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Home My WebLink AboutFEBRUARY 23, 2010 MINUTESCITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WI/.LlAM D. SESSOMS, JR.. At-Large D7Ch,' MAYOR L OUIS R. JONES, Bayside -District ~ RITA SWEET BELL/7T0, At-Large GLENN R. DAV/S, Rose Half -District 3 WlLL1AM R. DeSTI:PH, At-Large HARRY E. DIEZEL, Kempsville -District 2 ROBERT M. DYER, Centerville -District / BARBARA M. HENLEY, Princess Anne -District 7 JOHN F.. UHRIN, Beach -District 6 ROSEMARY WILSON, At-Large JAMES L. WOOD, lynnhaven -District 5 CITY COUNCIL APPOINTEES ('l7YMANAGF,R .IAMF.SK.SPORE Cl7YATTOXNEY MARK D.STILI;:S CITY ASSF,SSOR JE'RAI,D BANAGAN Cl7Y AUDITOR LYNUON S ItL•'MIAS ~~lTr CLERK -RUTH HonGES ERASER, MMC CITY COUNCIL AGENDA 23 February 2010 I. CITY COUNCIL'S BRIEFING: -Conference Room - A. ANNUAL REAL ESTATE ASSESSMENTS Jerald Banagan, Real Estate Assessor II. CITY MANAGER'S BRIEFINGS: A. VIRGINIA BEACH SHOPPING CENTER REVITALIZATION Warren Harris, Director -Department of Economic Development B. INTERIM FINANCIAL STATEMENT Patti Phillips, Director -Finance Department III. CITY COUNCIL COMMENTS IV. CITY COUNCIL AGENDA REVIEW V. INFORMAL SESSION -Conference Room - A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C/TY HALL BU/LD/NG 240/ COURTHOUSE DRIVE VIRG/NIA BEACH, VIRGIN/A 23456-8005 PHONE: (757) 385-4303 FAX (757J 385-5669 E-MA/L: Ctycncl@vbgov.com 3:00 PM 4:30 PM C. RECESS TO CLOSED SESSION ~ VL FORMAL SESSION AGENDA - City Council Chamber - 6:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Rabbi Levi Mongolin Chabad Lubowitch of Tidewater C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS February 9, 2010 G. FORMAL SESSION AGENDA H. MAYOR'S PRESENTATION 1. VIRGINIA LAW ENFORCEMENT ACCREDITATION COALITION (VALEAC) Sheriff Kenneth W. Stolle I. CONSENT AGENDA J. ORDINANCES/RESOLUTIONS 1. Ordinance to TRANSFER $244,800 from the Reserve for Contingencies to the FY 2009-10Non-Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension 2. Ordinances to AMEND the City Code: a. §23-50.1 re penalty for failure to comply in the removal of certain trees b. §23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass 3. Resolution to SUPPORT offshore oil and natural gas exploration re an alternative energy source, with royalty payments to Atlantic Coast states, and REQUEST Congress and the Virginia General Assembly provide legislation to dedicate a portion of these royalties to fund transportation 4. Ordinance to AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C. and AUTHORIZE the City Manager to execute the Lease Ordinance to AUTHORIZE the acquisition of property at 1907 Baltic Avenue from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White re potential development at the Oceanfront 6. Resolution to AUTHORIZE the City Manager to execute an Intergovernmental Agreement (IA) between the Virginia Department of Agriculture and Consumer Services and the City re the purchase of Agricultural Reserve Program (ARP) easements 7. Ordinance to AUTHORIZE a temporary encroachment into a portion of a City-owned property for Forest E. and Judy P. Williams to construct and maintain permeable paver parking spaces and an existing paver walk at 308 49`h Street Ordinances to APPROPRIATE: a. $7,200,000 from SPSA to the FY 2009-10 Public Works Operating Budget re increased SPSA disposal costs b. $25,579 from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning re increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program 9. Ordinance to TRANSFER $250,000 from the Subscription Fund Reserve for Contingencies -Regular within the FY 2009-10 Subscription Fund for public safety air card recurring charges K. PLANNING 1. Application of GEORGE R. and JANE C. WEBB for NonconformingLStructures at 110 74`h Street to renovate a single family dwelling and a garage apartment. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 2. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Modification of Proffers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236-2240 General Booth Boulevard DISTRICT 7 -PRINCESS ANNE DEFERRED FEBRUARY 9, 2010 RECOMMENDATION APPROVAL 3. Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809 Estates Court, 2933 and 2936 Estates Drive. DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 4. Application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. DISTRICT 4 -BAYSIDE RECOMMENDATION APPROVAL Application of STRAWBRIDGE ANIMAL CARE/FAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. DISTRICT 6 -BEACH RECOMMENDATION APPROVAL 6. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. DISTRICT 6 -BEACH RECOMMENDATION APPROVAL 7. Application of AUTOBELL CAR WASH, INC./MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard. DISTRICT 4 -BAYSIDE RECOMMENDATION APPROVAL 8. Applications of KARINPHILLIP, INC./PARR PROPERTIES, LLC at 114 South Witchduck Road (Strategic Growth Area-SGA4-Pembroke) re a tattoo parlor: DISTRICT 2 - KEMPSVILLE a. Change of Zoning District Classification from I-1 Light Industrial District to Conditional B-2 Community Business District b. Conditional Use Permit STAFF RECOMMENDS PLANNING COMMISSION RECOMMENDS APPROVAL DENIAL 9. Application of MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS, for a Change of Zoning District Classification from R-15 Residential District, AG-1 and AG-2 Agricultural Districts to Conditional R-15 Residential District at 3807 and 3809 Indian River Road to develop the site with single- family dwellings. DISTRICT I -CENTERVILLE RECOMMENDATION APPROVAL 10. Application of AUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Modification of Proffers (approved by City Council on March 28, 2000 and May 24, 2005) at 5221 Indian River Road. DISTRICT 1 -CENTERVILLE RECOMMENDATION L. APPOINTMENTS APPROVAL HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION SENIOR SERVICES OF SOUTHEASTERN VIRGINIA THE PLANNING COUNCIL SOCIAL SERVICES BOARD VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ^ FY 2010-2011 Budget Schedule ^ ^ ^ ^ ^ ^ ^ Date Time Event Location ^ ^ ^ ^ Mar. 23 6:00 PM City Manager Presents Budget City Council Chamber ^ Apr. 8 tba Workshop City Council Conference Room ~ Apr. 13 tba Workshop City Council Conference Room ~ ^ Apr. 20 tba Workshop City Council Conference Room ^ ~ Apr. 22 6:OOPM Public Hearing Tallwood High School ~ ^ Apr. 27 tba Workshop City Council Conference Room ^ Apr. 27 6:00 PM Public Hearing City Council Chamber ^ May 4 tba Reconciliation Workshop City Council Conference Room ^ May 11 6:00 PM Adoption City Council Chamber ^ (tba: Where not indicated, time will be announced) ^ ^ ^ ^ ^ ^ *******~ If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Agenda 02/23/2010gw www.vb og vcom -1- MINUTES VIRGINIA BEACH CITY COl1NCIL Virginia Beach, Virginia February 23, 2010 Mayor William D. Sessoms, Jr., called to order the CITY COUNCIL'S BRIEFING: re ANNUAL REAL ESTATE ASSESSMENTS in the City Council Conference Room, Tuesday, February 23, 2010, at 3:00 P.M. Council Members Present: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: None February 23, 2010 -2- CITY COUNCIL BRIEFINGS ANNUAL REAL ESTATE ASSESSMENTS 3:00 P.M. ITEM # 59654 On Friday, February 26, 2010, the Assessor's Office will mail approximately 152, 000 Notices of Assessment for FY 2011. All property owners will receive an assessment notice. Approximately eighty- eight (88%) percent of all properties will receive a decrease; approximately 8% of all properties will remain unchanged. And approximately 4% will receive an increase. Projected FY 2011 Real Estate Assessments Assessments $51,893,844,942 Tax Revenue* $ 461,855,220 *Based upon FY 2009 tax rate of $0.89 Each $.01 of the tax rate will generate $5,189,000 Average Appreciation/Depreciation Overall Mean Change -5.54 Residential - S. 75 Apartment -14.1 Commercial/Industrial 0.18 The overall change for individual properties is approximately -5.54%; however, this figure varies City- wide depending: Average Residential Values T e Mean Assessment* Chan e in Mean Sin le Famil $321,800 -,$24,300 -7.0% Townhouse $164,900 -$ 9,200 -5.3% Low Rise Condominium $238, 900 -$17, 700 -6.9% Hi h Rise Condo/Co-o $354, 400 -$31, 300 -8.1 Du lex/Home with A artments $421,100 -$36, 500 -8.0% All Residents $290, 500 -$21, 500 -6.9% *Rounded to nearest $100 February 23, 2010 -3- CITY COUNCIL BRIEFINGS ANNUAL REAL ESTATE ASSESSMENTS ITEM # 59654 (Continued) Mr. Banagan advised the Average Home Assessment fell from $312, 000 to $290, 000. The Commercial Tax Base increased from 15.0% current year to 15.4%. This was primarily driven by the depreciation of residential property. Mr. Banagan, advised, typically, new construction is twenty-five (25%) commercial. The Residential Base is huge with 152, 000 parcels. Mayor Sessoms advised it is critical to grow the Commercial Base. Mr. Banagan advised commercial rentals are declining and vacancies are increasing (this will be reflected next year). New construction for the past twelve (12) months amounted to $366,831,498, which is a decrease of 43.9% from the previous year. Residential new construction amounted to 74% of the total yearly construction, while commercial/industrial represented 26%. Change in land, due to rezoning and subdivisions, amounted to approximately $214, 000, 000. Seven hundred seventy (770) new homes were built. There were ten (10) duplex units and one hundred thirty-six (136) apartment units for a total of nine hundred sixteen (916). The average assessment on a new home was $419, 700, a decrease of approximately ten percent (10%) from the previous year. The building product has changed substantially. Growth and AppreciationlDepreciation Fiscal Year 2010-2011 (Projected) Growth 0.6 Appreciation/Depreciation -7.1 Assessment Increase -6. S Tax Increment and Special Service Districts Lynnhaven Mall Shopping District TIF Base Year FY 1998 $225.3 Million Preliminary FY 2010 $431.9 Million Sandbridge District TIF & SSD Base Year FY 1998 $206.1 Million Preliminary FY 2010 $].086 Billion February 23, 2010 -4- CITY COUNCIL BRIEFINGS ANNUAL REAL ESTATE ASSESSMENTS ITEM # 59654 (Continued) Central Business District South TIF Base Year FY 1999 $151.8 Million Preliminary FY 2010 $749.4 Million SSD First Year FY 2003 $ 18.5 Million Preliminary FY 2010 $380.7 Million Real Estate Tax Relief Income and Net Worth Limitations Current State Limitations Income $ 67,000 Net Worth $350,000 Current Virginia Beach Limitations Income: • Deferral $63,450 • Freeze $63,450 • Exemption 100% $0 - $47,100 20% $59,400 - $63,450 Net Worth $350,000 (All Programs) Mr. Banagan advised there are only twelve (12) individuals under the Deferral program. Currently, there are no individuals under the Freeze program. February 23, 2010 -5- CITY COUNCIL BRIEFINGS ANNUAL REAL ESTATE ASSESSMENTS ITEM # 59654 (Continued) Real Estate Tax Program for Senior Citizens and Disabled Persons Number of Recipients Tax Deferred Tax Reduction FY 2010 7,666 $35,717 $16,292,651 FY 2009 7,143 $30,596 $15,993,977 FY 2008 6,408 $35,304 $14,011,232 FY 2007 5,420 $79,342 $9,651,395 FY 2006 4,539 $72,806 $6,147,803 FY 2005 3,803 $36,849 $4,660,146 February 23, 2010 -6- CITY MANAGER `SBRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION 3:12 P.M. ITEM # 59655 The City Manager advised the Staff has been working over a period of time to develop the Retail Center Revitalization Strategic Plan. Council Members Wilson, Davis and Dyer have assumed the leadership. This entails "gray fteld "development, or revitalization of the aging strip centers or reuse. Warren Harris, Director -Department of Economic Development, presented information re the Retail Center Revitalization Strategic Plan. Mr. Harris named the Dynamic Team: Retail Center Revitalization Strategic Plan Harnessing Retail Potential Today for a Better Community Tomorrow Council Member Glenn Davis Council Member Rosemary Wilson - Initiative Team Members: Warren D. Harris, Economic Development Andrew Friedman, Housing and Neighborhood Preservation (In attendance) Deputy Chief James Cervera, Police (In attendance) Michael Clark, Norfolk Redevelopment and Housing Authority John Westbrook, Lynnhaven Mall Ron Ripley, Ripley Heatwole Attorney Tasos Galiotos, Wilcox Savage Karen Lasley, Planning (In attendance) Bill Dore, Housing and Neighborhood Preservation (In attendance) Cynthia Whitbred-Spanoulis, Economic Development (In attendance0 Jerrod Fishback, Student Intern -Economic Development (In attendance) Susan Milhoan, Retail Alliance Debbie Puckett, Retail Alliance Carlene Bowers, Retail Alliance Janet Balestino, Retail Alliance Background • Council Initiative in response to changing retail dynamics • Seventeen (17) Member Committee met for 6 months • Reviewed entire city's retail inventory • Reviewed crime data for retail centers • Reviewed code violation data for retail centers • Reviewed local, regional, and national trends • Developed recommendations for City Council consideration February 23, 2010 -~- CITY MANAGER `SBRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION ITEM # 59655 (Continued) Mr. Harris distributed the complete report, which is hereby made a part of the record. Definitions • Power Center -Example: Landstown Commons Category-dominant anchors, including discount department stores, off-price stores, wholesale clubs, with only a few small tenants (250,000-600,000 GLA) • Lifestyle Center -Example: Lynnhaven Mall AMC area Upscale national-chain specialty stores with dining and entertainment in an outdoor setting (1 S0, 000-500, 000 GLA) • Community Center -Example: Princess Anne Marketplace General merchandise or convenience oriented offerings. Wider range of apparel and other soft goods offerings than Neighborhood Centers. The Center is usually configured in a straight line as a strip, or may be laid out in an L or Ushape, depending on the site and design. (100,000-350,000 GLA) • Neighborhood Center -Example: Indian Lakes Convenience oriented -normally grocery store anchored. (30,000-150,000 GLA) • Strip Center -Example: Holland West Attached row of stores or service outlets managed as a coherent retail entity, with on- siteparking usually located in front of the stores. Open canopies may connect the store fronts, but a strip center does not have enclosed walkways linking the stores. A Strip Center may be configured in a straight line, or have an "L" or "U" shape. A Convenience Center is among the smallest of the Centers, whose tenants provide a narrow mix of goods and personal services to a very limited trade area. Mixed Use Development-Example: Town Center A mixed-use development is a real estate project with planned integration of some combination of retail, office, residential, hotel, recreation or other functions. It is pedestrian-oriented and contains elements of a live-work play environment. It maximizes space usage, has amenities, architectural expression and tends to mitigate traffic and sprawl. National Trends in Retail Industry I. ChanQinQ Net Absorption Costar and Property and Portfolio Research Inc. forecasts "negative economic absorption to continue for two to three more quarters, followed by fairly robust positive absorption into 2011 and beyond" - Jay Spivey, Costar Group's Senior Director of Research & Analytics • Power Centers (+3.OM SF) • Lifestyle Centers (+L 1M SF) • Outlet Centers and super Regional Malls has been flat • Regional Malls (-800,000 SF) • Community Centers (-I.1M SF) • Strip Centers (-1.4M SF) • Neighborhood Centers (-2.3MSF) February 23, 2010 -8- CITY MANAGER `S BRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION ITEM # 59655 (Continued) National Trends in Retail Industry (Continued) Since 2005, there have been only three (3) malls built in the United States. In 2009, only one mall opened. Therefore, the mall as a concept for shopping is no longer an active trend in the retail environment and becoming less of an attractive environment. The United States Retail Industry is currently experiencing overcapacity. The market has been overdeveloped in some areas. The other trend is the Internet, which has been a major impact on the retail environment. Instead of going to a traditional facility, an individual has the comforts of being able to shop and purchase goods and services in the comfort of their home. II. Chan~inQ Vacancy Rate Costar and Property and Portfolio Research Inc. forecasts that the national average retail vacancy rate will rise to higher than 8% in the first quarter of 2010 and following that, is expected to eventually return to pre-Recession levels in early 2012. • Vacancy by Shopping Center type generally increases as Centers get smaller: Strip (11.8%) Neighborhood (10.4%) Community (10.3%) Lifestyle Centers (8.4%) Power Centers (8%) Regional Malls (7.9%) Outlet centers (5.7%) Super regional malls (3.8%) III. Economic Realities and Forecast • Changing Demographics- - Boomer Effect - Generation X and Generation Y • Shifting Trends in Retail Center Format • The U.S. retail industry is currently experiencing a "100-Million-Square-Foot Hangover" - PricewaterhouseCoopers Korpacz Real Estate Investor Survey first quarter 2009 report. (Supply outpacing Demand) So, how are Malls and other Retail Centers adapting • Malls built over the last few decades are being refurbished into so-called Lifestyle Centers - Emphasize convenience, upscale shopping, and entertainment. • Programming festivals, farmers markets, concerts, etcetra • Creating a greater sense of place • Green Initiatives • Rebranding properties and going upscale • Older Malls being torn down and redeveloped into more mixed-use, higher density properties February 23, 2010 -9- CITY MANAGER `S BRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION ITEM # 59655 (Continued) Survey of Virginia Beach Retail Centers • Reviewed all Virginia Beach Retail Center Assessments, Code Violations, and Crime data • Explored "Root Causes" of failing Centers with stakeholders • Discussed Potential solutions the Retail Centers located in Virginia /Seam are ~tr[p centers. Virginia Beach Retail Centers By Type ^ Strip Center ^ NoighborhoodCentcr ^ Community Center ^ Power Center ^ Theme/Festival Center ^ Super Regional Mall Regionai Mall Lifestyle Center Thirty-two (32%) percent of GLA (Gross Leasable Areal ts~ouna to communtry ~nopping ~,eaerr~. Twenty-four (24%) percent is found in Neighborhood Shopping Centers. Seventeen (17%) percent is in Strip Centers and Eleven (11 %) percent is found in E'ower centers. Gross Leasable Area in Virginia Beach by Retail Type ^ Strip Center ^ Neighborhood Center ^ Community Center ^ Power Center ^ Theme/Fc~tival Ccntcr ^ Super Regional Mall w~~ Regional Mall I if~~srylr Ce~nrrr February 23, 2010 Value per SgFt 163 214 265 Assessed Values of the three (3) largest groups of Retail Centers. The assessed values curve for each property type is very similar. In fact, the average assessment for each group is within Five Dollars ($S) of one another. ~ .~_~ ..~ .v .~ Strip Center ~CommunityCenter Neighborhood Center 5 0.035 0.03 0.025 0.02 0.015 0.01 0.005 0 0 113 167 221 275 Assessed Value Per SgFt Age of Retail Centers in Virginia Beach 59 12 24 36 48 60 Age (years} February 23, 2010 -11- CITY MANAGER `S BRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION ITEM # 59655 (Continued) International Council of Shopping Centers found that the life of most Shopping Centers is between twenty-two (22) and twenty-nine (29) years with an average life of twenty-seven (27) years. 3ao.oo 250.00 2ao.ao 15a.oa 100.00 50.00 a.oo Value of Virginia Beach Retail Centers in Top C~uintile J J Y I- I- V7 ~ (, ~ Z Z ~ V ~ ~ ~ ~ ~ ~ w ~ ~ Z~ d ~ -~ a d ~ S Z~ c.. ~ O d N~ m a v~ m w Q O Z w Z Z Z i-- ~ v n. p u LiJ J Ur J -~ ~ Y Q J J J Q Q ~ ~ V ~ O u p = ~ ~ ~ a a °C ~n v~ C7 V ~ ?~, ^ Value/SgFt Summary • Approximately two hundred nineteen (219) Retail Centers surveyed with the average age of twenty-six (26) years-(note--estimated lifespan is twenty-seven (27) years) • Strategy for Revitalization may mean a complete redevelopment of the Center and a possible change of use • Surrounding Neighborhoods play a key role in the viability of a Retail Center • National Retailers are becoming increasingly selective in locations • Landlords are facing increasing financial challenges and infilling non-traditional tenants Strategy Recommendation Establish Retail Improvement Program as part of a Design Center component--(Strategic Growth Area Office) • Suggested Budget Request - $150,000 (Retail Improvement Program Fund) PROGRAM OBJECTIVES • To improve the viability of existing businesses in the City of Virginia Beach • To provide financial assistance for facade improvements to owners of properties • To eliminate blight and non-conforming design standards by encouraging program participation • To improve the visual presentation of individual properties by upgrading facades, signage, and other exterior features • To bring structures up to existing building and safety code standards • To determine long-term viability and suggest potential alternative options PROJECT FINANCING • For every private dollar invested in the program, the city would consider a grant in the amount of 2: 1, dependent upon the availability of budgeted funds through the Department of Housing and Neighborhood Preservation February 23, 2010 -12- CITY MANAGER `S BRIEFING VIRGINIA BEACH SHOPPING CENTER REVITALIZATION ITEM # 59655 (Continued) Strategy Recommendation (Continued) POTENTIAL ELIGIBLE IMPROVEMENTS An effective program must outline and provide tools to property owners to encourage the repositioning and rebranding of their Center. The list below represents some examples of eligible improvements: • Painting/stucco or other exterior enhancement • Awnings, windows/doors replacement • Murals, marquees, parapet walls, arcade%anopy facade • Removal of old signage and new conforming facade and/or monument signs • Tile/pavement between entry and public sidewalk • Exterior and/or display lighting • Accessibility improvements for the disabled • Architectural and design costs are program eligible costs • Landscaping improvements • Other improvements subject to City approval Funds administered through Housing and Neighborhood Preservation program-currently established for residential properties Include a commercial element in the Neighborhood Preservation Plan Next Steps Budget Process Design Center as part of the Strategic Growth Area (SGA) office Develop Specific Implementation Program - Develop Application Forms - Eligible Criteria Refined - Marketing and Education of the Program • Share program with City Staff • Target specific properties • Host "Open House"for Business Owners at Design Center Council Lady Wilson suggested tax abatements be added to the list. The City Attorney shall advise. Mr. Harris advised this is an unfunded program. Concerning the cost to administer, Mr. Harris hopes this cost is limited as there is existing code enforcement currently employed within the City. The program would seek to expand their services to include this activity. Mayor Sessoms advised Mr. Harris would provide further information as to this impact on the budget. Mayor Sessoms suggested a Shopping Center also be utilized as an example. The City wishes to invest in their neighborhoods. The improvement to a Shopping Center in the neighborhood sets a tone. The emphasis should be "the return on the investment ". Councilman DeSteph suggested reducing the BPOL tax. February 23, 2010 -13- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT 3:48 P.M. ITEM # 59656 The City Manager introduced Patricia Phillips, Director -Finance, to present the Interim Financial Statement (July 1, through January 31, 2010), Mrs. Phillips advised the following would encompass the review: 1 FY 2010 General Fund Revenues - FY 2010 General Fund Expenditures 1 Limited Projections 1 Next Steps FISCAL YEAR 2009-2010 General Fund Revenues and Expenditures Compared to Budget Thru January 31, 2010 (in Millions) Revenue Local Revenue State Revenue* Federal Revenue Total Revenue Expenditures/Encumbrances Departmental Totals Transfers Reserve for Contingencies Total Expenditures/Encumbrances Less Amounts Funded from Fund Balance Annual YTD Budget Actual Variance $ 861.5 $ 410.7 $ (450.8) 159.1 57.3 (101.8) 23.1 12.5 (10.6) $ 1,043.7 $ 480.5 $ (563.2) $ 522.4 $ 320.5 $ 201.9 564.1 330.1 234.0 3.2 - 3.2 $ 1,089.7 $ 650.6 $ 439.1 Outstanding Encumbrance at 6/30/09 $ 6.1 Approved Carryover Requests 1.2 Funding for City Capital Projects 33.9 Operating Budget FY 10 4.8 Adjusted Expenditures/Encumbrances $ 1,043.7 *State Revenues contain PPTRA Budget of $53.4-MILLION and Actual of $6.5-MILLION February 23, 2010 -14- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) FY 2010 Year To Date General Fund Revenues Compared to Historic Trend January 31, 2010 ioo% ao% YTD ACTUAL = $480.5M ANNUAL BUDGET = $1,043.7M ~ 60% C 58.3% 46.0% 55.3% F°• 43.20/ 49.5% c 45.7% ~ 40% 42.5% a 23.5% 24.4% 20% 14.4% 9'7% 14.0% 1.9% 4.4% 9.5% 5.2% 0% 71.3% Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun -^w'°Rev Trend ~7~ % of FY 10 Rcv Budget FY 2010 -General Fund Revenues These Revenues follow the trendline; however, • Several items are on a 1-2 month lag • Real Estate Z"d installment due June S • Annual Business License Tax (BPOL) due in March • Local Annual Personal Property Tax due June S • Vulnerability of State Revenues - About $Sl-MILLION of $157-MILLION of total State revenue received after June 30, 2010, Personal Property Tax Relief Act: $47M - Other State Revenues (such as public assistance and mental health) - These State Payments to Cities in July are considered State FY2011 (but FY2010 for Cities) - State uses cash basis budgeting (not legal for Cities) - Personal Property Tax Relief Act (PPTRA) in Governor's budget letter February 23, 2010 -15- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) Real Estate Revenues January 31, 2006 - 2010 5600 Ssoo `o saoo N m ~ sooo d d C szoo stoo so FAVORABLE TREND $493.0 BUDGET $478.1. 5477.1 5443.1 ...5383.3.. n 811% 51.7% 51.6% 52.4% 50.9% $247.9 $254.3 $250.1 5225.6 $196A Fv zoos Fv zoos Fr zoos Fv zoos Fv zoto ®ACiwl COllcctloru ~YTD -D-%oI TOUI * Does not include additional appropriation for Senior Tax Credit of $400K. Dec 5 billing = $239.7M ($5.8M less than FY 2009) fta fib 314 c Sts 0 ,,, fto ~ sa d sa S4 S2 So FY 2006 FY 2007 FY 2008 FY 2008 FY 2010 ~ThrouOh June ]0 # Qual'Ifled 3 676 5 039 6 391 7 143 7 814 0 =amount of relief pending additional appropriation of S400K too% 80°h 0 ao% 'g U 40% r zo% ov February 23, 2010 Senior and Disabled Credit January 31, 2006 - 2010 -16- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 The Personal Property Tax is due June Fifth. 580 S80 570 c S60 f N S50 d S40 m tr Sao S20 St0 So Personal Property Taxes -Local Billed January 31, 2006 - 2010 573.1 BUDGET .567.5. 558.1 584.4 584.2 24.5% 23.1% 23.1 % 24.8° ~ 21.4% 575.6 ,.515.8 15.6 515.9 FY 2006 FY 2007 FY 2008 FV 2009 FY 2010 ~~Aetwl COlNetlons ~VTD -ti%oT TOhI COR completes assessments on April 25 General Sales Taxes January 31, 2006 - 2010 s7o Seo SSO UNFAVORABLE TREND 4.3 % Down from FY09 564.0 Sb4.1 BUDGET 61.9% ~ 62:5%58.8% 0 YRT.1 528.0 -i- 3 S40 rc S70 S20 Sto SO 80.8% J50.8% r.~• 578.0 27,4 FY 2008 FV 2007 FV 2008 FY 2000 FV 2010 ~~ACtual Collections ~VTD -D-% oT Total ,00% 75% 0 m 50% tj w 10- 0 2° 25% o% ,00% 75% 5 50% v 9 25% 0% February 23, 2010 -$.8% -4~~%u _. -"1U.U7o __ __ ~J~~ ~~~~ 0~~~ t~~~~ ~~~~ JP~~ y~,Q ~ Mc~hly % Chaiq~e.. Collections lag sales by two (2) months Business Licenses - (BPOL) January 31, 2006 - 2010 S60 S40 ~ 330 0 f a ~ Szo rc 510 So -17- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) General Sales Taxes Collections Monthly % Change from FY 2009 to FY 2010 __ Due in March BUDGET $41.8 $41.0 $40.6 540.6 $38.9 9.2% 8.4% _ -.- 7.4% 6.8% B.1 53.8 $3.S S.1 $2.8 $2.6 'Y 2006 FY 2007 FY 2008 FY 2009 FV 2011 ~Mnual CdlacOOns ~VTD ~-%ot TOtal 0.7% -2.6% ..................... Q~ JP 0~ F~ 20 w 0 v 10% o S o% February 23, 2010 -18- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) Hotel Room Taxes January 31, 2006 - 2010 530 ._____.. __..._..____.___.__._._.._..__.__.___._....__...._..._..__.._.._~.........__...__.....____.._.._. r.__.._......_____---_"_...1 100 UNFAVORABLE TREND 1.7%down from FY09 i BUDGET 525 $23.6 f23 0 80% . $228 73.3% ~~ 74.1% 75,5% 71.3% 0 520 ~ 0 $17.5 ;17.3 - $17.0 ~ 60% d N 518.6 ' I c m $15.4 u c 515 - d ' 210 u ~. - ~ ,- ,°.. l _ i 20 SS ~ i I I 0% SO FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 tS1~7ACtual Collectfona I~YTD -a~% of Total ] Restaurant Meal Taxes January 31, 2006 - 2010 ff0 sso 0 540 H d m fa0 'u Ir f20 f10 so ~~ ~~~ UNFAVORABLE TREND .1 % Up from FY08 BUgDgG'gET $48.11 548.3 545.0 ~r 60.4% ~ ~ 60.5% 60.8 h ,oa% 80% 0 60% w 0 U 0 H `o 40% y; 20% o% Fr zoos rv zoo? Fr zoos Fv zoos rY zoio ®Aettgl COlbctlons ~VTD ~•%o/TOtal~ February 23, 2010 -19- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) Utility Taxes January 31, 2006 - 2010 330 S25 ~ 520 N u 515 rc S10 55 SO UNFAVORABLE TREND ', BUDGET 525.0 325.7 ` 524.4 .324.4 324.8 _ n .--~ r-i 48.1Yo 48 3% j 49.8% 312.1 12.0 312.4 ;11.3 48.D% I 00% 80% C O 80% w O U 0 40% ~ 20% 0% FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 Ca3m Annual Colkotlons ~VTD -~'/. of Tokl] Virginia Telecommunications Tax January 31, 2006 - 2010 s3o 326 szo M 0 v 516 m 510 SS So FY 2008 ,00% ao% °_ 60% r' 0 U 9 0 40% ° 20% o% Fv zoto February 23, 2010 FY 2007 FY 2008 FY 2009 fT' Annual Colkctlons ~VTD ~-x of Total -20- CITY MANAGER `SBRIEFING INTERIM FINANCL9L STATEMENT ITEM # 59656 (Continued) Summary of General Fund Revenues January 31, 2010 (In Millions) l r t ~ ~ t 5~ ~ l-~s ~~ w~ =E. '+~--s ' ip''S ~ c~ i b~`' ~ ~Y ~ ~ foci C h I ~~ ~ i~ - '7~. -. s ` r ~~~ -~i,~s Real Estate Taxes $477.1 $250.1 52.4 % F Personal Property Taxes 64.2 15.9 24.8 F ppT~, 53.4 6.5 12.2 - General Sales Tax 51.1 26.0 50.8 U Utility Taxes 25.7 12.4 48.0 U Telecommunications Taxes 23.7 9.2 38.8 U Franchise Taxes 5.9 2.5 43.2 F Business Licenses 40.6 2.8 6.8 F Restaurant Taxes 49.8 29.4 59.0 U Hotel Taxes 23.9 17.0 71.3 U Cigarette Taxes 12.9 7.3 56.2 U Automobile Licenses 9.1 4.2 46.3 U Amusement Taxes 5.3 3.6 68.2 U City Tax on Deeds 5.9 3.3 56.3 F Other Local Revenues 66.3 27.0 40.8 F State Revenues 105.7 50.8 48.0 U Federal Revenues 23.1 12.5 54.1 U $1,043.7 $480.5 46.0 % U Excludes Schools Revenues FY 2010 Year-to-Date General Fund Revenues Prior Fiscal Years Year-End Results SIS00 x1,000 ~ 5500 SO February 23, 2010 F'1' 2007 FY 2008 FY 2009 FY 2010 ~AnnualActual ^AnnualBudget -21- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) FY 2010 Year-to-Date General Fund Expenditures Compared to Historic Trend January 31, 2010 Joo% I tJtt.tl~~ ~ so°i a k {rJ 9 60% F `o c 40% 20°/a FY 2010 Year-to-Date General Fund Revenues & Expenditures Compared to Historic Trend At January 31, 2010 Ilrrt ~,> Joo% a.x^ 9 °d 71.3°f SPSA ""' " g i9.7"/ F' 60% 5g,3o~ _ ~t.'1'% S L'r° 55.3% „' ~ aa 5% 46,0°/a ~ . 43.2°h 49.5°!° aa- ~~Ln"" as,7% ao% - <~ ,. ~"'" r State $ received after 6/30/10 J ,,„~,.: z3.s i za a i ppTRA $46 9M 17.1"/, _ . zo°i la a° -Other $4.6M . .g% t-nw" 9,7°10 14.0% K,r.,,, a.a 1.9% 9.5 5.2% 0% 2.7% Jul Aug Sep Oct Nov Dec lan Feb Mar Apr May lun ~. -•~"••Rov Trmd ->F-W. of Fti li~Rav ffudgn "'"~""F.,mmJime Trend ~~'"•~rf F1'In ~R Budgn I February 23, 2010 0% lul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun ° e -*-"F,~pe°diiure Trend ~~" FYIn I.r Hud ~ _) . ^ ~... ~.. V ... ~. ... . -22- CITY MANAGER `SBRIEFING INTERIM FINANCIAL STATEMENT ITEM # 59656 (Continued) General Fund FY 2010 Expenditures 1 Total at January 31, 2010: $650.6-MILLION or 59.7%, of $1.09-BILLIONBudget 1 Summary of Actual Expenditures Under Budget at June 30: (In Millions) of Total % of Ciry Total Budget Ciry Budget Schools .~ Nro $25 0 3.5 /° _ $35.3 2008 (Actual) $60.3 5.6% ° ,. ._ ~~. ~._n ~_.. _,~ _ _.~ m~ ~.....~. n~ .__ __ . v.~ ~ .a 2009 (Actual) $43.0 ~ 3 8% $28 1 ? 3.6% i $14.9 ~'': _.. ~ . ......... .... .~. _.~ rv ~.a .... _, ...~.. ,_.~ ... ~ .. __ Bottom Line Revenues <$6-MILLION- $12-MILLION> under Expenditures <$22-MILLION - $26-MILLION> under Risks - SPSA - State Next Steps - Continue to Monitor Revenues in FY 2010 ^ Business Licenses -March ^ Personal Property -March/April 1 Next Briefing on March 23, 2010 for data through February 2010 February 23, 2010 - 23 - C ITY COUNCIL COMMENTS 3:59 P.M. ITEM # 59657 Relative the Electronic Display (LED) Signs Ordinance Task Force, Council Lady Wilson and Councilman Davis, met on Friday, February 19, 2010, with David S. Redmond -Planning Commission, Dan H. Brockwell and Staff. Deputy Ciry Attorney Macali has advised "if significant changes are made in the proposed LED Ordinance, this should be REFERRED BACK TO THE PLANNING COMMISSION". The Staff is concerned and recommends the Planning Commission Alternative Verson be ADOPTED as a temporary measure. A July First deadline is under consideration. Council Lady Wilson referenced one change to the Alternative Version that Vice Mayor Jones' concerns be incorporated concerning the LED signs being close to a property line in residential. Karen Lasley, Zoning Administrator, advised there were approximately twenty (20) applications in the queue. However, many have not applied awaiting the ADOPTION of the Ordinance. Councilman Davis advised the Chamber of Commerce has concerns re some of the verbiage. Council Members Wilson and Davis will meet again this Friday, February 26, 2010, and should have a recommendation within two (2) weeks. ITEM # 59658 Councilman Uhrin advised he attended the Harry Connick, Jr. Concert at the Sandler Center for the Performing Arts. Mayor Sessoms advised he also attended. Councilman Uhrin advised, while Harry was on stage, he announced if the Sandler was not the best he had every played in his entire life, it was in the "top three ". ITEM # 59659 Mayor Sessoms referenced correspondence of the City Manager dated, February 12, 2010, proposing City Council suspend the development and presentation of a Biennial Budget. The Staff will present a Balanced Budget for FY 2010-11. BY CONSENSUS, City Council concurred and directed the City Manager present an Annual Budget. ITEM # 59660 Mayor Sessoms announced at the conclusion of the Closed Session, the City Photographer will be in City Council Chamber to take a "Group" photo of City Council and asked all members to go there before dinner. ITEM # 59661 Mayor Sessoms advised the City Council Retreat is scheduled: VIRGINIA BEACH CONVENTION CENTER APRIL 6, 2010 8AM-SPM February 23, 2010 -24- C I T Y COUNCIL COMMENTS CITY COUNCIL FY 2010-2011 BUDGET SCHEDULE DATES and TIMES Item # 59662 TIME DATE LOCATION 6:00 PM Tuesday, March 23 City Manager Presents Budget City Council Chamber 4 - 6 PM Tuesday, March 30 Workshop -City Council Conference Room 4 - 6 PM Thursday, April 8 Workshop -City Council Conference Room 1 HOUR Before Informal Tuesday, Apri113 Workshop -City Council Conference Room 4 - 6 PM Tuesday, April 20 Workshop -City Council Conference Room 6:00 PM Thursday, April 22 Public Hearing - Tallwood High 1 HOUR Before Informal Tuesday, April 27 Workshop -City Council Conference Room 6:00 PM Tuesday, April 27 Public Hearing -Formal Session City Council Chamber 4 - 6 PM Tuesday, May 4 Reconciliation Workshop City Council Conference Room 6:00 PM Tuesday, May I1 Adoption -Formal Session City Council Chamber February 23, 2010 - 25 - CITY COUNCIL LIAISON REPORTS OPEN SPACE AD VISOR Y COMMITTEE ITEM # 59663 Council Lady Henley, Liaison -Open Space Advisory Committee, advised the Committee met yesterday, Monday, February 22, 2010. The last public planning meeting dealing with the Lake Lawson area will be held Wednesday Afternoon, at Hermitage Elementary School. These areas will pull together many of the areas purchased from Norfolk, Virginia, over the last few years and make what she considers one of the Legacy Projects of Open Space. The Interfacility Traffic Area (ITA) Public Planning Community Charrette is scheduled for the evening of March 11, 2010, 6:00 P.M. - 8: 00 P.M, Building 19, Training and Development. The focus groups will be held earlier that day. February 23, 2010 -26- CITY COUNCIL REPRESENTATIVES CITY COUNCIL LIAISONS ITEM # 59664 AD HOC COMMITTEES ADVERTISING ADVISORY COMMITTEE John E. Uhrin AUDIT COMMITTEE John E. Uhrin BAYFRONT ADVISORY COMMITTEE Louis R. Jones BIKEWAYS /TRAILS ADVISORY COMMITTEE Barbara M. Henley GREEN RIBBON COMMITTEE Barbara M. Henley INVESTMENT PARTNERSHIP AD VISOR Y COMMITTEE John E. Uhrin Rosemary Wilson James L. Wood James L. Wood William R. "Bill" DeSteph James L. Wood JOINT CITY/SCHOOL MODERNIZATION COMMITTEE Rosemary Wilson Robert M. "Bob" Dyer Rita Sweet Bellitto JOINT LAND USE POLICY COMMITTEE Vice Mayor Louis R. Jones Rosemary Wilson LEGISLATIVE COORDINATION Rosemary Wilson John Uhrin MAYOR'S COMMITTEE ON AGING Barbara M. Henley MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMITTEE Louis R. Jones John E. Uhrin Rita Sweet Bellitto MILITARY LL4ISON COMMITTEE William D. Sessoms, Jr. Louis R. Jones James K. Spore Mark D. Stiles OCEANA LAND USE CONFORMITY COMMITTEE William D. Sessoms, Jr Louis R. Jones Rosemary Wilson OPEN SPACE AD VISOR Y COMMITTEE Barbara M. Henley SCHOOL SITE SELECTION COMMITTEE Louis R. Jones SISTER CITIES COMMISSION/ EXCHANGES James L. Wood Robert M. "Bob" Dyer Rita Sweet Bellitto February 23, 2010 -27- TECHNOLOGY COMMITTEE Glenn R. Davis WATER TASK FORCE COMMITTEE William D. Sessoms, Jr. Louis R. Jones James K. Spore WORKFORCE HOUSING COMMITTEE Rosemary Wilson Robert M. Dyer BOARDS and COMMISSIONS AGRICULTURAL ADVISORY Barbara M. Henley ARTS and HUMANITIES COMMISSION Glenn R. Davis BEACHES and WATERWAYS William R. "Bill" DeSteph William R. "Bill" DeSteph Mark D. Stiles Harry E. Diezel, Alternate Rosemary Wilson COMMUNITY ORGANIZATION GRANT -COG -/REVIEW and ALLOCATIONI William R. "Bill" DeSteph COMMUNITY SERVICES BOARD - CSB Harry E. Diezel DEFERRED COMPENSATION BOARD James L. Wood Sheriff Ken Stolle HISTORIC PRESERVATION COMMISSION Rosemary Wilson Glenn R. Davis HUMAN RIGHTS COMMISSION Glenn R. Davis Rita Sweet Bellitto MINORITY B USINESS COUNCIL Robert M. "Bob" Dyer Glenn R. Davis SOCIAL SERVICES BOARD Harry E. Diezel TOWING ADVISORY BOARD Harry E. Diezel John E. Uhrin VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION Louis R. Jones William R. "Bill" DeSteph VIRGINIA BEACH DEVELOPMENT AUTHORITY Louis R. Jones Rosemary Wilson VIRGINIA BEACH HEALTH SERVICES ADVISORY BOARD Rosemary Wilson James L. Wood February 23, 2010 -28- VOL UNTEER COUNCIL James L. Wood EXTERNAL AGENCIES HAMPTON ROADS ECONOMIC DEVELOPMENT ALLIANCE William D. Sessoms, Jr. Warren Harris HAMPTON ROADS TRANSPORTATION PLANNING ORGANIZATION - TPO William D. Sessoms, Jr. HAMPTON ROADS MILITARY and FEDERAL FACILITIES ALLIANCE William D. Sessoms, Jr. HAMPTON ROADS PARTNERSHIP William D. Sessoms, Jr. HAMPTONROADS PLANNING COUNCIL Glenn R. Davis Rosemary Wilson HAMPTON ROADS PLANNING DISTRICT COMMISSION - /HRPDCI William D. Sessoms, Jr. Louis R. Jones Barbara M. Henley Robert M. "Bob" Dyer Harry E. Diezel John E. Uhrin James K. Spore SOUTHEASTERN PUBLIC SERVICE AUTHORITY - SPSA John Barnes, Ex Officio TRANSPORTATION DISTRICT COMMISSION OF HAMPTON ROADS - /HRTI John E. Uhrin James L. Wood VIRGINIA AQUARIUM and MARINE SCIENCE MUSEUM FOUNDATION William R. "Bill" DeSteph James L. Wood February 23, 2010 -29- SPECIAL PROJECTS CONVENTION CENTER HOTEL Louis R. Jones DOME SITE Louis R. Jones ELIZABETH RIVER -EASTERN BRAN CH Harry E. Diezel LYNNHAVEN RIVER NOW Louis R. Jones PEMBROKE S G A Louis R. Jones John E. Uhrin John E. Uhrin Rita Sweet Bellitto William R. "Bill" DeSteph James L. Wood PRINCESS ANNE / WITCHDUCK/KEMPSVILLE ROADS INTERSECTION Harry E. Diezel Robert M. "Bob" Dyer RUDEE LOOP Louis R. Jones SOUTHEASTERN PARKWAY/ GREENBELT Louis R. Jones TOWN CENTER Louis R. Jones John E. Uhrin Barbara M. Henley James L. Wood February 23, 2010 -30- A GENDA REVIEW SESSION 4:20 P.M. ITEM # 59665 J. 1. Ordinance to TRANSFER $244, 800 from the Reserve for Contingencies to the FY 2009-10Non-Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension Mayor Sessoms expressed appreciation to City Council Members for their cooperation re the Hampton Roads Transit funding issue. In correspondence from Philip A. Shucet, President and Chief Executive Officer -Hampton Roads Transit, he assured the work to finish the first step in the lengthy project development process will not exceed $6.63-MILLION. James Toscano, Vice President -Public Affairs and Communications -HRT, referenced there is good news in the past twenty four hours, Mr. Shucet's desire is to fully make himself available to City Council at least every quarter as HRT and TTDC desire a stronger relationship within Virginia Beach. Concerning the Virginia Beach Transit Extension study on the Website, there will be an update on the project's components and any presentation made at a public meeting. Questions from the public and answers provided by the Hampton Roads Transit Consultant Team, including Virginia Beach City Staff, are provided. Unedited comments from the public at the meetings are also on the Website: www.gohrt.com (click on development projects which will provide a graphic re the Virginia Beach Transit Extension Study). Council Lady Henley expressed citizen concerns re the SGA (Strategic Growth Areas); the City needs not to surprise individuals who have not participated in these areas. The City is almost finished with the Newtown Strategic Growth Area, Council Lady Henley inquired when the next SGA was going to get underway. Mr. Whitney advised, after this ITA work is completed, either Hilltop or Rosemont will be examined. These are both on the Transit line. East of Rosemont is the AICUZ areas. Councilman Dyer advised part of the discussion was a concern to make sure all the Districts in the City are viable and part of the plan in terms of transportation. Councilman Uhrin advised the Strategic Growth Areas around these proposed stations have been a major part of the discussion. Item J.1. shall be REMOVED from the Agenda ITEM # 59666 3. Resolution to SUPPORT offshore oil and natural gas exploration re an alternative energy source, with royalty payments to Atlantic Coast states, and REQUEST Congress and the Virginia General Assembly provide legislation to dedicate a portion of these royalties to fund transportation This item shall be REVISED, as per request of Council Lady Bellitto February 23, 2010 -31- A GENDA REVIEW SESSION ITEM # 59666 (Continued) Item No. 4 of said Resolution shall read as follows: "Any offshore exploration or development must be done so as to not impact military readiness and operations so complete coordination with all defense agencies, especially the United States Navy is paramount. " Lease Sale 220/Defined Sale Area and Map shall be a part of the Resolution. ITEM # 59667 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: J. ORDINANCES/RESOLUTIONS Ordinance to TRANSFER $244, 800 from the Reserve for Contingencies to the FY 2009-10Non-Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension 2. Ordinances to AMEND the City Code; a. X23-50.1 re penalty for failure to comply in the removal of certain trees b. X23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass 4. Ordinance to AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C. and AUTHORIZE the City Manager to execute the Lease S. Ordinance to AUTHORIZE the acquisition of property at 1907 Baltic Avenue from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White re potential development at the Oceanfront 6. Resolution to AUTHORIZE the City Manager to execute an Intergovernmental Agreement (IA) between the Virginia Department of Agriculture and Consumer Services and the City re the purchase of Agricultural Reserve Program (ARP) easements Ordinance to AUTHORIZE a temporary encroachment into a portion of a City- owned property for Forest E. and Judy P. Williams to construct and maintain permeable paver parking spaces and an existing paver walk at 308 49`h Street February 23, 2010 -32- A GENOA REVIEW SESSION ITEM # 59667 Continued) 8. Ordinances to APPROPRIATE: a. $7, 200, 000 from SPSA to the FY 2009-10 Public Works Operating Budget re increased SPSA disposal costs b. $25, 579 from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning re increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program Ordinance to TRANSFER $250, 000 from the Subscription Fund Reserve for Contingencies -Regular within the FY 2009-10 Subscription Fund for public safety air card recurring charges Item J. 1. (Virginia Beach Transit Extension) shall be REMOVED from the Agenda. Item J.2a/b X23-50.1 re penalty for failure to comply in the removal of certain trees and X23-SO re penalty for failure to comply with cutting excessive growth of weeds or grass, shall be DEFERRED, BY CONSENT, thirty (30) days until the City Council Session of March 23, 2010. Item J.4, AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C) with an AMENDED Summary of Terms and allow a $10-MILLION net worth. Council Lady Henley shall vote a VERBAL NAY on Item 4. (AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L. C) Item J. 7. (AUTHORIZE a temporary encroachment into a portion of a City-owned property for Forest E. and Judy P. Williams) shall be DEFERRED INDEFINITELY, BY CONSENT, ITEM # 59668 Mayor Sessoms distributed the following Resolution requesting this be ADDED to the Agenda: Resolution REQUESTING the General Assembly and the Governor continue funding for the BRAG compliance program partnership between the City and the Commonwealth. February 23, 2010 -33- AGENDA REVIEW SESSION ITEM # 59669 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA K. PLANNING Application of GEORGE R. and JANE C. WEBB for Nonconformi~ Structures at 110 74`" Street to renovate a single family dwelling and a garage apartment. DISTRICT S - LYNNHAVEN 2. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Mod~cation~'Prof ers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236- 2240 General Booth Boulevard DISTRICT 7 -PRINCESS ANNE Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809 Estates Court, 2933 and 2936 Estates Drive. DISTRICT S - LYNNHAVEN 4. Application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. DISTRICT 4 -BAYSIDE 5. Application of STRAWBRIDGE ANIMAL CARE/FAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. DISTRICT 6 -BEACH 6. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at S01 Virginia Beach Boulevard. DISTRICT 6 -BEACH Application ofAUTOBELL CAR WASH, INC./MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard. DISTRICT 4 -BAYSIDE 8. Applications of KARINPHILLIP, INC./PARR PROPERTIES, LLC at 114 South Witchduck Road (Strategic Growth Area-SGA4-Pembroke) re a tattoo parlor: DISTRICT 2 - KEMPSVILLE a. Change ofZoninQ District Classification from I-1 Light Industrial District to Conditional B-2 Community Business District b. Conditional Use Permit February 23, 2010 -34- AGENDA REVIEW SESSION ITEM # 59669 (Continued) 9. Application of MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS, for a Change of Zonin District Classi rcation from R-1 S Residential District, AG-1 and AG-2 Agricultural Districts to Conditional R-1 S Residential District at 3807 and 3809 Indian River Road to develop the site with single family dwellings. DISTRICT 1 -CENTERVILLE 10. Application ofAUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Modi acation of Prof ers (approved by City Council on March 28, 2000 and May 24, 2005) at 5221 Indian River Road. DISTRICT 1-CENTERVILLE Item No. 3 (Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) shall be DEFERRED, BY CONSENT, until the City Council Session of March 9, 2010. Item No. 6. (Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair) shall be DEFERRED, BY CONSENT, until the Ciry Council Session of March 23, 2010. *Mayor Sessoms, Vice Mayor Jones, Council Lady Bellitto, Council Lady Henley and Councilman Wood, re Item 8 (KARINPHILLIP, INC./PARR PROPERTIES, LLC) expressed concerns with this use at this location. This item will be INDEFINITELYDEFERRED, BYCONSENT. ITEM # 59670 Mayor Sessoms advised he must leave the Formal Session by 6: 30 P.M. to presentAnibal Gomez-Toledo, Head of the Consular Section -Embassy of Mexico, a Proclamation celebrating Mexico's Freedom. The event will occur at the Sandler Center for the Performing Arts February 23, 2010 -35- ITEM # 59671 Mayor William D. Sessoms, Jr. entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.2-3711(A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(1) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees PUBLICLY-HELD PROPERTY.• Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711(A)(3). Acquisition/Disposition of City Property: Princess Anne District Upon motion by Councilman DeSteph, seconded by Councilman Dyer, City Council voted to proceed into CLOSED SESSION at 4:29 P.M. Voting: 10-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel (Break: 4:30 P.M. - 4:40 P.M.) (Closed Session: 4:40 P.M. - S: 00 P.M.) (Dinner.' S: 00 P.M. - 5:45 P.M.) February 23, 2010 -36- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL February 23, 2010 6:00 P.M. Mayor William D. Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, February 23, 2010, at 6:00 P.M. Council Members Present.• Rita Sweet Bellitto, Glenn R. Davis, Robert M. Dyer, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Rabbi Aaron Mongolin Chabad Lubowitch of Tidewater (representing his daughter's husband -Rabbi Levi) Mayor Sessoms WELCOMED Council Lady Rita Sweet Bellitto - At-Large, to her first City Council Session. PLEDGE OFALLEGIANCE TO THE FLAG OF THE UNITED STATES OFAMERICA Mayor Sessoms DISCLOSED as an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), he is directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which he is not personally involved and of which he does not have personal knowledge. In that regard, he is always concerned about the appearance of impropriety that might arise if he unknowingly participates in a matter before City Council in which TowneBank has an interest. Mayor Sessoms also has similar concerns with respect to Prudential Towne Realty, which is an affiliate of TowneBank. In order to ensure his compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Act'), it is his practice to thoroughly review each City Council agenda to ident~ any matters in which he might have an actual or potential conflict. If, during his review of an agenda, he identifies a matter in which he has a "personal interest ", as defined by the Act, he will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Mayor Sessoms' letter of March 24, 2009, is hereby made a part of the record. February 23, 2010 -37- Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial ") purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial and that stock ownership causes him to have a `personal interest " in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the off cial records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. 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 a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent aff liation, 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 conf ict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson 's letter of January 27, 2004, is hereby made a part of the record. February 23, 2010 -38- RECOGNITION OF BOY SCOUTS ITEM # 59672 Mayor Sessoms RECOGNIZED the following Boy Scouts and their leaders: Boy Scout Troop 65 Sponsored by Foundry United Methodist Church Tyler Blaher Jacob Hall Devin Holbrook Mitchell Holbrook Jacob Rousselow Robert Midgette Richard Midgette Steve Skamagos Richard Skamagos Robert Nicolodi Leaders Todd Blaher, Scout Master Steve Hall Rick Tomaselli Ron Midgette John Duke Virgil Hart Scout Troop 373 David Kynett Mayor Sessoms presented each Scout with a City Seal Pin. February 23, 2010 -39- Item - V-E.1 CERTIFICATION ITEM # 59673 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE INACCORDANCE 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: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• None February 23, 2010 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 #59671, Page 35, and in accordance with the provisions of The Virginia Freedom of Information Acr, 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. uth Hodges Fraser, MMC City Clerk February 23, 2010 -40- Item V-F.1 ITEM # 59674 Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council APPROVED the MINUTES of the INFORMAL and FORMAL SESSIONS of February 9, 2010. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay.• None Council Members Abstaining: Rita Sweet Bellitto Council Members Absent: None Council Lady Bellitto ABSTAINED as her appointment to City Council was effective February 23, 2010. February 23, 2010 -41 - Item V-G.1. ADOPT AGENDA FOR FORMAL SESSION ITEM # 59675 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION ADDED: Resolution REQUESTING the General Assembly and the Governor to continue funding for the BRAC compliance program partnership between the City and the Commonwealth. February 23, 2010 -42- Item V-G.2. ADOPT AGENDA FOR FORMAL SESSION ITEM # 59676 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADDED to the Agenda under Ordinances/Resolutions as Item 10: Resolution REQUESTING the General Assembly and the Governor to continue funding for the BRAC compliance program partnership between the City and the Commonwealth. Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 - 43 - Item V-H.l. MAYOR'S PRESENTATION ITEM # 59677 DEFERRED INDEFINITELY because of Scheduling conflicts. VIRGINIA LAW ENFORCEMENT ACCREDITATION COALITION (VALEC) February 23, 2010 -44- Item [~ J. ORDINANCES/RESOLUTIONS ITEM # 59678 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOTION Items 1 (REMOVED from the Agenda) 2a.b (DEFERRED), 4, S, 6, 7 (DEFERRED), 8a/b, 9 and 10 (ADDED) of the CONSENT AGENDA. Item J.2a/b X23-50.1 re penalty for failure to comply in the removal of certain trees and X23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass, shall be DEFERRED, BY CONSENT, thirty (30) days until the City Council Session of March 23, 2010. Item J.4, AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C) with an AMENDED Summary of Terms and allow a $10-MILLION net worth. Council Lady Henley shall vote a VERBAL NAY on Item 4. (AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C) Item J. 7. A UTHORIZE a temporary encroachment into a portion of a City-owned property for Forest E. and Judy P. Williams) shall be DEFERRED INDEFINITELY, BY CONSENT, Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, Diezel, Robert M. Dyer, Barbara M. Mayor William D. Sessoms, Jr., John E. Wood William R. "Bill " DeSteph, Harry E. Henley, Vice Mayor Louis R. Jones, Uhrin, Rosemary Wilson and James L. Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -45- Item V-J.1. ORDINANCES/RESOLUTIONS ITEM # 59679 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, CITY COUNCIL REMOVED FROM THE AGENDA, BY CONSENT: Ordinance to TRANSFER $244, 800 from the Reserve for Contingencies to the FY 2009-10 Non-Departmental Operating Budget to provide a local match for a federal grant to Hampton Roads Transit to study the Virginia Beach Transit Extension (Hampton Roads Transit advised Hampton Roads Transit (TRT) will provide the necessary "Match" at no expense to the City.) Voting.• 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -46- Item V-J.2. alb ORDINANCES/RESOLUTIONS ITEM # 59680 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED to March 23, 2010: Ordinances to AMEND the City Code: a. X23-50.1 re penalty for failure to comply in the removal of certain trees b. ,¢23-SO re penalty for failure to comply with cutting excessive growth of weeds or grass Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -47- Item V-J.3. ORDINANCES/RESOLUTIONS ITEM # 59681 The following registered in OPPOSITION: Eileen Levandoski, 1205 Whilestone Way, Phone: 277-8537, Hampton Roads Conservation Coordinator -Sierra Club. "The area's clean beaches are the backbone of our sustainable coastal economy generating Billions of Dollars in Revenue from tourism recreation and commercial fishing. All stand at risk if Virginia's coast should be open to offshore drilling. Oil and gas exploration and production continues to be a dirty and dangerous activity that threatens coastal beaches, beach communities and estuaries. United States Drilling operations leak an average of eight hundred and eighty thousand (880, 000) gallons of oil into the ocean each year. Just this past Summer, an oil well off the Coast of Australia blew out and began leaking 400 barrels of oil per day into the ocean covering more than 9, 000 square miles. The failed equipment was only two (2) years old. " Ms. Levandoski presented materials, which are hereby made a part of the record, including a copy of correspondence from the County of Accomack in OPPOSITION to off-shore drilling. Terra Pascarlsa, 5604 Aragon Drive, and Phone: 291-4736, small business owner of Terra Scapes Environmental consulting, is very opposed to the offshore drilling off the Atlantic Coast. "There are many clean energy options available besides offshore drilling. Companies in Virginia are creating wind turbines and solar services in Virginia Beach have been in existence for thirty (30) years. " Benjamin Duff, 5604 Aragon Drive, Phone: 737-3066. "The City has touted its commitment to being a leading city in the United States in energy sustainability. By supporting offshore drilling, Virginia Beach cannot be considered among the "clean "cities. The benefits do not outweigh the risks of damages from drilling to the shores. " Upon motion by Councilman Davis, seconded by Councilman Uhrin, City Council ADOPTED, AS REVISED: Resolution to SUPPORT offshore oil and natural gas exploration re an alternative energy source, with royalty payments to Atlantic Coast states, and REQUEST Congress and the Virginia General Assembly provide legislation to dedicate a portion of these royalties to fund transportation Lease Sale 220/Deftned Sale Area and Map shall be a part of the Resolution. Item No. 4 of said Resolution shall read as follows: "Any offshore exploration or development must be done so as to not impact military readiness and operations so complete coordination with all defense agencies, especially the United States Navy, is paramount. " February 23, 2010 -48- Item V-T.3. ORDINANCES/RESOL iITIONS ITEM # 59681 (Continued) Voting.• 8-3 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Robert M. Dyer, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: Harry E. Diezel, Barbara M. Henley and Vice Mayor Louis R. Jones Council Members Absent.• None February 23, 2010 REQUESTED BY MAYOR SESSOMS 1 A RESOLUTION SUPPORTING OFFSHORE OIL AND GAS 2 EXPLORATION WITH ROYALTY PAYMENTS TO 3 ATLANTIC COAST STATES 4 5 WHEREAS, the Commonwealth of Virginia imports more electricity than all but 6 two other states; and 7 8 WHEREAS, according to the Department of Interior-Mining Minerals Services, as 9 much as 3.25 billion cubic feet of natural gas may be located off the coast of Virginia; 10 and 11 12 WHEREAS, the Department of Interior is in the process of considering the 13 leasing of Block 220 off the coast of Virginia for offshore oil and gas exploration; and 14 15 WHEREAS, there are several bills in the General Assembly of Virginia promoting 16 the exploration and possible production of oil and gas from those fields; and 17 18 WHEREAS, the development of an offshore oil and gas industry would create 19 thousands of jobs in Hampton Roads and produce hundreds of millions of dollars worth 20 of revenue to the Commonwealth and local governments if the Federal Royalty Law was 21 amended to allow not only Gulf and Pacific states but also Atlantic Coast states like 22 Virginia to receive offshore royalties; and 23 24 WHEREAS, the Mayor created the Alternative Energy Task Force to look at 25 energy needs of Virginia Beach and the Commonwealth; and 26 27 WHEREAS, the Alternative Energy Task Force has identified U.S.-produced oil 28 and gas as bridge sources until alternative sources such as wind become more mature 29 and usable; and 30 31 WHEREAS, it is believed that this oil and natural gas exploration can be done in 32 an environmentally sound manner; and 33 34 WHEREAS, there are many alternative uses for natural gas for energy 35 production, and natural gas is one of the cleanest sources of energy production. 36 37 NOW, THEREFORE, BE IT RESOLVED BY CITY COUNCIL OF THE CITY OF 38 VIRGINIA BEACH, VIRGINIA THAT: 39 40 1. City Council endorses exploration for the development of oil and natural 41 gas off the coast of Virginia in Lease Block 220, which is more than 50 miles from the 42 coast of Virginia Beach; and 43 44 2. City Council endorses this development because of the need to create 45 more American-controlled energy resources; and 46 47 3. It is the sense of Council that oil and natural gas should be developed as a 48 bridge until other alternative energy sources such as wind and biodiesel are developed. 49 50 BE IT FURTHER RESOLVED THAT: 51 52 1. City Council requests that Congress amend the legislation concerning 53 royalty payments to states where oil and natural gas exploration occurs so that Virginia 54 can receive royalties from this oil and natural gas development; and 55 56 2. City Council supports legislation in the General Assembly that would 57 dedicate a portion of the royalties arising from the aforementioned production to be 58 dedicated to transportation to improve the quality of life and the competitiveness of 59 Virginia; and 60 61 3. City Council requests Congress to allow for royalty payments to Atlantic 62 Coast states as is done in the Gulf of Mexico and further requests Congress to amend 63 the royalty area maps so that the boundaries for the Atlantic Coast states are an east- 64 west line between the states; and 65 66 4. Any offshore exploration or development must be done so as to not impact 67 military readiness and operations so complete coordination with all defense agencies, 68 especially the United States Navy, is paramount; and 69 70 5. The City Clerk shall provide a copy of this resolution to the City's 71 Congressional Delegation, the City's Local Delegation to the General Assembly, and the 72 Governor of Virginia. Adopted by the Council of the City of Virginia Beach this 23ra day of February , 2010. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office CA 11384 R-1 February 12, 2010 1 1~ ~ ~ s t F' mm gg ~. ~' fir : _ ~ r . ~ as tre "d } `V' , aec ~: t 1 '~ ~~~e ~^ ' t' s _ h t _~~ _ 3& ~ ~~ r ~° ° } -~ . "~~ ~ ~ ~,~ ° ` # t* g- .~ ~ ~ ~ ~ ~ r~` ,~ ~~. • 03 ~Y. r' '' ~.,, ~;lj -49- Item V-J.4. ORDINANCES/RESOLUTIONS ITEM # 59682 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT, with an AMENDED Summary of Terms allow a $10-MILLION net worth: Ordinance to AMEND Ordinance ORD-3065K to revise the terms of the Lease at the Sportsplex to Virginia Beach Field House, L.L.C. and AUTHORIZE the City Manager to execute the Lease Voting: 10-1 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: Barbara M. Henley Council Members Absent: None February 23, 2010 I AN ORDINANCE TO AMEND ORDINANCE ORD- 2 3065K TO REVISE THE TERMS OF THE LEASE OF 3 13.9 ACRES +/-, AT THE SPORTSPLEX, TO 4 VIRGINIA BEACH FIELD HOUSE, L.L.C. 6 WHEREAS, by Ordinance ORD-3065K, adopted February 3, 2009, after 7 reviewing the results of its "Request for Statements of Interest and Qualifications 8 Virginia Beach Sportsplex", the City Council authorized the City Manager to enter 9 into a lease for 13.9 acres +/- of City-owned property for the construction of an 10 indoor field house (the "Lease") with Virginia Beach Field House, L.L.C. 11 ("VBFH"); 12 13 WHEREAS, the terms and conditions of the Lease were to conform with 14 the Field House Ground Lease Summary of Terms attached to Ordinance ORD- 15 3065K. Ordinance ORD-3065K also authorized the granting of an option for 16 lease of an additional 23 acres to VBFH (the "Option"). The terms of the Option 17 are not affected by this Ordinance; 18 19 WHEREAS, prior to execution of the Lease, VBFH requested, on behalf of 20 its lender, a substantive change to the Lease to amend the circumstances in 21 which a third party could succeed VBFH as the tenant under the Lease; 22 23 WHEREAS, the requested change would allow assignment of the tenant's 24 interest in the Lease to a third party who demonstrated certain pre-determined 25 conditions, as set forth on the Amended Summary of Terms, attached hereto and 26 incorporated herein; and 27 28 WHEREAS, as the proposed amendment to the terms of the Lease 29 represents a change in the substantive rights of the City in the Lease, City 30 Council approval of the Amended Summary of Terms is required prior to 31 execution of the Lease. 32 33 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 34 OF VIRGINIA BEACH, VIRGINIA: 35 36 1. The City Manager is hereby authorized to execute a lease of 13.9 37 acres (the "Leased Property"), as shown on Exhibit A, attached hereto and made 38 apart hereof, for the construction and operation of a field house for the term of 39 twenty (20) years, with two optional ten-year renewal terms, with Virginia Beach 40 Field House, L.L.C. ("VBFH"), in accordance with the Amended Summary of 41 Terms attached hereto as Exhibit B and made a part hereof, and such other 42 terms and conditions deemed necessary and sufficient by the City Manager and 43 in a form deemed satisfactory by the City Attorney, and 44 45 2. Except as modified on the Amended Summary of Terms, 46 Ordinance ORD-3065K shall remain in full force and effect. 47 Adopted by the Council of the City of Virginia Beach, Virginia, on the 48 23rd day of February , 2010. APPROVED AS TO CONTENT Depa arks and Recreation CA11234 \\vbgov.com\DFS1 Wpplications\CityLawProd\cycom32\W pdocs\D011 \P007\00043983. DOC R-1 02/12/10 APPROVED AS TO LEGAL SUFFICIENCY City Attorney j ~ 11 I ~. ;... ~~ ~ ~ i , ~~ ' ~ . ~---.~-~- t ~ ~ ~ ~~AiIN7ERBERRY ~.~'~ ~ ~ ~`; w _ ,, ,~ LANDStC1WN COM1~81d3 -....... ~(' --r: '~ ~ u. ~ ~ ~- ° ~ . _,,, ~~-.,-t-- _-_ - .~_ ~ -w _. _ ~_ - ~_...r~. -_• ~` - - --~ ~ ~ PRINCESS ANNE ROAD ,~_ .. - - _ _ .~ w ~ ~- _.__ _. "~'-< ROADWAY?AKE { _ ~•''y ' is _ .. - ._ ~, / ` - t• 11 `_~ Y ~ '' ~ fS: t 5~ ~NQ ~1 `j R. ~ J~ E ~~ ~ ,,r:~ t t , -- ~+ F O !! / 1 ~_ i ~ ,d ' ~~~~' . - _ i. i - ~ ~. ~ •` . ,~ Nti -` f „- `- .; r" E t ..; _- , ~ ~a~q'~' ~. w ~~" r ~ ,~ ~ :. ~ Q ~ -- - ` ~' _~'~- ~ ~ f ~~ ~ , ~ - - ~ - ~ xf o ~~ a .; ,~ ~ ~ ~ ~ Z 'a ~ ~~ ~l ~~~ 1 ~~ - y, ~~ ~ ~ ~~^ y ... - _ • ~ _ _ ~~ rn .. ~ t' ~ y'~ W Z W o` , ~ Z ~ ~~ ~, a ~ ~ , 1 ~ ~ ~ W ~" v ~i I~ Z ~ ~, ~ W ~o d ~ ~S a 4 ~. ,; ~ a ~~ ~ ~ ~ -, Q O o ~ ~ " V - ~'r ' ~W;~aU ~;~, o ~(~ '4 V U - ,- ~ ~ ". t \ ,. W `` ~` f ``,~; ~ .. r EXHIBIT B AMENDED SUMMARY OF TERMS LEASE OF 13.9 ACRES +/-, AT THE SPORTSPLEX, TO VIRGINIA BEACH FIELD HOUSE, L.L.C. AMENDED TERMS: Lease may be assigned to a third party if: 1. The City approves of the assignee; or 2. The assignee provides evidence to the City of the assignee having: I. a. At least 2 years experience operating a sports facility that is open to the public and at least 50,000 square feet in size; and b. Net worth of at least $1,000,000; and c. No convictions for felonies or crimes involving inappropriate contact with minors by the assignee's principals. Or: II. a. Net worth of at least $10,000,000; and b. No convictions for felonies or crimes involving inappropriate contact with minors by the assignee's principals In both instances, net worth to be determined by lender. PRIOR LEASE TERMS (Unaffected by Amendment) LESSOR: City of Virginia Beach LESSEE: Virginia Beach Field House, L.L.C. PREMISES: Approximately 13.9 acres adjacent to the Sportsplex for the construction and operation of a 166,000 sq. ft. field house (the "Field House"). TERM: Lease: March 1, 2010 through February 28, 2030, with two ten- yearextensions at the option of the Lessee. Full potential term of forty (40) years. RENT: Rent shall be five dollars ($5.00) per year for the initial term, with additional rent equal to five percent (5%) of all gross income generated at the Field House over $5,500,000 annually beginning in the first year of the lease. INCENTIVE PAYMENT: For the first ten (10) years, the City annually shall make an incentive payment to the Lessee to offset the costs of the infrastructure improvements made by the Lessee, and the added costs of construction necessary to construct the Field House in a manner consistent with the Princess Anne Commons Design Guidelines. The payment each year shall be in an amount equal to the real estate taxes paid on the leasehold. ADDITIONAL TERMS: • Use of Field House to be limited to sports and recreation with only incidental retail component (no more than 30% of annual gross income from retail). Lessee to pave existing parking lot adjacent to Sportsplex as part of construction of Field House. • Field House and all other improvements revert to City at the expiration of the term of the lease, or any extensions thereof. OPTION: • Option to lease an additional 23 acres for the construction and development of six outdoor artificial turf fields. City to be paid one dollar ($1) per participant, per event, on all fields. -50- Item V-J. S. ORDINANCES/RESOLUTIONS ITEM # 59683 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, Cily Council ADOPTED, BY CONSENT: Ordinance to AUTHORIZE the acquisition of property at 1907 Baltic Avenue from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White re potential development at the Oceanfront Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 AN ORDINANCE TO AUTHORIZE THE PURCHASE OF APPROXIMATELY 10,000 SQUARE FEET OF PROPERTY LOCATED AT 1907 BALTIC AVENUE IN THE CITY OF VIRGINIA BEACH FROM ALEX D. STEVENS, RUSS M. WHITE, KYLE V. STEVENS AND SHELLEY A. WHITE WHEREAS, Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White ("Sellers") own approximately 10,000 square feet of real property located at 1907 Baltic Avenue, in the City of Virginia Beach, Virginia (the "Property"); WHEREAS, Sellers desire to sell the Property to the City of Virginia Beach (the "City"); WHEREAS, the City has identified the Property as a strategic site for potential development at the Oceanfront ; WHEREAS, funding for this acquisition is available in the Various Site Acquisition CIP account (CIP 3-368). BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That the City Council authorizes the acquisition of the Property by purchase pursuant to § 15.2-1800 of the Code of Virginia (1950), as amended, which Property is generally identified as 1907 Baltic Avenue and identified as GPIN 2407-07- 3669 on Exhibit A attached hereto. 2. That the City Manager or his designee is further authorized to execute all documents that may be necessary or appropriate in connection with the purchase of the Property, so long as such documents are in accordance with the Summary of Terms attached hereto, and such other terms and conditions deemed necessary and sufficient by the City Manager and in a form deemed satisfactory by the City Attorney. Adopted by the Council of the City of Virginia Beach, Virginia, on the ~~ day of February , 2010. CA11231 \\vbgov.com\DFS1 \Applications\CityLawProd\cycom32\W pdocs\D010\P006\00043726.DOC R-1 DATE: February 12, 2010 APPROVED AS TO CONTENT: lic Works/Real Estate APPROVED AS TO LEGAL SUFFICIENCY: r City Attorney' Office SUMMARY OF TERMS An Ordinance to authorize the purchase of approximately 10,000 square feet of property located at 1907 Baltic Avenue in the City of Virginia Beach from Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White OWNER: Alex D. Stevens, Russ M. White, Kyle V. Stevens and Shelley A. White BUYER: City of Virginia Beach PROPERTY: Land and improvements thereon, known as GPIN 2427-07-3669, and described as Lots 3 and 4, Block D, as shown on the plat entitled "PROPERTY OF VIRGINIA BEACH PARK CORP.", dated February, 1927 and recorded in Map Book 8, at page 5 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia Together with all right, title and interest, if any, in and to any and all easements, rights-of-way, private roads and other rights of access, ingress and/or egress adjacent to the above described property PURCHASE $453,600 PRICE: SETTLEMENT On or about ninety (90) days from the date the Agreement of Sale DATE: is fully executed SPECIAL TERMS AND CONDITIONS: • Sellers shall pay all liens against the property, if any, the grantor's tax, and its own attorney's fees and costs. • City shall bear all other costs of closing. -51- Item V-J.6. ORDINANCES/RESOLUTIONS ITEM # 59684 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT.• Resolution to AUTHORIZE the City Manager to execute an Intergovernmental Agreement (IA) between the Virginia Department of Agriculture and Consumer Services and the City re the purchase of Agricultural Reserve Program (ARP) easements Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay.• None Council Members Absent.• None February 23, 2010 1 A RESOLUTION AUTHORIZING AND DIRECTING THE 2 CITY MANAGER TO EXECUTE, ON BEHALF OF THE 3 CITY, AN INTERGOVERNMENTAL AGREEMENT 4 BETWEEN THE VIRGINIA DEPARTMENT OF 5 AGRICULTURE AND CONSUMER SERVICES AND THE 6 CITY OF VIRGINIA BEACH REGARDING THE PURCHASE 7 OF AGRICULTURAL RESERVE PROGRAM EASEMENTS 8 9 10 WHEREAS, the City of Virginia Beach adopted the Agricultural Lands 11 Preservation Ordinance in May 1995, thereby establishing a comprehensive program 12 (the "Agricultural Reserve Program") for the preservation of agricultural lands within the 13 City; and 14 15 WHEREAS, since its inception of the Agricultural Reserve Program, 16 approximately 8,049 acres of land have been placed under easements restricting 17 development of the land to agricultural uses; and 18 19 WHEREAS, the General Assembly, by Chapter 781 of the 2009 Acts of 20 Assembly, has appropriated $500,000 to the Virginia Department of Agriculture and 21 Consumer Services ("VDACS") for the continuation of a state fund to match local 22 governmental purchases of development rights program funds for the preservation of 23 working farms and forest lands; and 24 25 WHEREAS, Section 3.2-201 of the Code of Virginia authorizes VDACS' Office of 26 Farmland Preservation to develop methods and sources of revenue for allocating funds 27 to localities to purchase agricultural conservation easements; and 28 29 WHEREAS, VDACS has determined that the City of Virginia Beach is eligible to 30 receive contributions of funds from VDACS in reimbursement for certain costs the City of 31 Virginia Beach incurs in the course of purchasing Agricultural Reserve Program 32 easements; and 33 34 WHEREAS, the City and VDACS desire to enter into an agreement pursuant to 35 which VDACS will reimburse the City for certain costs incurred by the City in the course 36 of purchasing ARP easements, up to a cumulative maximum amount of $93,932.19, for 37 a period of two (2) years from the date of the agreement; and 38 39 WHEREAS, the complete agreement between the City and VDACS is set forth in 40 that certain document entitled "INTERGOVERNMENTAL AGREEMENT Between 41 Virginia Department of Agriculture and Consumer Services and The City of Virginia 42 Beach," dated December 31, 2009, a true copy of which agreement is on file in the City 43 Clerk's Office; and 44 45 WHEREAS, a Summary of Material Terms of the said agreement is appended 46 hereto; and 47 WHEREAS, the City Council finds that the terms of the said agreement are fair 48 and reasonable and would be of significant benefit to the City and its citizens by 49 providing an additional source of funds for the purchase of Agricultural Reserve 50 Program easements; 51 52 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 53 OF VIRGINIA BEACH: 54 55 That the City Manager is hereby authorized and directed to execute the aforesaid 56 agreement on behalf of the City and to take such measures as are necessary or 57 advisable to implement such agreement according to its terms. 58 59 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF 60 VIRGINIA BEACH: 61 62 That the City Council hereby expresses its appreciation to the Governor, the 63 General Assembly and the Virginia Department of Agriculture and Consumer Services 64 for their continued commitment to the preservation of agriculture within the 65 Commonwealth and the City. 66 67 Adopted by the Council of the City of Virginia Beach, Virginia on the 23rd day 68 of February , 2010. Approved as to Content: Approved as to Legal Sufficiency: // Agriculture Department CA-11230 \\vbgov.com\DFS1 Wpplications\CityLawProd\cycom32\Wpdocs\D005\P006\00043077.DOC R-1 February 5, 2010 :..~~ ~+ n City Attorney' Office 2 Intergovernmental Agreement between Virginia Department of Agriculture and Consumer Services and The City of Virginia Beach Summary of Material Terms Background: City of Virginia Beach is eligible to receive an additional $93,932.19 in State funds to purchase agricultural preservation easements through the City's Agricultural Reserve Program (ARP). The City of Virginia Beach was previously approved to receive $403,219.75 from the Virginia Department of Agriculture and Consumer Services (VDACS) on June 24, 2008, and was previously approved to receive $49,900.00 from VDACS on January 27, 2009 Parties: The City of Virginia Beach and the Virginia Department of Agriculture and Consumer Services (VDACS). VDACS Responsibilities: VDACS will reimburse the City for certain costs of purchasing ARP easements. The maximum amount in new funding over the next two years is $93,932.19. Reimbursable costs include: • the purchase price of any Treasury STRIPS acquired to fund the purchase price of the conservation easement; • cost of title insurance; • cost of one appraisal; • one physical survey; • reasonable attorney's fees; • cost of public notices Note: Other costs are reimbursable but are not incurred by the City in the course of ARP transactions as presently structured Maximum reimbursement for a single purchase is equal to 50% of sum of the purchase price of the easement and reimbursable costs, excluding costs of STRIPS. City of Virginia Beach Responsibilities: Utilize state funds to further protect working agricultural lands by purchasing development rights. • Submit a progress report each year that the agreement is effective or a subsequent agreement is in effect to (i) describe any prospective properties and the status of any negotiations, (ii) estimate the timeframes that agreements could possibly be executed, (iii) maintain a public outreach program designed to educate various stakeholders, (iv) develop and maintain a monitoring program, and (v) continually evaluate the effectiveness of the program. • If City sells development rights back to the property owner, City must reimburse VDACS in an amount proportional to VDACS' contribution toward the total reimbursable cost of acquiring the ARP easement. Cost: • No associated costs are incurred by the City Duration and Termination: • Initial term is two years from the date of the agreement or December 31, 2011. • This agreement shall be merged with the previous agreements approved on June 24, 2008 and January 27, 2009, so there are no inconsistencies. • City may be recertified as eligible for future funding, but not guaranteed. • The agreement may be terminated if the City fails to perform any of its obligations under the terms of this agreement. • If the City fails to allocate the spending of the funds within the two year time period, monies will then be redistributed to other PDR programs. 2 -52- Item V-J. 7. ORDINANCES/RESOLUTIONS ITEM # 59685 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINITELY.• Ordinance to AUTHORIZE a temporary encroachment into a portion of a City-owned property for Forest E. and Judy P. Williams to construct and maintain permeable paver parking spaces and an existing paver walk at 308 49`" Street Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 - 53 - Item V-J.8a/b. ORDINANCES/RESOLUTIONS ITEM # 59686 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT: Ordinances to APPROPRIATE: a. $7, 200, 000 from SPSA to the FY 2009-10 Public Works Operating Budget re increased SPSA disposal costs b. $25, 579 from the Oyster Heritage Trust Fund to the FY 2009-10 Operating Budget of the Department of Planning re increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell Recycling Program Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• None February 23, 2010 1 AN ORDINANCE TO APPROPRIATE FUNDS TO 2 PAY SPSA DISPOSAL COSTS 3 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 4 VIRGINIA: 5 That $7,200,000 is hereby appropriated from SPSA to the FY 2009-10 Public Works 6 Operating Budget to provide additional funding for disposal costs, with a corresponding 7 increase in revenue from SPSA. Adopted by the Council of the City of Virginia Beach, Virginia on the 23rd day of FPhruar~ 2010. Requires an affirmative vote by a majorify of all members of the City Council. Approved as to Content: ~~ ~ . ~~ ~ Management Services Approved as to Legal Sufficiency: City A ey Office CA11375 R-5 February 12, 2010 1 AN ORDINANCE TO APPROPRIATE FUNDS FROM THE 2 OYSTER HERITAGE TRUST FUND 3 4 WHEREAS, the City wishes to provide $25,579 from the Oyster Heritage Trust Fund 5 to support the efforts of increasing oyster habitat in the Lynnhaven River watershed and 6 continuing the oyster shell recycling program being undertaken by Lynnhaven River NOW. 7 8 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 9 VIRGINIA BEACH, VIRGINIA: 10 11 That $25,579 is hereby appropriated from the Oyster Heritage Trust Fund to the FY 12 2009-10 Operating Budget of the Department of Planning and Community Development for 13 increasing oyster habitat in the Lynnhaven River watershed and continuing the Oyster Shell 14 Recycling Program. 15 16 Requires an affirmative vote by a majority of all of the members of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia, on the 23rd day of February , 2010. APPROVED AS TO CONTENT ~~ ~. Management Services APPROVEDAS TO LEGAL SUFFICIENCY City tt ey's Office CA11380 R-2 February 10, 2010 -54- Item V-J.9. ORDINANCES/RESOLUTIONS ITEM # 59687 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT: Ordinance to TRANSFER $250, 000 from the Subscription Fund Reserve for Contingencies -Regular within the FY 2009-10 Subscription Fund for public safety air card recurring charges Voting.' 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 1 2 3 4 5 6 7 8 9 10 11 AN ORDINANCE TO TRANSFER $250,000 WITHIN THE FY 2009-10 SUBSCRIPTION FUND TO PAY FOR PUBLIC SAFETY AIR CARD CHARGES BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $250,000 from the Subscription Fund Reserve for Contingencies -Regular is hereby transferred within the FY 2009-10 Subscription Fund to pay for public safety air card recurring charges. Adopted by the Council of the City of Virginia Beach, Virginia, on the 23rd day of February , 2010. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~-Z ~ ` Management Services Ci At y s Office CA11378 R-2 February 10, 2010 -55- Item T~ J.10. ORDINANCES/RESOLUTIONS ITEM # 59688 ADD-ON Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT.• Resolution REQUESTING the General Assembly and the Governor continue funding for the BRAC compliance program partnership between the City and the Commonwealth. Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 Requested by Mayor William D. Sessoms, Jr. 1 A RESOLUTION REQUESTING THE GENERAL 2 ASSEMBLY AND THE GOVERNOR TO CONTINUE 3 FUNDING FOR THE BRAC COMPLIANCE PROGRAM 4 PARTNERSHIP BETWEEN THE CITY AND THE 5 COMMONWEALTH 6 WHEREAS, since the Base Realignment and Closure Commission's (BRAC) 7 decision concerning the realignment of Naval Air Station Oceana (NAS Oceana) was 8 announced in 2005, the City of Virginia Beach and the Commonwealth of Virginia have 9 engaged in an equal partnership in funding a program (the Compliance Program) to 10 purchase property for the purpose of stopping and rolling back encroachment around 11 NAS Oceana, the Navy's East Coast Master Jet Base; and 12 WHEREAS, the Compliance Program is being funded by $15 million annually, 13 half by the City and half by the Commonwealth, through a Virginia Military Strategic 14 Response Fund grant; and 15 WHEREAS, since 2005, the City and the Commonwealth have been successful 16 in purchasing or reaching agreements to purchase more than $70 million of property, 17 comprising more than 420 acres of land around NAS Oceana; and 18 WHEREAS, there continues to be steady interest by willing sellers in the areas 19 around the base; and 20 WHEREAS, as part of the Compliance Program, the City Council has also 21 enacted strict zoning regulations limiting or prohibiting incompatible development in 22 over one-third of the City of Virginia Beach and has implemented an incentive-based 23 conformity program for APZ-1, in order to further protect NAS Oceana from 24 encroachment; and 25 WHEREAS, the Budget Committees in the General Assembly have eliminated 26 the Banding for the BRAC Compliance Program included in Governor Kaine's budget 27 recommendation before he left office; and 28 WHEREAS, the Senate Finance Committee has recommended the complete 29 elimination of the funding from the biennial budget, and the House Appropriations 30 Committee has recommended eliminating funding in the second year of the biennium; 31 and 32 WHEREAS, the Commonwealth's failure to continue to fund its current share of 33 the program would cast the entire financial burden of funding the Compliance Program 34 solely upon the City of Virginia Beach, and would signal a weakening of the 35 Commonwealth's commitment to retain NAS Oceana as the East Coast Master Jet 36 Base. 37 NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 38 OF VIRGINIA BEACH: 39 That the General Assembly is requested to continue funding in the first year of 40 the biennium in the amount of $7.5 million, to which the City has a budgeted match of 41 $7.5 million; and 42 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF 43 VIRGINIA BEACH: 44 That the City Council fully appreciates the difficult fiscal circumstances that the 45 Commonwealth and all of its constituent localities are enduring, and commits to working 46 with the 2012 General Assembly for the funding of the Compliance Program in fiscal 47 year 2012. 48 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF 49 VIRGINIA BEACH: 50 That the City Clerk is directed to provide a copy of this Resolution to the 51 members of the City's General Assembly Delegation and to the Honorable Bob 52 McDonnell, Governor of the Commonwealth of Virginia. 53 Adopted by the City Council of the City of Virginia Beach on the 23`d day of 54 February, 2010. Approved as to Legal Sufficiency: City Attorney's Office CA11440 R-2 February 23, 2010 -56- ITEM # 59689 K. PLANNING 1. GEORGE R. and JANE C. WEBB 2. THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC 3. WEST NECK PROPERTIES, INC. 4. WINNER'S REAL ESTATE HOLDINGS, LLC S. STRAWBRIDGEANIMAL CARE/ FAT BOYZ, INC. 6. TAMI WALKER MOOK 7. A UTOBELL CAR WASH, INC./ MESSER 1060 INDEPENDENCE BOULEVARD, LLC 8. KARINPHILLIP, INC. / PARR PROPERTIES, LLC 9. MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS 10. AUTOZONE DEVELOPMENT CORPORATION/ LAND and BUILDING IV, L.C. NONCONFORMING STRUCTURE MODIFICATION OF PROFFERS (previously approved by City Council on September 8, 2009) CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING AND CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING MODIFICATION OF PROFFERS (approved by City Council on March 28, 2000 and May 24, 2005) February 23, 2010 -57- Item K. PLANNING ITEM # 59690 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOTION Items 1, 2, 3 (DEFERRED), 4, S, 6 (DEFERRED), 7, 8(DEFERRED INDEFINITELY). Item K. 3 (WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI) shall be DEFERRED, BY CONSENT, until the City Council Session of March 9, 2010. Item K.6 (TAMI WALKER MOOK) shall be DEFERRED, BY CONSENT, until the City Council Session of March 23, 2010 Item K8 (KARINPHILLIP, INC./PARR PROPERTIES LLC) shall be DEFERRED INDEFINITELY, BY CONSENT) Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, Diezel, Robert M. Dyer, Barbara M. Mayor William D. Sessoms, Jr., John E Wood Council Members Voting Nay: None Council Members Absent: None William R. "Bill" DeSteph, Harry E. Henley, Vice Mayor Louis R. Jones, Uhrin, Rosemary Wilson and James L. February 23, 2010 -58- Item K.1. PLANNING ITEM # 59691 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT Application of GEORGE R. and JANE C. WEBB for Noncon,~orming Structures at 110 74`" Street to renovate a single family dwelling and a garage apartment. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Resolution upon application of GEORGE R. and JANE C. WEBB for Nonconformin Structures at 110 74'" Street to renovate a single family dwelling and a garage apartment. (GPIN: 24196676560000) DISTRICT S - LYNNHAVEN, The following conditions shall be required: The site shall be redeveloped substantially as shown on the exhibit entitled "NONCONFORMING USE EXHIBIT FOR WEBB RESIDENCE #110 74th STREET, VIRGINIA BEACH, VIRGINIA, "prepared by WPL, dated January 7, 2010, which has been exhibited to the City Council and is on file in the Planning Department with the addition of two on-site parking spaces per unit as required by the Zoning Ordinance. Said parking spaces may be constructed of pervious materials acceptable to the Zoning Administrator and the spaces shall be depicted on the final site plan. 2. The exterior of the upgraded principal dwelling unit shall substantially adhere to the submitted elevations entitled "Addition to the Residence of JANE AND GEORGE WEBB, "prepared by Covington Hendrix Anderson Architects, dated December 1 S, 2009, in terms of architectural style and building materials, which have been exhibited to the City Council and are on file in the Planning Department. 3. The property shall be limited to two dwelling units, as depicted on the plan identified in Condition 1 above. Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, Diezel, Robert M. Dyer, Barbara M. Mayor William D. Sessoms, Jr., John E Wood Council Members Voting Nay: None Council Members Absent: None William R. "Bill " DeSteph, Harry E. Henley, Vice Mayor Louis R. Jones, Uhrin, Rosemary Wilson and James L. February 23, 2010 1 A RESOLUTION AUTHORIZING THE 2 ENLARGEMENT OF A NONCONFORMING 3 USE ON PROPERTY LOCATED AT 110 74T" 4 STREET OWNED BY GEORGE W. WEBB 5 AND JANE C. WEBB 6 7 WHEREAS, George W. Webb and Jane C. Webb (hereinafter the "Applicants") 8 have made application to the City Council for authorization to enlarge a nonconforming 9 use having the address of 110 74t" Street, in the R-5R Resort Residential District, by 10 enlarging the principal structure and elevating the garage apartment; and 11 12 WHEREAS, the said uses are nonconforming as they are located on the same 13 parcel, which is not allowed in the R-5R Zoning District; and 14 15 WHEREAS, the uses were commenced prior to the adoption of the applicable 16 regulations; and 17 18 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 19 enlargement of a nonconforming use is unlawful in the absence of a resolution of the 20 City Council authorizing such action upon a finding that the proposed use, as enlarged, 21 will be equally appropriate or more appropriate to the zoning district than is the existing 22 use; 23 24 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 25 VIRGINIA BEACH, VIRGINIA: 26 27 That the City Council hereby finds that the proposed use, as enlarged, will be 28 equally appropriate to the district as is the existing use under the conditions of approval 29 set forth hereinbelow. 30 31 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 32 BEACH, VIRGINIA: 33 34 That the enlargement of the nonconforming use is hereby authorized, upon the 35 following conditions: 36 37 1. The site shall be redeveloped substantially as shown on the exhibit entitled, 38 "NONCONFORMING USE EXHIBIT FOR WEBB RESIDENCE #110 74TH 39 STREET, VIRGINIA BEACH, VIRGINIA," prepared by WPL, dated January 7, 40 2010, which has been exhibited to the City Council and is on file in the 41 Planning Department with the addition of two on-site parking spaces per unit 42 as required by the Zoning Ordinance. Said parking spaces may be 43 constructed of pervious materials acceptable to the Zoning Administrator and 44 the spaces shall be depicted on the final site plan. 45 46 2. The exterior of the upgraded principal dwelling unit shall substantially adhere 47 to the submitted elevations entitled, "Addition to the Residence of JANE AND 48 GEORGE WEBB," prepared by Covington Hendrix Anderson Architects, 49 dated December 15, 2009, in terms of architectural style and building 50 materials, which have been exhibited to the City Council and are on file in the 51 Planning Department. 52 53 3. The property shall be limited to two dwelling units, as depicted on the plan 54 identified in Condition 1 above. 55 56 Adopted by the Council of the City of Virginia Beach, Virginia, on the23rd day 57 of February , 2010. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Plannin D artment ~~ - City Attorney's ffice CA11383 R-1 February 10, 2010 -59- Item K.Z. PLANNING ITEM # 59692 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT , Ordinance upon application of THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Modification o Prof ers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236-2240 General Booth Boulevard. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA THE REBKEE COMPANY/JONES REAL ESTATE INVESTMENT COMPANY, LLC for Modi ication of Pro ers (previously approved by City Council on September 8, 2009) for a change in the building site layout at 2236-2240 General Booth Boulevard; (GPIN:24140677150000;24140676840000. DISTRICT 7 -PRINCESS ANNE The following condition shall be required 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the proceedings. This Ordinance shall be effective in accordance with Section 107 (~ of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting.• 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• None February 23, 2010 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7591 TO: Mark D. Stiles B. Kay Wilsdrl~ICWW DATE: February 11, 2010 FROM RE: DEPT: City Attorney DEPT: City Attorney Conditional Zoning Application; The Rebkee Company The above-referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. I have reviewed the subject proffer agreement, dated October 26, 2009 .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/ka Enclosure cc: Kathleen Hassen / This Document Prepared by: Kaufman & Canoles AMENDED AND RESTATED AGREEMENT THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") is hereby entered into as of this 26th day of October, 2009 (the "Effective Date"), by and between JONES REAL ESTATE INVESTMENT COMPANY, LLC, a Virginia limited liability company (a.k.a. Jones Real Estate Investment Company, L.L.C.) ("Owner") (index as a "grantor"), THE REBKEE COMPANY, a Virginia corporation ("Applicant Developer") (index as a "grantor"), and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (the "Grantee") WITNESSETH: WHEREAS, Owner is the owner of record, and Applicant Developer is the proposed developer and the applicant for the rezoning, of certain parcels of property located in the Princess Anne district of the City of Virginia Beach, more particularly described as follows: See Exhibit "A" Said parcels hereinafter collectively referred to as the "Property"; and WHEREAS, the Property by action of City Council for the City of Virginia Beach, Virginia, on September 8, 2009, was rezoned to Conditional B-2 (the "Rezoning") and is subject to the terms of the zoning ordinance of the City of Virginia Beach; and WHEREAS, by the Rezoning, the Owner and Applicant Developer (hereinafter sometimes collectively referred to as the "Grantors") initiated a conditional amendment to the zoning map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to Page 1 of 10 PARCEL 1 GPIN: 2414-06-7715 PARCEL 2 GPIN: 2414-06-7684 change the Zoning Classification of the Property from R-20 and O-1 to conditional B-2 with the covenants, restrictions and conditions of an agreement, dated July 1, 2009, which agreement was recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office") as Instrument no. 20090915001086450 (the "Proffer Agreement"); and WHEREAS, subsequent to the Rezoning and the Proffer Agreement, Grantors have requested modifications to the site plat referenced in the Proffer Agreement and clarification of the provisions of the Proffer Agreement relating to access to the Property; 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 Grantors acknowledge that 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 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 generally not applicable to land similarly zoned B-2 are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Owner has voluntarily proffered, and the Applicant Developer has agreed to, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the amendment to the Zoning Map, in addition to the regulations provided for in the existing B-2 zoning district 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 Zoning Map relative and applicable to the Property, which paRP~„fin conditions constitute an amendment and restatement of the Proffer Agreement and all of which have a reasonable relation to the Rezoning and the need for which is generated by the Rezoning. WHEREAS, said conditions, as hereby amended and restated, having been proffered by the Owner, and agreed to by the Applicant Developer, and allowed and accepted by the Grantee as part of the Zoning Ordinance, such amended and restated 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 pazt of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or vazied by written instrument recorded in the Clerk's Office 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 the ordinance or resolution adopted by the governing body of the Grantee, after a public heazing 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 Grantors, their 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 fro 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 this Aono 2 .,F 1!1 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 Owner, their successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. The development of the Property shall be in substantial conformance with the Site Plan titled "Jones Real Estate Investment Site Plan", dated September 25, 2009, prepazed by Kimley-Horn & Associates, which plan has been exhibited to the City Council and is on file with the Planning Department of the City of Virginia Beach (the "Site Plan") 2. The buildings constructed on the Property shall be constructed so as to be architecturally compatible with the building elevations titled "Atlantic Gardens Center Proposed Retail Center" and "Atlantic Gardens Center Revised Design" dated May 10, 2007, prepared by Jeff Love and Associates for AGC Acquisition, LLC for the rezoning of the adjacent property as referenced in that proffer Agreement, dated May 25, 2007 between AGC Acquisition, LLC and Booth Ferrell Associates and the City of Virginia Beach and recorded in the Clerk's Office as Instrument No. 20080125000092840 ,which elevations have been exhibited to the City Council and are on file with the Planning Department of the City of Virginia Beach (the "Building Elevations"). The final Building Elevations shall be approved administratively by the City of Virginia Beach Planning Director. 3. The Property shall be used for the following principal uses and their accessory uses and structures: a. Business offices; b. Medical and dental offices and clinics and laboratory, legal, engineering, azchitectural and other professional offices; accounting and bookkeeping offices; c. Retail drug store d. All retail and other commercial and accessory uses and all ancillary uses as permitted (subject to such applicable rules regarding special exceptions or special use permits as may be applicable to a particulaz use) within the B-2 zoning district, but excluding business or vocational schools, boat and motor vehicle sales or service, childcare centers, commercial pazking lots or pazking structures, drive thru eating or drinking establishments, grocery stores, convenience stores, and storage gazages. 4. Access to the Property from General Booth Boulevazd shall be in accordance with the Site Plan, notwithstanding the terms of that Deed of Easement and Agreement (the "Easement Agreement"), dated December 16, 1991, and recorded in the Clerk's Office in Deed Book 3055, at page 2018, as the same may be amended from time to time or terminated. 5. These proffers supersede all previously recorded proffers affecting the Property or the use thereof as follows: a. Conditions and restrictions as set forth in Agreement with City of Virginia Beach, Virginia, dated August 30, 1991,~recorded February 7, 1992, in Deed Book 3055, page 2027; and b. Conditions and restrictions as set forth in Agreement with City of Virginia Beach, Virginia, dated April 10, 1995, recorded August 10, 1995, in Deed Book 3526, page 984. Further, this Agreement restates and supersedes the Proffer Agreement in its entirety and the proffers set forth herein supersede those proffers set forth in the Proffer Agreement. na~.a 5 .,f 1 !1 Notwithstanding the effect of such proffers being superseded, all the terms and conditions as set forth in the Easement Agreement shall remain in effect, unless and until such terms and conditions are duly amended or terminated. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions; including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, one or more of the Grantors 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 and indexed in the name of the Grantors and Grantee. D.,.,e ~ „~ ~ n IN WITNESS WHEREOF, the foregoing Agreement is executed by the parties as of the date first written above. JONES REAL ESTATE INVESTMENT COMPANY, LLC, A Virginia limited liability company °' COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ~. ~ ~ 2 , to-wit: The foregoing instrument was aclcnowled ed efore me this .~'~~day of ,~~, 2009, by _ ~ (~ ~ ~~~~ , as '~~~ ~~ . ' ~~' of Jones Real Estate Investment Company, LLC, a Virginia limited liability c pany, on its behalf, and who is ^ personally known to me, or ~ who produced ~ I ~ ~ ~ as identification. ~ ~~ ~ Notary Public My commission expires: M~ ~'J j, Registration No.: 'fit ~~ ~, r.~,. Commonwealth of vrginia Kimberly Ruth Perkins Holland -Notary Public Commission No. 7138492 My Cammissipn Fx~ires 0?J28/2011 A9fTP 7 of 1 !1 THE REBKEE COMPANY, A Virginia corporation .-~ . Its: ~t+~=.--e..,, COMMONWEALTH O VIR INIA CITY/COUNTY OF ' - ~ , to-wit: The foregoing instrument was acknowledged before me this ~~'day of ll~c~6~, 2009 by -~~`~F~ ~• ~+~ ~' ~ as Mc~n~.4e.~ of The Rebkee Company, a Virginia corporation, on its behalf, and w oh is ~ personally known to me, or ^ who produced as identification. ~ - , ~~ ~~ ,/ ~ ~1. '1 otary Public My commission expires: ~/;.>~' ~.3 Registration No.: 3 Sy -,~ Z ~/ 62531273 ;,, RF.dF.CCA ,ardN ;?,'?rrRS.OVERS7AEET w ~ ~1 C,crnrr~ur;v,c tvi~N ref ~~ir•it~is .. My Cominl~Yion trNN Adrll ~9, f1~18 Aonn 4 ..4' 1!1 EXHIBIT "A" Legal description Pazcel 1 (GPIN 2414-06-7715,): A. All that certain lot, piece or pazcel of land, with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot No. C, as shown on that certain plat entitled, "SUBDIVISION OF PROPERTY OF CHARLES C. HICKMAN ET UX, D.B. 482, P. 21, M.B. 21, P. 70, PRINCESS ANNE BOROUGH, VIRGINIA BEACH, VIRGINIA, SCALE 1"=100', SEPTEMBER 24, 1971, W. B. GALLUP, SURVEYOR," which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 88, at Page 45. [Source deed erroneously references M.B. 21, P. 70 in the title of the referenced plat instead of M.B. 25, P. 70 as shown on plat.] Less and Except that portion of the property taken by the Commonwealth of Virginia by Certificate of Take recorded in the aforesaid Clerk's Office in Deed Book 2242, page 605, and Order recorded in the aforesaid Clerk's Office in Deed Book 2319, at page 1523. B. All that certain lot, piece or pazcel of land, with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as "To be conveyed to Lot C" as shown on that certain plat entitled, "Re-Subdivision of Property of Charles C. Hickman", 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 146, at Page 44, which pazcel contains .507 acres, more or less. [Source deed erroneously references the word "Re-Subdivision" in the title of the referenced plat instead of the word "Subdivision" as shown on the plat.] Pazce12 (GPIN 2414-06-7684): A. All that certain lot, piece or pazcel of land, with the improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot #B, as shown on that certain plat entitled, "SUBDIVISION OF PROPERTY OF CHARLES C. HICKMAN ET UX, D.B.482, P. 21, M.B. 25, P. 70, PRINCESS ANNE BOROUGH, VIRGINIA BEACH, VIRGINIA, SCALE 1"=100', SEPTEMBER 24, 1971, W. B. GALLUP, SURVEYOR," which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 88, at Page 45. ParTa q .,f ~ n Less and Except that portion of the property taken by the Commonwealth of Virginia by Certificate of Take recorded in the aforesaid Clerk's Office in Deed Book 2253, page 260, and Order recorded in the aforesaid Clerk's Office in Deed Book 2304, at Page 2014. B. All that certain lot, piece or pazcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, known, numbered and designated as "To be conveyed to Lot `B"', in that certain plat entitled, "Subdivision of Property of Chazles C. Hickman, et ux", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 146, at Page 44 (erroneously stated to be page 144 in prior deed), said pazcel containing .459 acres, more or less. n....._ in _r~n -60- Item K.3. PLANNING ITEM # 59693 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED to March 9, 2010, BY CONSENT, Ordinance upon application of WEST NECK PROPERTIES, INC. /ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive. DISTRICT 5 - LYNNHAVEN Ordinance upon application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re a non- commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive. GPIN # 14991467120000; 14991447520000; 14991416420000 DISTRICT S - LYNNHAVEN Voting.• 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• None February 23, 2010 -61- Item K.4. PLANNING ITEM # 59694 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED Ordinance upon application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of WINNER'S REAL ESTATE HOLDINGS, LLC, for a Conditional Use Permit re a body shop consisting of motor vehicle sales, rental, service and repair at 5070 Virginia Beach Boulevard. GPIN # 14679601310000 DISTRICT 4 - BAYSIDE 8031035397 The following conditions shall be required: 1. The parking lot shall be striped and landscaped as depicted on the submitted conceptual site plan of "5070 WITCHDUCK ROAD, CITY OF VIRGINIA BEACH, VIRGINIA ", dated 10/29/09, prepared by LandMark Design Group. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 2. Renovations to the existing building shall adhere to the submitted elevations entitled "PROPOSED EXTERIOR ELEVATIONS FOR CHECKERED FLAG -COLLISION CENTER VIRGINIA BEACH, VIRGINIA ", dated October 29, 2008, prepared by Lyall Design Architects. Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 3. Vehicles shall be parked within the delineated parking spaces and no vehicles shall be parked within any portion of the public right-of--way. Vehicles shall not be displayed on raised platforms. 4. A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. Said plan shall include the location of all pole-mounted and building- mounted lighting fixtures and the listing of lamp type, wattage and type of fixture. Lighting shall overlap and be uniform throughout the parking area. All lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America. The plan shall include provisions for implementing low-level security lighting for non-business hours. Particular attention shall be provided to the lighting of the storage area adjacent to the residential area to the East. 5. There shall be no pennants, streamers, balloons, portable signs, banners or similar attention-seeking devices displayed on the site or the vehicles. February 23, 2010 -62- Item K.4. PLANNING ITEM # 59694 (Continued) 6. The site shall be permitted amonument-style freestanding sign, no more than eight (8) feet in height. Said sign may include an electronic display as defined and allowed by the City Zoning Ordinance. There shall be no neon or L.E.D. signs or accents installed on any wall area of the exterior of the building or within or on any windows, doors, light poles or any other portion of the site. There shall be no signs in excess of four (4) square feet installed or displayed on the exterior or interior of the windows of the building. 7. No outdoor speakers or public address system shall be permitted. 8. All concrete, asphalt and/or pavers that have been installed on the southeast portion of the site adjacent to (or within) the Virginia Beach Boulevard right-of--way and the used car dealership to the East shall be removed. This area shall be landscaped and the portion of the stormwater management facility depicted on the submitted site plan shall be re-installed. The applicant shall not permit use of this area for any motor vehicle sales, display or storage. This condition shall be met within forty-five (45) days of City Council approval and before a business license is issued to operate on the site. 9. All storage containers shall be removed from the site. 10. The applicant shall determine and provide written field verifrcation of the as-built condition and functionality of the existing stormwater drainage infrastructure on-site and shall provide to the City Department of Planning/Development Services Center evidence of stormwater drainage rights into Witchduck Lake. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting.• 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 - 63 - Item K S. PLANNING ITEM # 59695 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of STRAWBRIDGE ANIMAL CARE/FAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of STRAWBRIDGE ANIMAL CARE/FAT BOYZ, INC. for a Conditional Use Permit re a Veterinary establishment for animal rehabilitative therapy at Suite 102, 2584 Aviator Drive. GPIN:14957689800009 DISTRICT 6 -BEACH 8031035398 The following conditions shall be required: 1 No retail sales shall be conducted. The unit shall only be used for animal rehabilitative therapy. 2. Animals shall not be kept outdoors. This Ordinance shall be effective in accordance with Section 107 (~ of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -64- Item K.6. PLANNING ITEM # 59696 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED TO March 23, 2010, BY CONSENT, Ordinance upon application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. Ordinance upon application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at SOl Virginia Beach Boulevard. GPIN# 24270636540000 DISTRICT 6 -BEACH Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -65- Item K. 7. PLANNING ITEM # 59697 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of AUTOBELL CAR WASH, INC./MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard, with revised site plan. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of AUTOBELL CAR WASH, INC/MESSER 1060 INDEPENDENCE BOULEVARD, LLC, for a Conditional Use Permit re an automated car wash at 1060 and 1064 Independence Boulevard. GPIN# 14784694210000;14784693230000 DISTRICT 4 - BAYSIDE 8031035399 The following conditions shall be reguired.• When the property is redeveloped, it shall be substantially in conformance with the exhibit entitled "Preliminary Sketch A UTO BELL, 1060 Independence Boulevard, Virginia Beach, Virginia, "prepared by Commercial Site Design, dated 10/28/09, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department, with the exception of modifications required by the Department of Public Works and any other City departments in order to comply with City regulations and policies. 2. The applicant shall provide a revised Architectural Plan of the building to the Director of Planning for approval prior to the submission of the Site Plan to the Development Services Center. Said Plan shall lower the height of the tower such that the top of the tower is five and one-half (S%z) feet above the parapet wall, the tower shall not include a bell and shall be closed in and the colors shall be approved by the Director of Planning. 3. The site shall be allowed one freestanding sign, which shall be constructed as depicted on the exhibit entitled, "Auto Bell, Car Wash, "dated December 20, 2009, with the exception that said freestanding sign shall be limited in height to eight (8) feet. Any deviations to the design or appearance of the sign shall be submitted to the Planning Department for approval prior to the issuance of a sign permit. There shall be no electronic display components (LED and similar) installed on the sign or on the building. 4. The signage shown on the exhibit in Condition 2 above is subject to review by the Zoning Division during the sign permit process and shall not be permitted as shown unless it meets the provisions of the City of Virginia Beach Zoning Ordinance. No additional signage shall be permitted on the building. 5. No window or outdoor advertising banners, pennants, streamers or other such visual devices, beyond those permitted by the City Zoning Ordinance, shall be permitted on the property. February 23, 2010 -66- Item K. 7. PLANNING ITEM # 59697 (Continued) 6. Unless otherwise permitted by the Department of Public Works/Trafftc Engineering, the following shall be depicted on the Site Plan submitted to the Development Services Center, subject to: a. Development of the site shall include atwenty-five (25) foot curb line radius for the vehicular access with aright-in/right-out "pork-chop "island to physically separate the entering and exiting vehicles. b. Development of the site shall include a median that extends from the vehicular access island into the site approximately fifty (SO) feet, directing entering vehicles away from stationary vehicles parked in the towel drying stations. c. Development of the site shall locate the vehicular access as close to the southern property line as possible without overlapping the property line. d. Development of the site shall include a thirty (30) foot "throat" length for the vehicular access in accordance with the City of Virginia Beach Public Works Specifrcations and Standards. This Ordinance shall be effective in accordance with Section 107 (fl of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -67- Item K.8. PLANNING ITEM # 59698 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINITELY, BY CONSENT, Ordinances upon Application of KARINPHILLIP, INC./PARR PROPERTIES, LLC at 114 South Witchduck Road (Strategic Growth Area-SGA4-Pembroke) re a tattoo parlor for: a. Change o~Zoning District Classi acation from I-1 Light Industrial District to Conditional B-2 Community Business District and b. Conditional Use Permit Ordinance upon application of KARINPHILLIP, INC. /PARR PROPERTIES, LLC, re Chan_~o~ Zoning~District Classification, I-1 Light Industrial District to Conditional B-2 Community Business District, 114 South Witchduck Road. Comprehensive Plan: Strategic Growth Area 4 -Pembroke. Purpose: operation of a tattoo parlor. GPIN.• 1467830480000 DISTRICT 2 - KEMPSVILLE. AND, Ordinance upon application of KARINPHILLIP, INC. /PARR PROPERTIES, LLC, re Conditional Use Permit, tattoo parlor, 114 South Witchduck Road. GPIN: 1467830480000 District 2 - KEMPSVILLE DISTRICT. Voting.• I1-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 -68- Item K.9. PLANNING ITEM # 59699 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT, Ordinance upon application of MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS, for a Change of Zoning District Classification from R-IS Residential District, AG-1 and AG-2 Agricultural Districts to Conditional R-IS Residential District at 3807 and 3809 Indian River Road to develop the site with single family dwellings. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of MORRIS H. FINE and ROBERT F. HAGANS, SPECL4L COMMISSIONERS, for a Chan~o Zoning District Classi ication from R-IS Residential District, AG-1 and AG-2 Agricultural Districts to Conditional R-1 S Residential District at 3807 and 3809 Indian River Road to develop the site with single family dwellings. GPIN: 1474807178; 1474904146; 1474907314 DISTRICT 1 - CENTERVILLE 203101234 The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto Diezel, Robert Mayor William D. L. Wood Council Members Voting Nay: None Council Members Absent: None Glenn R. Davis, William R. "Bill " DeSteph, Harry E. M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James February 23, 2010 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7578 TO: Mark D. Stiles FROM: 6. Kay Wilson DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Morris H. Fine and Robert F. Hagans, Special Commissioners The above-referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. I have reviewed the subject proffer agreement, dated ' October 23, 2009 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/ka Enclosure cc: Kathleen Hassen This Document Prepared by: Fine, Fine, Legum & McCracken, LLP THIS AGREEMENT made this 23`d day of October, 2009 by and between MORRIS H. FINE and ROBERT F. HAGANS, SPECIAL COMMISSIONERS o/b/o CLIFTON S DAVISs CLINTON T. DAMS, JEAN A. WILSON, MILDRED L DAMS FORBES and LONNIE L. DAMS, JR., Property Owner, herein referred to as Grantor, party of the first part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the second part. WITNESSETH: WHEREAS, Property Owner is the owner of certain parcels of property located in the Centerville District of the City of Virginia Beach, more particularly described as follows: See Exhibit "A" said parcels hereinafter collectively referred to as the "Property"; and WHEREAS, by Order entered by the Circuit Court of the City of Virginia Beach, Virginia on March 27, 2009, in the matter of Lonnie L. Davis. Jr., et al v. Cl~ton S Davis Sr et al., Case Nos. CH02001625 and CH03002559, Morris H. Fine and Robert F. Hagans were duly appointed as Special Commissioners, to sell the aforesaid property and to explore rezoning; and WHEREAS, by Order entered by the Circuit Court of the City of Virginia Beach, Virginia on October 16, 2009, the Special Commissioners were granted the authority to proceed with the filing of an Application for Rezoning of the aforesaid property; and WHEREAS, the Grantor 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 GPIIY 1474-80-7178; 1474-90-4146 &1474-90-7314 Classification of the Property from R-15, AG-1 and AG-2 to Conditional R-15; 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 development of various types of uses conflict and that in order to permit different types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the Grantor's proposed rezoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve 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 with respect to the Property, 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, its successors, personal representatives, assigns, Grantee, 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 uo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, Grantee, and other successors in interest or title: I. When the Property is developed, it shall be developed substantially as shown on the exhibit entitled "Conceptual Site Layout of Davis Estates, Indian River Road, Virginia Beach, Virginia", dated June 30, 2009, prepared by MSA, P.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Site Plan"). The use of the Property shall be single family residential dwellings. 3. The proposed single-family residential dwellings will be consistent with surrounding neighbors, both in design, size and building materials. 4. The property shall be subject to an avigation easement, which shall acknowledge the right of the United States Navy to conduct military operations in the airspace about the property and shall include a covenant not to bring legal action for damages or other relief as a result of noise levels from overflights. The avigation easement shall be in a form recommended by the Director of Planning and approved by the City Attorney and shall be recorded with the final subdivision plat. All references hereinabove to the AG-1, AG-2 and R-15 Zoning District and to therequirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the 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 such 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 l 5.2-2204 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 Grantors covenant and agree that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions 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 Grantors and the Grantee. WITNESS the following signatures and seals: -~ ~ ~ c Morris H. Fine, Special Commissioner ,~~.-~...~' . i ~. Robert F. Hagans, Special C mmissioner STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, Arlene A. Kilgore, a Notary Public in and for the City and State aforesaid, do hereby certify that Morris H. Fine, Special Commissioner, whose name is signed to the foregoing instrument dated the 23`d day of October, 2009 did personally appear before me in my City and State aforesaid and acknowledge the same before me. GIVEN under my hand and seal this ''` y day of October, 2009 ~~ ~ ~~ ~, ~.F~ ARLENE A. KILGORE ( ~'~ ~``" ~/~._..= ~'~ ' ~'~- Notary Public `~ Commonwealth of Ylrginla Notary Public; Registration .212162 212162 M commission expires: September 30, 2011 My ~ommisslon Expires Sep 30, 2011 y STATE OF VIRGINIq(r; , ;)' , ;1, ~. ~ w~~-L.-. CITY OF ~K, to-~vit: I, f~j ~~~ ~ ~ ~ ~ -~' ~~~'~~ ~`' , a Notary Public in and for the City and State aforesaid, do hereby certi that Robert F. Hagans, Special Commissioner, whose name is signed to the foregoing instrument dated the 23`d day of October, 2009 did personally appear before me in my City and State aforesaid and acknowledge the same before me. GIVEN under my hand and seal this -y" ~' day of October, 2009 r // + ,1 / ~ ~' '~. / ' ,' 7 Notary Public; Registration No.'' ~~ ~~ ~' .y~ ; '~ .f' My commission expires: } ;'~- ->'~ i ~ ARLENE A. KILGORE Notary Publlc Isla Commonwealth of Ylrg 212162 co 30,2011,, MY commission Ex~;res „~p ~ _ .. Exhibit "A" FIRST: One certain piece or lot of land, containing 25-3/4 acres lying in the County of Princess Anne, Virginia bounded by the lands of Lycurgus Ward and others, beginning at a post on the New Turnpike Road leading from North Landing to Norfolk, North 47-1 /2 degrees West 6.00 to a post; thence along a line of marked trees to the center of a swamp; thence down the center of said swamp to a gum a corner of Ward and Davis; thence North 78 degrees East 4.71 chains to a maple, North 69 degrees East 4.12 chains, North 68 degrees East, 70 chains, North 69 degrees East .50 chains North 1 degree East 1.00 chains, North 40 degrees East 1.54 chains, North 67 degrees East 2.26 chains, North 64-1/2 degrees East 4.36 chains, North 39 degrees East 2.33 chains, North 24 degrees East 1.3 chains to a polar, North 63 degrees East 5.82 chains to an oak, North 56-1/2 degrees East 7.51 chains to the beginning containing 25-3/4 acres. SECOND: All that certain tract of land, containing 6 acres, more or less, situate in Kempsville Magisterial District, Princess Anne County, Virginia, on the New Turnpike Road, beginning at the Turnpike Road and running back within 47 yards of the fence to a chopped beech tree adjoining the lands now or formerly Lycurgus Ward; thence on East course to the Turnpike Road; thence up the said road to the point of beginning, the same being on the front and westward side of the road or upgoing leading to the house now or formerly Duren F. Murden's. LESS and EXCEPT that portion of the property conveyed out May 29, 1974 in Deed Book 1423, page 10. Deed of Clarification recorded February 4, 1982 in Deed Book 2189 page 98 and in Deed Book 1942, page 48 (in Chesapeake). LESS and EXCEPT that portion of the property conveyed to the City of Virginia Beach by certificate of take recorded in Deed Book 4356, page 777 and confirmed in Order recorded August 28, 29002 as Instrument Number 200208283024548. Oct 15 09 10:19a LRW ~F I CES 7577-7858 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al Plaintiff, v. CLIFTON S. DAVIS, SR., et al Dcfeadant. Case Nos. CH02001625-00, and CH03002559-00 ORDER THIS CAUSE came to be heard on the motion of the Morris H. Fine, Co-Special Commissioner for permission to proceed and file Application for Rezoning and was azgued by counsel. UPON CONSIDERATION WHEREOF and for good cause shown, it is ADJUDGED, ORDERED and DECREED that the Special Commissioners, on behalf of the owners of the real estate herein, be and hereby are authorized to proceed with the filing of an Application for Rezoning pursuant to the previous orders of this Court. .f Robert F. Hagans, Special Co ~ , ssioner p.l ~urrnn . ~ ,1 . ~r/' ~J~ VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al Plaintiff, v. CLIFTON S. DAVIS, SR., et al Defendant. ORDER Case Nos. CH02001625-00, and CH03002559-OU THIS CAUSE came to be heard on the petition of the Morris H. Fine, Co-Special Commissioner for permission to hire an engineering firm and was argued by counsel. UPON CONSIDERATION WHEREOF and foi- good cause shown, it is ADJUDGED, ORDERED and DECREED that the Special Commissioners he and hereby are authorized to retain the services of MSA, P.C., Civil Engineers, foi• purposes of a re-zoning application. It is further ADJUDGED, ORDERED and DECREED that the terms and condition of hiring shall be left with the Special Commissioners discretion and approval and that the fees associated therewith shall be deferred until such time as theGproperty is sold. ENTER: ~ ~~ 1 Judge I ask for this: CERTIFIED TO BE A !'1gUE {;ppy OF RECORD IN DIY CUSTODY TINA E. SINNEN, CLE. ' CIRCUI OU , V B A , DEPUTY ., R_ "" Morris H. Fine, Special Commissioner Robert F. Hagans, Special Commissio~ler VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH LONNIE L. DAVIS, JR., et al j Plaintiff, v. CLIFTON S. DAVIS, SR., et al Defendant. ORDER Case Nos. CH02001625-00, and CH03002559-00 THIS CAUSE came to be heard on January 12, 2009, before the Honorable Thomas Padrick, Judge, upon the pleadings formerly filed; the Answer by counsel for Clifton S. Davis; Clinton T. Davis appearing in person and pro se; the Report of the Commissioner in Chancery to whom this matter was duly referred; the Commissioner in Chancery having.taken evidence ore tenus on January 17, 2008; the Exceptions to the Commissioner's Report by Clifton S. Davis and Clinton T. Davis; the notice that the Exceptions be heard to counsel for Clifton S. Davis and served upon Clinton T. Davis pursuant to previous orders of Court; the evidence heard ore tenus and was argued by counsel. UPON CONSIDERATION WHEREOF and it appearing to the Court for and for good cause shown that the Report of the Commissioner in Chancery should be confirmed, it is ADJUDGED, ORDERED and DECREED that the Report of the Commissioner in Chancery be and hereby is ratified, confirmed and incorporated herein as if fully set forth and the exceptions by Clifton S. Davis, Sr. and Clinton T. Davis are denied.. It is further ADJUDGED, ORDERED and DECREED that the findings of the Court set forth in the transcript attached hereto of January 12, 2009 are hereby incorporated herein as if fully set forth. UPON FURTHER CONSIDERATION and the Court having confirmed the Commissioner's Report, it is ADJUDGED, ORDERED and DECREED that the last will and testament of Lonnie L. Davis, Sr. of October 25, 1994 be and hereby is declared to be the last will and testament of Lonnie L. Davis, Sr., it appearing that the Statute of Limitations bars the attack on the will and factually the will is a proper will. And it further appearing to the Court pursuant to Article II of the will that 9.5 acres were to be sold and divided, which was previously done by order of this court in the matter of Lonnie L. Davis. Jr., et al. v. Clifton S Davis and Clinton T. Davis. Case No.CH99-3314 and the funds were distributed and divided in accordance with that article of the will. And it further appearing to the Court that Article III requires that each person receive "road frontage" and it appearing to the Court that it is impossible to divide up the road frontage in compliance with the zoning and planning statutes of.the City of Virginia Beach. And it further appearing to the Court that pursuant to Article III of the will where the will identifies 25 acres, that the Report of the Commissioner correctly states that the amount of the acreage is 25.48 acres and where the will says 6 acres, the Report of the Commissioner correctly sets forth 4.8 acres; And it fi.u-ther appearing to the Court that Doris M. Davis having predeceased and leaving no spouse or children, her share is to be divided equally amongst the remaindennmen who are parties to this suit and her siblings; it is therefore ADJUDGED, ORDERED and DECREED that the 25.48 acres and the 4.8 acres be sold and divided in accordance with the following devises in accordance with the will and the Report of the Commissioner in Chancery: -2- Clifton S. Davis 7.2% Clinton T. Davis 12.2% Jean A. Wilson 12.2% Mildred L. Davis Forbes 12.2% Lonnie L. Davis, Jr. 56.2% And it further appearing to the Court that the will in Article III, sets forth that Clifton S. Davis shall receive 1.5 acres adjoining his existing 1.5 acres and it appearing to the Court from the Conunissioner's Report and the evidence, specifically the survey, that Clifton S. Davis owns 702 acres instead of 1.5 acres and that the .6 acres which he received from his sister, Doris M. Davis, should be added to the 1.5 acres he receives from the will so that he receives a total of 2.1 acres and this devise does not exceed the acreage as set forth in the will and it further appearing to the Court that his existing .702 acres shall remain his property and that the 2.1 acres shall be sold and he shall receive his pro-rata share as previously recited herein. ~~~ 1K It is further ADJUDGED, ORDERED and DECREED that Clifton S. Davis hasl~ days to present present a new survey by a surveyor licensed and in good standing, proving that the survey introduced into evidence at the trial of this matter showing he owns a .702 acre parcel and not 1.5 acres as stated by the will is incorrect, this order shall be modified to reflect the correct acreage he owns. It is further ADJUDGED, ORDERED and DECREED that Morris H. Fine and Robert Hagans, be and hereby are appointed as Special Commissioners to sell, publicly or privately, said property; the Special Commissioners being given wide authority to obtain the highest sum for the property and shall explore rezoning the property and the Special Commissioners shall report back to the Court regarding these matters and that when a contract of sale is made, before executing a Y~ deed and receiving the funds, the Special Commissioners shall report to the Court and post an appropriate bond at that time. And the Court further finds that the plaintiffs have incurred litigation costs to date in prosecuting this suit in the sum of $18,791.93 pursuant to the attached Exhibit "A" -Detail Cost Transaction File List. It is further ADJUDGED, ORDERED and DECREED that these costs as well as the remaining costs including the Special Commissioners' fee be paid from the proceeds of sale prior to any distribution to the parties. It is further ADJUDGED, ORDERED and DECREED that the Motion for Sanctions of the plaintiff be and hereby is denied and the Motions for Referral and Injunction of the defendants, be and hereby are denied. ENTER: ~ -~, ~ -~a S Judge I ask for this: l~ - ~~ p•q• Moms H. Fine Seen and object to - - _ _ _ - _ _ . 1 ~ ~ t .~.0.1~' ~ ~ n-r v Qo.,. ' ~ j -t~ ti%~ 1 I - 3 -~ ~ ¢ ~d t ( ~7 Y'e~.a.,- w• l Seen and objected to as to costs awarded plaintiffs; ~~ ~~~'~ oy~ GCS vt.0"r f~rd,lf b-~- • ~ ' , p.d. ~f~uw Robert F. Hagans, Jr. .~ c~' ; kr okJ-f,. t~ ors ~ ~ °lr r ~-~--~e . Clinton~T. Davis, pro se CERTIF}~D TO FsE A TRi3E CaPY OF RECORD IN PJ}Y CUSTODY T}i~~~. EflS3~-1}WEf~~~ I-r~ ~4 ,I i L' n '.;, -69- Item K.10. PLANNING ITEM # 59700 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of AUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Modi ication o Proffers (approved by City Council on March 28, 2000, and May 24, 2005) at 5221 Indian River Road. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of AUTOZONE DEVELOPMENT CORPORATION/LAND and BUILDING IV, L.C. for Mod cation of Pro ers (approved by City Council on March 28, 2000, and May 24, 2005) at 5221 Indian River Road. GPIN#: 14654704140000 DISTRICT 1- CENTERVILLE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-third of February Two Thousand Ten Voting.• 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto Diezel, Robert Mayor William D. L. Wood Council Members Voting Nay: None Council Members Absent: None Glenn R. Davis, William R. "Bill " DeSteph, Harry E. M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James February 23, 2010 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7621 TO: Mark D. Stiles FROM: B. Kay Wilso DATE: February 11, 2010 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Autozone Development Corporation The above-referenced conditional zoning application is scheduled to be heard by the City Council on February 23, 2010. I have reviewed the subject proffer agreement, dated January 20, 2010 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/ka Enclosure cc: Kathleen Hassen Prepared by: Troutman Sanders LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, Virginia 23462 MODIFICATION OF COVENANTS, RESTRICTIONS AND CONDITIONS PROFFERED TO CITY OF VIRGINIA BEACH THIS MODIFICATION OF COVENANTS, RESTRICTIONS AND CONDITIONS PROFFERED TO CITY OF VIRGINIA BEACH (this "Agreement"), made this Z 0 day of 5~~r~ 2000, between LAND & BUILDING IV, L.C., a Virginia limited liability company, the owner of the subject property ("Grantor"); AUTOZONE DEVELOPMENT CORPORATION, a Nevada corporation, the proposed lessee of the subject property ("AutoZone"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia ("Grantee"); WITNESSETH: WHEREAS, Grantor is the owner of the real property described on Exhibit A attached hereto (the "Propert}~'), which Property is currently zoned Conditional B-2, and is subject to certain recorded covenants, restrictions, and conditions; and WHEREAS, in February of 2000, Grantor's predecessors in interest (The Titus Family Revocable Living Trust) proffered certain covenants, restrictions, and conditions as part of a conditional rezoning, as set forth in the "Proffered Covenants, Restrictions, and Conditions from the Titus Family Revocable Living Trust", dated February 2, 2000, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office") in Deed Book 4223 at page 1176 (the "Original Proffers"); and WHEREAS, in February of 2005, Grantor amended the Original Proffers as set forth in the "Proffered Covenants, Restrictions and Conditions From Land & Building IV, L.C. to The City of Virginia Beach, a municipal corporation", dated February 14, 2005, and recorded in the Clerk's Office as instrument number 200506080085711 (the "Amended Proffers"). WHEREAS, Grantor desires to develop the Property in a manner that differs from the terms specified in the Original Proffers and the Amended Proffers; and WHEREAS, Grantor desires to replace the covenants, restrictions, and conditions set forth in the Original Proffers and the Amended Proffers with those set forth in this Agreement; and WHEREAS, the conditions set forth in the Original Proffers and Amended Proffers may only be amended or varied by written instrument recorded in the Clerk's Office and executed by the record owner of the Property, provided that said instrument is consented to by the Grantee in writing as GPIN: 1465-47-0414-0000 evidenced by a certified copy of an ordinance or resolution adopted by the governing body of the Grantee, after a public hearing properly advertised pursuant to Section 15.2-2204 of the Code of Virginia, 1950 (as amended), which said ordinance or resolution shall be recorded along with the amendment as conclusive evidence of such consent. NOW, THEREFORE, the Grantor for itself; its successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or extraction from the Grantee or its governing body and without any element of compulsion or uq~id pro guo for zoning, rezoning, site plan, building pemut or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property, and hereby covenants and agrees that the terms of this declaration 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, its heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. Any prior proffered conditions, including the Original Proffers and Amended Proffers aze hereby superseded in then entirety. 2. When developed, the improvements and landscaping on the Property shall be developed in substantial conformance with the site plan entitled "Site Layout Plan, AutoZone #4916, Virginia Beach, Virginia," dated September 2009, and prepared by Burgess & Niple (the "Site Plan', which site plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 3. When developed, the building located on the Property shall developed in substantial conformance with the colors, materials, and architectural features depicted on the rendering entitled "Drawing CE-1, Color Elevation, AutoZone Store #4916, Virginia Beach, VA," dated January 19, 2010 (the "Building Rendering"), which rendering has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 4. In addition to those uses prohibited by applicable laws, the following uses shall be prohibited on the Property: (a) Eating and drinking establishments with drive-through windows; (b) Greenhouses and plant nurseries; and (c) Grocery stores, carry-out food stores and convenience stores, an}+ of which are not freestanding. 5. Signage installed on the Property shall comply with the requirements set forth in the Virginia Beach Zoning Ordinance and other applicable codes, subject to variances approved by the appropriate authority. 6. 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. Page 2 All references herein 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 modification of proffered covenants, restrictions and conditions is approved by the Grantee. AutoZone joins as a party to this Agreement for the sole purpose of consenting to the terms contained herein to the extent that they are applicable during the term of AutoZone's lease of the Property. The covenants, restrictions and conditions set forth above, having been proffered by the Grantor and allowed and accepted by the Grantee, 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 instnunent is consented to by the Grantee in writing as evidenced by a certified copy of an 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. 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 Zoning Ordinance or this Agreement, the Grantor shall petition to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map may show by an appropriate symbol on the map the existence of the foregoing conditions attaching to the zoning of the Subject Property on the map and that the ordinance and the foregoing 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. [Remainder of page intentionally left blank. Separate signature page to follow.) Page 3 LAND & BUILDING IV, L.C., a Virginia limited liability company: B ~ ~-- ~ ~/ Y• Title: 'v'rQ~~~..1~~ City/County of V It ~uG,h ; Conunonwealth/St a of I r The undersigned Notary Public, being duly authorized to acknowledge documents in the aforesaid jurisdiction, hereby certifies and affirms that, on this 2Znd day of ~an~a.r , 20 l0 , ~llf'(,I~ci~ L. ~U.hbA.~ , in his/her capacity as of Land & Building IV, L.C., a Virginia limited liability company, executed th foregoing instrument on behalf of the company. He/she is either personally known to me or, if not, produced ~.l ~~ as identification. ~~~ ~ Notary Public 1 was commissioned as R. Lene' Vosler My commission expires: ~ 130 ~ (( ~~~~~.,~,.~,~~~ Registration Number: Iq ~ 2t~ ~.?? pNWFI ~~{ • 'Y~, ~ •. ~ • Seal: ~~ 194254 ' ~~. •~ q~~.~ Page 4 AUTOZONE DEVELOPMENT CORPORATION, a Nevada corporation: By: ~ C ~/ Title: VICe ~reSl .~y: T'~/~;, Vice President City/County ofs C ; Commonwealth/State of ~~~~ -tS,S r ,C The undersigned Notary Public, being duly authorized to aclcpowledge documents in the aforesaid ~~nnsdi ti , hereb certifies and affirms that, on this ~_ day of , 20~_, Brian L. C;~iD ~ ~ ~~ ~pV ~ in his/her capacity as ~ of AutoZone Development Corporation, a Nevada corporation, executed the foregoing i strument on behalf of the company. He/she is either personally known to me or, if not, produced as identification. My commission expires: !~ -~ j O /,3 Registration Number: ~~~~~1i i 111/I~ j Seal: .:~ ,CAS Tl~ .~~~~ ~~ ~ fr+STATE ,~~r,~~ ,,v ... ~~ t)F ';'~°. - ~ TENN(:SSEG ~ == NOTARY ~ ,7... , , 1, ~~ ,~'S`,t4 , ,f7i ~ ~+ ti`,i``' ,~~,i1t1~ti1;; r Jt: \~~ r ~•tJ'1 .;~~;'; e ~ ~. '•,. '~'~~•. ;;:;„,,,t: ,, ?K Page 5 EXHIBIT A ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, WITH THE BUILDINGS AND IMPROVEMENTS THEREON, LYING, SITUATE AND BEING IN THE CITY OF VIRGINIA BEACH, VIRGINIA, AND BEING KNOWN, NUMBERED AND DESIGNATED AS PARCEL 3, AS SHOWN ON THAT CERTAIN PLAT ENTITLED, "RESUBDIVISION OF PARCEL `2' (M.B. 96, PAGE 7, SHEET 2) AND PROPERTY OF TROY A. TITUS (M.B. 131 PAGE, 29), KEMPSVILLE BOROUGH, VIRGINIA BEACH, VIRGINIA," 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 258, AT PAGES 23 AND 24. IT BEING THE SAME PROPERTY CONVEYED TO GRANTOR BY DEED OF A.J.R. LIMITED PARTNERSHIP, L.L.P., DATED NOVEMBER 5, 2003, AND DULY OF RECORD IN THE CLERK'S OFFICE AFORESAID AS INSTRUMENT NUMBER 200312160208002. 392679v3 Page 6 -~o- Item L. 1. APPOINTMENTS ITEM # 59701 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS: SENIOR SERVICES OF SOUTHEASTERN VIRGINIA February 23, 2010 -71- Item L. 2. APPOINTMENTS ITEM # 59702 Upon NOMINATION by Council Lady Wilson, City Council REAPPOINTED: Kathryn B. Hill Chris M. Savvides Helen P. Shropshire Susan D. Vierra Three year term 04/01/2010 - 03/31/2013 HEALTH SERVICES ADVISORY BOARD Voting: 10-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor William D. Sessoms, Jr. Mayor Sessoms had advised he must leave the Formal Session by 6:30 P.M. to present Anibal Gomez- Toledo, Head of the Consular Section -Embassy of Mexico, a Proclamation celebrating Mexico's Freedom. The event will occur at the Sandler Center for the Performing Arts February 23, 2010 -72- Item L. 3. APPOINTMENTS ITEM # 59703 Upon NOMINATION by Council Lady Wilson, City Council: APPPOINTED: Vivian E. Blaize Three year term 04/01/2010 - 03/31/2013 REAPPOINTED: Gregory D. Goldfarb William Rice Three year term 04/OI/2010 - 03/31/2013 HUMAN RIGHTS COMMISSION Voting: 10-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• Mayor William D. Sessoms, Jr. February 23, 2010 -73- Item L. 4. APPOINTMENTS ITEM # 59704 Upon NOMINATION by Council Lady Wilson, City Council REAPPOINTED: Glenn R. Davis One year term 04/01/2010 - 03/31/2011 THE PLANNING COUNCIL Voting: 10-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor William D, Sessoms, Jr. February 23, 2010 -74- Item L. S. APPOINTMENTS ITEM # 59705 Upon NOMINATION by Council Lady Wilson, City Council APPOINTED: Rowena G. Wilson, Ph.D. Four year term 02/23/2010 - 06/30/2014 SOCIAL SERVICES BOARD Voting: 10-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent.• Mayor William D. Sessoms, Jr. February 23, 2010 -75- Item L. 6. APPOINTMENTS ITEM # 59706 Upon NOMINATION by Council Lady Wilson, City Council APPOINTED: David Doucette Unexpired term through 12/30/20 VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) Voting: 1 D-0 Council Members Voting Aye: Rita Sweet Bellitto, Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor William D. Sessoms, Jr. February 23, 2010 -76- Item V-O. ADJOURNMENT ITEM # 59707 Vice Mayor Louis R. Jones DECLARED the City Council Meeting ADJOURNED at 6:36 P.M. t~~ -- Beverly O. Hooks, CMC Chief Deputy City Clerk ~ - --- -,/~l~rs-,/ uth Hodges Fraser, MMC City Clerk City of Virginia Beach Virginia Louis R. Jones Vice Mayor William D. Sessoms, Jr. Mayor February 23, 2010 -76- Item V-O. ADJOURNMENT ITEM # 59707 Vice Mayor Louis R. Jones DECLARED the City Council Meeting ADJOURNED at 6:36 P.M. Beverly O. Hooks, CMC Chief Deputy City Clerk 1, Ruth Hodges Fraser, MMC City Clerk City of Virginia Beach Virginia _~ ~ ti Louis R. Jones Vice Mayor lti William D. Sessoms, Jr. Mayor February 23, 2010