta angle of twenty three degrees five minutes thirty five seconds (23005'35"), chord bearing of South sixty six degrees one minute eleven seconds West (S6600 l' 11 "W), and a chord length of one hundred seventy five and 64/100 (175.64) feet to a found iron pin; thence along a curve to the right having a radius of six hundred twenty four and 00/100 (624.00) feet, arc length of two hundred fifty six and 11/100 (256.11) feet, delta angle of twenty three degrees thirty minutes fifty six seconds (23030'56"), chord bearing of South eighty nine degrees nineteen minutes twenty seven seconds West (S89019'27"W), and a chord length of two hundred fifty four and 31/100 (254.31) feet to a found concreted iron pin, said pin being the true point and place of BEGINNING; thence continuing along the said northerly right of way line of Bonney Road South forty four degrees fourteen minutes seventeen seconds East (S44014'17"E), a distance of twenty five and 75/100 (25.75) feet to a found iron pin; thence along a curve to the right having a radius of six hundred thirty nine and 00/1 00 (639.00) feet, arc length of forty four and 05/100 (44.05) feet, delta angle of three degrees fifty six minutes fifty nine seconds (3056'59"), chord bearing of North seventy eight degrees fifty minutes thirty one seconds West (N78050'31 "W), and a chord length of forty four and 04/1 00 (44.04) feet to a set iron pin; thence North seventy six degrees fifty two minutes one second West (N76052'01"W), a distance of seventy six and 02/1 00 (76.02) feet to a found concreted iron pin; thence North forty four degrees fourteen minutes seventeen seconds West (N44014' 17"W), a distance of twenty seven and 82/100 (27.82) feet to a found concreted iron pin; thence departing the said northerly right of way line of Bonney Road North forty four degrees fourteen minutes seventeen seconds West (N44014'17"W), a distance of one thousand three hundred forty four and 19/100 (1344.19) feet to a found iron pin; thence North three degrees twelve minutes twenty two seconds West (N03012'22"W), a distance of one hundred and 54/100 (100.54) feet to a found iron pin; thence South forty four degrees fourteen minutes seventeen seconds East (S440 14' 17"E), a distance of one thousand five hundred twenty two and 37/100 (1522.37) feet to a found concreted iron pin, said pin being the true point and place of BEGINNING and containing ninety six thousand four hundred thirty three (96,433) square feet or two and 214/1000 (2.214) acres, more or less. S:\Clicnts\5264\OOl\WEDGEWOOD ASSOCIATES PROFFERS.doc 285094v4 10 Exhibit H - 1 Memorandum of Understanding MEl\'lORANDUM OF UNDERSTA~l)ING THIS MEMORA.t"iD~l OF UNDERSTANDl.'NG (this "Memorandum''') is made this 25th day of Mar en, 200:5, by and benveen WEDGEWOOD ASSOCIATES, L.L.C., a Virginia limited liabilitycotnpany ("Wedgewood") and CITY OF VIRGINIA BEACH, a municipal corporation oftbe Commonwealth of Virginia eCity"). Recitals A. W edgewood O\VDS four (4) parcels of pfOperty located in the Kempsville District of the City of Virginia Beach, containing approximately 48.& acres and designated as Tracts 1,2, 3 and 4 in Exhibit'" A" attached hereto (the "Property"). B. Wec1gewood has petitioned. the City to rezone the Property from A-12 to A-24 'with a PI). H2 Overlay (the "RezoningPetinou"). and, in connection With. the Rezoning Petition, has executed and delivered the Agreement dated March 25,2005 (the "Proffer Agreement''). in wbicbWedgewoQd bas agreed to additional conditions and obligations related to the Rewning Petitioo. C. In accordance with the terms of Paragraph 8(a) of the Proffer Agreement, and subject to the terms of this Memorandum, Wedgewood has agreed to reserve from development an approximate 3.4..acre portion of the Property (the "Expansion Area.') shown and described as "Area set aside for future expansiOtl ofJ~264 (3.4 +f- ac.)" on the exhibit entitled "Conceptual Development Plan Cornerstone", dated August 2004 and revised January 20. 2005 (the "DevcloplIlent P~an"). D. In accordance with the terms of Paragraph 8{b) oHhe Proffer Agreement, and subject to the terms of this Memorandum., Wedgewood has agreed to reserve from devc:lopment an approximate 7 A-acre portion of the Property (the "Flyover Area") SOO\VIl andde.scribed as "Area to beheld in reserve for potential future fly-over (7.4 +/- ac., 104 units)" 011 the Development Plan. A2J'eement NOW,THEREFORE. in consideration of the Rezoning Petition and the obligations set forth in the Proffer Agreement, Wedgewood and the City agree to the foUowingtenns and conditions: 1. Resenra1ionof EXD2nsion Area A. Reservation. From and after the date tbe City Council approves tbe Rezoning Petition and until May 31, 2005 (the "Offer Period'''), Wedgewood sI1a.ll reserve the Expansion Area from its d~velopment and offer to sell the Expansion Area to. the City, as outlined in this Memorandum.. During the Offer Period, the City shall prepare and present a purchase agreement for the Expansion Area (the "Purchase Agreement") containing the terms and provisions outlined m"~'>,:,,;., ",' ,'.., ....,.,..h,. WEDGEWOOD AS~:C~GIATES, LLC Agenda Itefl"ltf18 P~S~g4 t:xnlolt M - ~ Memorandum of Understanding in this Memorandum. and Weclgewood and the City shall diligently pursue and use their best efforts, in gooofaith, to negotiate, execute and deliver the Purchase Agreement prior to' the expiration of th~ Offer Period. B. Purchase Agreement The Purchase Agreement shall provide for a closing date on or before September 30, 2005. with time being of the . essence. Wedge\vood shall be required to convey the Expansion Area to the City by special warranty deed, and to deliver other cooveyance documents .or clos.ing documents reasonably required by the City or required for the City to obtain title insurance forb Ex.pansion Area. If requiredpy the City, the deed shall describe the Expansion Area according to a subdivision plat prep-dred,approved and recorded by the City, at its sole cost and ~pense. on or before the closing d.ate. Wedgewood shall agree to execute and deliver any soon subdivision plat to the City prior to closing. but the City shall bave the&ole obligation to prepare and obtain approval of any such plat. The Purchase Agreement shall be conditioned only upon Wedgewood's ability to the convey good andmark:etable title to the Expansion. Area to the City at closing~ and shall further provide for each party to bear its own oostst expenses, and attorney's fees. The Purcbase Agreement sballfurther contain customary provisions regarding enforcement of its terms in the event of default.. . .Thepurcbase price of the Expansion . Area .shall be Nme Hundred Sixty.. Two Thousand. Four. Hundred Ten and 00/100 Dollars ($962A10.OO), and shall be subject to adjustment for the proratlon of real estate taxes and any other items customarily prorated at closing. C,. . Expiration of Offer... In the event the parties bavenot entered into a Purchase Agwement, asouilined herein, on or before 5:00 p.m. on May 31, 2005. then Wedgewood may terminate its obligations set forth in tmsMemorandum by giving written notice to fueCity. Thereafter. Wedgewood may proceed to develop the Expansion Area as set forth inthe'I'roffer.Agreement n. Reservation of Flvover Area A, Reservation. From and after the date the City Council approves the Rezoning Petition and until July 31,2008 (the ~on Period"), Wedgewood. shall resenre the Flyover Area from its development and shall grant the City an option to purehase.tbeFlyove:r Area upon the terms set fO!1hin this Memorandum.. Prior to May 31. 2005. theCitysball prepare and present to Wedgewood an option agreement for the Flyover Area or. any portion thereof (the "Option Agreement") consistent with thetenns outlined herein, and Wedgewood and the City shall diligently pursue and use their best efforts. in good faith, to negotiate.. execute. and deliver the Option Agreement prior to May 31. 2005. B. Option A~t Ttle Option Agreement shall provide tbat..jf.the City exercises its option to purchase the Flyover Area, the City may exercise its option at any time during the Option Period. but shall clos.eno later than. July 31, 2008, Virith time being of the essence. The Option Agreement shall provide that the City must give Wedgewood written notice of the exercise of its option at least one hundred twenty (120) days in advance of the City's proposed closing date. to allow . time for ordering appraisals required to determine the Purchase Price, as described below. The Option AgreeIDl..-'"D.t, or a memorandum thereof, may be recorded in the land records of the Clerk's Office of the Circuit Court of the City of Vttginia Beach, at the sole 2 t:xnlon M - ~ Memorandum of Understanding cost and ex-pense of the Cfty. The Option Agreement shall further provide that the City may exercise its option only for the purposes of constructing a flyover to Interstate 264 or other public road system improvem.entst and for no other purposes. If all or any portion of the Flyover Area is declared excess property by the City~ the City shalt by Vi<ntten notice to Wedge~'OOd.grant Wedgewood the first right w purchase aU or any portion of the Flyover Area that is not used for road system. improvements, and \Ved.gewooo shall have a period of thirt)' (30) days thereafter to negotiate a purchase agreement for the excess property. If Wedgewood fails to respond within thirt}- (30) days or elects not to purchase the excess property, then the excess property may be conveyed to others. C. Terms ofClosll12. In the event the City exercises its rights under the Option Agreement, tbeterms of this paragraph shall apply. Wedgewood shall be required to convey the Flyover AreatQ the City by special warranty deed, and to deliver other conveyance documents or closing documents reasonably required by the City or required fur the City to obtain title insurance for the Flyover Area. If required by the City, the deedshaU describe the Fl}'over Area according to a subdivision plat prepared, approved and recorded by the City. atRs sole oostand expense, on or before the clilSing date. Wcdgewood shall agree to execute and. deliver an}'su.chsubdivision plat to the City prior to ciositlg, but the City shall have the sOle obligation to prepare and obtain approval of any such plat. . The Option Agreement sbaUbeconditioned only upon Wedgewood's ability to the convey good and marketable title totheFlyove.r Area to the City at closing. and shaD further provide for each party to bear its own costs. expenses, and attorney's fees. The Option Agreement shall further contain customary provisions regarding enforcement of itstenns in thee\'entofdefault. D. Flyover Area Purchase Price. The purchase price for the Flyover Area.sball equal the fair market value of the Flyover Area, based upon the Property's zoning of A-12, to be determined and agreed upon by Wedgewood and the City no earlier .&m ninety (90) days prior to closing. Upon the Ciifs notification to Wedgewood of the exercise of its option, both parties~hallretain a duly licensed MAl appraiser to prepare a mitten appraisal of the fair market vaJneof the Flyover Area; as if it were zoned A..12. Within five (5) days of re<.:eipt, the City and WedgewoodshaU provide a copyofthclr appraisals to the other party. If the difference in the two appraised values is less than or equal to ten percent (1 (010) of the greater of the two appraised values, the parties agree that the purchase price shall be the average of the two values. If the difference in the appraised values :is greater 1ban ten percent (10%) of the greater of the.two appraised values, and Wedgewood and the City are unable to agree upon1he purchase price, then both of the appraisers hired by the parties shall select a third, duly licensed MAl appraiser to detemrine the fair market "<llue of the Flyover Area. The final purchase price shall be the average of aU three of the appraised values. Both Wedge'-'wd and the City shall bear the costs and expenses of their mvn appraiser and shall share the cost of any third appraiser retained to appraise the Flyover Area. All determinations of the-fair market ....-alue of the Flyover Area shall be based upon the Flyover Area's zoning of A-12 and shall assume that the Flyover Area is ready for development, with all .required utilities and improvements being available to the site. The fair market value shall also include the costs and expenses of redesigning,.removing and reconstructing the Lake shown on the Development Plan and serving as a storm'\.\later retention facility for Wedge'\'tood's adjacent development. If the removal or reco~lnletion of the Lake ... ". WEDGEWOOD AS9pCIATES.i;JLC Agen,daltem#lf3 ... page 26 ....A...U... II - ~ Memorandum of Understanding results in a loss of units in Wedgewood's adjacent development and sho"vn outside of the F1yover Area, the Cit)' shall not be re....~o11Sible for the loss of such units. E. Expiration of Option. If the Cit.y does: Dot exercise its rights under the Option Agreement prior to the expiration of the Option Period, the Option AgreemeIlt shall expire and the City shall ha,,'e no fu.rlber right or :interest in the Flyover Area. m. Additiunal Terms A. EffectofMenrorandum. The obligations of both Wedgewood and the City set forth in this Memorandum .sba11 become void and olnor further force and effect if the Rezoning Petition. is not approved by the City Council, together with the City's acceptance of the Proffer A::,oreement ~ by reference therein, the terms of this Memorandum. In the event ofadef.ault under this Memotandum. the non-defaultingparty may pursue any and all available remedies at law or in equit.). against the defaulting party including, 'without limitation, the remedy of specific performance and collection of reasonableattomey's fees~curn:d by the non-defaulting party. B. Mi~naneous. This Memorandum shall be governed according to the JaWs of the Commonwealth of Virginia. No modification, amendment or waiver oftbe terms o.fthis Mem(}randum sl1all be effective unless it is set forth in a v.riting signed by eachQftbe parties to this Memorandum. IN . WITNESS WHEREOF) the parties execute this Memorandum as ..o( the date first 'Written above. CITY: CITY OF VIRGINlA BEACH, a municipal oor;ponmon of the Commonwealth of Virginia Attest City Clerk By: City Manager, or his designee WEDGEWOOD: WEDGEWOOD ASSOCIATES., LoL.C., a Virginia limited . abilityC()mpany By: By: 4 WEDGEWOOD AS$X;:}GIATES Agebdalte ,. p '"",,; ;... Item V-L.l. - 38- APPOINTMENTS ITEM # 53774 BY CONSENSUS, City Council RESCHEDULED: COMMUNITY POLICY AND MANAGEMENT TEAM - CSA - AT RISK COMMUNITY SERVICES BOARD FRANCIS LAND HOUSE BOARD OF GOVERNORS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION INVESTMENT PARTNERSHIP ADVISORY COMMITTEE MINORITY BUSINESS COUNCIL OPEN SPACE SUBCOMMITTEE PARKS AND RECREATION COMMISSION PERFORMING ARTS THEATRE ADVISORY COMMITTEE PERSONNEL BOARD THE PLANNING COUNCIL TOWING ADVISORY BOARD April 5, 2005 - 39- ITEM # 53775 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-344(A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration 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 2.2-3711 (A) (1). To Wit: Appointments: Boards and Commissions: Community Policy and Management Team - CSA At Risk Community Services Board Francis Land House Board of Governors Health Services Advisory Board Human Rights Commission Investment Partnership Advisory Committee Minority Business Council Open Space Committee Parks and Recreation Commission Performing Arts Theatre Advisory Committee Personnel Board The Planning Council Towing Advisory Board PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownership by such institution pursuant to Section 3711(A)(A)(3). Lake Rudee property Centervil/e District property Southeastern Parkway property acquisition Bonney Road property Potters Road property April 5, 2005 - 40- ITEM # 53775 (Continued) Upon motion by Council Lady Wilson, seconded by Councilman Reeve, City Council voted to proceed into CLOSED SESSION (8:40 P.M.). Voting: 10-0 Council Members Voting Aye: Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel (Closed Session: 8:50 P.M. -10:05 P.M.) (Dinner: 5:35 P.M. - 5:50 P.M.) April 5, 2005 - 41 - PRIOR TO ENTERING THE CLOSED SESSION, the Public Comments relative Non Agenda Items were heard. PUBLIC COMMENTS Non Agenda Items Dan Baxter, 2001 Drumheller Court, Phone: 495-7224, President - Council of Civic Organizations, responded to the Briefing on JLUS. Christine Mackinnon accompanied by Jason Striud, 1929 Lewisham Way 23454, Phone: 675-0474, represented the Virginia Beach Emergency Medical Service Association, a new group formed to represent the employees of the Department of EMS. At the present time the majority of members are career Medics but hoped to also represent the employees at the Training Center and the administrative staff. The goal is to be a forum for the Department of EMS employees to present a unified voice. The Association is in support of the addition of at least eight (8) additional career Medics. Said statement is hereby made a part of the record April 5, 2005 - 42- CERTIFICATION OF CLOSED SESSION ITEM # 53777 Upon motion by Councilman Wood, seconded by Councilman Villanueva, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Peter W Schmidt Councilman Schmidt had to leave at 8:50 P.M. April 5. 2005 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 53775, page 39, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3711 (A) of the Code of Virginia requires a certification by the governing body that such Closed 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 Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. - uth Hodges Smith, MMC City Clerk AprilS, 2005 - 43- Item V-Po ADJOURNMENT ITEM # 53778 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 10:06 P.M. ;;g;3~~t~~ Chief Deputy City Clerk uth Hodges Smith, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia April 5, 2005