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Home My WebLink AboutAUGUST 22, 2006 MINUTESCITY OF VIRGINIA BEACH A COMMUNITY FOR A LIFETIME CITY COUNCIL MAYOR MF.YF.RA E. OBERNDORF, At -Large VICE MAYOR LOUIS R. JONES, Bayside - District a WILLIAM R. "Bill " DESTEPH, At -Large HARRY E. DIEZEL Kempsville - District 2 ROBERTM. "Bob " DYER, Centerville - District I BARBARA M. HENLEY, Princess Anne — District 7 RF.BA S. McCLANAN, Rose Hall - District 3 RON A. VILLANUEVA, At -Large .JOHN E. UHRIN, Beach — District 6 ROSEMARY WII SON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK -RUTH HODGES SMITH, MMC CITY COUNCIL AGENDA 22 August 2006 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 234568005 PHONE: (757) 385-4303 FAX(757)385-5669 E-MAIL: Ctycncl@vbgov.com I. CITY MANAGER'S BRIEFINGS - Conference Room - 2:00 PM 1. HISTORIC CITY -OWNED PROPERTIES — Organizing Committee Lynn Clements — Director, Museums and Cultural Arts 2. CITY'S FINANCIAL STATUS David Hansen, Chief of Finance and Technology II. CITY COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA ITEMS V. INFORMAL SESSION Conference Room 4:00 PM A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION Council Chamber 6:00 PM A. CALL TO ORDER — Mayor Meyera E. Oberndorf B. INVOCATION: Captain Monica Johnson Chaplain, First Landing Chapel 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 INFORMAL and FORMAL SESSIONS G. MAYOR'S PRESENTATION 1. KING NEPTUNE XXXIII and HIS COURT Nancy A. Creech -President, Neptune Festival H. PUBLIC COMMENT 1. SOUTHSIDE HAMPTON ROADS HAZARD MITIGATION PLAN I. PUBLIC HEARINGS 1. EXCESS CITY -OWNED PROPERTY 201 Green Springs Court 2. CITY -OWNED PROPERTY - Lease 1.5 acres — South of Little Island District Park J. AGENDA FOR FORMAL SESSION K. CONSENT AGENDA August 8, 2006 L. ORDINANCES Ordinance to AUTHORIZE the City Manager to execute documents re sale of EXCESS CITY -OWNED PROPERTY at 201 Green Springs Court to Gavin Builders. Inc. re spot blight abatement 2. Ordinance to AUTHORIZE the City Manager to execute a temporary Lease Agreement with Clancy & Theys Construction Company re employee parking at Little Island District Park and ACCEPT the Bob Cat Track Loader in execution of this lease. 3. Ordinance to INCREASE the Department of Museums' FY 2006-07 Operating Budget by $620,808 and TRANSFER $225,000 for renovations to The Contemporary Art Center re Magna Carta Exhibition 2007 4. Ordinance to AUTHORIZE a Cooperative Agreement with the Virginia Beach School Board re legal services thereto by the City Attorney for FY 2007. Ordinance to require Disclosures re recreational areas in the re Princess Anne Transition Area subdivision Open Space for public use with the homeowner's association responsible for liability insurance maintenance 6. Resolution re the FY -2006-07 State Performance Contract between the Virginia Beach Community Services Board (CSB) and the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (MH/MR/SA) M. PLANNING Applications of MATHEWS GREEN ASSOCIATES, L.L.C., re the development of a residential community with forty-nine (49) single-family lots at 2217 Matthews Green (deferred July 18, 2006) DISTRICT 7 — PRINCESS ANNE a. Chango Zoning District Classification from AG- I Agricultural District to Conditional. R- 20 Residential District with a PD -H2 Overlay b. Discontinuance, closure and abandonment of portions of Mathews Green east of Princess Anne Road RECOMMENDATION: APPROVAL 2. Application of TERRY O'DONNELL for a Conditional Use Permit re commercial kennel at 3596 Landstown Road (DISTRICT 7 — PRINCESS ANNE) STAFF RECOMMENDATION: APPROVAL PLANNING COMMISSION RECOMMENDATION: DENIAL N 3. Application of CAROL CASE for a Conditional Use Permit re a home occupation (wildlife rehabilitation) at 113 Matt Lane (DISTRICT 6 — BEACH) STAFF RECOMMENDATION: PLANNING COMMISSION RECOMMENDATION: APPROVAL DENIAL 4. Applications of GERALD FREEMAN at 5677 and 5681 Morris Neck Road (DISTRICT 7 — PRINCESS ANNE) a. Change of Zonings District Classification from AG -2 Agricultural to Conditional B-2 Community Business b. Conditional Use Permit for automobile repair garage RECOMMENDATION: APPROVAL 5. Application of VISTACOR PARTNERS, LLC for a Change ofZoninQ District Classification from AG -1 and AG -2 Agricultural to Conditional B-2 Community Business re an office and retail center at Dam Neck and Princess Anne Roads (DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION: APPROVAL 6. Application of VENTUREAST TWO CORP. for a Change gfZoning District Classification from 0-2 Office to H-1 Hotel re a hotel at Cleveland Street and Newtown Road. (DISTRICT 2 — KEMPSVILLE) RECOMMENDATION: APPOINTMENTS BEACHES AND WATERWAYS COMMISSION BIKEWAYS AND TRAILS ADVISORY COMMITTEE BUILDING CODE OF APPEALS — New Construction BOARD OF ZONING APPEALS COMMUNITY MEDICAL ADVISORY COMMISSION COMMUNITY SERVICES BOARD DEVELOPMENT AUTHORITY EASTERN VIRGINIA HEALTH SYSTEMS AGENCY PARKS AND RECREATION PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE (COG) SOCIAL SERVICES BOARD SPORTS AUTHORITY OF HAMPTON ROADS APPROVAL O. UNFINISHED BUSINESS P. NEW BUSINESS Q. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 Agenda 8/22/06 st www.vb,gov.com -1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 22 August 2006 Mayor Meyera E. Oberndorf called to order the City Manager's Briefing re HISTORIC CITY OWNED PROPERTIES in the City Council Conference Room, City Hall, on Tuesday, August 22, 2006, at 2:00 P.M. Council Members Present. William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva and James L. Wood Council Members Absent: Rosemary Wilson [Entered: - 2:50 P.M., attending meeting re regional citizenship] August 22, 2006 -2 - MA YOR'S COMMENTS 2:00 P.M. ITEM # 55500 Mayor Oberndorf referenced the opportunity offered by Alcade and Faye, the City's Lobbyists in Washington, D. C., to meet with individual City Council Members (or if Council Members prefer, two (2) members at a time). Mayor Oberndorf distributed a schedule for Council Members to complete. The Lobbyists work on many items at both federal and state legislative level i.e. encompassing sand replenishment for both the Sandbridge and Resort Beach. Council Lady McClanan inquired re the Lobbyists' efforts involving the Southeastern Parkway and Greenbelt. The City Manager advised Alcade and Faye is monitoring the Southeastern Parkway and Greenbelt.. Their efforts are being focused on completion of the Environmental Impact Statement (EIS), and then going forth with the record of decision after the First of the year. At this point, Alcade and Faye would be more involved in this project. Council Lady McClanan advised unless the Southeastern Parkway and Greenbelt is approved by the Environmental Agencies, the Parkway will not be a reality in our lifetime. Time and money is being wasted. The City Manager requested Council Lady McClanan provide concerns re the Parkway which he would refer to the Lobbyists. ITEM # 55501 Mayor Oberndorf referenced correspondence from Dana Dickens, III, President and Chief Executive Officer of the Hampton Roads Partnership. On June 6, 2006, Mr. Dickens presented a PROCLAMATION to City Council. April 26, 2006 — April 26, 2007 was recognized as the Year of Regional Citizenship. Seventeen Mayors and Chairs of the Boards of Supervisors signed this Proclamation. Mr. Dickens had requested two (2) City Council members volunteer to meet to discuss opportunities. Vice Mayor Louis Jones and Council Lady Rosemary Wilson volunteered. The Mayor recommended appointment of these two (2) members by City Council as Liaisons to the Hampton Roads Partnership. August 22, 2006 -3 - CITY MANAGER'S BRIEFING HISTORIC CITY -OWNED PROPERTIES — Organizing Committee ITEM # 55502 2:00 P.M. Lynn Clements, Director, Museums and Cultural Arts, advised three (3) historic homes, Francis Land, Adam Thoroughgood and Lynnhaven are operated by the City. The Francis Land House and the Adam Thoroughgood are owned by the City. The Lynnhaven House is not owned by the City; however, the City is conferring with the APVA, Association for the Preservation of Virginia Antiquities, who presently own the House to acquire ownership. In 1985, City Council APPOINTED a Board of Governors and a Friends Group as a Subcommittee to the Francis Land House. In 2003, the City purchased the Thoroughgood House from the City of Norfolk. As the Thoroughgood House did not have a governance structure, the existing Francis Land Board of Governors and Friends expanded their respective roles to include the Thoroughgood House. The Lynnhaven House does have an existing non-profit Board. Council Lady Wilson has been working closely with this Board. Council Lady Wilson advised this Board is willing to evolve into a Friends group if an overarching governing body is created. The City Council agreed to purchase the property (2.2 acres) next to the Thoroughgood House. Potentially, the Lynnhaven House will be purchased; therefore, in the future the City Council may purchase more sites and historic houses. Now is the time to review the 1985 model of an appointed Board of Governors. Many citizens have assisted to make the Houses educationally engaging and Mrs. Clements wished to thank everyone involved for their passion and dedication. Lynn Clements recognized: Council Lady Reba McClanan Council Lady Rosemary Wilson City Attorney Leslie Lilley Sue Davis Chairman — Francis Land House Board of Governors Joyce Taylor President — Friends of the Friends Group and Executive Committee Mark Reed Historic Resource Coordinator All have worked together to develop the best model for Governance: collecting public comment, working with a consulting firm, examining many options, benchmarking and reviewing historic sites across the United States. The present Board of Governors created a portfolio of information to assist with the transition to a new governance model. A non-profit Foundation is being considered. Foundations are already being successfully utilized for the Sandler Center for the Performing Arts and The Virginia Aquarium. A Foundation can co -exist with the Friends Group. There also could be individual Friends Groups, which are support groups for the Francis Land, Thoroughgood and Lynnhaven Houses. One Foundation could work with each of the Friends Groups. The recommendation is for a City Council appointed Organizing Committee to review the possibility of creating a non-profit Board, or Foundation, to assist and advise the City in the efficient administration, coordination and planning historic houses. The Organizing Committee will prepare a Purpose Statement and By -Laws for the proposed Foundation and will make recommendations to the City Council re changes to the original ordinance relating to the Historic Houses. The Organizing Committee would comprise approximately five (5) to seven (7) appointed members, who would report to City Council in mid November. A Public Hearing is scheduled for September 5, 2006, with a vote re the Organizing Committee, scheduled for September 12, 2006. August 22, 2006 -4 - CITY MANAGER `S BRIEFING HISTORIC CITY -OWNED PROPERTIES — Organizing Committee ITEM # 55502 (Continued) Mrs. Clements advised the Foundation would be self-appointed. To make certain all roles are understood, a Memorandum of Understanding would be established between the City and the Foundation. Mark Reed, Historic Resource Coordinator, advised each Historic House would retain its own individuality with its own staff. A Site Manager at the Francis Land and Thoroughgood Houses administers all their programs. A Site Manager is also being employed (effective September 16, 2006) at the Lynnhaven House. Each site is distinct from the other site. Another House, the Ferry Farm Plantation House, which is operated by a Friends Group, was constructed in 1830. Interpretive plans and programs will be created to make the best use of the strengths of each Historic House. Mr. Reed advised the Ferry Farm Plantation House has its own private Foundation and would be expected to operate under this Foundation. Council Lady Henley advised the $65, 000 for two (2) lots sold by the Ferry Farm Plantation House has not been totally expended. The funds have been spent very carefully. The majority of funds have been used to cover the Cost Participation Agreement (20%) with the ISTEA grant. If these grant funds are received (it has already been 3 years this Fall) it encompasses approximately $115, 000 to refurbish the outside of the House. August 22, 2006 -5 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW 2:30 P.M. ITEM # 55503 The City Manager introduced David Hansen, Chief of Finance and Technology, to provide information re the City's Financial Overview as of August 22, 2006, encompassing the Projected FY 2006, Year End Fund Balance, possible uses for this Fund Balance, Indebtedness, as well as the second year of the Biennial Budget: FY 2007 and FY 2008. The Five Year Forecast will be presented to City Council in November. Included within the information to City Council is an Unfunded Capital Improvement Program Prioritization Exercise. The purpose of this exercise is to prepare for the allocation of the year end fund balance. David Hansen advised since the City Council Retreat, City staff has been extremely busy preparing information involving the City's finances. The first chart depicts the FY 2006 Year End Fund Balance: City Council Policy is to maintain a fund balance of 10% to 12% of the subsequent year's revenue; however, the minimum could be as low as 8916. This 8% could entail a fund balance as low as $77 - MILLION. Projected FY06 Year End Fund Balance ➢ Fund Balance for 30 June 2006 estimated at $120.9M ➢ $120.9M is 12.6% of projected 2007 revenues Council Policy is to maintain a fund balance of 10% to 12% of subsequent year's revenue Y Original FY06 budget projected Fund Balance of $98.5M Policy General Amount Level Fund Available 12% $115.2M $ 5.7M 11% $105.6M $15.3M 10% $ 96.01V! $24.9M Mr. Hansen detailed the possible uses of the FY 2006 Year End Fund Balance, which requires a future City Council decision. August 22, 2006 9 Me CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Buy down debt — create capacity — lower interest costs Risk Management — potential losses Replenish Site Acquisition budget line item Unfunded Liabilities for Retiree Health Care Design charettes for future projects Replacement Reserve for City facilities Increase road maintenance funding Top Priorities from Unfunded Requirements (UFR) Lists (Commitments & Obligations and CIP Requested But Unfunded) Revisit previous discussion for year end fund use Relative the last item: Revisit previous discussion for year end fund use. On May 9, 2006, City Council ADOPTED a Resolution DIRECTING the City Manager to plan for the use of Excess FY 2005-06 Fund Balance from the General Fund for selected Capital Projects: "The following five (5) Capital Projects shall be funded before any other use is considered, if sufficient fund balance from the General Fund is available after the close-out of the City 's financial books ": Capital Project #2-208 Constitution Drive Extended Capital Project # 2-731 Shore Drive Interim Safety Improvements Capital Project 93-041 Virginia Aquarium Elevated Pedestrian Crosswalk Capital Project #4-044 Bayside Commons Community Services Facility Capital Project #4-064 City Bikeways and Trails Plan Improvements — Phase H Mr. Hansen referenced the CIP Prioritization Exercise. Contained within the packet are: Instructions (yellow sheet); Requested But Not Funded List from Capital Improvement Program (blue sheets); Commitments and Obligations Project List (white sheets); and currently Approved Capital Projects List with Funding By Year (pink sheets). Mr. Hansen asked that Members of City Council classify the projects (blue sheet, the white sheet, and any added by City Council), as HIGH, MEDIUM, or LOW in importance. There are one hundred sixty-three (163) total projects to be ranked and divided into the three (3) categories which allow for fifty-five (55) highs, fifty-four (54) mediums, and fifty-four (54) lows. These sheets should be returned to the City Clerk's Office by September 5, 2006 The City Clerk will then provide these surveys to David Hansen. The Facilitator, Lyle Sumek, will meet with City Council on Friday, September 8, 2006, at the Economic Development Conference Room, Town Center, to establish priorities concerning the City Council's Action Plan for the year and spend some time re City Council Operations (2:00 P.M, to 4:30 P.M.) These were the two (2) remaining items from the previous City Council Retreat. August 22, 2006 -7 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Summary of Outstanding; Indebtedness ,Tuna: 3e, 2006 June 30, 2006 Ueset4Ption General Obligation Bonds SOON. Amount 1G•'Y'b4 lt'11'O� Schools Full Faith & Credit 271,481,099 277,910,224 Genetal Govemment Full Faith & Credit 273,702,274 237,961,558 Public Facility Revenue Bonds Annual Appropriation 279,265,000 288,890,000 Leases and Other Debt Annual Appropriation 15,222,211 16,341,549 Agriculture Reserve Program Full Faith Credit /Strips 22,643,426 22,342,090 Revenue Bonds Value 3.5% Water & Sewer Revenues of Enterprise Funds 137,393,893 106,969,614 Stortnwater Revenues of Enterprise Funds 12,168,336 12,929,436 Total Debt Overall Net Debt Per Capita to Per $1,011,976,239 $ 963,344,471 Less. Revenue/Other Support Capita Personal Income 172.205.655 142.241.140 Net Tax Supported Debt S 839.670 584 $ 821.103.331 The City Manager advised Roanoke, Suffolk and Portsmouth have had the General Assembly adopt certain legislation which allows them to retain the revenue generated for sales tax (the portion which normally would go to the State for their Convention Centers). If the $10 -MILLION from the Commonwealth of Virginia for the Virginia Beach Convention Center is not received, the fund balance might be utilized or the revenue generated from the sales tax might be a possibility. Debt Indicators Summary of Debt Management Policies June 30, 2006 Estimated Ratio Description Establisbed FY06 FY05 G3lidelines; Annual Debt Service to General No greater than 7.18 8.0% Government Expenditures 10.0% Overall Net Debt to Estimated Full No greater than 2.53 2.6% Value 3.5% Overall Net Debt Per Capita No greater than 1,921 $1,887 $2,400 Overall Net Debt Per Capita to Per No greater than 5,58 5.5% Capita Personal Income 6.5% " In FY10 of current CIP this rises to $2,275 Current Capacity for use of Long term Debt (shared with Schools) Cumulative FY07 $88K FY08 $3.7M FY09 $18.6M FY10 $31.1M FY11 $58.7M FY12 $89.OM August 22, 2006 CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Information relative the "Local Roadway Network Program ", encompassing priorities and proposed funding presented to City Council on November 8, 2005, shall be provided. The list of State Prioritization shall also be provided. The City Manager advised if a project is funded (but under funded) and additional funds are requested, these may also be added on the white survey sheets distributed to City Council. The City's debt capacity is projected over the life of the Capital Improvement Program. Mr. Hansen advised relative the Biennial Operating Budget (FY 2007 and FY 2008), this Budget has been authorized and will be appropriated in May 2007 and will encompass a list of changes to the current document. As indicated by the Operating Budget Revenue Sources Chart, the largest source is the Commonwealth of Virginia: Operating Budget Revenue Sources Biennial FY07 & FY08 Other Revenues General Sales 10.0% Real Estate Tax /� Taxes 3.3% / 28.3% Federal 6.5% CommonwealthPersonal Revenues Property Taxes 29.5% 140iop'l-7.8% \ �Chargesfor Business License l Services Tax Utility Tax 9.2% 2.5% 2.9% August 22, 2006 CITY MANAGER `S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) EXPENDITURES FY07- 08 Major Categories $863.5M Reserves B% DP ■Pe .— ■CPentwn OC,01 ODed Rarvua ■0.e•ervea FY07-08 Personnel Costs H-fth Ina-- $391.6M** ].53% Miacallerrooue Fmgs Renefih Life Inaunnce 0.23% 0.82% Retiromont �i� 1••d s..8n1 11.48% 5.51% OOler Personnel Cocts 1.D4% / JqEEW Fu1L27% Owrtlme W,27% 2.26% PaHJ- 3.24% ■F.Time ■Pr T— ❑0w me 10—,P---IC-1 ■F.I.0 A ■Retirement •Ltie Insurance GHealth Inaunnae ■Misoelleneous Fn p Benefft FY 2008 Compensation ➢ Compensation is 50% of the City budget ➢ Salary adjustment costs have been increasing faster than CPI and ECI (graph follows) ➢ GASB 45 impact on Unfunded Liabilities in both ■ Pension (PRS) • Retiree Health Insurance ➢ Fully Cityfunded VRS contribution ➢ Fully Cityfunded single member health care contribution ➢ Market Survey used to assist recruitment of competent & competitive workforce ➢ New City employees = 1, 057 in last seven years Catheryn "itesell, Director — Resource Management, advised the summary of the local public safety salaries in the Region was included within the ADOPTED Resource Management Plan. The City Manager advised this followed the City Council's policy to be the "Best paid municipal organization in the Region ". August 22, 2006 -10 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Mr. Hansen cited charts addressing the annual tax impact on the average family re the ADOPTED FY 2006-07 Biennial Operating Budget. and Setting the Mark for FY 2008: Total Tax Impact on Average Family Virginia Beach $3,188 Chesapeake $3,460 Norfolk $4,192 Portsmouth $4,553 Suffolk $3,028 Hampton $3,786 Newport News $3,914 BUDGET: Setting the Mark for FY08 FY2008 budget based on 13.6% assessment growth Emerging as @ 20.9%. Adds $32.5M in Revenue 10 = $5.4M in FY08; $2.65M for City share The RE Tax rate drives the revenue stream 2007 9901Holding 2008 budget steady, jHi %,��% Jr revenue increase from $32.5M 00 Iil/J�M 93¢ assessment growth nets 6¢. %/............ 890 +5% in RE tax revenue, +2.6% $21.6M N�\�" X` inflation, +1 %for new growth Lo 84,60 Zero tax increase ($56.2M cut' A to expenditures) From 2007 to 2008 if RE rate at: total budget grows: 990 7.8% 930 5.8% 890 4.5% 15 August 22, 2006 -11 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) BUDGET: Setting the Mark for FY08 In adhering to a biennial budget process it is anticipated the FY08 appropriation will be an executive summary to the authorized biennial which include a list of changes. Council budget policy requires City Staff to look at ways to lower HOW tt? find the Real Estate rate in order to 44 $IOAM offset the additional revenue caused by the growth in assessments greater than projected by the budget. Without cutting services/programs, where in the budget can we look to make reductions? (operations -compensation -debt service) Order of Magnitude ➢ Total City funded contribution to VRS: $ 50M ➢ Total City funded member contribution for healthcare: $35.8M v Market Salary Survey adjustments: $8M ➢ 1.5% General increase and 3.0% Merit increase:$10.9M > Compression adjustments: $4.7M ➢ Health Care Contribution increase:$1.7M Y Overtime: $8.9M ➢ Contracted Services: $89.4M 16 ➢ Debt Service: $95M Mr. Hansen displayed pie charts reflecting Capital Improvement Projects by type: FY 2007 = $214.6 - MILLION and FY 2008 = $182.5 -MILLION and Capital Budget Resources: State Revenue 18.5% Local Revenue 16.9% Utility Revenue 6.2% Fund Balance 12.1% Utility Bonds 10.0% Bonds 34.5% Other Revenue 1.8% Mr. Hansen referenced the City/School Revenue Sharing Formula: August 22, 2006 -12 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Splits the seven fastest growing and most stable revenues between the City and School Systems - Real Estate Tax - Cellular Telephone Tax - Personal Property Tax - Business License Tax - General Sales Tax - Utility Taxes - Cable Franchise Fee ➢ 51.79% goes to Schools and 48.21 % to the City i Provides a stable local revenue platform for school planning This year provided $365 million in local revenue Council policy requires that formula revenues go to - pay debt service on school debt; - provide at least $1 million in cash to the School CIP; - Remainder to school operating budget. ➢ Formula is adjusted annually to reflect City Council Actions Revenues are "trued -up" at the end of each fiscal year to reflect actual collections School Formula Issue: Declining Student Enrollment September 30 Actual and March 31 Average Daily Membership 80,000- 78,000 76,000 74,000 72,000 E70,000 68,000 66,000 97 98 99 00 01 02 03 04 05 06 07 08 Fiscal Year (proj)(proj) 30 -Sep —o— 31 -Mar Does not reflect the significant increase in cost per student or the rising cost to replace infrastructure As of June 30, 2006, the City holds $1.012 -BILLION in outstanding debt. Mr. Hansen advised staff will routinely share debt indicator status with City Council to receive their direction and to keep them advised; assess capacity sufficiency to support the Capital Improvement Program strategy; evaluate impact of potential decisions to expand debt indicators; develop a "pay-as-you-go " strategy to compliment long term debt; and, discuss emerging concern regarding pressure for the City to take on additional debt via the use of a Community Development Authority (CDA). August 22, 2006 -13 - CITY MANAGER'S BRIEFING CITY'S FINANCIAL OVERVIEW ITEM # 55503 (Continued) Council Lady Henley noted that within thirty (30) days, the City Manager had advised Council Members would have the reevaluation of the Transition area funding plan to determine if the Plan is still valid as all of the road projects were supposed to be funded from the taxes of these Transition area projects. The City Manager will check with staff relative the status and, if possible, the City Manager will attempt to provide this information by September Fifth. Mayor Oberndorf expressed concern re the increase in forfeiture of homes. The Mayor and City Council expressed appreciation to David Hansen, Chief of Finance and Technology, and his staff for compiling this valuable information for an early financial overview. August 22, 2006 -14 - CITY COUNCIL LIAISON REPORTS 3:53 P.M. ITEM # 55504 Councilman DeSteph distributed a proposed ADD-ON Resolution: Resolution requesting the Southeastern Public Service (SPSA) amend its Articles of Incorporation to provide weighted membership on the Board. Councilman DeSteph also distributed copies of the list of questions posed to the Southeastern Public Service Authority and their responses. Councilman DeSteph wishes to provide this Resolution to the Board of Directors of SPSA at their meeting tomorrow (Wednesday, August 23, 2006). This Resolution shall be scheduled for the Formal Session of City Council. ITEM # 55505 Council Members Villanueva and Wilson, Legislative Liaisons, distributed a proposed ADD-ON Resolution: Resolution expressing appreciation to the General Assembly refunding of various City facilities: The Sandler Center for the Performing Arts, Virginia Aquarium and Marine Science Center, Virginia Beach Convention Center and the Lynnhaven House. This Resolution shall be scheduled for the Formal Session of City Council. August 22, 2006 -15 - CITY COUNCIL COMMENTS 4:00 P.M. ITEM # 55506 Council Lady McClanan, on behalf of Fred Knowles, presented a beautiful framed photograph of the statute of King Neptune at the Resort to the City Council. Mayor Oberndorf requested this photograph be placed in the City Council Chamber during tonight's Formal Session presentation of King Neptune XXXIII and his Court. ITEM # 55507 Council Lady McClanan referenced Betty Mills represented the Oceana Gardens Civic Coalition at a meeting re concern of the housing for the Christian Outreach Center. The residents have been informed, by right, these could be developed as apartments, but the BEACON newspaper articles have noted the Shelter on 17`" Street, will be placed in this vicinity. Council Lady McClanan advised the Coalition had spoken to Richard Powell, Executive Director, Christian Outreach Center. The Planning Department staff has advised Council Lady McClanan that a soup kitchen and staff cannot be placed in this location without City Council's approval. Councilman Uhrin also referenced concerns of Samuel Reid of the Oceana Gardens Civic Coalition and suggested the "Open Mike" dialogue would be the appropriate time for the Civic League to make their concerns known. Council Lady Wilson suggested the Coalition also meet with the Planning Staff prior to the "Open Mike Dialogue ". BY CONSENSUS, residents shall voice their concerns during the Open Dialogue Session (after Adjournment) on September 5, 2006. ITEM # 55508 Councilman Dyer advised the success of the First Annual Level Green Civic League Picnic on Saturday, August 12, 2006, 12:00 NOON to 7.00 P.M. The community wishes to express appreciation to the city staff (Police, Fire, Emergency Medial Services) for their participation and displays. Mayor Oberndorf was in attendance and provided a welcome. Mayor Oberndorf referenced the reflective article which appeared in The Beacon. August 22, 2006 -16- AGENDA 16-AGENDA RE VIEW SESION 2:35 P.M. ITEM # 55509 L.3. Ordinance to INCREASE the Department of Museums' FY 2006-07 Operating Budget by $620,808 and TRANSFER $225, 000 for renovations to The Contemporary Art Center re Magna Carta Exhibition 2007 Councilman Wood distributed an Alternate Version with amendments noted in Paragraph 4, Lines 49-52: "The first $106,258 of profit generated by the Magna Carta Exhibit shall be remitted to the City. Any profit in excess of $106,258 shall be divided epuallY between the City and the Contemporary Art Center. Profit shall be determined after the revenues and expenses have been incurred. " Council Lady McClanan expressed concern re the increased cost. Council Lady McClanan inquired if packages and advertising would be developed encompassing the other historic venues within the area. Mark Reed, Historic Resources Coordinator, advised the direct revenues through tourism are an important part of this equation and they have been working with Ron Kuhlman and the Convention and Visitors Bureau to provide packages and develop out-of-town marketing. Many changes have occurred since the first discussions. The Exhibit has mushroomed into a multi city tour. During the Briefing to City Council in November, there was a $1 -MILLION expenditure associated with just bringing the Exhibit to Virginia Beach, in addition to the operations. This plan dissipated and is now back to just bringing the Exhibit here in commemoration of 2007 refunding the operational costs are really approximately the amount anticipated ($300,000 to $400,000 range, the majority of which will be returned through revenues and donations). The real cost to the City is $225,000 of permanent improvements to the Contemporary Art Center. Councilman Villanueva expressed concern and did not believe the Magna Carta would attract the crowds anticipated. However, Councilman Villanueva can support the renovations to the Contemporary Art Center Council Lady Henley advised this is only one part of the 2007 Celebration. Much of the celebration is being conducted by volunteers, members of the extremely dedicated Jamestown 2007 Committee. The activities planned on April 26`h 27`h 28`h and 29`h will be the focal point of the celebration. Details relative the activities should be presented to City Council. Councilman Uhrin advised the Hotel/Motel Association has been working with the Convention and Visitors Bureau concerning the 2007 Celebration. Councilman DeSteph expressed concerns re the funding as the Shore Drive Safety Improvement Program had not been funded, as well as other critical issues. Councilman DeSteph will vote NAY on this item. Mayor Oberndorf suggested City staff pursue "Good Morning America " and other venues to promote the Magna Carta. August 22, 2006 -17 - AGENDA RE VIEW SESION ITEM # 55510 BY CONSENSUS, the following shall compose the CONSENT AGENDA: L. ORDINANCES 1. Ordinance to AUTHORIZE the City Manager to execute documents re sale of EXCESS CITY -OWNED PROPERTY at 201 Green Springs Court to Gavin Builders. Inc. re spot blight abatement 2. Ordinance to AUTHORIZE the City Manager to execute a temporary Lease Agreement with Clancy & Theys Construction Company re employee parking at Little Island District Park and ACCEPT the Bob Cat Track Loader in execution of this lease. 4. Ordinance to AUTHORIZE a Cooperative Agreement with the Virginia Beach School Board re legal services thereto by the City Attorney for FY 2007. 5. Ordinance to require Disclosures re recreational areas in the re Princess Anne Transition Area subdivision Open Space for public use with the homeowner's association responsible for liability insurance maintenance 6. Resolution re the FY -2006-07 State Performance Contract between the Virginia Beach Community Services Board (CSB) and the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (MHIMR/SA) M. PLANNING 5. Application of VISTACOR PARTNERS, LLC for a Change of Zoning District Classification from AG -1 and AG -2 Agricultural to Conditional B-2 Community Business re an office and retail center at Dam Neck and Princess Anne Roads (DISTRICT 7 — PRINCESS ANNE) August 22, 2006 ITEM # 55511 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-3711(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) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies 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 2.2-3711(A)(3). Acquisition/Disposition ofProperty: Beach District LEGAL MATTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requiring the provision of legal advice by counsel pursuant to Section 2.2-3711 (A)(7). AHR Communications, Inc. v. City of Board of Zoning Appeals AHR Communications, Inc. v. City of Virginia Beach BRAC Upon motion by Councilman Wood, seconded by Council Lady Wilson, City Council voted to proceed into CLOSED SESSION (4:48 P.M.). August 22, 2006 -19 - ITEM # 55511 (Continued) Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None (Closed Session: 4:48 P.M. — 5:00 P.M.) (Dinner: 6:00 P.M. —6:20 P.M.) August 22, 2006 -20 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL August 22 2006 6:27 P.M. Mayor Meyer E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, August 22, 2006, at 6:27 P.M. Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Captain Monica Johnson Chaplain, First Landing Chapel PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm 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 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 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 apart 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 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 ofdanuary 27, 2004, is hereby made apart of the record. August 22, 2006 -21 - Item V -E. CERTIFICATION OF CLOSED SESSION ITEM # 55512 Upon motion by Councilman Dyer seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE INA CCORDANCE 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: 11-0 Council Members Voting Aye.- William ye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 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 # 55511, Page 18, and in accordance with the provisions of The Virginia Freedom of Information Act and, WHEREAS Section 2.2-3712 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. th Hodg Smith, MMC City Clerk August 22, 2006 Item V -F.1... MINUTES -22 - ITEM #55513 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED Minutes of the INFORMAL and FORMAL SESSIONS of August 8, 2006 Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay: None Council Members Absent: None Diezel, Robert M. Dyer, Barbara M. Reba S. McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 -23 - Item 23 - Item V -G.1. MAYOR'S PRESENTATION ITEM #55514 Mayor Oberndorf noted the beautiful photograph of the King Neptune Statue by Fred Knowles. Council Lady McClanan brought to the Mayor and City Council the photograph which Mr. Knowles wished to donate to the City. Mayor Oberndorf introduced Nancy A. Creech, President - Virginia Beach Neptune Festival. The Neptune Festival advised the Festival has served for thirty-three (33) years, and was established for no other reason than to serve this City. Over 1200 Virginia Beach residents are active volunteers. Mrs. Creech introduced Douglas Ellis, Chairman of the Board — 2006 Neptune Festival. Mr. Ellis PRESENTED King Neptune UMII and his Court. 2006 ROYAL COURT KING NEPTUNE)CMII John Malbon (accompanied by Lady Harriet) PRINCESSES Megan Cooke Amy Cumming Paige Davies Elissa Frantz Hannah Gardner Alyssa Glassman Michelle Hudgins Emily Miller Saamia Noorali Brooke Phelps Amanda Rucka TRITONS Dr. Jeff Berger (unable to attend —performing emergency surgery) Jim Carlson Don Jellig Nick Mumejian Attorney John Richardson James K. Spore Randy Sutton Skip Zobel King Neptune expressed appreciation to the City and presented the Mayor and City Council with the symbolic Neptune coin. August 22, 2006 -24 - Item V -G.2. RECOGNITION ITEM #55515 Mayor Oberndorf recognized the following Boy Scouts in attendance to fulfill requirements for their their Communications and Citizenship badges. Attending the City Council is the last requirement for the badge. Troop 471 Salem United Methodist Church Randy Sparling Assistant Scoutmaster Michael Bennett Life Scout Garrett Prisinzano 2"d Class Scout Connor Sparling Star Scout Kurt Stolte Tenderfoot Scout Troop 504 Larry Ellsworth Leader Robert Haugh Tenderfoot The Boy Scots stayed for the entire City Council Session. August 22, 2006 -25 - Item 25 - Item V -H.1. PUBLIC COMMENT ITEM #55516 Mayor Oberndorf INVITED PUBLIC COMMENT re: SOUTHSIDE HAMPTON ROADS HAZARD MITIGATION PLAN There being no speakers, Mayor Oberndorf CLOSED the PUBLIC COMMENT. August 22, 2006 -26 - Item V -I.1. PUBLIC COMMENT ITEM #55517 Mayor Oberndorf DECLARED A PUBLIC HEARING: EXCESS CITY -OWNED PROPERTY 1.5 acres — South of Little Island District Park There being no speakers, Mayor Oberndorf CLOSED the PUBLIC HEARING. August 22, 2006 -27 - Item V -I.1. PUBLIC COMMENT ITEM #55518 Mayor Oberndorf DECLARED A PUBLIC HEARING: CITY -OWNED PROPERTY— LEASE 1.5 acres — South of Little Island District Park There being no speakers, Mayor Oberndorf CLOSED the PUBLIC HEARING. August 22, 2006 INM Item V -J. ADOPT AGENDA FOR FORMAL SESSION ITEM #55519 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION ADDED: Resolution requesting the Southeastern Public Service Authority (SPSA) amend its Articles of Incorporation to provide weighted membership on the Board Resolution expressing appreciation to the General Assembly refunding of various City facilities August 22, 2006 -29 - Item V -J.1 ADD-ON ITEM #55520 Upon motion by Councilman DeSteph, seconded by Councilman Diezel, City Council l ADDED to the Consent Agenda as Item L. 7: Resolution requesting the Southeastern Public Service Authority (SPSA) amend its Articles of Incorporation to provide weighted membership on the Board Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None Diezel, Robert M. Dyer, Barbara M. Reba S. McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 Item V -J Z ADD-ON -30 - ITEM #55521 Upon motion by Council Lady Wilson, seconded by Councilman Villanueva, City Council ADDED to the Consent Agenda as Item L.8.- Resolution .8. Resolution expressing appreciation to the General Assembly refunding of various City facilities Voting: 11-0 Council Members Voting Aye: William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 -31 - Item VK. RESOLUTIONS/ORDINANCES ITEM #55522 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Ordinances 1, 2, 4, 5 6, 7 (ADD-ON) and 8 (ADD-ON) of the CONSENT AGENDA and Item M.5 of the PLANNING BY CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye.- William ye: William R. "Bill " DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: Diezel, Robert M. Dyer, Barbara M. Reba S. McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 -32 - Item V.K.1. ORDINANCES ITEM #55523 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute documents re sale of EXCESS CITY -OWNED PROPERTY at 201 Green Springs Court to GAVIN BUILDERS, INC. re spot blight abatement Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 1 AN ORDINANCE DECLARING 201 GREEN 2 SPRINGS COURT EXCESS OF THE CITY'S 3 NEEDS AND AUTHORIZING THE CITY 4 MANAGER TO DISPOSE OF SAME 5 6 7 WHEREAS, by ordinance adopted April 13, 2004, pursuant 8 to the Spot Blight Abatement Program, the City Council of the 9 City of Virginia Beach authorized the acquisition, by agreement 10 or condemnation, of property generally known as 201 Green 11 Springs Court, Virginia Beach, Virginia 23452 (the "Property") 12 more particularly described on Exhibit "A" attached hereto, for 13 the purpose of abating spot blight on the Property; 14 WHEREAS, the April 13, 2004 ordinance provided that 15 the City shall resell the Property to a qualified builder, 16 developer or other entity, with appropriate provisions in the 17 contract of sale to ensure that the Property will be timely 18 rehabilitated or reconstructed and thereafter sold to a 19 qualified owner -occupant; 20 WHEREAS, the City acquired the Property by 21 condemnation by Order of the Virginia Beach Circuit Court 22 entered December 17, 2004, and recorded as Instrument Number 23 200501120006350 in the Clerk's Office of the Circuit Court of 24 the City of Virginia Beach; 25 WHEREAS, prior to the City's acquisition the Property 26 had been declared as unfit for human habitation, and the 27 property remains in need of significant repairs and restoration; 28 WHEREAS, the City has requested proposals for the sale 29 and renovation or reconstruction of the Property in accordance 30 with the April 13, 2004 ordinance; 31 WHEREAS, the City Council is of the opinion that of 32 the proposals timely received, the proposal submitted by Gavin 33 Builders, Inc., a Virginia corporation, is the proposal that 34 best meets the interests of the City, the public and the 35 residents of the neighborhood in which the Property is located, 36 and that the terms of the Purchase Agreement adequately ensure 37 that the Property will be timely rehabilitated and sold to a 38 qualified owner -occupant. 39 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE 40 CITY OF VIRGINIA BEACH, VIRGINIA: 41 That the Property as described in Exhibit "A" is 42 hereby declared to be in excess of the needs of the City of 43 Virginia Beach and that the City Manager is hereby authorized to 44 execute a Purchase Agreement and any documents necessary to 45 convey the property to Gavin Builders, Inc., a Virginia 46 corporation, in accordance with the attached Summary of Terms 47 marked as Exhibit "B", and such other terms, conditions or 48 modifications as may be satisfactory to the City Attorney. 49 This ordinance shall be effective from the date of its 50 adoption. 51 Adopted by the Council of the City of Virginia Beach, 52 Virginia, on the 22nd day of August , 2006. CA -10017 R-1 V:\applications\citylawprod\cycom32\Wpdocs\DO03\PO01\00018504.DOC 8/8/2006 APPROVED AS TO CONTENT Public Works R£h1 t'sMff APPROVED AS TO LEGAL SUFFICIENCY Law EXHIBIT A GPIN 1487-21-0100 (201 Green Sprinqs Court): All that certain lot, tract or parcel of land together with all buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, known, numbered and designated as Lot Number Fifteen (15), in Block Seven (7), as shown on that certain subdivision plat entitled: "SUBDIVISION OF WINDSOR WOODS, SECTION FOUR FOR LINEBERRY CONSTRUCTION CORPORATION, LYNNHAVEN BOROUGH, VIRGINIA BEACH, VIRGINIA," dated June 1965, and prepared by Frank D. Tarrall, Jr. and Associates, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 66, at page 4, to which reference is made for a more particular description. It being the same property conveyed to Bobby Latham and Norma D. Latham, husband and wife, as tenants by the entirety with rights of survivorship as at common law, by deed from Joseph Lipari and Joan F. Lipari, dated August 22, 1973, and recorded in the aforesaid Clerk's Office in Deed Book 1372, at page 481. The property was then conveyed outright to Norma D. Latham, divorced, by deed from Bobby John Latham and Gail Frances Latham, this wife, dated January 27, 1981, and recorded in the aforesaid Clerk's Office in Deed Book 2099, at page 739. It further being the same property conveyed to Troy W. Dettloff by Deed of Gift from Norma H. Latham, formerly Norma D. Latham, dated November 19, 2004 and recorded in the aforesaid Clerk's Office as Instrument Number 200411220184891. NO EXHIBIT B SUMMARY OF TERMS SALE OF EXCESS PROPERTY AT 201 GREEN SPRINGS COURT SELLER: City of Virginia Beach PURCHASER: Gavin Builders, Inc., a Virginia corporation PROPERTY: Land and improvements at 201 Green Springs Court, Virginia Beach, Virginia 23452 LEGAL DESCRIPTION: GPIN 1487-21-0100 (201 Green Springs Court): All that certain lot, tract or parcel of land together with all buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, known, numbered and designated as Lot Number Fifteen (15), in Block Seven (7), as shown on that certain subdivision plat entitled: "SUBDIVISION OF WINDSOR WOODS, SECTION FOUR FOR LINEBERRY CONSTRUCTION CORPORATION, LYNNHAVEN BOROUGH, VIRGINIA BEACH, VIRGINIA," dated June 1965, and prepared by Frank D. Tarrall, Jr. and Associates, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 66, at page 4, to which reference is made for a more particular description. It being the same property conveyed to Bobby Latham and Norma D. Latham, husband and wife, as tenants by the entirety with rights of survivorship as at common law, by deed from Joseph Lipari and Joan F. Lipari, dated August 22, 1973, and recorded in the aforesaid Clerk's Office in Deed Book 1372, at page 481. The property was then conveyed outright to Norma D. Latham, divorced, by deed from Bobby John Latham and Gail Frances Latham, this wife, dated January 27, 1981, and recorded in the aforesaid Clerk's Office in Deed Book 2099, at page 739. It further being the same property conveyed to Troy W. Dettloff by Deed of Gift from Norma H. Latham, formerly Norma D. Latham, dated November 19, 2004 and recorded in the aforesaid Clerk's Office as Instrument Number 200411220184891. SALE PRICE: $115,500 OTHER TERMS OF SALE • Buyer to purchase "AS IS". • Buyer intends to use the property for residential development and shall, after development/restoration, transfer the property to an owner -occupant. • Buyer shall commence renovation substantially in accordance with plans submitted with its proposal within 60 days after delivery of possession and continue steadily until work is completed. Occupancy permit to be obtained within 120 days after delivery of possession. • Deed to Buyer will contain a repurchase right, triggered by Buyer's failure to timely renovate the property. • Other terms contained in the Purchase Agreement signed by Gavin Builders, Inc. dated August 4, 2006, and/or deemed satisfactory by the City Attorney. V :\applications\citylawprod\cycom32\Wpdocs\D008\P004\000I8657.DOC PURCHASE AGREEMENT THIS PURCHASE AGREEMENT ("Agreement") is made as of this day of i C. Buyer hereby covenants and agrees to deliver or cause to be delivered to Seller on or prior to Settlement the Purchase Price calculated in accordance with and in the manner provided in paragraph 1 hereof, and Buyer's share of closing costs and prorations. d. In addition to the obligations to be performed hereunder by the parties at Settlement, each party agrees to perform such other acts and to execute, acknowledge and deliver, subsequent to Settlement, such other instruments, documents and other material as the other party may reasonably request and shall be necessary in order to effectuate the consummation of the transaction contemplated herein and to vest title to the Property in Buyer. 3. Property Purchased As Is. Buyer purchases the Property "as is," "where is," and it shall be the responsibility of Buyer to determine whether or not there are any adverse conditions that would prevent Buyer's proposed use of the Property. 4. Prorations. All rents, interest, taxes, utilities and other appropriate items shall be prorated and apportioned on a per diem basis as of the Settlement Date. Assessments, general or special in nature, pending or confirmed, shall be paid or satisfied in full by Seller at Settlement. 5. Costs and Expenses. a. Buyer shall bear cost of obtaining a title report for the Property and all other 4�losing costs associated with Settlement including all recording costs, except for grantor's tax, and transfer taxes, and all title insurance premiums and its own attorney's fees and costs. b. Seller shall prepare the Deed conveying title to the Property to Buyer and shall pay all expenses of preparation of the Deed, the grantor's tax and its own attorney's fees and costs. c. Buyer shall pay for all costs and expenses in connection with the demolition (if applicable), construction, rehabilitation and development of the Property, including without limitation all tap fees, meter fees and drainage, fixture and utility (DFU) fees. 6. Title. a. Buyer shall have up to five (5) business days from the Execution Date to examine the record title to the Property, to furnish Seller with a title commitment (the "Title Commitment") and to notify Seller of any title objections disclosed by such examination (the "Title Objections"). Seller shall notify Buyer within five (5) business days after receipt of Buyer's notice of any Title Objections that Seller elects not to cure or is unable to cure prior to the Settlement Date. Seller agrees to cure all other Title Objections prior to the Settlement Date. If Seller notifies Buyer of any Title Objections that it cannot or will not cure prior to the 'Settlement Date, then Buyer shall have the option either (i) to terminate this Agreement by written notice to Seller prior to the expiration of the Due Diligence Period, in which case neither party shall have any further rights against or obligations or liability to the other hereunder except as otherwise expressly provided herein, or (ii) to accept any remaining uncured Title Objections. It is understood and agreed that any objections to title not raised by Buyer in accordance with this Paragraph 6 shall be deemed waived. b. If Seller fails to notify Buyer of its inability or election not to cure the Title Objections in accordance with Paragraph 6(a) above, then Seller shall be deemed to have elected to cure all Title Objections prior to Settlement. If Seller has failed to cure any one or more of the Title Objections it has elected to cure prior to Settlement and is not diligently proceeding to complete such cure, then Buyer may, at its option, either (i) postpone Settlement until Seller has completed such cure, (ii) terminate this Agreement or (iii) agree to accept any remaining uncured Title Objections. c. All restrictions, rights-of-way, easements and encroachments of record on the date of execution of this Agreement which do not constitute Title Objections or that are Title Objections which are either (i) cured by Seller or (ii) subsequently accepted by Buyer in writing as provided above shall be referred to collectively as the "Permitted Exceptions". 7. Access/Richt of Entry. Buyer, or its agents, contractors, representatives, successors and assigns shall be permitted access to the Property for the purpose of inspecting the Property as necessary to plan for the rehabilitation or reconstruction of the Property. It is expressly agreed, however, that: a. The Property is under a condemnation notice from Code Enforcement, Department of Housing and Neighborhood Preservation and may be an unsafe structure. To gain access to the Property for the purpose of inspecting, Buyer shall contact Joel Sanders, Department of Housing and Neighborhood Preservation at 385-1278, Monday- Friday between 8:00 am and 4:30 pm. b. Such access shall be at Buyer's sole risk and expense; c. Seller hereby disclaims any responsibility for, and Buyer hereby assumes all responsibility for any claims, obligations, demands, actions or suits for bodily injury or property damage, or attorneys' fees and costs resulting from defense of same, by any person arising from such access or the conduct of activities on the Property by Buyer, its agents, contractors, representatives, successors and assigns; and d. Neither Buyer nor any of its agents or contractors shall suffer to exist or cause to be created any lien or encumbrance arising from such activities, and Buyer shall repair any damage to the Property resulting from such access. e. The obligations set forth in this Paragraph 7 shall survive Settlement or termination of this Agreement. 8. Seller's Representations. Seller represents and warrants that (i) Seller has the power and authority to enter into this Agreement; and (ii) the undersigned City Manager (or designee) is duly authorized to execute and deliver this Agreement. 9. Use. Buyer intends to use the Property for residential development and shall, after development, transfer the property to an owner -occupant. 10. Renovation. a. Buyer shall commence renovation of improvements on or before the date that is sixty (60) days after delivery of possession of the Property, and, once repairs are started, work must continue steadily until completed. For rehabilitation of the existing structure, obtaining a building permit shall constitute a start. b. Buyer shall rehabilitate the existing structure on the Property in a manner substantially the same as described in the plans attached to this Agreement as Exhibit 1 (the "Plans") and made a part hereof. w 3 a c. All work must be completed in accordance with the Plans and an occupancy permit issued no later than the date that is one hundred twenty (120) days after delivery of possession of the Property. d. Buyer represents and warrants that it will comply with all applicable local, state and federal laws and regulations regarding the demolition, development or construction of improvements on the Property and property maintenance laws, including without limitation complying with the City's site -plan review process and obtaining all required permits. All property maintenance laws must also be complied with. The City's Department of Permits and Inspections shall monitor any work that requires a building permit. The Department of Housing & Neighborhood Preservation will monitor any work not requiring a building permit and will track compliance with completion date and final sales dates as stated in this Agreement. 11. Insurances. Buyer represents and warrants that it has in place and will maintain through final transfer of the Property to an owner -occupant, the following insurances, which are written by companies authorized to do business in the Commonwealth of Virginia and acceptable to the City: A. Comprehensive general liability insurance at limits not less than one million dollars ($1,000,000.00) combined single limits B. Commercial general liability insurance including contractual liability coverage's in the amount not less than one million dollars ($1,000,000.00) combined single limits C. Employees' dishonesty bond at limits not less than one million dollars ($1,000,000.00) and D. Workers Compensation Insurance as required under Title 65.2 of the Code of Virginia 12. Legal and Equitable Enforcement of Agreement. a. In the event the consummation of the transactions contemplated herein fail to occur by reason of any default by Seller, Buyer shall have the right to receive the return of its Deposit hereunder. b. In the event the consummation of the transaction contemplated herein fails to occur by reason of any default of Buyer, Seller shall have as its sole remedy, the right to retain Buyer's Deposit as liquidated damages, it being acknowledged and agreed that in such event it would be difficult to ascertain the exact amount of Seller's damages. c. In order to insure (1) the completion of the construction or repairs to the improvements on the Property in a timely manner and in a manner consistent with the Plans and (2) final disposition of the Property to an owner -occupant, the Buyer agrees to post a secured bond in the amount of Two Hundred and Fifty Thousand Dollars ($250,000) to be released upon the completion of the renovations or reconstruction to the existing structure on the Property. The parties further agree that the Deed conveying the Property to Buyer will contain reverter language as follows: This conveyance is made EXPRESSLY SUBJECT to the following covenants and restrictions: (a) the obligation of Grantee to commence construction/repair of the 4 l existing single-family residential dwelling (the "Improvements") no later than , 20_ [60 days from the Settlement Date] and complete repairs or construction no later than [180 days from Settlement Date]; and (b) the Repurchase Right (as defined below) of the Grantor. (i) The Grantor shall have the right and option to repurchase the Property (the "Repurchase Right") in the event the Grantee fails to complete repairs or reconstruction of the Improvements no later than 20_. In such event, Grantor shall exercise its Repurchase Right within 90 days after , 20_ by giving Grantee written notice stating that Grantee is in default of the requirements of this Deed and specifying the nature of the default. Settlement in connection with the Repurchase Right shall occur on or before ten (10) days after the Grantor gives Grantee notice as required in this paragraph, time being of the essence. Grantee agrees to cooperate with Grantor in any actions necessary to accomplish the repurchase. (ii) The Repurchase Right shall terminate upon the earlier to occur of the following: a. Failure of Grantor to timely exercise its Repurchase Right in accordance with the provisions of this Deed, or b. Completion of construction by the Grantee. Completion shall mean the dwelling has been rehabilitated or reconstructed in conformity with the plans submitted with the purchase offer and an occupancy permit has been issued. Assuming all requirements of this Deed have been met and Grantee has provided written notification to Grantor that Grantee has commenced construction in good faith, Grantor agrees to deliver to Grantee within 10 days of such notification, a written termination of reverter in a form acceptable to Grantee and capable of being recorded. (c) The purchase price for the Property to be paid by the Grantor to the Grantee in the event the Repurchase Right is exercised shall be Dollars ($ ). 13. Assignment. Buyer's rights under this Agreement may not be assigned without Seller's prior written consent. 14. Survival. Unless the context otherwise requires, the provisions of this Agreement, including any indemnification, covenants, agreements, representations or warranties, shall survive Settlement hereunder and delivery of the Deed. 5 15. Successors and Assigns. The terms and provisions of this Agreement are binding upon and will inure to the benefit of the parties, their respective successors and assigns. 16. Condemnation. In the event of a taking of all or any part of the Property by eminent domain proceedings by the state or federal government or other entity having the power of eminent domain (other than the City) or private purchase in lieu thereof, or the commencement of any such proceedings, Buyer, at its option, shall have the right to terminate this Agreement by giving written notice to Seller on or before the Settlement Date, and thereafter no party shall have any further rights against or obligations to any other party hereunder. If Buyer does not so terminate this Agreement, the Purchase Price shall be reduced by the total of any awards or amounts received for voluntary conveyance in lieu of condemnation or other proceeds received by Seller with respect to any taking. 17. Risk of Loss. The risk of loss by casualty or other reason shall remain with Seller until Settlement. 18. Notices. All notices, requests or other communications under this Agreement shall be in writing and shall be deemed duly given upon delivery to the following applicable addresses either (i) in person or by reputable overnight or other private courier (with receipt therefor); (ii) by certified mail, return receipt requested; or (iii) by facsimile transmittal, provided that the notice shall also be sent, either by certified mail, return receipt requested, or by Federal Express or other reputable overnight courier service within one (1) business day after such facsimile transmittal, as follows: As to Buyer: Gavin Builders, Inc. Mr. Willie J. Gavin 1324 N. Schooner Lane Virginia Beach, VA 23454 757-9593 or 235-1471 As to Seller: Office of the City Attorney Attn: Rebecca Deloria Kubin 2412 North Landing Road, Building 20 Virginia Beach, Virginia 23462 757-385-1835 Fax #: 757-563-1167 Addresses may be changed by written notice given pursuant to this provision. 19. Governing Law/Venue. This Agreement shall be deemed to be a Virginia contract and shall be governed by the laws of the Commonwealth of Virginia, and the parties hereto designate the Circuit Court of the City of Virginia Beach, Virginia as the proper venue for all litigation of issues relating to this Agreement. '. 6 20. Entire Agreement and Modification. There have been no other promises, consideration or representations made which are not set forth in this Agreement. There may be no modification of this Agreement, except in writing, executed by the authorized representatives of Seller and Buyer. 21. Brokers. Seller and Buyer each warrant and represent to the other that neither party has had any dealings, negotiations or communications with any brokers or other intermediaries that would obligate either one of them for the payment of any real estate commission or fee as a result of this transaction. 22. Counterparts. This Agreement may be executed in any number of counterparts, and all such counterparts taken together shall be deemed to constitute one and the same instrument. [SIGNATURE PAGES FOLLOW] r 7 WITNESS the following signatures and seals: (SEAL) ATTEST: City Clerk SELLER: CITY OF VIRGINIA BEACH City Manager/Authorized Designee of City Manager BUYER: GAVIN BUILDERS, INC., a Virgini Cor do 7tv/p By: Willie J. vi Title: President (SEAL) COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me by , City Manager/Authorized Designee of the City Manager, of the City of Virginia Beach, this day of , 20 . Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me by Ruth Hodges Smith, City Clerk of the City of Virginia Beach, this day of , 20 . My commission expires: Notary Public I STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 4th day of August, 2005, by �hTillie J. Gavin, President of Gavin Builders, Inc., a Virginia oration, on its behalf He is personally known to me. otary ublic My Commission expires Approved as to Content: VU lic Works/Real Estate Approved as to Form: City Attorney WOID\REAL ESTATE\Excess\Spot Blight Transfers after Acquisition\PURCHASE AGREEMENT.doc 9 -33 - Item V.K.Z ORDINANCES ITEM #55524 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute a temporary Lease Agreement with Clancy & Theys Construction Company re employee parking at Little Island District Park and ACCEPT the Bob Cat Track Loader in execution of this lease. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A LEASE AGREEMENT 3 FOR LESS THAN FIVE YEARS WITH CLANCY & 4 THEYS CONSTRUCTION CO. FOR 100 PARKING 5 SPACES LOCATED AT THE SOUTH END OF THE 6 LITTLE ISLAND DISTRICT PARK IN EXCHANGE 7 FOR A BOB CAT MODEL T-250 FRONT-END 8 LOADER 9 10 WHEREAS, the City of Virginia Beach ("the City") is the 11 owner of the Little Island District Park in Virginia Beach, 12 Virginia (the "Property"); period; 13 WHEREAS, Clancy & Theys Construction Co., a North Carolina 14 corporation, ("Clancy & Theys") would like to enter into a 15 formal lease arrangement with the City for 100 parking spaces on 16 the Property in the location shown on Exhibit A attached hereto 17 (the "Premises"); 18 WHEREAS, the Premises will be utilized as an overflow 19 parking lot for the construction employees, equipment and 20 materials of Clancy & Theys and for no other purpose; 21 WHEREAS, Clancy & Theys has agreed to provide the City 22 with a Bob Cat Model T-250 Front -End Loader for the use of the 23 Premises for a two year period; 24 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 25 CITY OF VIRGINIA BEACH, VIRGINIA: 26 That the City Manager is hereby authorized to execute a 27 lease for a term of less than five (5) years between Clancy & 28 Theys Construction Co., for 100 Parking Spaces located at the 29 South end of the Little Island District Park in accordance with 30 the Summary of Terms attached hereto and such other terms, 31 conditions or modifications as may be satisfactory to the City 32 Attorney and the City Manager. 33 Adopted by the Council of the City of Virginia Beach, 34 Virginia on the 22nd day of August 1 2006. APPROVED AS TO LEGAL SUFFICIENCY AND FORM APPROVED AS TO CONTENT Sig Department CA1OO11 R-2 V:\applications\citylawprod\cycom32\Wpdocs\D027\PO01\00018232.DOC August 16, 2006 w _m J El SUMMARY OF TERMS LEASE FOR THE USE OF 100 PARKING SPACES LOCATED AT THE SOUTH END OF THE LITTLE ISLAND DISTRICT PARK LESSOR: City of Virginia Beach LESSEE: Clancy & Theys Construction Co., a North Carolina corporation PREMISES: 100 parking spaces located at the south end of the Little Island District Park in the City of Virginia Beach. TERM: June 1, 2006 through March 31, 2008 RENT: Rent shall be the receipt of a Bob Cat Model T-250 Front-end Loader. RIGHTS AND RESPONSIBILITIES OF CLANCY & THEYS: • Will use the Premises for overflow parking for its employees, equipment and materials and for no other purpose. • Will keep, repair, and maintain the Premises at its expense and will do so in a workmanlike manner. • Will maintain commercial general liability insurance coverage with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Such insurance shall name the City of Virginia Beach as an additional insured. Lessee shall provide a certificate evidencing the existence of such insurance. • Will maintain Automobile Liability Insurance including coverage for non -owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Licensee shall provide a certificate evidencing the existence of such insurance. • Will assume the entire responsibility and liability for any and all damages to persons or property caused by any act or omission of the Lessee or its agents, etc. associated with the use of the Premises. • Will comply with all applicable laws, ordinances, and regulations in the performance of its obligations under the Lease. RIGHTS AND RESPONSIBILITIES OF THE CITY: • Will have access to the premises at any time, without prior notice, in the event of an emergency. -34 - Item V.K.3.a.. ORDINANCES ITEM #55525 William P. Bailey, 4841 Rosecroft Street, Phone: 495-0637, spoke in OPPOSITION, as too many priority projects remain unfunded. Upon motion by Councilman Wood, seconded by Council Lady Wilson, City Council ADOPTED, AS AMENDED*: a. Ordinance to INCREASE the Department of Museums' FY 2006-07 Operating Budget by $620,808 * Paragraph 4, Lines 49-52.- "The 9-52: "The first $106.258 of profit generated by the Magna Carta Exhibit shall be remitted to the City. Any profit in excess of $106,258 shall be divided equally between the City and the Contemporary Art Center. Profit shall be determined after the revenues and expenses have been incurred. " Voting: 9-2 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill " DeSteph and Ron A. Villanueva Council Members Absent: None August 22, 2006 -35 - Item V K.3. b.. ORDINANCES ITEM #55526 William P. Bailey, 4841 Rosecroft Street, Phone: 495-0637, spoke in OPPOSITION, as too many priority projects remain unfunded. Upon motion by Councilman Wood, seconded by Council Lady Wilson, City Council ADOPTED, AS AMENDED*: b. TRANSFER $225, 000 for renovations to The Contemporary Art Center re Magna Carta Exhibition 2007 * Paragraph 4, Lines 49-52.- "The 9-52: "The first $106,258 of profit -aenerated by the Magna Carta Exhibit shall be remitted to the City. Any profit in excess of $106,258 shall be divided equally between the City and the Contemporary Art Center. Profit shall be determined after the revenues and expenses have been incurred. " Voting: 10-1 Council Members Voting Aye.- Harry ye: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- William ay: William R. "Bill " DeSteph Council Members Absent: None August 22, 2006 1 ALTERNATE VERSION 2 3 AN ORDINANCE TO INCREASE THE DEPARTMENT 4 OF MUSEUMS FY 2006-07 OPERATING BUDGET 5 BY $620,808 AND TRANSFER $225,000 TO 6 CAPITAL PROJECT #3-039 "CONTEMPORARY ART 7 CENTER RENOVATIONS FOR MAGNA CARTA 2007" 8 FOR THE MAGNA CARTA EXHIBITION 9 10 WHEREAS, the Department of Museums has conducted a 11 feasibility study for the operation of the Magna Carta exhibit; 12 WHEREAS, $152,000 has been previously appropriated in the 13 Department of Museums FY 2006-07 Operating Budget for Magna 14 Carta operations; and 15 WHEREAS, the total cost of the operation of the exhibit at 16 the Contemporary Art Center of Virginia is $997,808; and 17 WHEREAS, additional funding of $845,808 is necessary to 18 bring the Magna Carta to Virginia Beach. 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 20 OF VIRGINIA BEACH, VIRGINIA: 21 1. That funding for the Magna Carta exhibit in the 22 Department of Museums FY 2006-07 Operating Budget is hereby 23 increased by $620,808, as set forth below: 24 a. $514,550 in estimated revenue from the Magna Carta 25 exhibit is hereby appropriated to the Department of 26 Museums FY 2006-07 Operating Budget. 27 b. $106,258 from Reserve for Contingencies is hereby 28 transferred to the Department of Museums FY 2006-07 29 Operating Budget. 30 2. That Capital Improvement Project #3-039 "Contemporary 31 Art Center Renovations for Magna Carta 2007" is hereby 32 established in the FY 2006-07 Capital Budget. 33 3. That $225,000 is hereby transferred to Capital 34 Improvement Project #3-039 "Contemporary Art Center Renovations 35 for Magna Carta 2007" to provide additional funding for the 36 Magna Carta exhibit as set forth below: 37 a. $25,000 from CIP #3-367 "Various Buildings 38 Rehabilitation and Renewal -Phase II" is hereby 39 transferred to CIP #3-039 "Contemporary Art Center 40 Renovations for Magna Carta 2007." 41 b. $50,000 from CIP #3-366 "Various Buildings HVAC 42 Rehabilitation and Renewal -Phase II" is hereby 43 transferred to CIP #3-039 "Contemporary Art Center 44 Renovations for Magna Carta 2007." 45 C. $150,000 from CIP # 9-260 "Economic and Tourism 46 Development Partnerships" is hereby transferred to 47 CIP #3-039 "Contemporary Art Center Renovations for 48 Magna Carta 2007." 49 4. The first $106,258 of profit generated by the Magna 50 Carta Exhibit shall be remitted to the City. Any profit in 51 excess of $106,258 shall be divided equally between the City and 52 the Contemporary Art Center. Profit shall be determined after 53 the revenues and expenses have been incurred. 54 Adopted by the Council of the City of Virginia Beach, 55 Virginia on the 22nd day of August , 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: anage ent hervices City Attorney'e Office CA10101 V:\citylaw\00018648.DOC R-6 August 22, 2006 -36 - Item V.K.4. ORDINANCES ITEM #55527 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE a Cooperative Agreement with the Virginia Beach School Board re legal services thereto by the City Attorney for FY 2007. Voting: 11-0 (By Consent) Council Members Voting Aye.- William ye: William R. "Bill" DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None Diezel, Robert M. Dyer, Barbara M. Reba S McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 1 AN ORDINANCE APPROVING A COOPERATIVE 2 AGREEMENT BETWEEN THE CITY COUNCIL AND 3 THE VIRGINIA BEACH SCHOOL BOARD FOR THE 4 PROVISION OF LEGAL SERVICES TO THE BOARD 5 BY THE OFFICE OF THE CITY ATTORNEY IN 6 FISCAL YEAR 2007 7 8 9 WHEREAS, the Office of the City Attorney has, for a number of 10 years, provided legal services to the Virginia Beach School Board and 11 School Administration pursuant to Cooperative Agreements; 12 WHEREAS, the Cooperative Agreement for FY 2006, which expires 13 on June 30, 2006, provides that "[t]his Cooperative Agreement ... may 14 be revised, as necessary, and renewed each fiscal year ...;" and 15 WHEREAS, City Council agrees that it is in the best interests 16 of the City and the School Board for the Office of the City Attorney 17 to continue to provide legal services to the School Board pursuant to 18 the revised Cooperative Agreement for FY 2007. 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 1. That the City Council hereby approves the Cooperative 22 Agreement for FY 2007, a copy of which is attached hereto. 23 2. That the Mayor is hereby authorized to execute the 24 Cooperative Agreement on behalf of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd day of August , 2006. 1 APPROVED AS TO CONTENT AND LEGAL SUFFICIENCY: City Attorney CA10071 H:\PA\GG\OrdRes\Coop Agmt (Schools)2007 ORD R-3 August 11, 2006 2 COOPERATIVE AGREEMENT BETWEEN THE CITY COUNCIL AND THE SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH PERTAINING TO LEGAL SERVICES TO BE PROVIDED TO THE SCHOOL BOARD AND SCHOOL ADMINISTRATION BY THE OFFICE OF THE CITY ATTORNEY IN FISCAL YEAR 2007 Factual Background: 1. City Charter Authority. Chapter 9 of the Charter of the City of Virginia Beach, Virginia ("City Charter") provides that the City Attorney shall be the chief legal advisor of the City Council, the City Manager, and all departments, boards, commissions and agencies of the City in all matters affecting the interests of the City, and that he shall have such powers and duties as may be assigned by the Council. 2. Appointment of City Attorney. The City Charter also provides that the City Attorney is appointed by the City Council and serves at its pleasure. 3. School Board Authority. The School Board is established by the Virginia Constitution, the City Charter, and provisions of general law, and is a body corporate vested with all of the powers and duties of local school boards conferred by law, including the right to contract and be contracted with, to sue and be sued, and to purchase, take, hold, lease, and convey school property both real and personal. 4. School Board Authority to Hire Legal Counsel. The School Board is authorized by Section 22.1-82 of the Code of Virginia (1950), as amended, to employ counsel to advise it, and to pay for such advice out of funds appropriated to the School Board. 5. Recognized Reasons to Share Legal Services. Both the City Council and the School Board have recognized that the reasons for sharing services of the City Attorney's Office include potential savings to taxpayers, expertise of the City Attorney's Office in City and School Board matters, institutional memory, and the ability of the City Attorney's Office to provide a wide range of legal services to the Board based on the expertise of the attorneys in numerous specialized areas of the law. 6. Professional Judgment of City Attorney. The Virginia Rules of Professional Conduct for the Legal Profession require the independent professional judgment of the Office of the City Attorney on behalf of its clients. 7. Potential Ethical Conflicts. The City Council and the School Board recognize that the potential for conflicting interests between the Council and School Board may arise and that, in such cases, the City Attorney must refrain from representation of interests which may conflict. 8. Identification of Conflicts. The City Council and the School Board also recognize that they must work together and with the City Attorney to identify any real or perceived potential for conflict at the earliest possible time, advise each other and the City Attorney of any such conflict as soon as it arises so as not to compromise the interests of the City Council or the School Board, and assist the City Attorney in avoiding any violation or appearance of violation of the Code of Professional Responsibility. 9. Continuation of Services. The City Council and the School Board further recognize that it remains in the best interest of the taxpayers of the City for the School Board to continue to use the legal services of the Office of the City Attorney to the extent that no real or perceived conflict is present, and to the extent the City Attorney is budgeted and staffed to handle assigned legal business of the School Board. Objectives: The objective of this Cooperative Agreement is to define the scope and nature of the relationship between the City Attorney's Office and the School Board, to provide for the delivery of designated legal services to the School Board, and to avoid any real or perceived conflict in the delivery of those services. 2 Agreement: NOW, THEREFORE, the City Council and the School Board hereby agree as follows: 1. Legal Staffing. The Office of the City Attorney will provide the equivalent of two and one half (2 %z) attorney positions (or 4,125 hours per year) and one (1) secretarial position during FY 2007 these services to be provided as follows: A. The City Attorney will dedicate two attorneys on-site at the School Administration Building to the School Board and the School Administration who will devote all of their time (i.e., 3,300 hours per year) to the provision of legal services to the School Board and School Administration. For the term of this Agreement, those attorneys will be Kamala H. Lannetti, Deputy City Attorney, and Paulette Franklin -Jenkins, Assistant City Attorney. B. The City Attorney will dedicate one Secretary on-site at the School Administration Building who will devote all of her time to the support of legal services to the School Board and Administration. C. The remaining attorney hours will be provided by the other attorneys in the Office, based upon their various areas of expertise with school -related legal issues, and shall include representation in real estate matters, representation of the School Administration in personnel matters, general administrative and procedural issues, and general litigation. Attorneys assigned to handle School Board matters may hold regular weekly office hours in the School Administration Building and will remain on-call to handle legal matters throughout the week. The City Attorney's Office will endeavor to handle as many legal matters in- house as it is capable of handling subject to the provisions of this Agreement. D. During the term of this Agreement, and subject to reassignment in the judgment of the City Attorney, the selection of the dedicated attorneys shall be 3 mutually agreed upon by the City Attorney and the School Board. Additionally, if a majority of the members of the School Board expresses dissatisfaction with the legal services provided by the dedicated attorney, or by any other attorney providing services to the School Board, the City Attorney will meet with the School Board to discuss and evaluate its concerns. Furthermore, if the School Board and the City Attorney agree that the most reasonable way to address the School Board's concerns is to assign another attorney or other attorneys to represent the School Board, the City Attorney will use his best efforts to make such an assignment(s) as soon as possible. 2. Communication and Reports. Throughout the term of this Agreement, the Office of the City Attorney will maintain an open line of communication with the School Board and the Division Superintendent, and will keep them apprised, on a regular basis, of the status of all legal matters being handled on behalf of the School Board and School Administration; provided, however, that the Office of the City Attorney shall not communicate with the Division Superintendent concerning those matters being handled on a confidential basis for the School Board or for individual School Board members in accordance with applicable School Board policies and applicable provisions of the Superintendent's contract. Additionally, the Office of the City Attorney will provide the Superintendent and the School Board a quarterly report of the legal services and attorney hours provided pursuant to this Agreement and, upon request of the School Board, the School Board Chairman, or the Superintendent, will identify the amount of attorney hours expended in response to inquiries from individual School Board members. 3. Management of Legal Affairs. The City Council and the School Board recognize and understand that the School Board shall be responsible for the management of its legal matters; that, to the extent contemplated by this Agreement, the City Attorney shall be designated as the chief legal advisor of the School Board and the School Administration, and M shall assist the School Board and Administration in the management of the School Board's legal matters; and that the City Attorney shall report to the School Board concerning those matters he has been assigned by the School Board to manage and/or handle on its behalf. 4. Ethical Conflicts Concerning Representation of Parties. The City Council and the School Board recognize the potential for real or perceived conflicts in the provision of legal services by the City Attorney, and agree to be vigilant in advising the City Attorney of such issues as they arise. Additionally, the City Council and the School Board understand that in such cases, the City Attorney will refrain from participation on behalf of the School Board but, to the extent ethically permissible in accordance with the Rules and Procedures of the Virginia State Bar, will continue representation of the City Council. 5. Ability to Provide Legal Services. The City Council and the School Board further recognize that the ability of the City Attorney's Office to provide legal services to the School Board is limited by the attorney hours allocated pursuant to this Agreement, the other provisions of this Agreement, and ethical constraints as they may arise. 6. Nature of Agreement. The parties agree that this Cooperative Agreement is not a contract to be enforced by either party but is rather an agreement setting forth the understanding of the parties regarding the parameters within which the Office of the City Attorney will provide legal services to the School Board and School Administration. 7. Payment for Services. The City shall forward to the School Board IDT requests in the amount of $305,866.95 from its FY 2007 Operating Budget to the FY 2007 Operating Budget of the Office of the City Attorney to fund the annual salaries, benefits, and certain administrative costs of two and one half (2.5) attorneys and one (1) Legal Secretary. IDT requests of 25% of the total shall be made by the City and funds transferred by the School Board on or about July first, October first, January first, and April first. Z 8. Term and Termination of Agreement. This Cooperative Agreement shall commence with the fiscal year of the parties which begins July 1, 2006, and ends June 30, 2007, and may be revised, as necessary, and renewed each fiscal year thereafter; provided, however, that each party shall give the other party notice of any intention to revise or not to renew the Agreement within one hundred twenty (120) days of the date of expiration of this Agreement, or any renewal hereof, in order that the other party will have the opportunity to make appropriate budget and staffing adjustments. SCHOOL BOARD OF CITY OF VIRGINIA BEACH By: Daniel D. Edwards, Chairman CITY COUNCIL, CITY OF VIRGINIA BEACH U-02 Meyera E. Oberndorf, Mayor School Board of the City of Virginia Beach: This Cooperative Agreement was approved by majority vote of the School Board of the City of Virginia Beach, Virginia on 4yg"t 8 , 2006. By: ;.Hz' School Board Clerk City Council of the City of Virginia Beach: This Cooperative Agreement was approved by majority vote of the City Council of the City of Virginia Beach, Virginia on , 2006. By: City Clerk 2 -37 - Item V.K.5. ORDINANCES ITEM #55528 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to require Disclosures re recreational areas in the Princess Anne Transition Area subdivision Open Space for public use with the homeowner's association responsible for liability insurance maintenance Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill " DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: k1? Item V K. 6. Diezel, Robert M. Dyer, Barbara M. Reba S. McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 1 REQUESTED BY COUNCILWOMAN BARBARA M. HENLEY 2 3 4 AN ORDINANCE TO REQUIRE CERTAIN DISCLOSURES 5 REGARDING RECREATIONAL AREAS TO PROSPECTIVE 6 PURCHASERS OF PROPERTY IN THE PRINCESS 7 ANNE/TRANSITION AREA 8 9 10 (a) The provisions of this ordinance apply shall 11 apply to all transfers by sale, exchange, installment land sales 12 contract, or lease with option to buy, whether or not the 13 transaction is with the assistance of a licensed real estate 14 broker or salesperson, of any residential real property located 15 within the Princess Anne/Transition Area, as identified in the 16 Comprehensive Plan, in any subdivision in which open space or 17 other recreational areas are open to the general public. 18 (b) Prior to the acceptance of a real estate purchase 19 contract, the owner of any residential real property described 20 in subsection (a) shall furnish to a prospective purchaser, 21 either in the real estate purchase contract, in an addendum 22 thereto, or in a separate document, a disclosure that: 23 (1) Open space and other recreational areas in the 24 subdivision are open to, and available for use 25 by, members of the general public without regard 26 to ownership of property within the subdivision; 27 and 28 29 30 31 32 33 34 (2) Where the open space or other recreational areas within the subdivision are owned by a property owner's association or equivalent entity, such association or equivalent entity is responsible for maintaining liability insurance against losses occurring to persons using the open space or other recreational areas. 35 36 Adopted by the City Council of the City of Virginia 37 Beach, Virginia, on the 22nd day of August , 2006. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA -10086 OID\Land Use\Ordres\TA disclosure ordin.doc R-2 August 7, 2006 2 EWE Item V.K.6. ORDINANCES ITEM #55529 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution re the FY -2006-07 State Performance Contract between the Virginia Beach Community Services Board (CSB) and the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (MH/MR/SA) Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 1 A RESOLUTION APPROVING THE FY 2006-07 2 PERFORMANCE CONTRACT BETWEEN THE 3 VIRGINIA BEACH COMMUNITY SERVICES BOARD 4 AND THE VIRGINIA DEPARTMENT OF MENTAL 5 HEALTH, MENTAL RETARDATION, AND 6 SUBSTANCE ABUSE SERVICES 7 8 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 9 OF VIRGINIA BEACH, VIRGINIA: 10 That the City Council hereby approves the FY 2006-07 11 performance contract between the City of Virginia Beach 12 Community Services Board and the Virginia Department of Mental 13 Health, Mental Retardation, and Substance Abuse Services, which 14 provides State controlled performance contract funding to the 15 Community Services Board. 16 Adopted by the Council of the City of Virginia Beach, 17 Virginia on the 22n$ay of Aligl1st 2006. APPROVED AS TO CONTENT: epartm t f Human Services CA10102 V:\citylaw\00018680.DOC R-3 August 11, 2006 APPROVED AS TO LEGAL SUFFICIENCY: P. K City Attorney's 01fice B�4 6A DEPARTMENT OF HUMAN SERVICES ADMINISTRATIVE DIVISION (757)437-6100 FAX (757) 490-5736 TDD (757) 437-6150 DATE: July 11, 2006 City of Virginia Beach 297 INDEPENDENCE BOULEVARD PEMBROKE SIX, SUITE 208 VIRGINIA BEACH, VA 23462-2891 TO: Citizens of Virginia Beach FROM: Martha S McClees, Virginia Beach Community Services Board Chair SUBJECT: FY 2007 Community Services Performance Contract This summary of the proposed SFY 2007 (July 1, 2006 - June 30, 2007) Community Services Performance Contract that makes State/Federal funds available for locally provided public mental health, mental retardation, and substance abuse services is provided for your review and comment. The funding identified includes State General Funds, State Restricted Funds, Federal Funds, required City Match Funds, Medicaid and other Fee Revenues. Units of service and estimated numbers of consumers to be served are based solely on funds made available through Medicaid, state and federal sources; services supported by local funding are not part of the State Performance Contract and therefore are not reflected in the data. The attached table is a summary of the core services and covered MR Waiver services, units of service, and funding levels projected to be paid for by funds provided and reported through the Performance Contract. FY 2007 Communitv Services Performance Contract Proaosal Summary Program Service Unit Proposed Funding Units of Service # of Consumers Mental Health Emergency Services $1,080,339 12,579 Hours 1473 Outpatient Services $2,342,529 23,870 Hours 1648 Case Management Services $1,658,311 33,406 Hours 1455 Group Supported Employment $36,845 1,040 Days 14 Highly Intensive Residential Services $960,800 2,578 Days 386 Consumer Monitoring Services $16,073 156 Hours 36 Day Treatment/Partial Hospitalization $752,058 69,371 Hours 310 Rehabilitation/Habilitation $1,497,693 165,238Hours 352 Individual Supported Employment $106,939 1,313 Hours 33 Supervised Residential Services (551) $1,245,133 24,455 Days 120 Supportive Residential Services (581) $284,013 6,056 Hours 150 Mental Retardation Case Management Services $1,693,140 31,668 Hours 700 Rehabilitation $2,396,314 114,4051-Iours 145 Consumer Monitoring Services $8,797 364 Hours 70 Supportive Residential Services $1,428,761 21,476 Hours 35 Supervised Residential Services $2,254,104 9,559 Days 30 Early Intervention $217,411 3,640 Hours 567 Group Supported Employment $570,043 5,250 Days 35 Individual Supported Employment $0 0 Days 0 Highly Intensive Residential $1,963,375 4,674 Days 13 Medicaid Mental Retardation HCB Waiver Services N/A N/A 178 Substance Abuse Outpatient $471,399 7,172 Hours 621 Case Management $465,783 5,615 Hours 200 Day Treatment/Part. Hosp. $353,184 8,586 Hours 60 Substance Abuse Social Detoxification Services $1,212,139 2,463 Hours 562 SA State MH Facility Admission Diversion Project N/A N/A 32 Intensive Residential Services $196,446 3,449 Bed Days 72 $359,551 8,570 Hours 85 Program Service Unit Proposed Funding Units of Service # of Consumers Supportive Residential Services Prevention Services $1,505,419 24,946 Hours N/A Administration Administrative Support $2,742,055 N/A. N/A. The full proposal is available for review and public comment beginning July 12,2006 through August 11, 2006 at the following locations: Virginia Beach Department of Human Services Administrative Offices 3432 Virginia Beach Blvd Virginia Beach, Va 23462 Phone: 437-3345 Virginia Beach Central Library 4100 Virginia Beach Blvd Phone 431-3001 City of Virginia Beach Public Information Office Municipal Center, Bldg #22 Phone 427-4111 City of Virginia Beach Clerk's Office Municipal Center, Bldg #1, Room 281 Phone 427-4303 City of Virginia Beach Web Site www.vbgov.com/dept/hs/mhmrsa/contact The contract will be acted on by the Virginia Beach Community Services Board at its July 27th Meeting. Once approved by the Board, the proposal will be forwarded to City Council for consideration and approval tentatively scheduled for August 15th. Following City Council approval, the proposal will be submitted to the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services. Please provide any written comments to the following address: Helen Wen Department of Human Services 3432 Virginia Beach Blvd, 3rd Floor Virginia Beach, VA 23462 Or Email to: Hwen@vbgov.com -39 - Item V.K. 7. ORDINANCES ITEM #55530 ADDED Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution requesting the Southeastern Public Service Authority (SPSA) amend its Articles of Incorporation to provide weighted membership on the Board Voting: 11-0 (By Consent) Council Members Voting Aye.- William ye: William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None August 22, 2006 I REQUESTED BY COUNCILMEMBER BILL R. DESTEPH 2 3 4 A RESOLUTION REQUESTING THE BOARD OF 5 DIRECTORS OF THE SOUTHEASTERN PUBLIC 6 SERVICE AUTHORITY TO INITIATE 7 AMENDMENTS TO ITS ARTICLES OF 8 INCORPORATION TO PROVIDE FOR WEIGHTED 9 MEMBERSHIP ON THE BOARD 10 11 12 WHEREAS, the participating jurisdictions comprising 13 the Southeastern Public Service Authority (SPSA) include 14 the Cities of Virginia Beach, Chesapeake, Franklin, 15 Norfolk, Portsmouth and Suffolk and the Counties of Isle of 16 Wight and Southampton; and 17 WHEREAS, SPSA was formed in 1976 as the successor to 18 the Southeastern Virginia Water Authority, which had been 19 created in 1973; and 20 WHEREAS, the original Articles of Incorporation of the 21 Southeastern Virginia Water Authority provided that the 22 powers of the Authority were to be exercised by a board of 23 directors consisting of one (1) member appointed by the 24 governing body of each participating jurisdiction; and 25 WHEREAS, SPSA's current Articles of Incorporation 26 contain a similar provision regarding the membership of 27 SPSA's Board of Directors, such that the current membership 28 of the Board includes one (1) member from each 29. participating jurisdiction; and 30 WHEREAS, the current provision of the Articles of 31 Incorporation regarding membership on the Board does not 32 take into account the relative population of the 33 participating jurisdictions; and 34 WHEREAS, in light of the disparity in population among 35 the participating jurisdictions, allocating membership on 36 the Board on the basis of population would result in a 37 Board that is more representative of the entire population 38 of SPSA's service area; and 39 WHEREAS, an amendment to the Articles of Incorporation 40 is necessary in order to effectuate such a change in the 41 membership of the Board; and 42 WHEREAS, action by each of the participating 43 jurisdictions is required in order to amend the Articles of 44 Incorporation; and 45 WHEREAS, SPSA's Board is the appropriate body to 46 initiate such an amendment to the Articles of 47 Incorporation; 48 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF 49 THE CITY OF VIRGINIA BEACH: 50 That the Board of Directors of the Southeastern Public 51 Service Authority (SPSA) is hereby respectfully requested 52 to initiate such action as may be necessary or appropriate 53 to effectuate the amendment of SPSA's Articles of 2 54 Incorporation so as to provide that the number of members 55 representing each participating jurisdiction shall be 56 directly proportional to the population of such 57 jurisdiction relative to the total population of all 58 participating jurisdictions. 59 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY 60. OF VIRGINIA BEACH, VIRGINIA: 61 That the City Clerk is hereby directed to provide a 62 certified copy of this Resolution to each member and 63 alternate member of SPSA's Board of Directors. 64 65 Adopted by the City Council of the City of Virginia 66 Beach, Virginia, on this 22nd day of August 67 2006. CA -10129 OID\ordres\SPSA member res.doc R-2 August 22, 2006 APPROVED AS TO LEGAL SUFFICIENCY: r City Attorney's Office 3 Item V K. 8. ORDINANCES ADDED -40 - ITEM #55531 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution expressing appreciation to the General Assembly refunding of various City facilities Voting: 11-0 (By Consent) Council Members Voting Aye. William R. "Bill " DeSteph, Harry E Henley, Vice Mayor Louis R. Jones, Oberndorf, John E. Uhrin, Ron A. James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None Diezel, Robert M. Dyer, Barbara M. Reba S. McClanan, Mayor Meyera E. Villanueva, Rosemary Wilson and August 22, 2006 REQUESTED BY COUNCILMEMBERS RON A. VILLANUEVA & ROSEMARY WILSON 1 RESOLUTION EXPRESSING APPRECIATION FOR THE 2 GENERAL ASSEMBLY'S FUNDING FOR CITY 3 FACILITIES 4 WHEREAS, the General Assembly was required to make 5 difficult choices in order to adopt a biennial budget for the 6 state; 7 WHEREAS, the General Assembly funded the following 8 facilities in the City of Virginia Beach: 9 • The Sandler Center for the Performing Arts ($1.46 10 million) 11 • Virginia Aquarium & Marine Science Center ($500,000) 12 • Contemporary Art Center of Virginia ($175,000) 13 • Virginia Beach Convention Center ($125,000) 14 • Lynnhaven House ($75,000); and 15 WHEREAS, this funding is vital to the success of these 16 important facilities, which, respectively, promote cultural 17 arts, marine education, fine arts, tourism, and historical 18 appreciation. 19 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 20 OF VIRGINIA BEACH, VIRGINIA: 21 1. That the City Council hereby expresses its appreciation 22 and gratitude to the members of the General Assembly of Virginia 23 for funding these facilities in the City of Virginia Beach; 24 2. That the City Council is especially grateful for the 25 efforts of the members of the City's local delejation to the 26 General Assembly who helped ensure that these funding items were 27 included in the budget; and 28 3. That the City Clerk is hereby directed to transmit a 29 certified copy of this resolution to each member of the City's 30 local delegation to the General Assembly. Adopted by the Council of the City of Virginia Beach, Virginia, on the 22nd day of August , 2006. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA -10130 X:\P&A\GG DIV\Ords & Res \GA thanks.res.doc R-1 August 22, 2006 2 Item V -M. PLANNING -41- Item 41- ITEM # 55532 1. MATHEWS GREEN ASSOCIAATES, L.L.0 2. JERRY O'DONNELL 3. CAROL CASE 4. GERALD FREEMAN 5. VISTACOR PARTNERS, LLC 6. VENTUREAST CORP CONDITIONAL CHANGE OF ZONING STREET CLOSURE CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING CHANGE OF ZONING August 22, 2006 -42 - Item V.M.1. PLANNING ITEM # 55533 The following registered in SUPPORT: Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 687-7502, represented the applicant and advised the applicant will dedicate a right-of-way to straighten out Princess Anne Road, in addition to excess property donated to Nimmo Church for their expansion. Attorney Nutter displayed a large area between the homes. The existing right-of-way for the Church will remain open space preservation area (a very large area of tree preservation between the residents and those traversing Princess Anne Road). A preservation easement will also be dedicated to the City. The issue entails connectivity to the Three Oaks neighborhood immediately to the south of this application. There will NOT be a vehicle connection with Three Oaks. However, when the P-1 area is rezoned, Council Lady Henley, representatives of the City will meet with the neighborhood and determine (although no vehicular connection), if emergency and pedestrian connections are desired between Matthews Green and Three Oaks. The applicant will pay the cost of these connections. Dennis Meligonis, 2256 Kindling Hollow Road, Phone: 430-4425, President - Three Oaks Homes Association, advised he would enjoy the upscale neighborhood consisting offorty-nine (49) homes adjacent to Three Oaks. The community has not had time to meet re the emergency access and bike path. They would like to confer with Council Lady Henley and the Fire Chief. Joseph Giancola, 2228 Kindling Hollow Road, Phone: 427-0245, resident of Three Oaks for 19 years, submitted the original petition to oppose any connection to Mathews Green. The Petition contains the signatures of 218 homeowners opposed to any connectivity to the Mathews Green community. Said petition is hereby made apart of the record. The first survey resulted in 189 signatures opposed to a street connection. The following registered in OPPOSTION: Renee Swinson, 2200 Kindling Hollow Road, Phone: 427-1956, over the past few years, numerous developments have been considered and approved within the Transition Area. With the increase in density, the need for this development is questioned. During the last three (3) years, over eight hundred (800) homes have been approved for development in the Transition Area. Kellam and Three Oaks Elementary Schools will have a difficult time accommodating the students. The cost for owning a home in Virginia Beach is more expensive and traffic congestion is also increasing. Funds are not increasing to balance the infrastructure needs with the increased density created by residential developments. Mayor Oberndorf referenced the correspondence form Captain P.J. Lorge, U.S. Navy, Commanding Officer, Naval Air Station Oceana, suggesting representatives of Mathews Green Association contact the Community Planning Liaison Officer, Ray Firenze. The Navy's Air Installation Compatible Use Zone Program designates residential development in this contour as incompatible. However, the 2005 Hampton Roads Joint Land Use Study produced no constraints on development in the 65 to 70 dB DNL sound contour. Said letter is hereby made apart of the record. Council Lady Henley advised the Civic Association has suspended meetings for the summer; therefore, they have not addressed the recommendations from the Planning stafffor a pedestrian trail or from the Fire Chief for emergency access without a connecting road. As the application for P-1 Preservation area will have to be considered at a future City Council Session, these accesses could then be considered. August 22, 2006 -43 - Item 43 - Item V.M.I. PLANNING ITEM # 55533 (Continued) Upon motion by Council Lady Henley, seconded by Councilman Villanueva, City Council ADOPTED, (EXCEPT NO ROADWAY OR PEDESTRIAN CONNECTIVITY) Ordinances upon application of MATHEWS GREEN ASSOCIATES, L.L.C. for a Conditional Change of Zoning and Discontinuance, closure and abandonment of portions of Mathews Green: ORDINANCE UPON APPLICATION OF MATHEWS GREEN ASSOCIATES, L.L.C. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG -1 TO CONDITIONAL R-20 WITH A PD - H2 OVERLAY ZO8061261 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Mathews Green Associates, L.L.C. for a Change ofZonink District Classification from AG -1 Agricultural District to Conditional R-20 Residential District with a PD -H2 Overlay on property located at 2217 Mathews Green (GPIN 2404949948). DISTRICT 7 — PRINCESS ANNE The following condition shall be required: A ND, 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record Ordinance upon application of Mathews Green Associates, L.L.C. for the discontinuance, closure and abandonment of portions of Mathews Green beginning at a point approximately 130 feet east of its intersection with Princess Anne Road and extending 274.73 feet in an easterly direction and the southwest quadrant of the cul-de-sac, approximately 100 feet east of Princess Anne Road. DISTRICT 7 —PRINCESS ANNE The following conditions shall be required: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures, " approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcel. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. August 22, 2006 Item V.M.1. PLANNING ITEM # 55533 (Continued) 4. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council (August 21, 2007). If the conditions noted above are not accomplished and the final plat is not approved within one (1) year of the City Council vote to close the right-of-way, this approval shall be considered null and void. This Ordinance shall be effective in accordance with Section 107 ()q of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of August Two Thousand Six. Voting: 10-1 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Mayor Meyera E. Oberndorf Council Members Absent: None Vice Mayor Jones DISCLOSED pursuant to Conflict of Interests Act re Mathews Green Associates, L.L.C.'s for a Conditional Change of Zoning application located at 2217 Matthews Green; and, discontinuance, closure and abandonment of portions of Matthews Green east of Princess Anne Road. Property owned by Holloman -Brown Funeral Home — Bayside Chapel, Inc. is located across the street from property that is the subject of Mathews Green Associates, L.L. C. 's applications. Vice Mayor Jones has an ownership interest in Holloman -Brown Funeral Home, Inc. The City Attorney has advised Vice Mayor Jones he does not have a personal interest in this transaction and is s able to participate in the discussion and vote fairly, objectively and in the public interest. Vice Mayor Jones's letter of August 22, 2006, is hereby made apart of the record. August 22, 2006 y 2, Op OUR NAT1�N LOUIS R. JONES VICE MAYOR Mrs. Ruth Hodges Smith, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Smith: City of Virgirzia Beach August 22, 2006 Re: Disclosure of Interest in Property I make the following declaration: PHONE: (757) 583-0177 FAX: (757) 588-4659 I am executing this written disclosure regarding Matthews Green Associates, L.L..C.'s applications for (1) a change of zoning district classification on property located at 2217 Matthews Green (GPIN 2404949948); and (2) discontinuance, closure and abandonment of portions of Matthews Green east of Princess Anne Road. 2. Property owned by Holloman -Brown Funeral Home—Bayside Chapel, Inc. ("Bayside Chapel") is located across the street from property that is the subject of Matthews Green Associates, LLC's applications. Bayside Chapel is a subsidiary of Holloman - Brown Funeral Home, Inc. I have an ownership interest in Holloman -Brown Funeral Home, Inc. that exceeds 3% of the corporation's total equity. 3. Planning Director Robert Scott has opined that it is not reasonably foreseeable that Bayside Chapel would realize a direct or indirect benefit or detriment as a result of this transaction, and that it would be speculative to conclude otherwise. 4. The City Attorney has reviewed the provisions of the State and Local Government Conflict of Interests Act (Va. Code § 2.2-3000 et seq.) and has concluded that I do not have a "personal interest in [this] transaction." 1008 WITCH POINT TRAIL, VIRGINIA BEACH, VA 23455-5645 Ruth Hodges Smith 2 August 22, 2006 5. Nevertheless, I wish to publicly disclose my interest in the above -referenced properties and businesses. Accordingly, I respectfully request that you record this declaration in the official records of City Council. Thank you for your assistance in this matter. Sincerely, Louis R. J� es Vice Mayo In Reply Refer To Our File No. DF -6326 TO: FROM RE Leslie L. Lilley lepB. Kay Wilsb CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: July 7, 2006 DEPT: City Attorney DEPT: City Attorney Conditional Zoning Application: Matthews Green Associates, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on July 18, 2006. 1 have reviewed the subject proffer agreement, dated May 19, 2006 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ks Enclosure cc: Kathleen Hassen '� Document Prepared By: Troutman Sanders LLP 222 Central Park Avenue Suite 2000 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT (the "Agreement") is made as of this 19th day of May, 2006 by and between MATHEWS GREEN ASSOCIATES, LLC, a Virginia limited liability company (the "Grantor"), the current owner of that certain property located along Princess Anne Road, in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property") and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from AG -2 to Conditional R-20 (PDH -2); and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the 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 subject Property and at the same time to recognize the effects of the 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 Conditional R-20 (PDH -2) are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing R-20 (PUH -2) distracts by the existing City's Zoning Ordinance (CZO), the following reasonable ;-ondlidons r� fated to the GPIN NO.: 2404-94-9948-0000 physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself, it's successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site ,plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, it's heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. When developed, the Property shall be developed in substantial conformance with the conceptual plan titled "Rezoning Exhibit of Mathews Green", dated March 21, 2006, and N prepared by Kellam Gerwitz, a copy of which has been exhibited to the City Council and is on file with City Planning Department (the "Conceptual Plan"). 2. When developed, all residential lots numbered 1 through 45, inclusive, on the Conceptual Plan shall meet or exceed the following setbacks and lot dimensions: a. Front Yard Setback: Twenty Feet (20') b. Front Yard Setback for Unenclosed, Attached One -Story Porch: Ten Feet (10') C. Side Yard Setback: Ten Feet (10') d. Side Yard Setback Adjacent to a Public Street: Twenty Feet (20') e. Rear Yard: Twenty Feet (20') f. Rear Yard for Accessory Structure: Five Feet (5') g. Minimum Lot Area: 11,700 square feet 3. When developed, all residential lots numbered 46 through 49 on the Conceptual Plan shall contain a rear yard landscape buffer at fifty feet (50') in width along the re -aligned portion of Princess Anne Road, cross -hatched and shown on the Conceptual Plan. 4. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall dedicate to Grantee the portion of the Property along Mathews Green hatched and shown on the Conceptual Plan as "R/W to Be Dedicated to City" Grantor shall not be entitled to any compensation for the value of the Property dedicated to Grantee. 5. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall dedicate to Grantee a portion of the Property for the future re -alignment of Princess Anne Road. The portion of the Property to be dedicated shall be located within the area of the Property hatched and shown on the Conceptual Plan as "New Alignment Princess Anne Road". Grantor shall not be entitled to any compensation for the value of the Property dedicated to Grantee. 3 6. On or before the date Grantor records a subdivision plat creating the residential lots shown on the Conceptual Plan, Grantor shall record a Declaration of Protective Covenants, Conditions and Restrictions ("Deed Restrictions"), which shall be administered and enforced by a homeowners association in which all landowners within Grantor's development shall be members. The Deed Restrictions shall be prepared in substantially the same form as the exhibit titled "Proposed Deed Restrictions" exhibited to the City Council and on file with the City Attorney's Office. 7. The Deed Restrictions shall require the establishment of an architectural review committee which shall administer and enforce the "Architectural Design Guidelines for Mathews Green Subdivision" dated August 28, 2005, a copy of which has been exhibited to the City Council and is on file with the City Planning Department. The Architectural Design Guidelines shall apply only to the residential lots numbered 1 through 45, inclusive, on the Conceptual Plan and shall not apply to lots 46 through 49, inclusive. S. The areas shown on the Conceptual Plan as "Homeowners Assoc. Open Space" (the "Open Space Area") shall be subject to restrictive covenants recorded which prohibit the use of such area for any purpose but recreation and open space use. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall become part of the deed to each lot or parcel within Grantor's development. The covenants shall be approved by the City Attorney, or his designee, and recorded before the first building permit in Grantor's development is issued. 9. Grantor shall provide for maintenance of the Open Space area, either by the homeowners association, in which case all property owner's within Grantor's development shall be responsible for the costs and expenses of such maintenance, or by conveying an interest in the Open Space Areas to a public or private entity for such purposes. 10. Grantor shall dedicate the area shown on the Conceptual Plan as "Open Space/Preservation Area" (the "Preservation Area") to the City of Virginia Beach, no later than thirty (30) days after the issuance of the first building permit within Grantor's development. The Preservation Area shall be subject to restrictive covenants recorded which prohibit the use of such area for any purposes other than open space use or passive recreational uses, such as hiking trails, walking paths, or other similar uses which do not detract from the forestral nature of the 11 Preservation Area. The restrictive covenants shall run with the land and be in full force and effect for a period of at least fifty (50) years. The covenants shall become part of the deed dedicating the Preservation Area to the City of Virginia Beach. The covenants shall be approved by the City Attorney, or his designee. 11. Grantor shall file and obtain approval of a rezoning petition to rezone the Open Space Area to P-1 Preservation District, as defined in the CZO, prior to the approval of any subdivision plat within Grantor's development or the issuance of a building permit. 12. Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor covenants and agrees that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. 5 IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: MATHEWS GREEN ASSOCIATES, LLC, a Virginia limited liability company By:—�� Name: Title: COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The. foregoing Inst ment was acknowledged before me thisz �'iay of d-rN C11,, 2006, by CAM* his capacity as member of Mathews Green Associates, LLC, a Virginia limited liability company. He is personally known to me or has produced as identification. My Commission Expires: VB2965480 r� Qcll?� Y_ - -� Notary Public on EWAS COACA MIONM PANEEA L EM EXHIBIT A LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as S.R. Mathews 50.0 ac. as shown on that certain plat entitled, "PROPERTY OF S.R. MATHEWS LOCATED NEAR NIMMO CHURCH - PRINCESS ANNE CO., VA", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 29, at page 6. LESS, SAVE AND EXCEPT that portion conveyed to the City of Virginia Beach by Deed dated July 18, 1983 and recorded in Deed Book 2273, at Page 359. IT BEING the same property conveyed to Mathews Green Associates, LLC by Deed from Spencer Relmond Mathews, Jr., Louis Scott Mathews and Claudius Floyd Mathews, II, dated July 12, 2005 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 200507280117500. 7 ■s__ r� — Mathews Green Associates, LLC 13 K \ ../ p.�•d o / ✓ / HISTORICAL R-20 aI �- CULTURAL DrsFRiCT t Q-2 fi yr P F ✓� f/ Vii ' His 0-2 DISTRICT 21 AG -2 AG -2 Y C Street Closure 1 IN THE MATTER OF CLOSING, VACATING AND 2 DISCONTINUING THOSE PORTIONS OF MATHEWS 3 GREEN DESIGNATED AS "PORTION OF MATHEWS 4 GREEN TO BE VACATED (0.35 ACRES)" AND 5 "PORTION OF MATHEWS GREEN TO BE VACATED 6 (0.08 ACRES)" AS SHOWN ON THAT CERTAIN 7 PLAT ENTITLED "STREET CLOSURE EXHIBIT 8 OF MATHEWS GREEN VIRGINIA BEACH 03-23- 9 06" 10 11 12 WHEREAS, Mathews Green Associates, L.L.C., a Virginia 13 limited liability company, applied to the Council of the City of 14 Virginia Beach, Virginia, to have portions of the hereinafter 15 described street discontinued, closed, and vacated; and 16 WHEREAS, it is the judgment of the Council that the 17 portions of the said street be discontinued, closed, and 18 vacated, subject to certain conditions having been met on or 19 before one (1) year from City Council's adoption of this 20 Ordinance; 21 NOW, THEREFORE, BE IT ORDAINED by the Council of the 22 City of Virginia Beach, Virginia: 23 SECTION I 24 That the hereinafter described portions of the street 25 be discontinued, closed and vacated, subject to certain 26 conditions being met on or before one (1) year from City 27 Council's adoption of this ordinance: GPIN: 2404-94-9948, 2404-95-3651, 2404-95-6764 1 28 All those certain pieces or parcels of land 29 situate, lying and being in the City of 30 Virginia Beach, Virginia, designated and 31 described as "PORTION OF MATHEWS GREEN TO BE 32 VACATED (0.35 ACRES)" and "PORTION OF 33 MATHEWS GREEN TO BE VACATED (0.08 ACRES)" 34 shown as the hatched area on that certain 35 plat entitled: "STREET CLOSURE EXHIBIT OF 36 MATHEWS GREEN VIRGINIA BEACH 03-23-06" 37 Scale: 1" = 601, dated March 23, 2006, 38 prepared by Kellam Gerwitz, a copy of which 39 is attached hereto as Exhibit A. 40 41 42 SECTION II 43 The following conditions must be met on or before one 44 (1) year from City Council's adoption of this ordinance: 45 1. The City Attorney's Office will make the final 46 determination regarding ownership of the underlying fee. The 47 purchase price to be paid to the City shall be determined 48 according to the "Policy Regarding Purchase of City's Interest 49 in Streets Pursuant to Street Closures," approved by City 50 Council. Copies of said policy are available in the Planning 51 Department. 52 2. The applicant shall resubdivide the property and 53 vacate internal lot lines to incorporate the closed area into 54 the adjoining parcels. The resubdivision plat shall be 55 submitted and approved for recordation prior to final street 56 closure approval. 57 3. The applicant shall verify that no private 58 utilities exist within the right-of-way proposed for closure. 59 Preliminary comments from the utility companies indicate that 60 there are no private utilities within the right-of-way proposed 61 for closure. If private utilities do exist, the applicant shall 62 provide easements satisfactory to the utility companies. 63 4. Closure of the right-of-way shall be contingent 64 upon compliance with the above stated conditions within one (1) 65 year of approval by City Council. If all conditions noted above 66 are not in compliance and the final plat is not approved within 67 one (1) year of the City Council vote to close the street, this 68 approval will be considered null and void. 69 SECTION III 70 1. If the preceding conditions are not fulfilled on 71 or before August 21, 2007, this Ordinance will be deemed null 72 and void without further action by the City Council. 73 2. If all conditions are met on or before August 21, 74 2007, the date of final closure is the date the street closure 75 ordinance is recorded by the City Attorney. 76 3. In the event the City of Virginia Beach has any 77 interest in the underlying fee, the City Manager or his designee 78 is authorized to execute whatever documents, if any, that may be 3 79 requested to convey such interest, provided said documents are 80 approved by the City Attorney's Office. 81 SECTION IV 82 A certified copy of this Ordinance shall be filed in 83 the Clerk's Office of the Circuit Court of the City of Virginia 84 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA 85 BEACH as "Grantor" and MATHEWS GREEN ASSOCIATES, L.L.C., as 86 "Grantee." 87 Adopted by the Council of the City of Virginia Beach, 88 Virginia, on this 22nd day of August 2006. THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE-FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIL. CA -9878 \\vbgov.com\dfs 1\applications\citylawprod\cycort32\Wpdocs\D005\P001 \0001 7274.DOC R-1 July 7, 2006 4 APPROVED AS TO CONTENT: W Plann' g Department APPROVED AS TO LEGAL SUFFICIENCY: Lxa� a- wit City Att rney ,i RFF:NAD 83/93 (HARN) 114MIXIMN, M.' 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PLANNING ITEM # 55534 The following registered in SUPPORT. Terry O'Donnell, 3596 Landstown Road, Phone: 672-6830, the applicant referenced petition of neighbors opposed to the proposal for a commercial Kennel. The petitions expressed concern re the puppy mill" concept, and increased traffic on the street. Mr. O'Donnell distributed information which is hereby made apart of the record. Mr. O'Donnell introduced his signed petition of support as long as certain conditions were met (soundproof building, proper disposal of sewage, no more breeding than currently exists and dogs outside of the building will be leashed or in a fully fenced area). Mr. O'Donnell also distributed a schematic of his kennel. There are 19,141 licensed dogs in Virginia Beach. There are 320 boarding spaces available for dogs. The following registered in OPPOSITION. Sharon Adams, 303 52nd Street, Phone: 422-0250 Peggy Economidis, 23624 Landstown Road, Phone: 650-2098 Upon motion by Council Lady Henley, seconded by Councilman Villanueva, City Council DENIED the Ordinance upon application of TERRY O'DONNELL for a Conditional Use Permit: ORDINANCE UPON APPLICA TION OF TERRY O DONNELL FOR A CONDITIONAL USE PERMIT FOR A COMMERCIAL KENNEL Ordinance upon application of Terry O'Donnell for a Conditional Use Permit for a commercial kennel on property located at 3596 Landstown Road (GPIN 1484643703). DISTRICT 7 —PRINCESS ANNE Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 .e Item i!M.3. PLANNING ITEM # 55535 Carol Case, 113 Matt Lane, Phone: 491-1277, fulltime volunteer as wildlife Rehabilitator, inspected by and maintain permits from the Virginia Department of Game and Inland Fisheries, and the U.S. Fish and Wildlife Service. By law, only individuals who hold the proper permits may care for wildlife. Ms. Case works closely with area Veterinarians, Virginia Beach Animal Control and the SPCA. Ms. Case provides temporary care to orphaned, injured wildlife. No animal remains in her care for longer than ninety (90) days. The neighbors are in full support. Petitions of over 700 signatures were presented in support and are hereby made a part of the record. Sharon Adams, 303 52nd Street, Phone: 422-0250, Executive Director — Virginia Beach SPCA. This is a noble activity and no complaints have been received. Lisa Barlow, 948 Morgan Trail, Phone: 420-7879, President of Wildlife Response, Incorporated. Since 1992 Mrs. Case has successfully rehabilitated injured and orphaned wildlife and educated the public successfully. Martha Shiris, 3848 Forest Glenn, Phone: 498-8858 George Masters, 805 Seward Lane, phone: 422-0289 Barbara Gibson, 3712 Gladstone Drive, Phone: 431-8252, federally and state licensed wildlife rehabilitator for almost fifteen (15) years and also shelter manager for the Virginia Beach SPCA Dale Bartlett, 3040 Holland Road, Phone; 427-6387, Community Outreach Director for the Virginia Beach SPCA Suzanne Walsh, 742 Alder Circle, Phone: 495-1895, friend since 1992 and has brought wildlife animals for rehabilitation to Carol Linda Jaffe, 1030 Red Oak Road, Phone: 373-9767, Coordinator of the Virginia Beach SPCA Wildlife Program Upon motion by Councilman Uhrin, seconded by Councilman Wood, City Council DENIED an Ordinance upon application of CAROL CASE for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator): ORDINANCE UPON APPLICATION OF CAROL CASE FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (WILDLIFE REHABILITATOR) Ordinance upon application of Carol Case for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator) on property located at 113 Matt Lane (GPIN 2407743456). DISTRICT 6 — BEACH Voting: 6-5 Council Members Voting Aye: William R. "Bill" DeSteph, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva and James L. Wood Council Members Voting Nay: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Mayor Meyera E. Oberndorf and Rosemary Wilson Council Members Absent: riltom August 22, 2006 -47 - Item V..M.3. PLANNING ITEM # 55535 (Continued) Upon motion by Councilman Uhrin, seconded by Councilman Villanueva, City Council RECONSIDERED the DENIAL of the Ordinance upon application of CAROL CASE for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator): ORDINANCE UPON APPLICATION OF CAROL CASE FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (WILDLIFE REHABILITATOR) Ordinance upon application of Carol Case for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator) on property located at 113 Matt Lane (GPIN 2407743456). DISTRICT 6 — BEACH Voting: 9-2 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- William ay: William R. "Bill " DeSteph and Reba S. McClanan Council Members Absent: None August 22, 2006 .M.3. LANNING ITEM # 55535 (Continued) Upon motion by Councilman Uhrin, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application of CAROL CASE for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator): ORDINANCE UPON APPLICATION OF CAROL CASE FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (WILDLIFE REHABILITATOR) 8080634171 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Carol Case for a Conditional Use Permit for a home occupation (Wildlife Rehabilitator) on property located at 113 Matt Lane (GPIN 2407743456). DISTRICT 6 — BEACH The Conditional Use Permit shall be valid for six (6) months. City Manager's staff shall work with applicant to achieve an alternate solution within six (6) months. This Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-second of August Two Thousand Six. Voting: 9-2 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill" DeSteph and Reba S. McClanan Council Members Absent: None August 22, 2006 -50 - Item V M.4. PLANNING ITEM # 55536 (Continued) 2. The exterior of the building shall be cleaned and painted within sixty (60) days of the approval of the Use Permit by the City Council. 3. As long as an automobile repair garage is operated on the property, its hours of operation shall be limited to 8:00 a. m. until 6: 00 p.m. Monday through Saturday. 4. No use of the propertyfor dwelling purposes shall be allowed anywhere on the property, including within the building. 5. All auto repairs shall take place inside the building. 6. No body work or painting of automobiles, other than minor touch up painting, shall take place on the property. 7. All storage of materials and equipment shall be within the buildings. 8. No outside storage or display of tires, other than in a "casing enclosure "for tire reclamation, shall be permitted. 9. No outside storage of vehicles in a state of obvious disrepair shall be permitted. If vehicles in this condition require storage, then such vehicles shall be stored within the building. 10. Industrial waste shall be disposed of properly and the dumpster shall be emptied on a regularly scheduled basis. 11. Only six (6) vehicles, in need of repair, shall be parked outside of the building. 12. An administrative review shall take place one (1) year from the date of approval by City Council. Voting: 11-0 Council Members Voting Aye: William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 22, 2006 CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF -6435 DATE: August 9, 2006 TO: Leslie L. Lilley. DEPT: City Attorney FROM: B. Kay Wilsonf'o DEPT: City Attorney RE: Conditional Zoning Application: Gerald Freeman, Gary Freeman and Marvin Freeman The above -referenced conditional zoning application is scheduled to be heard by the City Council on August 22, 2006. I have reviewed the subject proffer agreement, dated May 31, 2006 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/als Enclosure cc: Kathleen Hassen GERALD FREEMAN, GARY FREEMAN, AND MARVIN FREEMAN TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 31St day of May, 2006, by and between GERALD FREEMAN, GARY FREEMAN, AND MARVIN FREEMAN, the party of the first part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, the parry of the second part WITNESSETH: WHEREAS, the party of the first part is the owner of a certain parcel of property located in the Princess Anne District of the City of Virginia Beach, Virginia, containing approximately 27,629 square feet and described in "Exhibit A" (The "Property") attached hereto and incorporated herein by this reference; and WHEREAS, the party of the first part is the owner of the Property and has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classifications of the Property from AG -2 to conditional B-2 Zoning District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the 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 effects of change, and the need for various types of uses, certain This document prepared by: 1 r' V Kaufman & Canoles, P.C. 524 Johnstown Road Chesapeake, VA 23322 GPIN: 2309-91-6281 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 the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the B-2 Zoning District by the existing overall 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, the 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 Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenant and agree 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 the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title and which will not be required of the Grantors until the Property is used for the aforementioned purposes: 1. The Property will be developed in substantial conformance with the conceptual site plan entitled "Resubdivision Plat of the Beulah Freeman Estate" dated October 10, 2005, 2 including but not limited to, vacating the property lines as depicted in the attached Exhibit B, which shall provide for a lot meeting the dimensional requirements for the B-2 zoning district. 2. No living arrangements shall be allowed in, on or about the premises. 3. As long as an automobile repair garage is operated on the property its hours of operation shall be limited to 8:00 a.m. to 6:00 p.m. Monday through Saturday. 4. No body work or painting of automobiles, other than minor touch-up painting, shall take place on the property. 5. All auto repair must take place inside the building. 6. If lighting fixtures are installed for illumination purposes, any such fixtures shall be of an appropriate height and design, and angled appropriately as to prevent any direct reflection toward aUj "acent uses and Ciiy sheets. Any such 'lighting shalt be directed and deflected down at the ground, and not out horizontally or up in the air. 7. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City codes by all cognizant City agencies and departments to meet all applicable City code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of 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 Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 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. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions 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, the 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 the Grantor and the Grantee. 0 WITNESS the following signature and seal: GRANTORS: GERALD FREEMAN By: ,i,l �2.c��n��-- (SEAL) Gerald Freeman GARY FREEMAN By: CZ,44 J12a�a4d_(SEAL) F eman MARVIN EMAN By: .c.. A06L— (SEAL) Marvin Freeman STATE OF VJM&M��Up G�/C OUNTY OF �LM,&OO�Cj CAN , to -wit: acknowledged before me this 3A_ day of The foregoing instrument was 2006, by Gerald Freeman. Notary Public My Commission Expires: t 1,� d 0�7 STATE OF'�%-��` CIT /COUNTY OF'IL�eh to -wit: The foregoing instrument was acknowledged before me this � r7day of qL , 2006, by Gary Freeman. Notary P blic My Commission Expires: Orl STATE OF V�.�1• D OUNTY OFY&0 as , to -wit: ,�) The foregoing instrument was eYt.�2_ 2006, by Marvin Freeman. acknowledged before me this day of Notary Public My Commission Expires: I (� :ODMA\PCDOC S\DOC SCHES\7024426\ 1 R EXHIBIT A ALL THAT certain lot, piece or parcel of land, an area of approximately 27,629 square feet, together with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, commencing at a point which is approximately 288.90 feet east of the northeast intersection of Morris Neck Road and Princess Ann Road along a line having a bearing of North 80'10'12" West a and from such point running North 09 51'13" East a distance of 2.00' to the true point of beginning of the parcel herein described and from such true point of beginning running North 09'51'13" East a distance of 98.00' to a point; thence North 18'52'13" East a distance of 91.35' to a point; thence South 80'10'12" East a UIDLailCe of I V I U-) Lo a pVIILL; theist c JViIL11 OV�I V' 12" East a U1JLd1IUr, of 34.28' to a point; thence South 09'59'11" West a distance of 188.23'to a point; thence North 80'10'12" West; said point being the POINT OF BEGINNING. -51 - Item V.M. 5. PLANNING ITEM # 55537 Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 687-2802, represented the applicant, and advised this property is not a single parcel, but an accumulation of seven (7) to eight (8) parcels. Mr. Nutter distributed the Architectural Design booklet, entitled Landstown Commons (developer Goodman and Company), and correspondence from the City of Newport News commending the Goodman Company for a project in Newport News. Said information is hereby made a part of the record. The applicant has worked closely with the Navy and the adjacent Civic League. The neighborhoods are in support. The buildings have been located up against the adjacent right-of-way. A series of internal walkways have been designed throughout the Center. There is a minimum setback of 110 feet from the closest point of the building to any property line. There is a combination of landscaping, berms and water features to separate the residents the Landstown Commons development. In addition to the retail, 40, 000 square feet of office space has been proffered. The applicant will provide a large number of improvements to both Princess Anne Road and Dam Neck Road to facilitate the traffic concerns. Approximately $4 -MILLION worth of public improvements will be placed directly into this intersection. Nick Siewers, 3241 Barberry Lane, Phone: 641-0727, President — Landstown Civic League consisting of approximately nine hundred fifty (950) families. Mr. Siewers correspondence is hereby made apart of the record. The following registered in OPPOSITION: Attorney John Richardson, 2101 Parks Avenue, Phone: 491-4004, represented a group of developers: Amada Hoffler, , Ellis Gibson, Lakeside Construction, and Commercial Real Estate Services. The store frontage faces the interior of the property and thus is not in compliance with the Comprehensive Plan. Other than the main street of the development, the remaining project is a "big box " shopping center. Upon motion by Council Lady Henley, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of VISTACOR PARTNERS, LLCfor a Conditional Change of Zoning: ORDINANCE UPON APPLICA TION OF VISTA COR PARTNERS, L.L. C. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG -1 AND AG -2 TO CONDITIONAL B-2 Z08061263 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Vistacor Partners, L.L.C. for a Change o Zoning District Classification from AG -1 and AG -2 Agricultural Districts to Conditional B-2 Community Business District on property located at the northeast intersection of Dam Neck Road and Princess Anne Road (GPINs 1485909486; 1485901501; 1485807898; part of 1485910167; part of 1485910006; 1484999748; 1484091664; 1484092567). DISTRICT 7 — PRINCESS ANNE The following condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made apart of the record. August 22, 2006 -52 - Item V.M.S. PLANNING ITEM # 55537 (Continued) Attorney R. J. Nutter's letter of August 22, 2006, is hereby made a part of the record (addressing use of property at the corner of Dam Neck Road and Princess Anne Road, re pedestrian walkways, exterior finishes and office use) Voting: 10-1 Council Members Voting Aye: William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva and James L. Wood Council Members Voting Nay.- Rosemary ay: Rosemary Wilson Council Members Absent: None Vice Mayor Jones DISCLOSED pursuant to Conflict of Interests Act re . Vistacor Partners,L.L.C, for a Conditional Change of Zoning application, located at the northeast intersection of Dam Neck Road and Princess Anne Road. Vice Mayor Jones has an ownership interest in both Tidewater Cemetery Corporation and Holloman -Brown Funeral Home, Inc. Property owned by Tidewater Cemetery Corporation and property owned by Holloman -Brown Funeral Home, Inc. are both located across Princess Anne Road from the property that is the subject of Vistacor Partners, L.L.C. 's application. The City Attorney has advised Vice Mayor Jones is able to participate in the discussion and vote fairly, objectively and in the public interest. Vice Mayor Jones's letter of August 22, 2006, is hereby made a part of the record. August 22, 2006 Z 2, oy99�s s e��` OP OUR NAT1�N LOUIS R. JONES VICE MAYOR Mrs. Ruth Hodges Smith, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Smith: City of Virginia Beach August 22, 2006 Re: Disclosure of Interest in Property I make the following declaration: PHONE: (757) 583-0177 FAX: (757) 588-4659 1. I am executing this written disclosure regarding Vistacor Partners, LLC for a change of zoning district classification for property located at the northeast intersection of Dam Neck Road and Princess Anne Road (GPINs 1485909486, 1485901501, 1485807898, part of 1485910167, part of 1485910006, 1484999748, 1484091664, and 1484092567). 2. I have an ownership interest in both Tidewater Cemetery Corporation and Holloman - Brown Funeral Home, Inc. My ownership interest in both corporations exceeds 3% of the total equity of each corporation. Property owned by Tidewater Cemetery Corporation, and property owned by Holloman -Brown Funeral Home, Inc. are both located across Princess Anne Road from the property that is the subject of Vistacor Partners, LLC's application. 3. Planning Director Robert Scott has opined that it is not reasonably foreseeable that either Tidewater Cemetery Corporation or Holloman -Brown Funeral Home, Inc. would realize a direct or indirect benefit or detriment as a result of this transaction, and that it would be speculative to conclude otherwise. 1008 WITCH POINT TRAIL, VIRGINIA BEACH, VA 23455-5645 Ruth Hodges Smith 2 August 22, 2006 4. The City Attorney has reviewed the provisions of the State and Local Government Conflict of Interests Act (Va. Code § 2.2-3000 et seq.) and has concluded that I do not have a "personal interest in [this] transaction." 5. Nevertheless, I wish to publicly disclose my interest in the above -referenced properties and businesses. Accordingly, I respectfully request that you record this declaration in the official records of City Council. Thank you for your assistance in this matter. Sincerely, v' Louis R. Jones Vice Mayor X/�' rTROUTMAN SANDERS LLP A T T O R N E Y S A T L A W A LIMITED LIABILITY PARTNERSHIP 222 Central Park Avenue Suite 2000 VIRGINIA BEACH, VIRGINIA 23462 www.troutmansanders.com TELEPHONE: 757-6877500 FACSIMILE: 757-687-7510 R. J. Nutter, II rj.nutter@troutmansanders.com August 22, 2006 Mr. Robert J. Scott Planning Director Operations Building 2, Room 115 2405 Courthouse Drive Virginia Beach, Virginia 23456 Re: Conditional Rezoning Application by Vistacor Dear Bob: Direct Dial: 757-687-7502 Direct Fax: 757-687-1514 It has recently come to our attention that your office wanted additional clarification on four issues we believe are already covered in our proffers. In order, however, to be very clear, we want this letter to be part of the record, and my client is agreeing to the things I have set forth herein to address the questions raised within the last twenty-four (24) hours. 1. Use at Corner of Dam Neck Road and Princess Anne Road. A question has arisen about the location and screening of any loading area and/or mechanical equipment located on the proposed building at the intersection of Princess Anne Road and Dam Neck Road that is visible on three sides from the adjacent rights-of-way. Because no user has been identified for this particular site as yet, I cannot detail the exact design element. However, I did want to reassure you that your concerns have been addressed. This building is shown on page 2 and page 5 of our proffered Design Handbook. This building, like all the other buildings on the site, has concealed mechanical equipment, and its appearance from the right-of-way, is as important to the owners of the property as is to the City Council. My client will guarantee that any mechanical equipment located on the roof of this structure is completely concealed by parapet walls on all four sides of the building. If any loading space or mechanical equipment is located at ground level, those facilities will be screened by a combination of walls and landscaping. Any such wall shall be constructed of the same building materials and in the same color and in the same design as the principal structure. 2. Pedestrian walkways. Our plan depicts four pedestrian walkways throughout the center parking areas of the property providing a series of convenient pedestrian paths for tenants and customers of Landstown Commons. These walkways are depicted on page 2 and in part on page 21 of the Design Handbook for Landstown Commons. This is to confirm that all of these internal, ATLANTA • HONG KONG • LONDON NEWARK • NEW YORK • NORFOLK • RALEIGH RICHMOND • TYSONS CORNER VIRGINIA BEACH • WASHINGTON, D.C. TROUTMAN SANDERS LLP ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP Mr. Robert J. Scott August 22, 2006 Page 2 interconnecting walkways will be landscaped substantially similar to the depiction on page 21 in the Design Handbook, all of them will be design and constructed with a curved pathway and the pathway portion of the connections will be constructed with either pavers, stamped concrete, stamped asphalt, or a similar quality material in colors designed to accent and provide a pleasant pedestrian walkway for customers at Landstown Commons. 3. Exterior Finishes. The exterior finishes of the rear portions of the buildings adjacent to Princess Anne Road and Dam Neck Road are depicted in the Design Handbook. This is to confirm that the rear portions of these buildings will not be painted block, but instead will be a combination of the different building materials and colors depicted on page 20 of the Design Handbook. 4. Office Use. The developers have proffered that a minimum of 40,000 square feet of office space will be developed on the property or upon any additional property acquired by the developer and incorporated into the shopping center. The proffered plans call for 20,000 square feet of office space to be constructed above the first floor retail space of buildings 3 and 4 in the Lifestyle Center. Currently, the developers intend to acquire a parcel at the intersection of Princess Anne Road and Winterberry Road from the City and submit a conditional rezoning to locate at least another 20,000 square feet of office space at that location. If for any reason the developers do not acquire that parcel from the City, then the developers will provide the additional 20,000 square feet of office space within the confines of the existing property. In such event, the office space could be either second story additions similar to that provided at the Lifestyle buildings, over portions of the proposed retail buildings or the developers will convert some of the proposed retail use area into office space. In any event, all of the materials, colors, and design shown within the Design Handbook would apply to the development of the additional office space within the current limits of the property. I hope the foregoing will amplify the intent and meaning of the proffers currently on file with your department. cc: Ms. Barbara M. Henley Mr. John Dowd 322041 G1NiA-BFAc X14 �L 04 UCITY OF VIRGINIA BEACH a INTER -OFFICE CORRESPONDENCE FS 9 O OUR NP"ON In Reply Refer To Our File No. DF -6470 TO: Leslie L. Lilley FROM: B. Kay Wilson DATE: August 9, 2006 nFPT: (ritfii Attnrnev DEPT: City Attorney RE: Conditional Zoning Application: Vistacor Partners, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on August 22, 2006. 1 have reviewed the subject proffer agreements, dated June 30, 2005, and December 1, 2005, and have determined them to be legally sufficient and in proper legal form. A copy of both agreements are attached. further. Please feel free to call me if you have any questions or wish to discuss this matter BKW/als Enclosure cc: Kathleen Hassen Z Prepared By: Troutman Sanders LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT (the "Agreement") is made as of this 1 st day of December, 2005 by and between DORIS M. BROUSSARD, JAMES E. WILLIAMS, EVELYN N. LARKINS, INEZ M. LARRY, ADREAN W. MOODY, AND ALVIN E. WILLIAMS; KATHRYN D. WARD, TRUSTEE FOR ANDERSON JEFFERSON WARD TRUST SANDRA A. LAHREN, and CITIZENS FINANCIAL SERVICES FSB a Federal Savings Bank (collectively, the "Owners", each of whom are to be indexed as grantors); VISTACOR PARTNERS, LLC a Virginia limited liability company (the "Purchaser", to be indexed as a grantor), the purchaser of the Property; and the CITY OF VIRGINIA BEACH a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee", to be indexed as grantee). WITNESSETH: WHEREAS, Owners own the property located at or near the northeastern corner of the intersection Princess Anne Road and Dam Neck Road in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"). WHEREAS, the Owners and the Purchaser (hereinafter collectively referred to as "Grantor") have entered into one or more agreements providing for Purchaser's acquisition of the Property. WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the property from AG -1 and AG -2 to Conditional B-2; and GPIN Nos. 1485-91-0006-0000 page 1 1485-80-7898-0000 and 1485-90-1501-0000 WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and WHEREAS, the 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 subject Property and at the same time to recognize the effects of the 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 B-2 are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 districts by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2 - Page 2 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself, it's successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these proffers (collectively, the "Proffers") shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, it's heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: See Exhibit B Attached Hereto And Made a Part Hereof All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor covenants and agrees that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Page 3 Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. IN WITNESS WHEREOF, the undersigned Owners and Grantor execute this Agreement as of the date first written above. [Separate Signature Pages Follow) Page 4 DORIS M. BROUSSARD Doris M. Broussard STATE OF U i 6G, .n; ; ✓fi 1 COUNTY/CITY OF 'j j; ��, _�C to -wit: The foregoing instrument was acknowledged before me this 1 ay of P-94 ,Lvv .laeAZ , 2005, Doris M. Broussard who is personally known tome or has produced C 55 1 vt as identification. My Commission Expires: 91s o /09 9 Notary Public Signature Page Of James E. Williams Page 5 STATE OF ki,C-z d ; i ) j, - ; COUNTY/CITY OF f e_("-, J A! J f4 13 -C- A , to -wit: The foregoing instrument was acknowledged before me this 1 (0 d y of eL&Y1,h-- r/? 2005, by James E. Williams who is personally known to me or has produced —as identification. vim• �,=� l Notary Public My Commission Expires: Page 6 Signature Page Of Evelyn N. Larkins Evelyn. Larkins STATE OF/-�- COUNTY/CITY OF W26 i,N )1�- i4 , to -wit: The foregoing instrument was acknowledged before me this i L�2 day of ! ` iYn b —2005, by Evelyn N. Larkins who is personally known to me or has produced 2J' as�yo:� as identification. Notary Public My Commission Expires: i J Page 7 Signature Page Of Inez M. Larry Inez M. Parry STATEOF COUNTY/CITE F ; rc •, QCc C�1 , to -wit: v The foregoing instrument was acknowledged before me thi t day of a, ! , 2005, by Inez M. Larry who is personally known to me or has produced r . L 1 C -n : as identification. i CG' ( :,-,mac,_ � • �-� / My Commission ExpireNotary Public s: �j �3� l (� Page 8 Signature Page Of Andrean W. Moody i1�r,� STATE OF to -wit: The foregoing instrument was acknowledged before me this Jdday of l � , 2005, by Andrean W. Moody who is personally known to me or has produced as identification. My Commission Expires: �� , Notary Public Page 9 Signature Page Of Alvin E. Williams Alvin E. Williams STATE OF Yt Y, .0 ; COUNTY/CITY F V i ��' nr�, .peG, d -I , to -wit: The foregoing instrument was acknowledged before me this qday of be, bcr,-- , 2005, by Alvin E. Williams who is personally known to me or has produced D(_t i t as identification. Notary Public My Commission Expires: / � ,D Page 10 Signature Page for Trustees of Anderson Jefferson Ward Trust Kathryn D. VVdrd, Trustee for Anderson Jefferson Ward Trust STATE OF COUNTY/CITY OF �r ��7/�/ri� , to -wit: The foregoing instrument was acknowledged before me this / day of �L , 2005, by Kathryn D. Ward, as Trustee for Anderson Jefferson Ward Trust, OD behalf of the Trust. She is personally known to me or has produced as identification. i My Commission Expires: / �// /% 7 Page 11 Signature Page of Sandra A. Lahren a andra A. Lahren STATE OF %Mt` VCt ; COUNTY/CITY OF `4cmf C -,EeWb , to -wit: The foregoing instrument was acknowledged before me this day of t 'ember , 2005, by Sandra A. Lahren, who is personally known to me or has produced pC°CQ as identification. otary Public r -r.., y, ay S K. MOREHEAD My Commission Expires: ,TARY PUBLIC r r!onweaith of Virginia ,yj, _sion Expires Oct. 31, 2006 Page 12 Signature Page of Citizens Financial Services, FSB CITIZENS FINANCIAL SERVICES, FSB, a fede savings bank By: qoTe�— Its: Senior Vice President STATE OF INDIANA; COUNTY/CITY OF LAKE, to -wit: The foregoing instrument was acknowledged before me this first day of December, 2005, by Jeffrey C. Stur, as Senior Vice President of Citizens Financial Services, FSB, a federal savings bank, on its behalf. He/She is personally known to me or has produced as identification. My Commission Expires: DANA HOLLINGSWORTH ° Notary Public. State of Indiana - Lake County ,. My Commission Expires March 06, 2013 U&_ 41-&VAIiAJ�3 Notary Pub9c Page 13 Signature Page Of Vistacor Partners, LLC VISTACOR PARTNERS, LLC, a Virginia limited liability company It,, STATE OF COUNTY/CITY OFy'�t�N Q Aerj_6N , to -wit: The foregoing instrument was acknowledged before me this day of _�ecerc��ne e 2005, by �0.t�clQ d . Q_a« as ccs of Vistacor Partners, LLC, a Virginia limited liability company, on its behalf. e/she is personally known to me or has produced��e �a n& as identification. My Commission Expires: �ZXRAOMN 31, 2z Notary Public 292037 Page 14 EXHIBIT A Parcel 1: GPIN No. 1485-91-0006-0000 -Owner: Broussard, et al) THAT CERTAIN tract of land in Kempsville Magisterial District, containing 1.20 acres, more or less, fronting on the South side of Landtown Road and more particularly bounded and described as follows: BEGINNING at a point in the South side of the Landtown Road 656.4 feet from the East side of the Court House Road, thence North 62 degrees 24 minutes East along the South side of the Landtown Road 76 feet to a pin; thence turning and running South 26 degrees 56 minutes East 527.0 feet to a pipe in a line ditch; thence turning and running South 4 degrees 13 minutes East along said line ditch 174.0 feet to an angle iron; thence turning and running South 79 degrees 4 minutes West 12.2 feet to an angle iron in another ditch; thence turning and running North 26 degrees 41 minutes West 683.3 feet to the point of BEGINNING on Landtown Road. LESS AND EXCEPT that portion of the property conveyed to the Commonwealth of Virginia by Deed from Melissa D. Williams, widow, recorded May 29, 1991 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 2989, at Page 1472. IT BEING a portion of the same property conveyed to George W. Williams by Deed from Arthur C. Hargrove, unmarried, dated September 29, 1945, and recorded October 1, 1945 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 230, at Page 543. The said George W. Williams died intestate September 16, 1987 and pursuant to his List of Heirs recorded in Will Book 97, at Page 1169, his only heir is his wife, Melissa Dora Williams. Affidavit of Melissa D. Williams recorded May 29, 1991 in Deed Book 2989, at Page 1471 states she is the surviving widow of George Washington Williams who died September 16, 1987 without a will. They were married December 23, 1935 and lived together as husband and wife during the entire period until the death of Mr. Williams. During their marriage, they had seven children. The six surviving children are: James Edward Williams, Evelyn W. Larkin, Alvin E. Williams, Inez W. Larry, Doris W. Broussard and Adrean W. Moody. Another son, Johnson P. Williams died June 5, 1988 and left two surviving children, Melissa Williams and Michelle Diggs. The said Melissa Dora Williams died intestate January 10, 1997 and pursuant to her List of Heirs recorded in Will Book 97, at Page 1170, her only heirs are Doris M. Broussard, Evelyn N. Larkin, Inez M. Larry, Adrean W. Moody, Alvin E. Williams and James E. Williams. Page 15 Parcel 2: (GPIN Nos. 1485-80-7898-0000 and 1485-90-1501-0000 - Owner: Ward et al) ALL THOSE certain lots, pieces or parcels of land with the improvements thereon lying, situate and being in the City of Virginia Beach, Virginia and designated as Parcel B and Parcel C on the plat entitled "SUBDIVISION OF PROPERTY OF DAVIS R. DALBY ET ALS", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 141, at page 32. LESS AND EXCEPT that portion of the property taken by the Commonwealth Transportation Commissioner of Virginia pursuant to Certificate of Take recorded in Deed Book 2986 at page 1998, with Order recorded in Deed Book 3265, at page 2061. IT BEING the same property in which an undivided one-third interest was conveyed to Anderson J. Ward and Kathryn D. Ward, Trustees for Anderson Jefferson Ward Trust by Deed of Anderson J. Ward, dated February 13, 1998 and recorded August 19, 1998 in Deed Book 3937 at page 1210; and BEING the same property in which an undivided one-third interest was conveyed to Sandra A. Lahren by Deed of Martha C. Austin, widow and unremarried, dated September 20, 1995 and recorded September 28, 1995 in Deed Book 3543 at page 1731; and BEING the same property in which an undivided one-third interest was conveyed to Citizens Financial Services, FSB, a Federal Savings Bank by Deed of Anderson J. Ward a/k/a Anderson Jay Ward, dated September 30, 2003 and recorded February 3, 2004 in Instrument Number 200402030019720. Page 16 EXHIBIT B Proffers to be Attached to and made a part of the Proffer Agreement for Landstown Commons Prepared in Connection with the Conditional Rezoning Application of Vistacor Partners, LLC 1. The site layout for the retail buildings, parking areas, drive aisles, storm water retention areas, and other site features of the shopping center shall substantially conform with the Conceptual Site Plan (the "Conceptual Site Plan") shown on Sheet 2 of the Design Handbook for Landstown Commons, dated June 1, 2005, and prepared by Wakefield Beasley & Associates (the "Design Handbook"), a copy of which is on file with the Department of Planning and has been exhibited to the City Council. 2. The buildings shown and labeled on the Conceptual Site Plan as buildings "LF -1", 44LF-257, "LF -3" and "LF -4" (collectively, the "Lifestyle Buildings") and those shown and labeled on the Conceptual Site Plan as buildings "A" through "I", "K" through "V" and "W" through "Z" (collectively, the "Shops and Anchors") shall be designed and constructed as follows: (a) the Lifestyle Buildings shall be constructed in substantial conformity with the elevations for the Lifestyle Buildings shown on Sheets 8 through 13 of the Design Handbook; (b) the Shops and Anchors shall be constructed using multiple building articulations and elevations of the quality and style shown in the elevations for the Shops and Anchors, shown on Sheets 14 through 19 of the Design Handbook; and (c) the Lifestyle Buildings and Shops and Anchors shall be constructed using multiple architectural materials, finishes and colors of the quality and type shown as the Building Finishes on Sheet 20 of the Design Handbook. 3. The rear portions of the Lifestyle Buildings and Shops and Anchors visible from Princess Anne Road and Dam Neck Road shall be constructed using multiple building articulations and colors, in substantial conformity with Perspective Rendering 2, set forth on Sheet 4 of the Design Handbook. The rear of the Lifestyle Buildings shall be constructed in substantial conformity with the designs depicted in the elevations for the Lifestyle Buildings, shown on Sheets 12 and 13 of the Design Handbook, and the rear of the Shops and Anchors visible from Princess Anne Road and Dam Neck Road shall display design elements and features in substantial conformity with those shown in the elevations for the Shops and Anchors shown on Sheets 18 and 19 of the Design Handbook. Page 17 ILI 4. The uses of any portion of the Property located within the "APZ Limit", as shown on the Conceptual Site Plan, shall be limited to those uses deemed compatible with those listed on Table 2 of Section 1804 of the City of Virginia Beach Zoning Ordinance. 5. The primary shopping center identification signs shall be located along Princess Anne Road and Dam Neck Road in the locations shown on the Monument Sign rendering, which appears on Sheet 22 of the Design Handbook, and such signs shall be constructed using materials and designs substantially similar to those shown in the rendering. 6. The outparcels shown and labeled on the Conceptual Plan as "Outparcel 1.31AC" and "Outparcel +/-0.9AC" shall be developed using building designs and architectural materials substantially similar to and compatible with designs and materials used in the remainder of the shopping center in light of the intended use. 7. At the time of completion of all phases of development, Grantor shall have developed 40,000 square feet of space designated for office use upon the Property, which may be located also upon any additional property acquired by Grantor and incorporated into the shopping center. Proffers for Landstown Meadows 8. Grantor shall install a variable width buffer containing a combination of landscaping, berming, and storm water retention facilities reasonably necessary to accomplish a screening effect between Grantor's development and the adjacent residential neighborhood known as "Landstown Meadows", located adjacent to the northeastern boundary of the Property, substantially as shown in the Conceptual Site Plan. 9. The buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be set back a distance of at least one hundred ten feet (110') from the northeastern property line of the Property. 10. The rear portions of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be painted neutral, earth -tone colors. 11. All dumpsters located at the rear of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be enclosed on at least three sides. 12. All site lighting installed along the rear portions of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be directed away from the Landstown Meadows neighborhood and shall be downward -directed and shielded to minimize light seepage into the Landstown Meadows neighborhood. Page 18 IL 13. All deliveries by truck or van to the rear areas of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall occur between the hours of 7:00 a.m. and 10:00 p.m. 14. At the time Grantor installs the stormwater detention facilities shown on the Conceptual Site Plan, Grantor shall install a solid, maintenance -free fence in the landscape buffer located between the shopping center and the residences located along Barberry Lane and the adjacent park. Landscaping and Pedestrian Improvements 15. At the time each section or phase of the shopping center is developed, Grantor shall install a combination of landscaping and berming of at least thirty feet (30') in width along Princess Anne Road and at least thirty feet (30') in width along Dam Neck Road, each in substantial conformity with the landscaping shown on the Conceptual Site Plan and the Street Section exhibit set forth on Sheet 7 of the Design Handbook. Notwithstanding the preceding sentence, landscaping along the front of the parcel shown and labeled as "Outparcel +/-0.9AC" on the Conceptual Site Plan shall be a width of no less than fifteen feet (15'). 16. At the time the Lifestyle Buildings are constructed, Grantor shall install a pedestrian plaza in substantial conformity with the Hardscape Plan and Street Furniture Selection shown on Sheet 21 of the Design Handbook and the Conceptual Site Plan. The pedestrian plaza shall include a fountain, flagpole, light fixtures and sidewalk furniture, each in substantial conformity with the Hardscape Plan and Street Furniture Selection. Sidewalks within the pedestrian plaza shall be constructed using stained or stamped concrete, and other pedestrian walkways within the pedestrian plaza shall be constructed using either stained or stamped concrete or asphalt. 17. Grantor shall install pedestrian walkways to provide pedestrian connectivity between the retail buildings, in substantial conformity with the pedestrian walkways shown on the Conceptual Site Plan. Right of Way Improvements 18. Grantor shall be responsible for the installation of any required deceleration lanes, turning lanes, or median improvements for the shopping center, as may be reasonably required or approved by the Director of Planning, or his designee. 19. Grantor shall install traffic signals at the primary entrance to the shopping center along Dam Neck Road and the primary entrance to the shopping center along Princess Anne Road, as may be reasonably required or approved by the Director of Planning, or his designee. 20. All right of way improvements to be installed by Grantor shall be made according to plans prepared in consultation with the Department of Traffic and Engineering and reasonably approved by the Director of Planning or his designee. All right of way improvements to be Page 19 Prepared By: Troutman Sanders LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, Virginia 23462 AGREEMENT THIS AGREEMENT (the "Agreement") is made as of this 30th day of June, 2005 by and between RUSSELL D. GALLUP, JR., ROBERT V. GALLUP, JACK K. MOULTON, JR., and STEPHANIE MOULTON, husband and wife, ROBERT B. KENDALL and VICKI KENDALL, husband and wife; DAVID S. ITALIANO and TERESSA A. ITALIANO; PRINCESS ANNE CUSTOM DESIGN & CONSTRUCTION, INC., a Virginia corporation; MAURICE L. FULLER and DORA J. FULLER; and WILLIAM L. WALKE and ERIN vvALKE (collectively, the "Owners", to be indexed as grantor), the current owner of that certain property located at or near the northeastern corner of the intersection of Princess Anne Road and Dam Neck Road in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"); VISTACOR PARTNERS, LLC, a Virginia limited liability company (the "Purchaser", to be indexed as a grantor), the purchaser of the Property; and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee", to be indexed as grantee). WITNESSETH: WHEREAS, Owners own the property located at or near the northeastern corner of the intersection Princess Anne Road and Dam Neck Road in Virginia Beach, Virginia, which property is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property") WHEREAS, the Owners and the Purchaser (hereinafter collectively referred to as "Grantor") have entered into one or more agreements providing for Purchaser's acquisition of the Property. GPIN Nos. 1485-90-9486-0000,1485-91-0167-0000; Page 1 1484-99-9748-0000;1494-09-1664-0000; and 1494-09-2567-0000 review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. IN WITNESS WHEREOF, the undersigned Owners and Grantor execute this Agreement as of the date first written above. Separate 4z; -eL are Pages Foll:,w J Page 4 Signature Page Of Jack K. Moulton, Jr. and Stephanie Moulton _x�Ac& CtPnhan' Moulton r -----.- STATE OF 1r COUNTY , to -wit: instrument was acknowled ed before me this da of The foregoing g Y 2005, by Jack K. Moulton, Jr.p and Stephanie Moulton, husband and wife wh�are personally known to me or has produced identification. My Commission Expires: I, Page 5 Signature Page Of Robert B. Kendall and Vicki NW6400. KM6alI Robert B. Kendall STATE OF �� Y C OLILLY/CITY OF 6kAUA2,4 to -wit: The foregoing instrument was acknowledged before me this e day of &L*A, 2005, by Robert B. Kendall and Vicki Kendall, husband and wife who are personally known to me om Notary Public My Commission Expires: ,g1.4110, Page 6 Signature Page Of Russell D. Gallup, Jr. • . �.: I�► . If Russell D. Gallup, Jr. STATE OF V l �� CAE /C, TY l L _ f --O �- _ ; to -wit - The foregoing instrument was acknowledged before me this 162!"day of 2006, by Russell D. Gallup, Jr. who is personally known to me or has produced - L— as identification. Notary Public JZ My Commission Expires: 1-3 [ -Zoc�' Page 7 Signature Page Of Robert V. Gallup Z " -- Robert V. Gallup STATE OF 1 I i rc COUNTYC�I:T:�6 p� c r �i�� to -wit: The foregoing instrument was acknowledged before me this 0 3 day of h) n) i m b e r , 2005, by Robert V. Gallup who are personally known to me or has produced I%a, Dr;u e rs t I c en s e as identification. My Commission Expires: p t- 3/- Q F IL Page 8 Signature Page of Vistacor Partners, LLC VISTACOR PARTNERS, LLC, a Virginia limited liability company By; D. Carr STATE OF VIRGEIUAf G0k�Y/CITY OF _i t ac, e,,,; o•c v , to -wit: The foregoing instrument was acknowledged before me this _f" day of April, 2006, by James D. Carr, personally known to me to be the Manager of Vistacor Partners, LLC, a Virginia limited liability company, on its behalf, or has produced as identification. My Commission Expires: 1 �� 3'P I Notary Public Page 9 Signature Page for Maurice L. Fuller and Dora J. Fuller Maurice Fuller � / rd , - j � j Dora J. Fulle 6i, STATE OF V ; ( 0TWTY/CTTY F The foregoing instrument was acknowledged before me this I day of March, 2006, by Maurice L. Fuller. ' •A�Aaee�eetae�q�,,' 4N(olt��T_Pubic P My CommissioniN JAY SEGAL U. _- NOTARY PUBLIC = p - COMMONWEALTH OF VIRGINIA ' My Commission i:ores June 30,2W9 � • .� STATE OF , COUNTY/CITY F , to -wit: The foregoing instrument was acknowledge Dora J. Fuller. My Commission Expires: -1AN JAY SEGAL ,VARY PUBLIC ;w�TM M ValC MA .:> :or: i rission EVW A= A X09 (1) of March, 2006, by ��, �..........,, •yam , l : 2 vI • v� p r. tZ Page 10 Signature Page of David S. Italiano and Teres: r.. essa A. Italiano STATE OF VIRGINIA CUNT/CITY OF VIRGINIA BEACH , to -wit: June The foregoing instrument was acknowledged before me this26th day of May, 2006, by David S. Italiano. C NotaryPub fic My Commission Expires: August 31, 2006 STATE OF VIRGINIA ; )WLU '/CITY OF VIRGINIA BEACH , to -wit: June The foregoing instrument was acknowledged before me this 26th day of May, 2006, by Teressa A. Italiano. otary Public My Commission Expires: August 31, 2006 Page 11 Signature Page for Princess Anne Custom Design & Construction, Inc. PRINCESS ANNE CUSTOM DESIGN & CONSTRUCTION, INC., a Virginia corporation Its: tires i61e"' STATE OF V ' CO TATTY/CITY (lfJ1 ' " . _I J-..� 1 % tn_�zJit: _ ,. The foregoing instrument was acknowledged before me this 14A' day of March, 2006, by VA, (I i a #-1 L - • W%:i i Ke- , as of Princess Anne Custom Design & Construction, Inc., a Virginia corporation, on bele f -of the corporation. My Commission Expires: NATHAN JAY SEGAL NOTARY PUBLIC COMMONWEALTH OR VOWI NIA My CortaWSWM BOM June 30, 2009 QD Page 12 �,eogesaAseee.ss�s�s�, e�_Lt ••meemeee. otary Public :`�� i t1 �- '•.e��- n O :o ^ - F�✓ �+ �/ O-��Y e• ��i �/�, fie• a c ^moi ' ��8�'0i:o�oea&:aaaoa Page 12 Signature Page for William L. Walke and Erin Walke s � William L. Walk fivi GSC. rin Walke STATE OF VA ot". 4,V\; COUNTY/CITY > to -wit: The foregoing instrument was acknowledged before me this jq4� day of March, 2006, by William L. Walke. NATHAN JAY SEGAL NOTARY PUBLIC COMMONWEALTH OF VIRGINIA My COtImftton Eons June 30,2W9 My Commission Expires: %IR1e11Rge"d,r ♦*• (� e CL� 0 C' STATE OF °.,. ••'' � COUNTY/CITY F , to—wit: iiaiiac:111fist, ,'♦ The foregoing instrument was acknowledged Erin Walke. NA.rj4 "9Wj4,dn Expire AL NOTARY PUBLIC COMMONWEALTH OF VIRGINIA My Commission Expires June 30, M day `L :p <, •mom O z:�= :s o�- Q: ',,iiiiiiii111110��♦`a♦ �'z Page 13 EXHIBIT A Parcel l: (GPIN No. 1485-90-9486-0000 - Owner: Gallup, et al) ALL THAT certain tract, piece or parcel of land, being a part and parcel of the farm on the McPherson resided, lying at or near Land's Station, Seaboard District, Princess Anne County, Virginia, and bounded as follows: Commencing at Landtown Road at the point of line between said McPherson and Sarah Fisk's land, and pursing the line of the ditch at said point, and in the direct line of said ditch in a Soutwardly course until you strike the line of Stephen J. Wilcox; thence pursuing the dividing line between said parcel and the said Wilcox, until you strike the land of Solomon A. Bonney; thence pursuing the division line between_ said parcel of -said Bonney ulntil vnuI etrike tlia lana of Hillary E. Land on the Land Town Road; thence along the division line on said road to the point of beginning, containing sixty (60) acres, more or less, together with its appurtenances, drains, water course, etc. LESS AND EXCEPT that portion of the property taken by the Commonwealth Transportation Commission of Virginia by Certificate of Take recorded in Deed Book 2988 at page 801A; amended in Deed Book 3005 at page 156 and Order recorded in Deed Book 3025 at page 2043; corrected in Deed Book 3126 at page 1811. LESS AND EXCEPT that portion of the property conveyed to Russell D. Gallup, Jr., Robert V. Gallup, Robert B. Kendall and. Jack K. Moulton by Deed dated September 23, 1981 and recorded in Deed Book 2162 at page 59. LESS AND EXCEPT that portion of the property conveyed to Commonwealth of Virginia in Deed Book 3182 at page 757. IT BEING the same property conveyed to Russell D. Gallup, Jr. and Robert V. Gallup, Robert B. Kendall and Jack K. Moulton, Jr. by Deed from R and R Corporation, a Virginia corporation, dated June 28, 1982, and recorded June 30, 1982 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2206, page 1420. AND FURTHER BEING a part of the same property conveyed to Jack K. Moulton, Jr. by Deed from Patti G. Moulton, single, and Phillip J. Moulton, single, dated April 16, 1991, and recorded May 22, 1991 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2988, page 319. Page 14 Parcel 2: (GPIN No. 1485-91-0167-0000 - Owner: Italiano) ALL THAT certain tract, piece or parcel of land, situate, lying and being near Land's Station, in Seaboard Magisterial District, Princess Anne County, Virginia, lying on the South side of the road leading to Land's Station, and is more particularly described as follows: BEGINNING at an iron axle on the South side of the Landstown Road, which is distant from the East side of the State Highway leading from the Princess Anne Courthouse to Kempsville 732.4 feet, more or less, and from said point of beginning running along the Southern Edge of the Landstown Road North 64 degrees East 214.1 feet to a pipe; thence turning and running along the center of a ditch South 4 degrees 43 minutes East 565.5 feet to a pipe in the center of a ditch; thence turning and running North 26 degrees 56 minutes West 577.0 feet to an iron axle in the Southern edge of the. Landstown Public Road, the plar.P of the beginning, said tract of land containing 1.30 acres. LESS AND EXCEPT that portion of property conveyed to the Commonwealth of Virginia, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; on September 24, 1990, in Deed Book 2940, at Page 813. LESS AND EXCEPT that portion of property conveyed to the City of Virginia Beach recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2000, at Page 621 and shown on plat recorded in Map Book 138, at Page 40. IT BEING the same property conveyed unto David S. Italiano and Teressa A. Italiano, husband and wife, by Deed from John A. Johnson and Patricia A. Johnson, husband and wife, dated August 1, 1996 and recorded August 14, 1996 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3649, at Page 636. Page 15 Parcel 3: GPIN No. 1484-99-9748-0000 - Owner: Princess Anne Custom Design) ALL THAT certain lot, piece or parcel of land, lying, situate and being in Seaboard Magisterial District, Princess Anne County, Virginia, and bounded and described as follows: BEGINNING in the northern side of the highway from Princess Anne Courthouse to Kempsville; thence North 39 degrees 55 minutes East 8.9 feet to a pin; thence South 69 degrees 59 minutes East along a ditch 379 feet; thence South 52 degrees 29 minutes East 305 feet to a gum; thence South 49 degrees 24 minutes East 107.5 feet; thence along a ditch South 53 degrees 30 minutes East 170 feet to a pin; thence South 45 degrees 35 minutes West 251.4 feet to the pin in said highway; thence along said highway North 44 degrees 25 minutes West 916.2 feet to the point of beginning, containing 3.64 acres as shown on a plat and survey made by W.B. Gallup, County Surveyor, March 6, 1947, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach (formerly Princess Anne County), Virginia, in Map Book 20, at Page 53. LESS AND EXCEPT property known as Lots A and B as shown on plat entitled "Subdivision of Part of Property Shown on Plat Entitled `Property of John W. Shackleford Located Near Landtown' (M.B. 20, Pg. 53) Virginia Beach, VA for William Wesley Walke", which plat is recorded in the above Clerk's Office in Map Book 77, at page 6. LESS AND EXCEPT 0.354 Ac. conveyed to Commonwealth of Virginia by Deed recorded in Deed Book 3028, P. 681 and shown on State Highway Plat Book 9, Pages 328 and 328 A. IT BEING the same property conveyed to Princess Anne Custom Design & Construction, Inc. by Deed from William L. Walke and Erin Walke dated August 12, 2000, and recorded September 5, 2000 in the Clerk's Office of the City of Virginia Beach, Virginia in Deed Book 4291, at Page 2123. Page 16 16 Parcel 4: (GPIN No. 1494-09-1664-0000 - Owner: Fuller) ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, numbered 3284 Princess Anne Road, Virginia Beach, Virginia, known, lettered and designated as Lot `B," as shown on that certain plat entitled "SUBDIVISION OF PART OF PROPERTY SHOWN ON PLAT ENTITLED `PROPERTY OF JOHN W. SHACKLEFORD, LOCATED NEAR LANDTOWN, VIRGINIA BEACH, VIRGINIA' FOR WILLIAM WESLEY WALKS, DATED AUGUST 29, 1969," and duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 77, at Page 6; reference to said plat is hereby made for a more particular description of said property. IT BEING the same property conveyed to Maurice L. Fuller and Dora J. Fuller, husband and wife, by Deed dated August 9, 1996 from William L. Walke, as Administrator of the Estate of William Wesley Walke, deceased, and as Sole Devisee of the Estate of William Wesley Walke, deceased, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3649, at Page 1766. Page 17 Parcel 5: (GPIN No. 1494-09-2567-0000 - Owner: Walker) ALL THAT certain lot, piece or parcel of land, together with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia; and being known, numbered and designated as Lot A, as shown on that certain plat entitled Subdivision of Part of Property Shown on Plat Entitled "Property of John W. Shackleford Located Near Landtown, Virginia Beach, Virginia for William Wesley Walke", dated August 29, 1968, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 77, at Page 6. IT BEING the same property conveyed to William Wesley Walke, widower, by Deed from William L. Walke and Erin Walke, husband and wife, dated October 1, 1992 and recorded November 3, 1992 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3145, at Page 1120. The said William Wesley Walke died intestate April 13, 1996 leaving William L. Walke, his son and only heir at law. VB315298v1 Page 18 EXHIBIT B Proffers to be Attached to and made a part of the Proffer Agreement for Landstown Commons Prepared in Connection with the Conditional Rezoning Application of Vistacor Partners, LLC 1. The site layout for the retail buildings, parking areas, drive aisles, storm water retention areas, and other site features of the shopping center shall substantially conform with the Conceptual Site Plan (the "Conceptual Site Plan") shown on Sheet 2 of the Design Handbook for Landstown Commons, dated June 1, 2005, and prepared by Wakefield Beasley & Associates (the "Design Handbook"), a copy of which is on file with the Department of Planning and hac hePn exhibited to the City Council. 2. The buildings shown and labeled on the Conceptual Site Plan as buildings "LF - 1", "LF -255, "LF -3" and "LF -4" (collectively, the "Lifestyle Buildings") and those shown and labeled on the Conceptual Site Plan as buildings "A" through "I", "K" through "V" and "W" through "Z" (collectively, the "Shops and Anchors") shall be designed and constructed as follows: (a) the Lifestyle Buildings shall be constructed in substantial conformity with the elevations for the Lifestyle Buildings shown on Sheets 8 through 13 of the Design Handbook; (b) the Shops and Anchors shall be constructed using multiple building articulations and elevations of the quality and style shown in the elevations for the Shops and Anchors, shown on Sheets 14 through 19 of the Design Handbook; and (c) the Lifestyle Buildings and Shops and Anchors shall be constructed using multiple architectural materials, finishes and colors of the quality and type shown as the Building Finishes on Sheet 20 of the Design Handbook. 3. The rear portions of the Lifestyle Buildings and Shops and Anchors visible from Princess Anne Road and Dam Neck Road shall be constructed using multiple building articulations and colors, in substantial conformity with Perspective Rendering 2, set forth on Sheet 4 of the Design Handbook. The rear of the Lifestyle Buildings shall be constructed in substantial conformity with the designs depicted in the elevations for the Lifestyle Buildings, shown on Sheets 12 and 13 of the Design Handbook, and the rear of the Shops and Anchors visible from Princess Anne Road and Dam Neck Road shall display design elements and features in substantial conformity with those shown in the elevations for the Shops and Anchors shown on Sheets 18 and 19 of the Design Handbook. Page 19 4. The uses of any portion of the Property located within the "APZ Limit", as shown on the Conceptual Site Plan, shall be limited to those uses deemed compatible with those listed on Table 2 of Section 1804 of the City of Virginia Beach Zoning Ordinance. 5. The primary shopping center identification signs shall be located along Princess Anne Road and Dam Neck Road in the locations shown on the Monument Sign rendering, which appears on Sheet 22 of the Design Handbook, and such signs shall be constructed using materials and designs substantially similar to those shown in the rendering. 6. The outparcels shown and labeled on the Conceptual Plan as "Outparcel 1.3 IAC" and "Outparcel +/-0.9AC" shall be developed using building designs and architectural materials substantially similar to and compatible with designs and materials used in the remainder of the shopping center in light of the intended use. 7_ At the time of completion of all phases of development, Grantor shall have developed 40,000 square feet of space designated for office use upon the Property, which may be located also upon any additional property acquired by Grantor and incorporated into the shopping center. Proffers for Landstown Meadows 8. Grantor shall install a variable width buffer containing a combination of landscaping, berming, and storm water retention facilities reasonably necessary to accomplish a screening effect between Grantor's development and the adjacent residential neighborhood known as "Landstown Meadows", located adjacent to the northeastern boundary of the Property, substantially as shown in the Conceptual Site Plan. 9. The buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be set back a distance of at least one hundred ten feet (110') from the northeastern property line of the Property. 10. The rear portions of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be painted neutral, earth -tone colors. 11. All dumpsters located at the rear of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be enclosed on at least three sides. 12. All site lighting installed along the rear portions of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall be directed away from the Landstown Meadows neighborhood and shall be downward -directed and shielded to minimize light seepage into the Landstown Meadows neighborhood. 13. All deliveries by truck or van to the rear areas of the buildings shown and labeled as buildings "A" through "I" on the Conceptual Site Plan shall occur between the hours of 7:00 a.m. and 10:00 p.m. Page 20 14. At the time Grantor installs the stormwater detention facilities shown on the Conceptual Site Plan, Grantor shall install a solid, maintenance -free fence in the landscape buffer located between the shopping center and the residences located along Barberry Lane and the adjacent park. Landscaping and Pedestrian Improvements 15. At the time each section or phase of the shopping center is developed, Grantor shall install a combination of landscaping and berming of at least thirty feet (30') in width along Princess Anne Road and at least thirty feet (30') in width along Dam Neck Road, each in substantial conformity with the landscaping shown on the Conceptual Site Plan and the Street Section exhibit set forth on Sheet 7 of the Design Handbook. Notwithstanding the preceding sentence, landscaping along the front of the parcel shown and labeled as "Outparcel +/-0.9AC" on the Conceptual Site Plan shall be a width of no less than fifteen feet (15'). 16. At the time the Lifestyle Buildings are constructed, Grantor shall install a pedestrian plaza in substantial conformity with the Hardscape Plan and Street Furniture Selection shown on Sheet 21 of the Design Handbook and the Conceptual Site Plan. The pedestrian plaza shall include a fountain, flagpole, light fixtures and sidewalk furniture, each in substantial conformity with the Hardscape Plan and Street Furniture Selection. Sidewalks within the pedestrian plaza shall be constructed using stained or stamped concrete, and other pedestrian walkways within the pedestrian plaza shall be constructed using either stained or stamped concrete or asphalt. 17. Grantor shall install pedestrian walkways to provide pedestrian connectivity between the retail buildings, in substantial conformity with the pedestrian walkways shown on the Conceptual Site Plan. Right of Way Improvements 18. Grantor shall be responsible for the installation of any required deceleration lanes, turning lanes, or median improvements for the shopping center, as may be reasonably required or approved by the Director of Planning, or his designee. 19. Grantor shall install traffic signals at the primary entrance to the shopping center along Dam Neck Road and the primary entrance to the shopping center along Princess Anne Road, as may be reasonably required or approved by the Director of Planning, or his designee. 20. All right of way improvements to be installed by Grantor shall be made according to plans prepared in consultation with the Department of Traffic and Engineering and reasonably approved by the Director of Planning or his designee. All right of way improvements to be installed by Grantor shall be substantially completed or bonded on or before the date the first building permit is issued by the City for a building to be constructed within the shopping center. 21. Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration Page 21 of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. Page 22 -53 - Item V M. 6. PLANNING ITEM # 55538 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of VENTUREAST TWO CORP., A VIRGINIA CORPORA TIONfor a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF VENTUREAST TWO CORP., A VIRGINIA CORPORATION FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM 0-2 OFFICE DISTRICT TO H-1 ZO8061264 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Ventureast Two Corp., a Virginia Corporation for a Chanzeof Zoning, District Classification from 0-2 Office District to Conditional H-1 Hotel District on property located on the south side of Cleveland Street, approximately 450 feet east of Newtown Road (GPIN 1467260472 - existing; 1467261339 — after subdivision). DISTRICT 2 — KEMPSVILLE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court 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 Twenty-second of August Two Thousand Six. August 22, 2006 -54 - Item i!M.6. PLANNING ITEM # 55538 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: None August 22, 2006 In Reply Refer To Our File No. DF -6474 TO: Leslie L. Lilley FROM: B. Kay Wils 4�1 CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: August 9, 2006 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application: Ventureast Two Corp., Cleveland Street The above -referenced conditional zoning application is scheduled to be heard by the City Council on August 22, 2006. 1 have reviewed the subject proffer agreement, dated May 1, 2006 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/als Enclosure cc: Kathleen Hassen I/ VENTUREAST TWO CORP., A Virginia corporation To CITY OF VIRGINIA BEACH a Municipal Corporation of the Commonwealth of Virginia THIS PROFFER AGREEMENT ("Agreement") made this 1" day of May, 2006, by and among VENTUREAST TWO CORP., a Virginia corporation ( the "Grantor"); and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the RECITALS: A. Grantor is the owner of a certain parcel of property located in the City of Virginia Beach being briefly described as Parcel AA -4 "SUBDIVISION OF RESIDUAL OF SITE —AA AS SHOWN ON PLAT ENTITLED `SUBDIVISION PLAT OF SITE —AA THE KROGER CENTER' (M.B. 265, P. 21-22, VIRGINIA BEACH, VIRGINIA SCALE: 1" = 50'— SEPTEMBER 0'— SEPTEMBER 1, 2005" which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument No. 20060426000632680, and more particularly described upon Exhibit A attached hereto and made a part hereof. B. Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach by petition of Grantor addressed to Grantee to change the zoning classification of the property from 0-2 to Conditional H-1 Hotel District. The proposed amendment is made pursuant to the terms of the City Zoning Ordinance of the City of Virginia Beach, adopted April 18, 1988, as amended and in effect on the date of this Agreement (the "City Zoning Ordinance") PREPARED BY: JOHN W. RICHARDSON, ATTORNEY AT LAW GPIN NO. 1467-26-1339-0000 C. Grantee's policy is to provide for the orderly development of land for various purposes, including commercial purposes, through zoning and other land development legislation. D. Grantor acknowledges that in order to prevent incompatible land use, reasonable conditions governing the use of the Property, in addition to the regulations generally applicable to land zoned H-1 as specified in the City Zoning Ordinance, are required to address the project proposed in Grantor's rezoning application. F. Grantor has voluntarily proffered in writing, prior to the public hearing before Grantee, as a part of the proposed amendment to the Zoning Map and in addition to the regulations specified in the City Zoning Ordinance for the H-1 zoning district, reasonable conditions outlined in this Agreement related to the development and operation of the Property. These conditions will be adopted as a part of the amendment to the Zoning Map relative to the Property, and have a reasonable relation to the use of the Property as rezoned H-1 and are needed as a result of the rezoning. G. The conditions outlined in this Agreement have been proffered by Grantor and allowed and accepted by Grantee as a part of the amendment to the City Zoning Ordinance and the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning the Property; provided, however, that such conditions shall continue if the subsequent amendment is party of the comprehensive implementation of a new or substantially revised zoning ordinance of Grantee. The conditions outlined in this Agreement may be amended only by following the procedures and recording the documents as outlined and required in the City Zoning Ordinance. 2 NOW, THEREFORE, Grantors, its heirs, successors, assigns, grantees and other successors in title or interest to the Property, voluntarily and without any requirement by or exaction from Grantee or its governing body and without any element or compulsion or uidrho quo for zoning, rezoning, site plan, building permit or subdivision approval, makes the following declaration of conditions and restrictions governing the use and physical development and operation of the Property, and covenants and agrees that this declaration and the further terms of this Agreement shall constitute covenants running with the Property, which shall be binding upon the Property, and upon all persons and entities claiming under or through the Grantor, his heirs, personal representatives, successors and assigns, grantees and other successors in interest or title to the Property; namely: 1. When the Property is developed, it shall be utilized as a hotel catering to the extended stay market. In connection therewith, the Grantor may also operate a bakery, confectionary and delicatessen offering products for sale only at retail and only on the premises. 2. Grantor shall install street frontage landscaping as approved by the Planning Director in the existing ten foot wide green spaces between the sidewalk and the parking lot along Cleveland Street. 3. Further conditions mandated by applicable development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. 4. The property shall be developed in substantial conformity with that certain plan entitled "PRELIMINARY SITE PLAN, HOMEWOOD SUITES — HILTON, VIRGINIA BEACH, VIRGINIA" made by ISOM Associates, P.A., Architecture, Engineering, Planning N dated April 10, 2006, and the development of the Property shall adhere to same with regard to layout, ingress/egress, elevations said exhibit being the same exhibit being submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia hereinafter the "Site Plan". 5. The exterior of the hotel shown on the Site Plan shall be substantially similar in appearance to the elevation entitled ""PRELIMINARY SITE PLAN, HOMEWOOD SUITES — HILTON, VIRGINIA BEACH, VIRGINIA" made by ISOM Associates, P.A., Architecture, Engineering, Planning dated April 10, 2006", said exhibit being the same exhibit as the color coordinated exhibit being submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia, hereinafter the "Rendering". All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date of the conditional rezoning amendment is approved by the Grantee. The Grantor covenants and agrees that (1) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions specified in this Agreement, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (d) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning n Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, the City shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. WITNESS the following signature and seal: -0 Alec Harwin, President COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: ,the undersigned, a Notary Public in and for the City and State aforesaid, d hereby certify that Alec Harwin, whose name is signed to the foregoing instrument as President of Ventureast Two Corp., has sworn to, subscribed, and acknowledged the same b ore me in my City and State aforesaid on behalf of said oration, this (� day of Lui,� � , 2006. The said Alec Harwin is //personally known to me; or has produced for identification purposes. ` ff Notary Public My Commission Expires: kD • 'j1 GCIL 01 5 EXHIBIT A LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land, lying, situate and being in the City of Virginia Beach, Virginia, known, numbered and designated as Parcel AA -4 as shown on that certain plat entitled "SUBDIVISION OF RESIDUAL OF SITE — AA AS SHOWN ON PLAT ENTITLED `SUBDIVISION PLAT OF SITE -AA, THE KOGER CENTER (M.B. 265, P. 21-22) VIRGINIA BEACH, VIRGINIA SEPTEMBER 1, 2005" made by The Spectra Group and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument No. 20060426000632680. IT BEING a part of the same property conveyed to Ventureast two Corp., a Virginia corporation by deed from Ajax Properties, L.L.C., a Virginia limited liability company dated iiiar a.0 25, 201015, r Icord c -da An. to- aavr.-s aid Citesi�',�i fl -M. as Iiajiruw Giii No.200504060050683. 0 -55 - Item V -N.1. APPOINTMENTS ITEM # 55539 BY CONSENSUS, City Council RESCHEDULED: BEACHES AND WATERWAYS COMMISSION BIKEWAYS AND TRAILS ADVISORY COMMITTEE BUILDING CODE OF APPEALS — New Construction BOARD OF ZONING APPEALS COMMUNITY MEDICAL ADVISORY COMMISSION COMMUNITY SERVICES BOARD DEVELOPMENT AUTHORITY EASTERN VIRGINIA HEALTH SYSTEMS AGENCY PARKS AND RECREATION PUBLIC LIBRARYBOARD REVIEW AND ALLOCATION COMMITTEE (COG) SOCIAL SERVICES BOARD SPORTS A UTHORITY OF HAMPTON ROADS August 22, 2006 Item V -O. ADJOURNMENT -56 - ITEM # 55540 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 10:10 P.M. C/ A ---------- --------------------- Beverly O. Hooks, CMC Chief Deputy City Clerk uth Hodges Smith, MMC City Clerk City of Virginia Beach Virginia Meyera E. Oberndorf Mayor August 22, 2006