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HomeMy WebLinkAboutOCTOBER 9, 2012 MINUTESCITY COUNCIL MAYOR WILLIAM D. SESSOMS, JR., At -Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 GLENN R. DA VIS, Rose Hall - District 3 WILLIAM R. DeSTEPH, At -Large HARRY E. DIEZEL, Kempsville - District 2 ROBERTM. DYER, Centerville - District I BARBARA M. HENLEY, Princess Anne - District 7 JOHND.MOSS, At -Large JOHN E. UHRIN, Beach - District 6 ROSEMARY WILSON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER - JAMES K. SPORE CITYATTORNEY- MARKD. STILES CITYASSESSOR - JERALD D. BANAGAN CITYAUDITOR-LYNDONS. REMIAS CITY CLERK - RUTH HODGES FRASER, MMC CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 9 OCTOBER 2012 I. CITY MANAGER'S BRIEFINGS - Conference Room - CITY HALL BUILDING' 2401 COURTHOUSE DRIVE' VIRGINIA BEACH, VIRGINIA 23456-9005 PHONE: (757) 385-4303 FAX (75 7) 385-5669 E-MAIL: Crycncl@vbgov.coin A. SUSTAINABILITY PLAN Clay Bernick, Environment and Sustainability Administrator — Planning Walt Cole, Director of Planning — Clark Nexsen B. UNAUDITED FINANCIAL STATEMENTS Patti Phillips, Director — Finance C. BICYCLE/WHEELED DEVICE LICENSE Ordinance Lynn Gaskill, Deputy Treasurer II. CITY COUNCIL LIAISION REPORTS 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. RECESS TO CLOSED SESSION 3:30 PM 5:00 PM VI. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Richard Kenner Chaplain Westminster Canterbury 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 G. FORMAL SESSION AGENDA 1. CONSENT AGENDA H. PRESENTATION 1. NATIONAL ARTS and HUMANITIES MONTH Sally Saunders, Arts and Humanities Commission Annika Jenkins - Violinist I. ORDINANCES/RESOLUTION September 18, 2012 1. Ordinance to AMEND § 7-25 of the City Code re registration of Personal Assistive Mobility Devices (Golf Carts) (City Treasurer requests Indefinite Deferral) 2. Ordinance to EXECUTE a LEASE with the Development Authority (VBDA) for City -owned property (Budget Lodge) to provide parking spaces at Atlantic Avenue and 3Td Street. 3. Resolution to AUTHORIZE a non-binding Term Sheet relating to Phase V of the Town Center project between the Development Authority and AUTHORIZE the City Manager to EXECUTE the development of supplemental project documents 4. Resolution to APPOINT Kenneth Falkenstein as Associate City Attorney effective October 15, 2012 5. Ordinance to AUTHORIZE temporary encroachments into a portion of City property, known as Lake Windsor, for the CAROLYN ANN OSMOND LIVING TRUST to maintain an existing riprap revetment and a mulch bed at 4069 West Colonial Parkway DISTRICT 3 — ROSE HALL 6. Ordinances to ACCEPT and APPROPRIATE: a. $978,845 re the "Traffic Signal Retiming" as reallocated by HRTPO: 1. $912,608 in Federal revenue 2. $ 65,651 in State revenue 3. $585 from the FY 2012-13 Operating Budget of the Public Works Department b. $20,700 Grant from the Virginia Fire Programs to the Fire Department re repairs to the Burn Building at the Fire Training Center C. State funding from VDOT 1. $5 -Million to "Shore Drive — Phase III" 2. $5 -Million to "Witchduck Road — Phase II" PLANNING Application of LAPAZ, LLC for a Non -Conforming Use to ADD a second story addition and provide exterior renovations to a current structure at 2565 Shore Drive DISTRICT 5 — LYNNHAVEN RECOMMENDATION APPROVAL 2. Application of C & C DEVELOPMENT COMPANY, INC. for a Non -Conforming Use to demolish and reconstruct single-family dwellings at 200 551h Street DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 3. Application of LAKE GEM D8, LLC for Modification of Conditions Nos. 2 and 5 (approved by City Council on May 26, 2009) re an outdoor market at 2181 Upton Drive DISTRICT 7 - PRINCESS ANNE DEFERRED JULY 3, 2012 RECOMMENDATION APPROVAL 4. Application of MARVIN M. JR. and GAYLE B. ROLLINS LIVING TRUST for Modifications of Proffers Nos. 1 and 8 of a Conditional Change of Zoning (approved by City Council on June 24, 2008) re personal services (beauty/barber shop/drug store) at 609 Princess Anne Road DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 5. Application of LEWIS TURNER II/PHUONG VAN NGUYEN for a Conditional Use Permit re a hair care center at 3692 South Plaza Trail DISTRICT 3 - ROSE HALL RECOMMENDATION APPROVAL 6. Application of JAPANESE AUTO MASTERS, INC. for Modification of Proffers Nos. 1 and 4 for a Conditional Change of Zoning re motor vehicle service and repair (approved by City Council on January 12, 1999) at 3012 Holland Road DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 7. Application of INGLESIA DE DIOS PENTACOSTAL M.I. DE VIRGINIA BEACH / MIGUEL LOPEZ for a Conditional Use Permit re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL 8. Application of MIGUEL LOPEZ for a Conditional Change of Zoning from I-2 Industrial to Conditional B-2 Community Business re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL 9. Application of SILVER HILL AT THALIA, LLC/JOYCE ANN UPTON for a Conditional Change of Zoning from Conditional 0-1 Office to Conditional A-24 Apartment re multi -family dwellings at 4329 Bonney Road DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 10. Application of BRIBRA BAKER, INC./CONNIE ONE, LLC for a Conditional Change of Zoning from Conditional A-12 Apartment to Conditional A-24 Apartment re multi -family condominiums at 432 Baker Road and 5445 Connie Lane DISTRICT 2 - KEMPSVILLE K. RECOMMENDATION APPOINTMENTS BEACHES AND WATERWAYS BOARD OF BUILDING CODE APPEALS COMMUNITY SERVICES BOARD GREEN RIBBON COMMITTEE HEALTH SERVICES ADVISORY BOARD HISTORICAL REVIEW BOARD HUMAN RIGHTS COMMISSION MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMITTEE RESORT AREA PARKING COMMITTEE REVIEW AND ALLOCATION COMMITTEE — COG APPROVAL L. UNFINISHED BUSINESS M. NEW BUSINESS N. ADJOURNMENT PUBLIC COMMENT Non -Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 3854303 2012 CITY HOLIDAYS Monday, November 12 Veteran's Day Thursday, November 22 Thanksgiving Day Friday, November 23 Day After Thanksgiving Monday, December 24 Christmas Eve (half-day) Tuesday, December 25 Christmas Day Agenda 10/09/2012/gw -1 - VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia October 9, 2012 Mayor William D. Sessoms, Jr. called to order a BRIEFING re the SUSTAINABILITY PLAN, in the City Council Conference Room, Tuesday, October 9, 2012, at 3:30 P.M. Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood. Council Members Absent: Robert M. Dyer (Ill at home) October 9, 2012 -z - COUNCILMAN UHRINADDRESSING CITY COUNCIL 3:30 P.M. Mayor Sessoms advised Councilman Uhrin had requested a few moments of City Council's time to address the incident that took place over the weekend. Councilman Uhrin thanked the Mayor and acknowledged City Council has a full agenda today and won't take much time but wanted to address the incident that took place at his house on Saturday night. Councilman Uhrin acknowledged his wife, Kathy, stating the last City Council Meeting she attended was the same night her water broke and they were blessed with their first child. Councilman Uhrin is embarrassed and ashamed of what took place on Saturday night. To be candid, the two of them had a small personal disagreement that escalated into a very large public spectacle, as evidenced by the amount of attention here today. Councilman Uhrin expressed his apologies to the Members of City Council, citizens of Virginia Beach and especially his neighbors who have had to endure the effects of this event and the increased media scrutiny over the last several days. Councilman Uhrin stated the most important thing he would like to relay is that he did not assault his wife, Kathy. Both Kathy and he are very anxious to be able to get this incident behind them. Also, for those who do know Councilman Uhrin, this is not in any way indicative of his family life. The house he shares with his wife and two daughters is full of love, respect and adoration on an every day basis. Councilman Uhrin stated he could not be more proud of his family and the relationship his family shares. Councilman Uhrin feels the City Council deserves an explanation from him and he appreciates the opportunity to make this statement. October 9, 2012 -3 - CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN 3:33 P.M. ITEM #62247 Mayor Sessoms introduced and welcomed Clay Bernick, Environment and Sustainability Administrator, Planning. Mr. Bernick advised the City Council has been Briefed on this issue in the past and this is an update on where they are in the Plan process. The group will be working with consultants to prepare a Final Draft. This Plan is critical for the future of the City of Virginia Beach. This Plan is a "roadmap "for reaching the City's Vision 2040. October 9, 2012 -4 - CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) Detroit and Seattle relied heavily on specific industry and both cities are good examples as to what could happen to Virginia Beach if we do not have a Sustainability Plan. October 9, 2012 -5- CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) October 9, 2012 CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) If the City is doing well then we should have a balance of economic, environmental and social. Mr. Bernick stated the public process began almost one year ago. Specifics to the process are identified below: October 9, 2012 -7- CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) October 9, 2012 In CITY MANAGER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) Each goal has a performance measure attached, which the group feels is important. October 9, 2012 a'µ f aaW i tri. 4:.y- o into rest I _ ripas 1 organ'¢=_the Deiin Ade—ipt n 0 what i' s Ilke x he e "9a.( it right", achieve) goats, and erpressed m th= p-esr. nt tcn.c. Q.f iitiuii: lhe- 1 f_ aide _.. u --d which effort, in the form of objective., is du,—d OBIEC'itY�7..a - 0efinitmn: ArneacuralAe Adion required to acme ngwtari"g 9nu!,Eis+r."0r1#TPM bdl,aw28 edscafa gkF.jgryrebtiti113 nbFCGkfVG rq(ates � giidmyxy naC� YQIYI'✓YAna[id[1 WtYb, PER Fi'}RE AhTCE beEAWIle - Defai2 : aform of enr ro trari<: progressin a<hieu�ng the goal. October 9, 2012 in CITY MANAGER'S BRIEFING SUSTAINABILITYPLAN ITEM #62247(Continued) 10 71 �� efficient transportation system October 9, 2012 -10 - CITY MANA GER'S BRIEFING SUSTAINABILITY PLAN ITEM #62247(Continued) Mayor Sessoms thanked Mr. Bernick. October 9, 2012 -11 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS 4:00 P.M. ITEM #62248 Patricia Phillips, Director of Finance, advised on August 15`x', the Finance Department officially closed the City's financial accounting records for Fiscal Year ending June 30, 2012. We are in the process of analyzing revenues and expenses, developing work papers, and assembling financial statements and supplemental information for the City's 50+ funds in preparation for the City's auditors, Cherry, Bekaert & Holland. The Comprehensive Annual Financial Report, (CAFR), containing audited financial statements for all funds, will be presented to City Council on December 11th. However, to assist in planning for the upcoming financial decisions, preliminary unaudited key financial statement is presented. The Finance Department still has a great deal of analysis to complete, and as such, these amounts could change. October 9, 2012 -12 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) City Council adopted a policy to maintain a General Fund Balance of 8-12% of subsequent year's Revenues. Unassigned General Fund Balance at June 30, 2012 is $102.5 -MILLION, or 10.6% of FY 2013 Revenues. Fund Balance is a result of revenues, expenditures and reservations, as follows: BUDGET % of ACTUA VARIANCE Budget REVENUES $ 970.8 $ 978.7 $ 7.9 0.8% EXPENDITURES (1,017.4) (986.7) 30.7 3.0% REVENUES OVER (UNDER) $ (46.6) $ (8.0) $ 38.6 FUND BALANCE - JULY 1 176.1 ' FUND BALANCE -'JUNE 30 168.1 LESS: RESERVATIONS (65.6) UNASSIGNED FUND BALANCE -JUNE 30 $ 102.5 Fund Balance as a percent of FY 2013 Revenues is 10.6% The City received $7.9 -MILLION more in Revenue than budgeted. October 9, 2012 Budget Actual Variance Local $ 805.2 $ 813.6 $ 8.4 State 143.8 144.1 0.3 Federal 21.8 21.0 (0.8) Total $ 970.8 $ 978.7 $ 7.9 Percent Over Budget 0.8% October 9, 2012 -13 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) This is the first time in some years the City has been over budget; meaning, the City received more Revenues than originally expected. Variance Real Estate $ 1.3 Personal Property 3.4 General Sales ' 0.4 Telecommunications Taxes <0.2 `Restaurant Meals 1.0 City Tax on Deeds 0.8 Cigarette Taxes` 0.4 Use of Property 0.6 Bank Stock 0.5 Other Local Revenue 0.9 Utility Taxes (0.6) Business Licenses (0.2) Hotel Taxes (0.1) Interest (0.2) Total Local Revenue Variance $ 8.4 $493.0 $481.8 $600 � $473.7 $479.1 $483.7 $477.1 $451.3 $452.8 2008 : FY2009 FY 2010 FY 2011 FY2012 ©9utlBe[ ®Actual 6 October 9, 2012 -14 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) General Sales Tax Revenue continues to grow. $60 i. $55.7 $66.0 $53.4 $54.0 $ W 54.1 $53.0 $53.4 go $51.4 $51.1 $51.7 $50.3 $506 $50 FY2010FY 2011 FY 2012 ®Actual 1 October 9, 2012 -15 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) FY 2007 FY2008 FY2009 FY2010 FY 2011 F F®Sudget ®Actual $6 _ ... .. ::.. _ _.. ....:._ ...........� 55.2 $5.4 $$5 55.2 5.2 $5.1 $5.4 $55 $5.5 55.4 I - $ October 9, 2012 -16 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) The Hotel Room Tax for the entire City is highest on record. The Restaurant Meal Tax is also highest on record. Y20U FY 2012 October 9, 2012 -17 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Conthmed) $49.8 Y 2010 FY 2011 i OActual Hotel Room Tax Restaurant Meal Tax SB $1 -- f $0.1 CBD TIF i om R •' ` !R', ��; h ryypy. IN y tc WIT", _ y $49.8 Y 2010 FY 2011 i OActual Hotel Room Tax Restaurant Meal Tax SB $1 -- f $0.1 CBD TIF w I ■wa.5% cmpi08% 1050.44% 14 October 9, 2012 IN y _ y M . l �x OGF2% UCBDTIF Nwi%/SS 071P5% x^5851: C w I ■wa.5% cmpi08% 1050.44% 14 October 9, 2012 -18 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) A number of factors contribute to the decline in the Telecommunications Tax; land and fax lines, 800 numbers used (paid per call) and competition with cell phone companies offering free minutes. All these factors contribute to the decline in this revenue source, as the market adjusts to technology and competition. '143b $140.7 '143-'$144 1 October 9, 2012 -19 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) Budget Departments $ 553.9 $ 539.5 $ 14.4 Debt Service 44.8 44.5 0.3 Capital Projects 35.7 35.7 Total 634.4 619.7 14.7 ': 2.3% Schools (City Funding): Operating Transfers $ 334.1 $ 318.6 $ r 15.5 Debt Service 44.8 44.3 0.5 Capital Projects 4.1 4.1 Total ': 383.0 367.0 16.0 2.2%' Total Expenditures $ 1,01.7.4 $ 986.7 * $ 30.7 3.0%' *Reflects encumbrancesand carry forwards of$9.5 million ;e October 9, 2012 -20 - CITY MANAGER'S BRIEFING UNA UDITED FINANCIAL STATEMENTS ITEM #62248(Continued) .1 -11 - LI I'l 1, 1.1 I.L.-H. H...]] 2004 zoos 2006 .2007 -2008 2009 2010 -. 2011 2012 ®UnassignedW Baia— ^ % of Budgeted GF Revenue .Policy =&12%of Revenues to Total Fund Balance June 30, 2012 $ 168.1 Less: Reservations & Designations Loans $ 5.3 Inventories and Future Programs 3.6 City CIP - 2013 18.2 FY2013 Operating Budget 9.8 FY2013 School Operations 11.2 Net School Reversion 17.5 65.6 Unassigned Fund Balance $ 102.5 Percent of Budgeted FY 2013 Revenues 10.6% zo October 9, 2012 -21 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) Total Expenses $ (116.8) Net Change $ (7.4) 14.7 9.7 $ VA 22 October 9, 2012 Budget ` Actual Variance REVENUES: City $ 353.7 $ 353.7 $ Local 2.6 3.7 1.1 School's Reserve & Other Funds 23.3 23.3 Commonwealth 307.6 " 305.5 (2.1) Federal Government 16.6-= 13.7 (29) Total Revenues $ 703.8 $ 699.9 $ (3.9) EXPENDITURES $ (71g.1) $ (699.2) * : $ 19.9 Reversions 16.0 Revenue True -up 1:5 Total Reservations 17.5 * Reflects encumbrances of $10.3 million 21 Total Expenses $ (116.8) Net Change $ (7.4) 14.7 9.7 $ VA 22 October 9, 2012 -22 - CITY MANAGER'S BRIEFING UNAUDITED FINANCIAL STATEMENTS ITEM #62248(Continued) Fund Balance within Policy, lower than 2011 ✓(10.6% FY12 vs 11.9% FY11) v`Reservations for FY13 operating budget include: `City $9.8M -,'Schools - $11.2M ;iDepartments continue to manage their budgets ,"Reductions in personnel have operating impacts z Actual revenues were 0.8% over budget -Recommend entire Fund Balance be maintained as reserve for FY2014 23 g5 Year Forecast Nov 20, 2012 :,OctoberInterim Nov 27, 2012 ;-FY12 Audited Financial Statements . Dec 11, 2012 November Interim Dec 11, 2012 .,FY13 Budget Proposal Mar 26, 2013 a-FY13 Budget Adoption May, 7, 2013 24 Mayor Sessoms thanked Ms. Phillips. October 9, 2012 -23 - CITY MANAGER'S BRIEFING BICYCLE/WHEELED DEVICE LICENSE Ordinance 4:30 P.M. ITEM #62249 Mayor Sessoms welcomed Lynn Gaskill, Deputy Treasurer. Registration of a Bicycle License Purpose: To "I e ,tif;l ai-,U provide ownership nfc.1"inatio:i to the P li ee 111 order 3.C, rietu n -yIps I lghtful own . Ms. Gaskill stated the Treasurer's office is spending an unwarranted amount of time, effort and money on this service to citizens with minimal revenue generated. In 2013, only sixty-one (61) licenses have been issued. October 9, 2012 -24 - CITY MANAGER'S BRIEFING BICYCLE/WHEELED DEVICE LICENSE Ordinance ITEM #62249(Continued) Registration of a Handicapped Wheeled Device License %'sit ic. ;? -able F,_:.�>- t�.t'C? proI�;'..i 3.n( ; h Re.,, =1 t Ca tv ii y Examples of a Non Traditional Wheelchair or Motorized Scooter w Electric Personal Assistive Mobility Devices include: an electric powered -assisted bicycle; . �y electric seated scooter and/or an electric p personal assistive mob lity device. t owk !` October 9, 2012 -25 - CITY MANAGER'S BRIEFING BICYCLEIWHEELED DEVICE LICENSE Ordinance ITEM #62249(Continued) Only twelve (12) licenses have been issued for Handicapped Wheeled Devices since 2007. Handicapped Wheeled Device Issuance to date: 7122/ -' 1100214 azzY Sower 13 air: 23454 8/5/10 H00215 0ub[, 23455 8/5/30 H00216 EZGO Golf Ca K. .23455 8/19/10 H00217 Yamaha Golf Cart 23455 8/27/10 X00229 Yamaha Gn]f Cart. 23455 9/2/10 H00218 Club Car 23455 5/2/10 H0021.9 smil S-- 234.55 5/26/11 H00222 Dub Car 23455 7/24/12 H00206 EZGOG.If Urt 23455 8/24/12 H00051 Golf Cart 23455 Mayor Sessoms thanked Ms. Gaskill and instructed the Treasurer's Office to schedule an Agenda Item with the requested Ordinance. October 9, 2012 -26 - CITY COUNCIL LIAISON REPORTS 4:30 P.M. ITEM #62250 Council Lady Henley advised the Agriculture Advisory Committee met last night and if City Council has any questions about their Annual Report, she will be more than happy to answer. Also, the Bikeways and Trails Committee met yesterday. The Committee is busy connecting trails, making accessibility around the City easier. An area of concern is around the new Bayside Recreation Center. The Committee is committed to make sure the trails are accessible prior to the Opening. Vice Mayor Jones asked Council Lady Henley if there had been discussion with the Schools to allow students to go from School directly to the Recreation Center. Mayor Sessoms stated he would discuss the issue with the School officials at their next meeting. ITEM #62251 Councilman DeSteph advised he received a very extensive Briefing from Deputy City Manager Hansen regarding the new RAC System. Councilmen DeSteph and Davis will meet and present a much shorter brief to City Council in the near future. Also, Councilman DeSteph advised at the last MEDAC meeting concern was raised regarding the Sequestration. At this point, it is still unknown if Sequestration will actually take place. ITEM #62252 Councilman Davis stated he hoped everyone had an opportunity to review the MOCA Report in last week's packet. ITEM #62253 Council Lady Wilson expressed her appreciation for the City's support at the VML Conference. Council Lady Wilson advised the City received the "Platinum Go Green Award", which is the highest award in this category. October 9, 2012 -z7 - CITY COUNCIL COMMENTS 4:36P.M. ITEM #62254 Councilman DeSteph would like to include a Resolution to "END THE FEDERAL ETHANOL MANDATE FOR GASOLINE" in the Legislative Package. Councilman DeSteph has been in discussion with Representative Scott Riggell. ITEM #62255 Council Lady Henley invited everyone to attend the Princess Anne Fall Meeting which will be on October 21, 2012, at 2:30 P.M., at St. Johns Baptist Church on Holland Road. ITEM #62256 Councilman DeSteph requested City Council provide comments regarding Repealing the BPOL Tax as soon as possible. Also, Councilman DeSteph advised he has reviewed the various reports surrounding the death of Baby Braxton and has ongoing concerns. He feels the City still has issues that need to be addressed. ITEM# 62257 Councilman Moss would like to bar borrowing through the Development Authority. Councilman Moss advised he spoke to some Members of the General Assembly and he is going to prepare an Amendment to the City Charter and track the changes so it is very clear as to what he is asking for. October 9, 2012 -28 - AGENDA REVIEW SESSION 4:40 P.M. ITEM #62258 BY CONSENSUS, the following shall compose the CONSENT AGENDA: I. ORDINANCES/RESOLUTION 1. Ordinance to AMEND § 7-25 of the City Code re registration of Personal Assistive Mobility Devices (Golf Carts) (City Treasurer requests Indefinite Deferral) 2. Ordinance to EXECUTE a LEASE with the Development Authority (VEDA) for City - owned property (Budget Lodge) to provide parking spaces at Atlantic Avenue and 3"1 Street. 3. Resolution to AUTHORIZE a non-binding Term Sheet relating to Phase V of the Town Center project between the Development Authority and AUTHORIZE the City Manager to EXECUTE the development of supplemental project documents 4. Resolution to APPOINT Kenneth Falkenstein as Associate City Attorney effective October 15, 2012 5. Ordinance to AUTHORIZE temporary encroachments into a portion of City property, known as Lake Windsor, for the CAROLYN ANN OSMOND LIVING TRUST to maintain an existing riprap revetment and a mulch bed at 4069 West Colonial Parkway 6. Ordinances to ACCEPT and APPROPRIATE: a. $978,845 re the "Traffic Signal Retiming" as reallocated by HRTPO: 1. $912,608 in Federal revenue 2. $ 65,651 in State revenue 3 $ 585 from the FY 2012-13 Operating Budget of the Public Works Department b. $20,700 Grant from the Virginia Fire Programs to the Fire Department re repairs to the Burn Building at the Fire Training Center C. State funding from VDOT 1. $5 -Million to "Shore Drive — Phase III" 2. $5 -Million to "Witchduck Road— Phase II" Councilman Moss will vote a verbal NAY on Item #2 Item # 3 shall be considered separately October 9, 2012 -29 - AGENDA REVIEW SESSION ITEM #62259 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA: J. PLANNING Application of LAPAZ, LLC for a Non -Conforming Use to ADD a second story addition and provide exterior renovations to a current structure at 2565 Shore Drive DISTRICT 5 — LYNNHAVEN 2. Application of C & C DEVELOPMENT COMPANY, INC. for a Non -Conforming Use to demolish and reconstruct single-family dwellings at 200 55`' Street DISTRICT 5 - LYNNHAFEN 3. Application of LAKE GEM D8, LLC for Modi acation of Conditions Nos. 2 and 5 (approved by City Council on May 26, 2009) re an outdoor market at 2181 Upton Drive DISTRICT 7 - PRINCESS ANNE 4. Application of MARVIN M. JR. and GAYLE B. ROLLINS LIVING TRUST for Modi acation of Proffers Nos. I and 8 of a Conditional Change of Zoning (approved by City Council on June 24, 2008) re personal services (beauty/barber shop/drug store) at 609 Princess Anne Road DISTRICT 7 - PRINCESS ANNE 5. Application of LEWIS TURNER II/PHUONG VAN NGUYEN for a Conditional Use Permit re a hair care center at 3692 South Plaza Trail DISTRICT 3 - ROSE HALL 6. Application of JAPANESE AUTO MASTERS, INC. for Modification of Proffers Nos. I and 4 for a Conditional Change o Zoning re motor vehicle service and repair (approved by City Council on January 12, 1999) at 3012 Holland Road DISTRICT 7 - PRINCESS ANNE 7. Application of INGLESIA DE DIOS PENTA COSTAL M.L DE VIRGINIA BEACH/ MIGUEL LOPEZ for a Conditional Use Permit re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE 8. Application of MIGUEL LOPEZ for a Conditional Change of Zoning from I-2 Industrial to Conditional B-2 Community Business re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE 9. Application of SILVER HILL AT THALIA, LLC/JOYCE ANN UPTON for a Conditional Change of Zoning from Conditional 0-1 Office to Conditional A-24 Apartment re multi family dwellings at 4329 Bonney Road DISTRICT 5 - LYNNHAVEN October 9, 2012 -30 - AGENDA REVIEW SESSION ITEM #62259(Continued) 10. Application of BRIBRA BAKER, INC.ICONNIE ONE, LLC for a Conditional Change of Zoning from Conditional A-12 Apartment to Conditional A-24 Apartment re multi family condominiums at 432 Baker Road and 5445 Connie Lane DISTRICT 2 - KEMPSVILLE Item #2 shall be considered separately Mayor Sessoms will ABSTAIN on Item #6 Councilman Wood will ABSTAIN on Item # land #10 October 9, 2012 -31- ITEM#62260 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: Council, Boards, Commissions, Committees, Authorities, Agencies and Appointees PUBLICLY -HELD PROPERTY: Discussion or consideration of the, acquisition of real property for public purpose; 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 2.2-371 ] (A)(3). Acquisition/Disposition of City Property: Beach District LEGAL MATTERS: Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; or consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel pursuant to Section 2.2-371 ](A)(7). B. Cullen Gibson, Administrator of Estate of Braxton Taylor v. City of Virginia Beach et al October 9, 2012 -32- ITEM#62260(Continued) Upon motion by Councilman Wood seconded by Councilman Uhrin, City Council voted to proceed into CLOSED SESSION at 4:44 P.M. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer (Break (Closed Session 4:47 P.M. 4:45 P.M. 4:52 P.M.) 5:50 P.M.) October 9, 2012 -33 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL October 9, 2012 6:00 P.M. Mayor William D. Sessoms, Jr., called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Council Chamber, City Hall, on Tuesday, October 9, 2012, at 6: 00 P.M. Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: Robert M. Dyer (Ill at home) 1. INVOCATION: Richard Kenner D.D. Chaplain Westminster Canterbury 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 identify 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. October 9, 2012 -34 - 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 official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made apart of the record. Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of Dixon Hughes Goodman and is directly and indirectly involved in many of Dixon Hughes Goodman's transactions. However, due to the size of Dixon Hughes Goodman and the volume of transactions it handles in any given year, Dixon Hughes Goodman 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 10, 2012, is hereby made apart of the record. Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made apart of the record. October 9, 2012 Item -VI-E CERTIFICATION -35 - ITEM #62261 Upon motion by Council Lady Wilson, seconded by Councilman Uhrin, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye. Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 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 #62260 Page 31, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. th Hodges Fraser, MMC City Clerk October 9, 2012 Item -VI -F.1 MINUTES -36 - ITEM #62262 Upon motion by Councilman Uhrin, seconded by Councilman Wood, City Council APPROVED the MINUTES of the INFORMAL and FORMAL SESSIONS of September 18, 2012. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 Item -VI -H.1 MAYOR'S PRESENTATION -37 - ITEM #62263 NATIONAL ARTS and HUMANITIES MONTH Sally Saunders, Arts and Humanities Commission Annika Jenkins - Violinist Mayor Sessoms introduced and welcomed Sally Saunders of the Arts and Humanities Commission. Ms. Saunders expressed the Commission's appreciation for the City Council's continued support. Ms. Saunders acknowledged and expressed the Commission's gratitude and appreciation to Councilman Davis for all of his guidance and kind advice as the Commission's Liaison. Ms. Saunders stated Arts and Culture is a $56 -8 -MILLION industry in Virginia Beach. With the City Council's support, the Arts and Humanities Commission has funded over 430 performances, returned over $600,000 to the City (not including food and general sales taxes). The Arts create jobs that cannot be exported to China, India or any other Country. Businesses are attracted to city's with strong Art programs. The Commission recognizes the City faces some economic challenges and with a modest investment to the Arts, the City is sure to see the revenue return. Ms. Saunders introduced the City's own Annika Jenkins. Miss Jenkins is the recipient of many honors and awards but performing for her community, senior homes or charitable events is her love. Miss Jenkins travels to New York City each weekend to continue her world class training from the Juliet's Art School. Miss Jenkins expressed her appreciation to City Council for allowing her the opportunity to perform tonight. October 9, 2012 -38- ADOPTAGENDA FOR FORMAL SESSION ITEM #62264 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION October 9, 2012 -39 - Item -VI-I ORDINANCES/RESOLUTIONS ITEM #62265 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED, IN ONE MOTION, Items 1(DEFFERED INDEFINA TEL Y), 2(MOSS NO), 4, 5, and 6alb/c. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay. None Council Members Absent: Robert M. Dyer October 9, 2012 -40 - Item -VI-J I ORDINANCESIRESOL UTIONS ITEM #62266 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINATLEY, BY CONSENT, Ordinance to AMEND § 7-25 of the City Code re registration of Personal Assistive Mobility Devices (Golf Carts) (City Treasurer requests Indefinite Deferral) Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 -41 - Item -VI-J.2 ORDINANCES/RESOLUTIONS ITEM #62267 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, BY CONSENT, Ordinance to EXECUTE a LEASE with the Development Authority (VBDA) for City -owned property (Budget Lodge) to provide parking spaces at Atlantic Avenue and Yd Street. Voting: 9-1 (By Consent) Council Members Voting Aye: Glenn R. Davis, 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 Voting Nay: John D. Moss Council Members Absent: Robert M. Dyer October 9, 2012 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 36 37 38 39 40 41 42 43 44 45 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE FOR ONE (1) YEAR, WITH FOUR (4) ONE-YEAR RENEWAL OPTIONS, WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY FOR CITY -OWNED PROPERTY LOCATED AT ATLANTIC AVENUE AND 3RD STREET WHEREAS, the City of Virginia Beach (the "City") owns two parcels of land located near the intersection of Atlantic Avenue and 3rd Street in the City of Virginia Beach. The two parcels are shown on the attached location map (GPIN: 2427-22-9388 (the "Northern Parcel") and a portion of 2427-31-0964 (the "Southern Parcel')) (collectively, the "Premises"); WHEREAS, the City of Virginia Beach Development Authority (the "Authority") owns the fifty-two room hotel located at 300 Atlantic Avenue in Virginia Beach (the "Budget Lodge") along with the nineteen parking spaces located on the same parcel as the Budget Lodge; WHEREAS, the Northern Parcel is immediately to the west of the Budget Lodge and consists of twenty-three off-street parking spaces. The Southern Parcel is across 3rd Street and consists of ten off-street parking spaces; WHEREAS, the Authority has leased the Budget Lodge to a private operator for the past ten years, and that lease expires on September 30, 2012; WHEREAS, the Authority has issued a request for interest seeking a new lessee (the "RFI"), and has authorized a lease to Pinnacle Hospitality -VIII, LLC, subject to City Council approval of the lease of the Premises to the VBDA; WHEREAS, the Authority desires to lease the Premises from the City for a term of one year, with four (4) one-year renewal options, for the purpose of sub -leasing the Premises to the new lessee of the Budget Lodge, providing them 33 additional off-street parking spaces; and WHEREAS, all rent received by the Authority from the sub -lease of the Premises would be remitted to the City. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Manager is hereby authorized to execute a lease for the term of one (1) year, with four (4) one-year renewal options, between the Authority and the City for the Premises in accordance with the Summary of Terms attached hereto as Exhibit A, and made a part hereof, and such other terms and 46 47 48 49 50 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 9th day of October 12012 APPROVED AS TO CONTENT: Dept. of Economic Development CA12163 \\vbgov.com\DFS 1 \Applications\CityLawProd\cycom32\W pdocs\D015\P014\00034199.DOC R-1 August 26, 2012 APPROVED AS TO LEGAL SUFFICIENCY AN i City Attorney EXHIBIT A SUMMARY OF TERMS LEASE OF CITY -OWNED PROPERTY TO THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY LESSOR: City of Virginia Beach (the "City") LESSEE: City of Virginia Beach Development Authority (the "Authority") PREMISES: Thirty-three (33) off-street parking spaces located on two City - owned parcels: 1) GPIN 2427-22-9388 located immediately to the west of the Budget Lodge at 300 Atlantic Avenue (23 spaces), and 2) a portion of GPIN 2427-31-0964 located in the City -owned parking lot on the south -side of 3rd Street (10 spaces). TERM: October 1, 2012 through September 30, 2013, with four (4) one- year renewal options at the mutual option of the parties (the "Term"). SUB- LEASE: The Authority intends to sub -lease the Premises to Pinnacle Hospitality -VIII, LLC ("Pinnacle") as a part of the Authority's lease of the Budget Lodge to Pinnacle. RENT: The Authority shall remit all rents received from Pinnacle for the Lease of the Premises to the City. RIGHTS AND RESPONSIBILITIES OF LESSEE: • Use the Premises solely for parking for guests, customers and employees of the Budget Lodge and for no other purposes. • Keep, repair, and maintain the Premises, at its sole expense, in a safe, clean and orderly condition. \\vbgov.com\DFS1 \Applications\CityLawProd\cycom32\W pdocs\D015\P014\00034201. DOC -42 - Item -VI -J.3 ORDINANCES/RESOLUTIONS ITEM #62268 The following individuals registered to speak: Richard Kowalewitch, 2291e Street, Phone: 831-6143, spoke in opposition. Mr. Kowalewitch stated he is not for this project as the City has over $1 -BILLION deficit and he feels a tax increase is looming over citizens. Government should not be in the business of picking winners and losers. Mr. Kowalewitch stated if a developer has a relationship with a bank, then the Mayor should not be voting on that item. Barbara Messner spoke in opposition. Ms. Messner stated many in the community understand candidates accept donations from developers for their campaigns and requested Mayor Sessoms, Council Lady Wilson and Councilman Davis to recuse themselves from voting. She stated most citizens are against this project. Kenny Golden, 3425 Mont Gowery Place, Phone: 581-7449, spoke in opposition. Mr. Golden stated the City's current debt is irresponsible and this project will increase the debt. If this project is going to create jobs, then it should be revisited and an RFP should be sent out. This is simply not the appropriate time to incur additional debt. Upon motion by Vice Mayor Jones, seconded by Councilman Uhrin, City Council ADOPTED, Resolution to AUTHORIZE a non-binding Term Sheet relating to Phase V of the Town Center project between the Development Authority and AUTHORIZE the City Manager to EXECUTE the development of supplemental project documents. Voting: 8-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, 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 Voting Nay: William R. "Bill" DeSteph and John D. Moss Council Members Absent: Robert M. Dyer October 9, 2012 1 RESOLUTION APPROVING A NON-BINDING TERM 2 SHEET RELATING TO PHASE V OF THE TOWN CENTER 3 PROJECT, REQUESTING APPROVAL BY THE CITY OF 4 VIRGINIA BEACH DEVLOPMENT AUTHORITY AND 5 AUTHORIZING THE DEVELOPMENT OF SUPPLEMENTAL 6 PROJECT DOCUMENTS 7 8 WHEREAS, on behalf of the City of Virginia Beach (the "City") and the City 9 of Virginia Beach Development Authority (the "Authority"), the City Manager and City staff 10 have engaged in extensive negotiations with representatives of Armada/Hoffler 11 Development Company, L.L.C., and its affiliates, regarding the continued development of 12 a Central Business District Project known as "The Town Center of Virginia Beach" (the 13 "Project"); 14 15 WHEREAS, the Project is a development arrangement between the 16 Authority and Town Center Associates, L.L.C. (the "Developer"), for a mixed-use 17 commercial development utilizing the structure of an economic development park in the 18 B -3A Pembroke Central Business Core District, an area of the City that is zoned to 19 optimize development potential for a mixed-use, pedestrian -oriented, urban activity center 20 with mid- to high-rise structures that contain numerous types of uses, including business, 21 retail, residential, cultural, educational and other public and private uses; 22 23 WHEREAS, construction of Phases I, II and III are complete, and Phase 24 IV has expired; 25 26 WHEREAS, the Developer has worked with the City Manager and City 27 staff and has proposed a comprehensive development plan for Phase V of the Project; 28 29 WHEREAS, the Developer has worked with the City Manager and City 30 staff to develop a non-binding Term Sheet dated September 7, 2012 (the "Phase V 31 Term Sheet"), which outlines a comprehensive development plan for Phase V of the 32 Project; 33 34 WHEREAS, a summary of the Phase V Term Sheet is attached to this 35 Resolution as Exhibit A and a complete copy of the Term Sheet was provided to City 36 Council prior to its September 11, 2012 meeting; 37 38 WHEREAS, the obligations of the Authority outlined in the Phase V Term Sheet will be 39 supported by a support agreement between the City and the Authority (the "Phase V 40 Support Agreement"), with the traditional public infrastructure costs of the Project to be 41 funded in part through the City's CIP and in part through the Authority's Economic 42 Development Investment Program funds; 43 44 WHEREAS, the Phase V Support Agreement between the City and the 45 Authority would be structured to be paid, subject to annual appropriation, by the 46 available revenue from the TIF Fund and a special tax district; 47 WHEREAS, the City Council finds that Phase V of the Project will 48 stimulate the City's economy, increase public revenues, enhance public amenities and 49 further the City's development objectives for the Central Business District; and 50 51 WHEREAS, the City Council desires that the Authority approve and 52 execute the Phase V Term Sheet and pursue the development of supplemental project 53 documents to be negotiated in substantial conformity with the terms outlined in the 54 Phase V Term Sheet, including, but not limited to a development agreement and the 55 Phase V Support Agreement. 56 57 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 58 OF VIRGINIA BEACH, VIRGINIA: 59 60 1. The City Council approves the non-binding Phase V Term Sheet 61 dated September 7, 2012 (the "Phase V Term Sheet") between the City of Virginia 62 Beach Development Authority (the "Authority") and Town Center Associates, LLC (the 63 "Developer"), a summary of which is attached to this Resolution as Exhibit A, which 64 outlines a comprehensive development plan for Phase V of the Project. 65 66 2. The City Council requests and recommends that the Authority 67 adopt a Resolution consistent with this Resolution approving the Term Sheet and 68 authorizing its execution. 69 70 3. On behalf of the City of Virginia Beach, the City Manager and the 71 City Attorney are hereby authorized and directed to proceed with the development of 72 supplemental Project documents necessary and appropriate to implement Phase V of 73 the Project substantially as outlined in the Phase V Term Sheet. 74 75 4. The City Manager is directed to return the final supplemental 76 Project documents for approval by City Council and the Authority for authorization to 77 execute the Phase V Support Agreement so that the Authority can then proceed to the 78 next phase of the Project. 79 80 Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th 81 day of October , 2012. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY - Economic Development City Attorney CA12400 \\vbgov.com\DFS1 \Applications\CityLawProd\cycom32\W pdocs\D025\P014\00039675. DOC 10/2/12 R-1 EXHIBIT A SUMMARY OF TERMS- PHASE V TOWN CENTER Phase V of the Town Center Project will consist of a single -block mixed use development on Block 11 of Town Center (presently surface parking) 1. Scope of Proposed Improvements Single Block, Multi -facility, Mixed-use Development Main Building: 13 Stories • Parking Garage, 850-875 Spaces (5 levels) • Office Tower (8 levels above garage) • Apartments, wrapping three sides of the parking garage (4 floors - approximately 267 units) • Retail, First Floor of apartments (approximately 18,000 sq. ft.) 2. Developer Obligations A. Developer owns all of the land except for a 30' Strip along the west edge of the block. Developer to purchase the 30' Strip from Authority (at Authority's cost of acquisition). B. Construct all improvements: • Main Office Tower • _ First Floor Retail • Parking Garage • Apartments • Streetscapes C. Estimated Private Investment: $70.4 million 3. Authority Obligations A. Pay for Infrastructure Improvements: • Estimated Cost: $1,000,000 • To include streetscapes, utilities, traffic signals B. Lease 1 floor in new 13 -story Main Office Tower • Leased Area: — 20,000 square feet • VBDA's rent— $28.25 per square foot • Rate not to be higher than anchor tenant C. Purchase Parking Garage: • Estimated Cost: not to exceed $18 million • Exact price to be determined based on construction costs 4. Other Terms: A. New office tower to be anchored by Clark Nexsen. • Leasing 4 full floors • 350 employees to relocate to Virginia Beach �- :°yam �4 fkd IA 7n f 'M`J +: X14 '" * x"' filly r "pR;. �- :°yam �4 fkd IA 7n f 'M`J +: X14 '" * x"' �- :°yam �4 fkd IA 7n f 'M`J +: X14 '" 9 0 1 r �t S fr } , S g -43 - Item -VI -J.4 ORDINANCESIRESOL UTIONS ITEM #62269 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, BY CONSENT, Resolution to APPOINT Kenneth Falkenstein as Associate City Attorney effective October 1 S, 2012 Voting: 10-0 (By Consent) Council Members Voting Aye.- Glenn ye: Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 1 2 3 4 5 6 7 8 9 10 11 A RESOLUTION APPOINTING KENNETH FALKENSTEIN TO THE POSITION OF ASSOCIATE CITY ATTORNEY BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to § 2-166 of the City Code, Kenneth Falkenstein is hereby appointed to the position of Associate City Attorney, effective October 15, 2012. Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day of October 2012. APPROVED AS TO CONTENT AND LEGAL SUFFICIENCY: City Attorney's Office CA 12446 R-1 September 27, 2012 -44 - Item -VI -J.5 ORDINANCESIRESOL UTIONS ITEM #62270 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, BY CONSENT, Ordinance to AUTHORIZE temporary encroachments into a portion of City property, known as Lake Windsor, for the CAROLYN ANN OSMOND LIVING TRUST to maintain an existing riprap revetment and a mulch bed at 4069 West Colonial Parkway SUBJECT TO: The Grantee shall maintain an existing seventy -five-foot (75) rip rap revetment and an existing mulch bed (750 sq. ft.), collectively, the "Temporary Encroachment ". 2. In constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Lake Windsor, the "Encroachment Area ". 3. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval. 4. Nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity and Grantee shall bear all costs and expenses of such removal. 5. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee and, that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee and that the Grantee will bear all costs and expenses of such removal. 6. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. 8. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. 9. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area (the "Permit'). 10. It is further expressly understood and agreed that the Grantee shall make a One Hundred Sixty Three Dollar and Fifty Cent ($163.50) payment, payable to the City Treasurer and deliver to the Department of Planning/Environment and Sustainability Office as compensation for the typically required fifteen foot (15 -foot -wide) riparian buffer area that cannot be established on the October 9, 2012 -45 - property of the Item -VI-J 5 ORDINANCES/RESOLUTIONS ITEM #62270(Continued) Grantee. Said buffers are a standard condition of the City for shoreline encroachments. Said payment is equal to the partial cost of plant material which will be used to restore buffer areas on other City -owned property. 11. It is further expressly understood and agreed that the Grantee shall maintain an existing mulched bed (approximately 750 sq. ft.) located at the rear of the property, landward of the bulkhead near the West property line. 12. It is further expressly understood and agreed that the Grantee must obtain and keep in effect liability insurance with the City as a named insured in an amount not less than $500,000.00 per person injured and property damage per incident, combined. The City shall be listed as an additional insured. The company providing the insurance must be registered and licensed to provide insurance in the Commonwealth of Virginia. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location and/or existence of the Temporary Encroachment. 13. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setback requirements, as established by the City. 14. It is further expressly understood and agreed that this Encroachment Agreement does not provide permission to the Grantee to maintain a shed or other accessory structure on City property or within the side yard setback provided by the City Zoning Code. Also, the Grantee must procure any permits or variances required by law for the Temporary Encroachments and any other feature shown on the Exhibit to this Agreement. 15. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes, may require the Grantee to remove the Temporary Encroachment; and, pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee. If such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. October 9, 2012 -46 - Item -VI-J 5 ORDINANCES/RESOLUTIONS ITEM #62270(Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO A PORTION OF CITY 6 PROPERTY KNOWN AS LAKE 7 WINDSOR LOCATED AT THE REAR 8 OF 4069 WEST COLONIAL PARKWAY, 9 FOR THE CAROLYN ANN OSMOND 10 LIVING TRUST 11 12 WHEREAS, the Carolyn Ann Osmond Living Trust, through its trustee, desires to 13 maintain an existing 75' rip rap revetment, an existing mulch bed (750 sq. ft.), into City 14 property known as Lake Windsor located at the rear of 4069 West Colonial Parkway, in 15 the City of Virginia Beach, Virginia; and 16 17 WHEREAS, City Council is authorized pursuant to §§ 15.2-2009 and 15.2-2107, 18 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 19 City's property subject to such terms and conditions as Council may prescribe. 20 21 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 That pursuant to the authority and to the extent thereof contained in §§ 15.2- 24 2009 and 15.2-2107, Code of Virginia, 1950, as amended, the Carolyn Ann Osmond 25 Living Trust, (the "Trust") its heirs, assigns and successors in title are authorized to 26 maintain temporary encroachments for an existing 75' rip rap revetment and an existing 27 mulch bed (750 sq. ft.), into City property as shown on the map marked Exhibit "A" and 28 entitled: "EXHIBIT "A" — ENCROACHMENT REQUEST FOR CAROLYN OSMOND 29 GPIN: 1487-01-6077 SHEET 1 OF 1 JANUARY 31, 2011 SCALE: 1" = 20'," a copy of 30 which is on file in the Department of Public Works and to which reference is made for a 31 more particular description; and 32 33 BE IT FURTHER ORDAINED that the temporary encroachments are expressly 34 subject to those terms, conditions and criteria contained in the Agreement between the 35 City of Virginia Beach and the Trust (the "Agreement"), which is attached hereto and 36 incorporated by reference; and 37 38 BE IT FURTHER ORDAINED that the Agreement is limited to the authority 39 provided by §§ 15.2-2009 and 15.2-2107, and it does not provide a permit, variance, or 40 other approval of any feature displayed on the Agreement's Exhibit; and 41 42 BE IT FURTHER ORDAINED that the City Manager or his authorized designee is 43 hereby authorized to execute the Agreement; and 44 45 BE IT FURTHER ORDAINED that this Ordinance shall not be in effect until such 46 time as Carolyn Ann Osmond, the trustee, and the City Manager or his authorized 47 designee executes the Agreement. 48 49 Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day 50 of October , 2012. CA -11670 R-1 PREPARED: 9/12/12 APPROVED AS TO CONTENTS s C , O i PU IC WORKS, REAL ESTATE APPROVED AS TO LEGAL SUFFICIENCY AND FORM J DANA—R. MEYER, ASSIS T CITY ATTORNEY PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 11th day of September, 2012, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and CAROLYN ANN OSMOND LIVING TRUST, dated November 4, 2010, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lot 2, in Block 1"; as shown on that certain plat entitled: "SUBDIVISION OF WINDSOR WOODS SECTION EIGHT -PART TWO FOR LINEBERRY CONSTRUCTION CORPORATION KEMPSVILLE BOROUGH VIRGINIA BEACH, VIRGINIA Scale: 1" = 100' April, 1968, prepared by FRANK D. TARRALL, Jr. and ASSOCIATES SURVEYORS and ENGINEERS VIRGINIA BEACH, VIRGINIA," and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 76, at page 12, and being further designated, known, and described as 4069 West Colonial Parkway, Virginia Beach, Virginia 23452; WHEREAS, it is proposed by the Grantee to maintain an existing 75' rip rap revetment, and an existing mulch bed (750 sq. ft.), collectively, the "Temporary Encroachment", in the City of Virginia Beach; and GPIN'S: 1476-79-7880-0000; (CITY PROPERTY KNOWN AS LAKE WINDSOR) 1487-01-6077-0000; (4069 West Colonial Parkway) WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Lake Windsor, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), cash in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain exhibit plat entitled: "EXHIBIT "A" — ENCROACHMENT REQUEST FOR CAROLYN OSMOND GPIN: 1487-01-6077 SHEET 1 OF 1 JANUARY 31, 2011 SCALE: 1" = 20'," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must 2 be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless, and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area (the "Permit"). It is further expressly understood and agreed that the Grantee shall make a ONE HUNDRED SIXTY THREE DOLLAR AND FIFTY CENT ($163.50) PAYMENT, PAYABLE TO THE City Treasurer, to the Department of Planning/Environment and Sustainability Office as compensation for the typically required 15 -foot -wide riparian buffer area that cannot be established on the property of the Grantee; said buffers are a standard condition of the City for shoreline encroachments. Said payment is equal to partial cost of plant material which will be used to restore buffer areas on other City - owned property. 3 It is further expressly understood and agreed that the Grantee shall maintain an existing mulched bed (approximately 750 sq. ft.) located at the rear of the property, landward of the bulkhead near the West property line. It is further expressly understood and agreed that the Grantee must obtain and keep in effect liability insurance with the City as a named insured in an amount not less than $500,000.00 per person injured and property damage per incident, combined, with the City listed as an additional insured. The company providing the insurance must be registered and licensed to provide insurance in the Commonwealth of Virginia. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setback requirements, as established by the City. It is further expressly understood and agreed that this Encroachment Agreement does not provide permission to the Grantee to maintain a shed or other accessory structure on City property or within the side -yard setback provided by the City Zoning Code. Also, the Grantee must procure any permits or variances required by law for the Temporary Encroachments and any other feature shown on the Exhibit to this Agreement. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any Ell manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Carolyn Ann Osmond, the trustee of the Carolyn Ann Osmond Living Trust, the said Grantee, has caused this Agreement to be executed by her signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 5 CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2012, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: (SEAL) The foregoing instrument was acknowledged before me this day of 2012, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Registration Number: My Commission Expires: 0 Notary Public (SEAL) CAROLYN ANN OSMOND By CAROLYN ANN OSMOND, TRUSTEE STATE OF /� CIT Y14G9YN FO C�'Ato-wit: The foregoing instrument was acknowledged before me this day of 2012, by Carolyn Ann Osmond, Trustee. SEAL) Notary Public Notary Registration Number: A-4 3'I My Commission Expires: APPROVED AS TO CONTENTS ���Cr►zs C � �s . SOtSIATURE DEPARTMENT 7 Yvd APPROVED AS TO LEGAL SUFFICIENCY AND FORM A RMEYER, ASS A CITY ATTORNEY LAKE WINDSORbd 1 EMffNG 75/„� ISI A;, / / ►,I / I'I r�Irlrl I I:1►i/ RIPRAP `LIM`r I-VIi�w/rho/ / /v EXISTINGg/ (APPROX. 750 SF) N 00'29"00 PIN LOT 3. N/F MTA DALE 4.065 W. COLONIAL PKWY- GPIN: 1407 01 6080 (n EX. TREE I (TYP) I I :I• 1 z 1 STY. BR. #4069 0 m LOT 1 I N/F ARTHUR KENT 4073 W. COUMAL PKWY. GPN: 1487 01 6165 . 4 r• q .l y+° W LOT 2 YVINDSOR WOODS r SECT)ON 8 - PART 2 I ..• (M.B. 76, PG. 12) I.. --- S OD'29'00' E 75.00' \-SO-BLVD: WEST COLONIAL PARKWAY 0 20' 40 (50' R/W) 1' = 20' GRIN: 1487-01-6077 EXHIBIT •A" - ENCROACHMENT REQUEST FOR ZONING: R75 CAROLYN OSMOND D7BINMM 5MA= PROVM 614 PROFESSIONAL CONSIRLMM CONSULTANTS, LLC. JANUARY 31, 2011 SHEET 1 OF 1 pmw= tm7) 7n -B mmu wpmppcG-uzwk F x -47- Itent-VI-J.6a(1,2,3)lb and c(1,2) ORDINANCES/RESOLUTIONS ITEM #62271 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, BY CONSENT, Ordinances to ACCEPT and APPROPRIATE: a. $978,845 re the "Traffic Signal Retiming" as reallocated by HRTPO: 1. $912,608 in Federal revenue 2. $ 65,651 in State revenue 3. $ 585 from the FY 2012-13 Operating Budget of the Public Works Department b. $20,700 Grant from the Virginia Fire Programs to the Fire Department re repairs to the Burn Building at the Fire Training Center C. State funding from VDOT 1. $5 -Million to "Shore Drive — Phase IIP' 2. $5 -Million to "Witchduck Road— Phase H" Voting: 10-0 (By Consent) Council Members Voting Aye.- Glenn ye: Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE STATE 2 AND FEDERAL FUNDING AND TRANSFER FUNDS TO 3 TRAFFIC SIGNAL RETIMING (CIP 2-161) 4 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 6 VIRGINIA: 7 8 That Capital Project # 2-161, "Traffic Signal Retiming" is hereby increased by 9 $978,845 with funding provided in the following manner: 10 a. Accept and appropriate $912,608 in federal revenue; 11 b. Accept and appropriate $65,652 in state revenue; and 12 c. Transfer $585 from the FY 2012-13 Operating Budget of the Department of 13 Public Works. Adopted by the Council of the City of Virginia Beach, Virginia on the 9th day of October 2012. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT Management ervices CA12441 R-1 September 26, 2012 APPROVED AS TO LEGAL SUFFICIENCY: i y ttor y' Office 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE TO ACCEPT AND APPROPRIATE FUNDS FROM THE VIRGINIA DEPARTMENT OF FIRE PROGRAMS FOR REPAIRS TO THE BURN BUILDING AT THE FIRE TRAINING CENTER BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $20,700 in funding from the Virginia Department of Fire Programs is hereby accepted and appropriated, with state revenue increased accordingly, to the FY2012- 13 Operating Budget of the Fire Department for repairs to the burn building at the Fire Training Center. Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day of October 2012. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT APPROVED AS TO LEGAL SUFFICIENCY: Management Services C' o e 's Office CA12443 R-1 September 26, 2012 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE STATE 2 FUNDING FROM VDOT TO SHORE DRIVE – PHASE III 3 (CIP 2-117) AND WITCHDUCK ROAD – PHASE II (CIP 2- 4 025) 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA, THAT: 8 9 1. State funding in the amount of $5,000,000 is hereby accepted from VDOT 10 and appropriated to Capital Project # 2-117, "Shore Drive – Phase III;" 11 12 2. State funding in the amount of $5,000,000 is hereby accepted from VDOT 13 and appropriated to Capital Project # 2-025, "Witchduck Road – Phase II;" and 14 15 3. The local match required for these projects shall be provided in the 16 following manner: 17 18 a. The required $5,000,000 local match for Capital Project # 2-117 "Shore 19 Drive – Phase III" exists in current appropriations; and 20 21 b. The $5,000,000 local required match for Capital Project # 2-025, 22 "Witchduck Road – Phase II" shall be included in the proposed FY 2013-14 23 Capital Improvement Program. Adopted by the Council of the City of Virginia Beach, Virginia on the 9th day of October 2012. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: �(3 C t - s I I Management Services —4 CA12442 R-1 September 26, 2012 APPROVED AS TO LEGAL SUFFICIENCY: Item -VI-J PLANNING 1. LAPAZ, LLC 2. C& C DEVELOPMENT COMPANY, INC. -48 - ITEM #62272 3. LAKE GEMD8, LLC 4. MAR VIN M. JR. and GAYLE B. ROLLINS LIVING TRUST S. LEWIS TURNER II/PHUONG VAN NGUYEN 6. JAPANESE A UTO MASTERS, INC. 7. INGLESIA DE DIOS PENTA COSTAL M.L DE VIRGINIA BEA CH/MIGUEL LOPEZ 8. MIGUEL LOPEZ 9. SILVER HILL AT THALIA, LL Cl JOYCE ANN UPTON 10. BRIBRA BAKER, INC./CONNIE ONE, LLC NON -CONFORMING USE NON -CONFORMING USE MODIFICATION OF CONDITIONS MODIFICATION OF PROFFERS CONDITIONAL USE PERMIT MODIFICATION OF PROFFERS CONDITIONAL USE PERMIT CHANGE OF ZONING CHANGE OF ZONING CHANGE OF ZONING October 9, 2012 -49 - Item -VI-J PLANNING ITEM #62273 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION, BY CONSENT, Items ](Councilman Wood Abstaining), 2, 3, 4, S, 6(Mayor Sessoms Abstaining), 7, 8, 9 and 10(Councilman Wood Abstaining) of the PLANNING AGENDA. Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 Item -VI-J I PLANNING -50 - ITEM #62274 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED/ CONDITIONED, BY CONSENT: Application of LAPAZ, LLC for a Non-Conforminz Use to ADD a second story addition and provide exterior renovations to a current structure at 2565 Shore Drive DISTRICT 5 — LYNNHAFEN BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of LAPAZ, LLC for a Non -Conforming Use to ADD a second story addition and provide exterior renovations to a current structure at 2565 Shore Drive (GPIN1590710928) DISTRICT 5 — LYNNHAVEN The following conditions shall be required.• The exterior renovations and additions to the existing structure and the parking improvements shall substantially adhere to the submitted Site Plan entitled "Concept Layout Plan 08, Shore & Kendall, 2565 Shore Drive, 1590-71-0928", dated July 20, 2012, prepared by Martin Engineering. Said Site Plan has been exhibited to the City Council and is on file in the Planning Department. 2. The exterior renovations and additions to the existing structure shall substantially adhere to the submitted perspective building rendering, entitled by City staff as "Rendering for 2265 Shore Drive, dated September 17, 2012, " Said rendering has been exhibited to the City Council and is on file in the Planning Department. 3. A final occupancy permit for the renovations and additions to the existing structure shall not be issued until the site is connected to City sanitary sewer. 4. The abandonment of the existing septic system must adhere to Sections 28-46 through 28-50 of the City Code. This Ordinance shall be effective in accordance with Section 107(0 of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Ninth day of October, Two Thousand Twelve October 9, 2012 Item -VI -J.1 PLANNING Voting: 9-0 (By Consent) Council Members Voting Aye: -51- ITEM # 62274(Continued) Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Robert M. Dyer Council Members Abstaining. James L. Wood October 9, 2012 1 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF 2 A NONCONFORMING USE ON PROPERTY LOCATED AT 3 2565 SHORE DRIVE 4 5 WHEREAS, LA PAZ, LLC, (hereinafter the "Applicant") has made application to 6 the City Council for authorization to enlarge a nonconforming use located at 2565 Shore 7 Drive in the R-7.5 Residential District by enlarging the duplex dwelling on the lot; and 8 9 WHEREAS, this lot contains a duplex dwelling, which is not allowed in the R-7.5 10 Residential District. However, the duplex dwelling is nonconforming as it was built prior 11 to the adoption of the applicable zoning regulations; and 12 13 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 14 enlargement of a nonconforming use is unlawful in the absence of a resolution of the 15 City Council authorizing such action upon a finding that the proposed use, as enlarged, 16 will be equally appropriate or more appropriate to the zoning district than is the existing 17 use; 18 19 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 22 That the City Council hereby finds that the proposed use, as enlarged, will be 23 equally appropriate to the district as is the existing nonconforming use under the 24 conditions of approval set forth hereinbelow. 25 26 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 27 BEACH, VIRGINIA: 28 29 That the enlargement of the nonconforming use is hereby authorized, upon the 30 following conditions: 31 32 1. The exterior renovations and additions to the existing structure and the parking 33 improvements shall substantially adhere to the submitted site plan entitled 34 "Concept Layout Plan 08, Shore & Kendall, 2565 Shore Drive, 1590-71-0928", 35 dated July 20, 2012, prepared by Martin Engineering. Said site plan has been 36 exhibited to the City Council and is on file in the Planning Department. 37 38 2. The exterior renovations and additions to the existing structure shall substantially 39 adhere to the submitted perspective building rendering, entitled by City staff as 40 "Rendering for 2265 Shore Drive, dated September 17, 2012," Said rendering 41 has been exhibited to the City Council and is on file in the Planning Department. 42 43 3. A final occupancy permit for the renovations and additions to the existing 44 structure shall not be issued until the site is connected to City sanitary sewer. 45 46 4. The abandonment of the existing septic system must adhere to Sections 28-46 47 through 28-50 of the City Code. 1 48 49 50 51 Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day of October .2012. APPROVED AS TO CONTENT nninl Department CA12440 R-1 September 25, 2012 APPROVED AS TO LEGAL SUFFICIENCY: Am City Attorney's Office i N j C 0 Z J 4 -52 - Item -VI -J.2 PLANNING ITEM #62275 The following individual registered to speak: Kevin Hartz, 204 55"' Street, Phone: 472-8686, spoke in favor of the concept and design of this project. However, he is concerned about the drainage issue on this street. Mr. Hartz stated the water has been so deep that it disabled a City Fire Truck. He is concerned about the additional runoff and flooding of the area. Mr. Hartz has agreed to meet with City Engineers and Planning Department in an attempt to resolve the flooding issue. Upon motion by Councilman Wood, seconded by Councilman Uhrin, City Council APPROVED/CONDITIONED/REVISED a DRAWING: Application of C & C DEVELOPMENT COMPANY, INC. for a Non -Conforming Use to demolish and reconstruct single-family dwellings at 200 55" Street DISTRICT 5 - LYNNHAVEN BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of C & C DEVELOPMENT COMPANY, INC. for a Non -Conforming Use to demolish and reconstruct single-family dwellings at 200 55"` Street DISTRICT 5 - LYNNHAVEN The following conditions shall be required: The site shall be redeveloped substantially in accordance with the submitted "Non -Conforming Use Exhibit Conceptual Layout Plan", dated 712412101, and prepared by WPL Landscape Architects, Land Surveying, Civil Engineering, except the proposed concrete patios, walkways, and driveways shall be pavers, permeable pavers or permeable pavement. Said Plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The proposed dwellings shall be constructed substantially in accordance with the three (3) submitted elevations. Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Planning Department. Building materials shall include Hardie Plank (or comparable) lap siding, standing seam metal roofs for the porches, architectural grade shingles for the main roof and composite decking and porch rails. 3. The applicant shall work with current Planning staff to determine if there is an acceptable location for the driveway and curb cut for the proposed dwelling fronting Myrtle Avenue. This Ordinance shall be effective in accordance with Section 10769 of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Ninth day of October, Two Thousand Twelve October 9, 2012 Item -VI -J.2 PLANNING Voting: 10-0 (By Consent) Council Members Voting Aye.- Glenn ye: -53 - ITEM #62275 (Continued) Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 1 A RESOLUTION AUTHORIZING THE RECONSTRUCTION 2 AND ENLARGEMENT OF A NONCONFORMING USE ON 3 PROPERTY LOCATED AT 200 55TH STREET 4 5 WHEREAS, C & C Development Company, (hereinafter the "Applicant") has 6 made application to the City Council for authorization to reconstruct and enlarge a 7 nonconforming use located at 200 55th Street in the R-5R Residential District by 8 demolishing two single -family dwellings and rebuilding two larger single -family dwellings 9 on the same lot; and 10 11 WHEREAS, this lot contains two single -family dwellings, which are not allowed 12 on the same lot in the R-5R Residential District. However, the two dwellings are 13 nonconforming as they were built prior to the adoption of the applicable zoning 14 regulations; and 15 16 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 17 reconstruction and enlargement of a nonconforming use is unlawful in the absence of a 18 resolution of the City Council authorizing such action upon a finding that the proposed 19 use, as reconstructed and enlarged, will be equally appropriate or more appropriate to 20 the zoning district than is the existing use; 21 22 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 23 VIRGINIA BEACH, VIRGINIA: 24 25 That the City Council hereby finds that the proposed use, as reconstructed and 26 enlarged, will be equally appropriate to the district as is the existing nonconforming use 27 under the conditions of approval set forth hereinbelow. 28 29 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 30 BEACH, VIRGINIA: 31 32 That the reconstruction and enlargement of the nonconforming use is hereby 33 authorized, upon the following conditions: 34 35 1. The site shall be redeveloped substantially in accordance with the submitted 36 "Non-Conforming Use Exhibit Conceptual Layout Plan", dated 7/24/2012, and 37 prepared by wpl landscape architects, land surveying, civil engineering, except 38 that the proposed concrete patios, walkways, and driveways shall consist of 39 pavers, permeable pavers, or permeable pavement. Said plan has been 40 exhibited to the Virginia Beach City Council and is on file in the Planning 41 Department. 42 43 2. The proposed dwellings shall be constructed substantially in accordance with the 44 three submitted elevations. Said elevations have been exhibited to the Virginia 45 Beach City Council and are on file in the Planning Department. Building materials 46 shall include Hardieplank® (or comparable) lap siding, standing seam metal roofs 47 for the porches, architectural -grade shingles for main roof, and composite 48 decking and porch rails. 49 50 Adopted by the Council of the City of Virginia Beach, Virginia, on the 9th day 51 of October , 2012. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: � � \ I- IMW - I PlanningepartmenT 6r City Attorney's Office r I CA12444 R-1 September 26, 2012 VA v j V yC Item -11743 PLANNING -54 - ITEM # 62276 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council MODIFIED CONDITIONS, BY CONSENT: Application of LAKE GEM D8, LLC for Modif cation of Conditions Nos. 2 and S (approved by City Council on May 26, 2009) re an outdoor market at 2181 Upton Drive DISTRICT 7 - PRINCESS ANNE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of LAKE GEM D8, LLC for Modification of Conditions Nos. 2 and 5 (approved by City Council on May 26, 2009) re an outdoor market at 2181 Upton Drive (GPIN 2414249922) DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: All conditions, with the exception of Numbers 2 and S attached to the Conditional Use Permit granted by the City Council on May 26, 2009, and Modified on April 27, 2010, remain in effect. 2. Condition Number 2 of the May 26, 2009, and Modified on April 27, 2010, Conditional Use Permit is deleted and replaced with the following: Operation of the market shall be permitted seven (7) days a week from March through September in addition to two (2) Holiday markets — one (1) before Thanksgiving and one (1) before Christmas. 3. Condition Number 5 of the May 26, 2009, and Modified on April 27, 2010, Conditional Use Permit is deleted and replaced with the following: The market shall be only for the sale of local agricultural, seafood, related organic food products, pet friendly businesses, non-profit organizations, health and wellness experts, homemade and handmade items, plants, and greenhouse/nursery items. A manned table may also be provided with literature pertaining to the shops located in the shopping center but no sale of items from the shops in the shopping center shall occur at this table. 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 Ninth day of October, Two Thousand Twelve October 9, 2012 Item -VI -J.3 PLANNING Voting: 10-0 Council Members Voting Aye: -55 - ITEM # 62276(Continued) Glenn R. Davis, William R. "Bill " DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 Item -VI -J.4 PLANNING -56 - ITEM #62277 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council MODIFIED PROFFERS, BY CONSENT: Application of MARVIN M. JR. and GAYLE B. ROLLINS LIVING TRUST for Modifications o Pro ers Nos. I and 8 of a Conditional Change of Zoning (approved by City Council on June 24, 2008) re personal services (beauty/barber shop/drug store) at 609 Princess Anne Road DISTRICT 7 - PRINCESS ANNE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of MARVIN M. JR. and GAYLE B. ROLLINS LIVING TRUST for Modifications of Proffers Nos. I and 8 of a Conditional Change of Zoning (approved by City Council on June 24, 2008) re personal services (beauty/barber shop/drug store) at 609 Princess Anne Road (GPIN 2308895225) DISTRICT 7 - PRINCESS ANNE An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 IA -B CITY OF VIRGINIA BEACH t a: INTER -OFFICE CORRESPONDENCE � � u 3 Op OUR N9110 In Reply Refer To Our File No. DF -8475 DATE: September 26, 2012 TO: Mark D. Stiles DEPT: City Attorney FROM: B. Kay Wilson DEPT: City Attorney RE: Conditional Zoning Application; Marvin M. Rollins, Jr. & Gayle B. Rollins The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2012. 1 have reviewed the subject proffer agreement, dated August 3,2012 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: M SYKES, BOURDON. OM ANERN & LPVI'. P.C. FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS MARVIN M. ROLLINS, JR. and GAYLE B. ROLLINS, Trustees under the Marvin M. Rollins, Jr. Living Trust dated June 22, 2011 MARVIN M. ROLLINS, JR. and GAYLE B. ROLLINS, Trustees under the Gayle B. Rollins Living Trust dated June 22, 2011 TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 3rd day of August, 2012, by and between MARVIN M. ROLLINS, JR., and GAYLE B. ROLLINS, Trustees under the Marvin M. Rollins, Jr. Living Trust dated June 22, 2011 and MARVIN M. ROLLINS and GAYLE B. ROLLINS, Trustees under the Gayle B. Rollins Living Trust dated June 22, 2o11, Grantors; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantors are the owners of that certain parcel of property located in the Princess Anne District of the City of Virginia Beach, containing approximately 2.783 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the Grantors have initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by Petition addressed to the Grantee so as to modify a condition applicable to the Property that is zoned Conditional B- 2 Community Business District; and GPIN: 23o8-89-5225-0000 Prepared By: R Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 PREPARED BY: 012SYKES. BOURDON, W ANERN & LEVY. RC. WHEREAS, the Grantors have requested the Grantee to permit this modification of the Proffered Covenants, Restrictions and Conditions dated January 7, 2oo8, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20o8o630000767300 (hereinafter "2oo8 Proffers") to include an additional permitted use; 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 the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the Grantors' proposed rezoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as 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 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 pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby 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 Grantors, their successors, personal j representatives, assigns, grantees, and other successors in interest or title: 2 PREPARED BY: blTt� SYKES. BOURI)ON. MU AURN & LEVY. P.C. 1. Proffers numbered 1 and 8 as contained in the 20o8 Proffers recorded in the above referenced Clerk's Office as Instrument Number 20o8o6300007673oo are hereby deleted and replaced with the following: 1. When the Property is developed, it shall be developed substantially as shown on the exhibit entitled "AMENDED SITE PLAN CREEDS VILLAGE CENTER", dated June 26, 2012, prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Amended Site Plan"). 8. When the Property is developed, only the following uses will be permitted: a. Eating and drinking establishments without drive-through windows; b. Business studios, offices and clinics; C. Retail establishments; d. Repair and sales for radio and television and other household appliances and small business machines; e. Mini -warehouses; and f. Drug stores, beauty shops and barber shops. 2. When the Property is developed, the building designated "Proposed Hair Salon" depicted on the Amended Site Plan will have the architectural design and will utilize building materials substantially as depicted on the "Architectural Rendering of Hair Salon", dated June 26, 2012, which has been exhibited to the.Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Salon Rendering"). 3. Except as expressly modified herein, all of the proffers, covenants, restrictions and conditions contained in the 20o8 Proffers remain in full force and effect. All references hereinabove to the B-2 Community Business Zoning District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. ' The above conditions, having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a 3 PREPARED BY: M SYKES, ROURDON. MU AHERN & LB1Y. P.C. subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The 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 Grantors 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. 4 PREPARED BY: M `DYKES. BOURDON. WITNESS the following signatures and seals: Grantors: Trustees under the Marvin M. Rollins, Jr. Living Trust dated June 22, 2011 By: gJv►w� " (SEAL) Marvin M. Rollins, Jr., Trustee 'MS4ROJUjimn—s,Trustee STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this ri'� day of August, 2012, by Marvin M. Rollins, Jr. and Gayle B. Rollins, Trustees under the Marvin M. Rollins, Jr. Living Trust dated June 22, 2011, Grantors. _9";'Ngotary Public �t�11111111/�A, My Commission Expires: '394-w,S 7 Notary Registration Number: ai 31 5 PREPARED BY: 53M SY-US. BOURDON. W AURN & LEW, P.C. WITNESS the following signatures and seals: Grantors: Trustees under the Gayle B. Rollins, Living Trust dated June 22, 2011 By: (SEAT') Marvin M. Rollins, Jr., stee ti By:Ga olls, Tr(SEAL) inustee STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this q-6 day of August, 2012, by Marvin M. Rollins, Jr. and Gayle B. Rollins, Trustees under the Gayle B. Rollins, Jr. Living Trust dated June 22, 2o11, Grantors. R • Notary Public My Commission Expires: M! e .'3%i ;to 6 Notary Registration Number: -1 j -73 11 R •�.,j, - � ROSARY :fir : C" -'YL PUBLyG ry'n ..9 9oti O • S APa��'.. �`�� EA L" ���►►111It11���� PREPARED BY: �'ya . BOURDON AURN & LWY. K EXHIBIT 4W LEGAL DESCRIPTION ALL THAT certain lot, piece or parcel of land, with the buildings and improvements being thereon, situate, lying and being in the City of Virginia Beach, Virginia, numbered and designated as Parcel C, containing 2.783 acres, as Etheridge, et uxS D�B. 713, P on � 440 37� certain plat entitled, "Subdivision of Property of Marva M.B. 69, Pg. 35, Pungo Borough, Virginia Beach, Virginia", dated April, 1988, which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2814, at Page 1510. GPIN: 23o8-89-5225-0000 \\Sykesw2k\users\AM\Mod of Proffers\Rollins\ist Amendment to Proffers_Clean B-03-12.doc 7 Item -VI -J.5 PLANNING -57 - ITEM #62278 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED/CONDITIONED, BY CONSENT: Application of LEWIS TURNER ILPHUONG VAN NGUYEN for a Conditional Use Permit re a hair care center at 3692 South Plaza Trail DISTRICT 3 - ROSE HALL BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of LEWIS TURNER IUPHUONG VAN NGUYEN for a Conditional Use Permit re a hair care center at 3692 South Plaza Trail (GPIN 1487503693) DISTRICT 3 - ROSE HALL All applicable building permits and occupancy permits shall be obtained as required for a personal service use by the Building Official's Office. This Ordinance shall be effective in accordance with Section 1070 of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Ninth day of October, Two Thousand Twelve Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay. Council Members Absent: Robert M. Dyer October 9, 2012 Item -VI -J.6 PLANNING -58 - ITEM #62279 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council MODIFIED PROFFERS, BY CONSENT: Application of JAPANESE AUTO MASTERS, INC. for Modification of Proffers Nos. I and 4 for a Conditional Change o Zoning re motor vehicle service and repair (approved by City Council on January 12, 1999) at 3012 Holland Road DISTRICT 7 - PRINCESS ANNE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of JAPANESE AUTO MASTERS, INC. for Modification of Proffers Nos. 1 and 4 for a Conditional Chanjze_of Zoninj re motor vehicle service and repair (approved by City Council on January 12, 1999) at 3012 Holland Road (GPIN 1495236603) DISTRICT 7 - PRINCESS ANNE An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. Voting: 9-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay.- None ay: None Council Members Absent: Robert M. Dyer Council Members Abstaining: Mayor William D. Sessoms, Jr. October 9, 2012 In Reply Refer To Our File No. DF -8350 TO: Mark D. Stiles FROM: B. Kay WilsA\' CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: September 26, 2012 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Japanese Auto Master, Inc. The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2012. 1 have reviewed the subject proffer agreement, dated June 1, 2012 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 FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS JAPANESE AUTO MASTERS, INC., a Virginia corporation JJJ PARTNERSHIP, a Virginia general partnership TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 1st day of June, 2012, by and between JAPANESE AUTO MASTERS, INC., a Virginia corporation, party of the first part, Grantor; JJJ PARTNERSHIP, a Virginia general partnership, party of the second part, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the third part, Grantee. WITNESSETH: WHEREAS, the party of the second part is the owner of that certain parcel of property located in the Princess Anne District of the City of Virginia Beach, containing approximately 1.33 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the party of the first part, as the contract purchaser of the Property, has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by Petition addressed to the Grantee so as to modify a condition applicable to the Property that is zoned Conditional I-1 Industrial District; and GPIN: 1495-23-6603-0000 Prepared By: K Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the Grantors have requested the Grantee to permit this modification of proffer numbered 4 contained in the Proffered Covenants, Restrictions and Conditions dated September 23, 1998, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 4o16, at Page 1486 (hereinafter "1998 Proffers") to include an additional permitted use; 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 differing 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 i 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, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby 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, grantees, and other successors in interest or title: 2 1. Proffers numbered 1 and 4 as contained in the 1998 Proffers recorded in the above referenced Clerk's Office in Deed Book 4016, at Page 1486 are hereby deleted and replaced with the following: 1. When the Property is redeveloped, it shall be redeveloped substantially as shown on the exhibit entitled "CONDITIONAL ZONING PLAN OF 3012 HOLLAND ROAD FOR JAPANESE AUTO MASTERS" dated o6/01/12, prepared by John E. Sirine and Associates, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Development Plan"). 4. The following uses currently permitted (P) within the I-1 Light Industrial District shall not be permitted upon the Property: (a) Airports, heliports and helistops; and (b) Heavy Equipment sales and service. 2. Except as expressly modified herein, all of the proffers, covendnts, restrictions and conditions contained in the 1998 Proffers remain in full force and effect. All references hereinabove to the I-1 Industrial Zoning District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was 3 advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied, and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the. existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 4 WITNESS the following signature and seal: Grantor: Japanese Auto Masters, Inc., a Virginia corporation By: (SEAL) T omas A. Potter, President STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this ist day of June, 2012, by Thomas A. Potter, President of Japanese Auto Masters, Inc., a Virginia corporation, Grantor. Notary Public My Commission Expires: August 31, 2014 Notary Registration Number: 192628 5 WITNESS the following signature and seal: Grantor: .T.T.T Partnership, a Virginia general partnership By STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this _J.!��day of June, 2012, by Michael J. Wilson, Managing Partner of JJJ Partnership, a Virginia general partnership, Grantor. otary Public My Commission Expires:_&' . a � 1:.------ Notary Registration Number: 71669,3 q Uf Kenneth J. Wilkinson Notary Public Registration # 7146344 Commonwealth of Virginia My Commission Expires: Feb. 28, 2015 .i 0 EXHIBIT "A" LEGAL DESCRIPTION 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 1, as shown on that certain plat entitled "RESUBDIVISION OF PROPERTY, PROPERTY OF NORMAN LEE SMITH (D.B. 958, P. 673, D.B. 2161, P. 669) AND PARCEL A, LOUISE VIRGINIA. SMITH WILLIAMS (D.B. 1889, P. 525), Princess Anne Borough, Virginia Beach, VA.", which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 2614, at Page 1277. GPIN: 1495-23-6603-0000 \\Sykesw2k\users\AM\Mod of Proffers\Japanese Auto MasterAist Amendment to Proffers.doc 7 Item -VI -J.7 PLANNING -59 - ITEM #62280 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED/CONDITIONED, BY CONSENT: Application of INGLESIA DE DIOS PENTA COSTAL M.I. DE VIRGINIA BEACH/MIGUEL LOPEZfor a Conditional Use Permit re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of INGLESIA DE DIOS PENTACOSTAL M.L DE VIRGINIA BEACH / MIGUEL LOPEZ for a Conditional Use Permit re a religious use at 484 Newtown Road (GPIN 1467296306) DISTRICT 2 - KEMPSVILLE The number of individuals attending any service shall not exceed the occupancy number for the building as established by the Fire Marshall on the Certificate of Occupancy. 2. The applicant shall obtain all necessary permits and inspections from the Planning Department — Permits and Inspections Division and the Fire Department. The applicant shall obtain a Certificate of Occupancy for the change of use from the Building Official prior to occupancy and use of the space for a church. 3. The applicant shall install foundation landscaping along the front fagade and along the side fagade to screen the air conditioning unit located in the existing mulch beds. 4. One (1) of the two (2) freestanding signs located at the front of the property shall be removed. A minimum of seventy-five (75) square feet of landscaping shall be installed around the base of the remaining freestanding sign. 5. The existing parking lot from Newtown Road shall be screened by the installation of a row of low level evergreen shrubs. 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 Ninth day of October, Two Thousand Twelve October 9, 2012 Item -VI -J.7 PLANNING Voting: 10-0 Council Members Voting Aye: PH ITEM #62280(Continued) Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay. None Council Members Absent: Robert M. Dyer October 9, 2012 Item -VI -J.8 PLANNING -61 - ITEM #62281 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED AS PROFFERED, BY CONSENT: Application of MIGUEL LOPEZ for a Conditional Change of Zoning from I-2 Industrial to Conditional B-2 Community Business re a religious use at 484 Newtown Road DISTRICT 2 - KEMPSVILLE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of MIGUEL LOPEZ for a Conditional Change of Zoning from I-2 Industrial to Conditional B-2 Community Business re a religious use at 484 Newtown Road (GPIN 1467296306) DISTRICT 2 - KEMPSVILLE An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 BE4 r - _ In Reply Refer To Our File No. DF -8349 TO: Mark D. Stiles FROM: B. Kay Wilso CITY OF VIRGINIA BEACH INTER -OFFICE CORRESPONDENCE DATE: September 26, 2012 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Miguel Lopez The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2012. 1 have reviewed the subject proffer agreement, dated May 29, 2012 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. B KW/ka Enclosure cc: Kathleen Hassen PREPARED BY: SYKLS. BOURDON. tll1LRN & LLYY. P.C. MIGUEL LOPEZ TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 29th day of May, 2012, by and between MIGUEL LOPEZ, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of a certain parcel of property located in the Kempsville District of the City of Virginia Beach, with improvements thereon, containing approximately 42,150 square feet as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "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 Classification of the Property from I-2 Industrial District to Conditional B-2 Community Business District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the 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 GPIN: 1467-29-63o6 Prepared By: R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 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, 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 proquo 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, grantees, and other successors in interest or title: 1. The Property shall be developed substantially as shown on the exhibit entitled "ZONING EXHIBIT INGLESIA de DIOS PENTECOSTEL M.I. de VIRGINIA BEACH 484 NEWTOWN ROAD GPIN: 1467-29-6306", dated 05/16/12, prepared by JMT Engineering, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "As-Built Survey"). 2. All outdoor lighting shall be shielded, deflected, shaded and focused to direct light down onto the premises and away from adjoining property. 3. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City codes by all cognizant City agencies and departments to meet all applicable City code requirements. All references hereinabove to B-2 Community Business and I-1 Industrial Districts and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this PREPARED BY: reference incorporated herein. Iola SITES, )ON. Iti11I,1MI N & LEVY, P.C. 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 2 PREPARED BY: MSYKES, BOURDON. A}TERN & LEVY. P.C. in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded 3 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. PREPARED BY: M SYKES, BOURDON. MU AHERN & LM, P -C, M WITNESS the following signature and seal: Grantor: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was by Miguel Lopez, Grantor. My Commission Expires: August 31, 2014 Notary Registration Number: 192628 PREPARED BY: SYKES, BOURUON, W AURN & LEVY. A.C. 19 (SEAL) before me this ist day of June, 2012, Notary Public EXHIBIT "A" ALL THAT certain tract, lot, piece or parcel of land, together with the improvements thereon, situate, lying and being in the Bayside Borough, City of Virginia Beach, Virginia, and known, numbered and designated as Site 17,1.00o Acres, on that certain plat bentitled Frank "Plat showing Site 17, SHR Investment Company", dated October 7, 1964, Y D. Tarrall, Jr. & Associates, Surveyors & Engineers, which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 64, at Page 18. Save and except that portion of property conveyed to the Commonwealth of Virginia for Highway purposes in Deed Book 2247, at Page 1478, recorded March 28,1983• GPIN: 1467-29-6306 H:\AM\Conditional Rezoning\Lopez\Proffer.doc PREPARED BY: . SY�KES, ROURDON, 4 i VRN & LEVY. RC. Z -62 - Item -VI -J.9 PLANNING ITEM #62282 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED AS PROFFERED, BY CONSENT: Application of SILVER HILL AT THALIA, LLC/JOYCE ANN UPTON for a Conditional Change of Zoning from Conditional 0-1 Office to Conditional A-24 Apartment re multi family dwellings at 4329 Bonney Road DISTRICT S - LYNNHAVEN BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of SILVER HILL AT THALIA, LLC/JOYCE ANN UPTONfor a Conditional Change of Zoning from Conditional 0-1 Office to Conditional A-24 Apartment re multi family dwellings at 4329 Bonney Road (GPIN 1477834040) DISTRICT S - LYNNHAVEN An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, M. Henley, Vice Mayor Louis R. Jones, John D Sessoms, Jr., John E. Uhrin, Rosemary Wilson Council Members Voting Nay: K"Um— Council Members Absent: Robert M. Dyer Harry E. Diezel, Barbara Moss, Mayor William D. and James L. Wood October 9, 2012 a E4 t °� CITY OF VIRGINIA BEACH u�,L_�_`� a INTER -OFFICE CORRESPONDENCE 4'r ° s 0, OUR 4111 In Reply Refer To Our File No. DF -8368 TO: Mark D. Stiles FROM: B. Kay Wilso DATE: September 26, 2012 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Silver Hill at Thalia, LLC The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2012. 1 have reviewed the subject proffer agreement, dated March 29, 2012 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 SILVER HILL AT THALIA, L.L.C., a Virginia limited liability company JOYCE ANN UPTON TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29th day of March, 2012, by and between SILVER HILL AT THALIA, L.L.C., a Virginia limited liability company, Grantor, party of the first part; JOYCE ANN UPTON, Grantor, party of the second part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the third part. WITNESSETH: WHEREAS, the party of the ,second part is the owner of that certain parcel of property located in the Lynnhaven District of the City of Virginia Beach, Virginia, containing approximately 1.81 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference. The parcel described herein and in Exhibit "A" is hereinafter referred to as the "Property"; and WHEREAS, the party of the first part is the contract purchaser of the Property containing approximately 1.81 acres and has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from Conditional 0-1 Office District to Conditional A-24 Apartment District; and GPIN: 1477-83-4040 Prepared By: R Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the Property is currently subject to certain proffered "covenants and restrictions" affecting its development under the 0-1 Office District, which proffers are recorded in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 20101004001040490 (the "0-1 Proffers") which will be vacated by the Grantee's approval of this change of Zoning District Classification and recordation of these Proffered Covenants, Restrictions and Conditions; 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 party of the first part acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the party of the first part has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-24 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the party of the first part, for itself, 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 _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 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: 1. When the Property is developed, it shall be as an adults only, age restricted residential community substantially in accordance with the "DEVELOPMENT EXHIBIT FOR 2 COTTAGES AT SILVER HILL (GPIN 1477-83-4040) VIRGINIA BEACH, VIRGINIA", dated March 24, 2012, prepared by WPL, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). 2. When the Property is developed, it will be landscaped substantially as depicted and described on the Concept Plan, with vehicular Ingress and Egress limited to one (1) entrance from the adjoining thirty foot (30') wide Access Easement to Bonney Road. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed twenty-nine (29). 4. The architectural design and exterior building materials of the residential buildings will be substantially as depicted and described on page numbered 2 of the Concept Plan. 5. When the Property is developed, it shall be an age restricted adult residential community with each unit occupied on a full-time basis, by at least one (1) adult resident over fifty-five (55) years of age. In addition, no persons under twenty (20) years of age shall be permitted to reside in any residential unit or units for more than ninety (9o) days in any calendar year. This proffer is subject to any relevant provision(s) of State law or Federal law. 6. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 195o, as amended. Said ordinance or resolution shall be recorded along with M said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof.Iprior to instituting proceedings in court; and (q) 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 name of the Grantor and the Grantee. rd WITNESS the following signature and seal: Grantor: Silver Hill at Thalia, L.L.C., a Virginia limited liability company By: _(SEAL) (AkPa�o 'Waitzer, Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of March, 2012, by Richard M. Waitzer, Manager of Silver Hill at Thalia, L.L.C., a Virginia limited liability company, Grantor. My Commission Expires: Notary Registration Number: 61 WITNESS the following signature and seal: Grantor: ( (,�,H, lit-! �(SEAL) U J yce Ann Upton STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of 2012, by Joyce Ann Upton, Grantor. My Commission Expires:0 l l - , Notary Registration NumbAlg�L_4_ 15 1 R Notary Public EXHIBIT "A" LEGAL DESCRIPTION ALL THAT certain tract, piece or parcel of land, situate, lying and being on the Old -Norfolk London Bridge Road near Jacksondale, now know as Rosemont in Princess Anne County, Virginia, and more particularly bounded and described as follows: BEGINNING at a pin on the Southern line of the Old -Norfolk London Bridge Road at its intersection with the eastern line of a thirty (30) foot right of way and running thence along the South 8 Southern line of said road North 67 degrees 25 minutes East 177.55 degrees 55 minutes West 170.7 feet to a pin; thence North 67 degrees 25 minutes East 50 feet to a pin; thence South 8 degrees 55 minutes West 342.65 feet to a pin; thence North 81 degrees 05 minutes West 187.9 feet to a pin on the Eastern line of said thirty (30) foot right of way; thence North 8 degrees East 394.1 feet to a pin, the point of beginning, containing 1.9 acres, according to the plat of property made by W. B. Gallup, Surveyor, entitled property of Andrew Land, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 40, at Page 69, reference is hereby made to said plat for a more particular description. GPIN: 1477-83-4040 \\Sykesw2k\users\AM\Conditional Rezoning\Silver Hill @ Thalia\Cottages @ Silver Hills\Proffendoc 7 Item -VI -J.10 PLANNING -63 - ITEM #62283 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED AS PROFFERED, BY CONSENT: Application of BRIBRA BAKER, INC./CONNIE ONE, LLC for a Conditional Change of Zoning from Conditional A-12 Apartment to Conditional A-24 Apartment re multi family condominiums at 432 Baker Road and 5445 Connie Lane DISTRICT 2 - KEMPSVILLE BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of BRIBRA BAKER, INC./CONNIE ONE, LLC for a Conditional Change of Zoning from Conditional A-12 Apartment to Conditional A-24 Apartment re multi family condominiums at 432 Baker Road and 5445 Connie Lane (GPIN 1468506134) DISTRICT 2 - KEMPSVILLE An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. Voting: 9-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin and Rosemary Wilson Council Members Voting Nay: None Council Members Absent. Robert M. Dyer Council Members Abstaining: James L. Wood October 9, 2012 1A'BEAc �4 L CITY OF VIRGINIA BEACH U. INTER -OFFICE CORRESPONDENCE tf gg as OF OUR NF110 In Reply Refer To Our File No. DF -8411 TO: Mark D. Stiles FROM: B. Kay Wilso DATE: September 26, 2012 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Bribra Baker, Inc. The above -referenced conditional zoning application is scheduled to be heard by the City Council on October 9, 2012. 1 have reviewed the subject proffer agreement, dated May 30, 2012 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 BRIBRA BAKER, INC., a Virginia corporation CONNIE ONE, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 3oth day of May, 2012, by and between BRIBRA BAKER, INC., a Virginia corporation, Grantor, party of the first part; CONNIE ONE, L.L.C., a Virginia limited liability company, Grantor, parry of the second part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee, party of the third part. WITNESSETH: WHEREAS, the party of the second part is the owner of that certain parcel of property located in the Bayside and Kempsville Districts of the City of Virginia Beach, Virginia, containing approximately 4.657 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference. The parcel described herein and in Exhibit "A" is hereinafter referred to as the "Property"; and WHEREAS, the party of the first part is the contract purchaser of the Property containing approximately 4.657 acres and has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from Conditional A-12 Apartment District to Conditional A-24 Apartment District; and GPIN: 1468-50-6134 Prepared By: R Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 WHEREAS, the Property is currently subject to certain proffered "covenants and restrictions" affecting its development under the A-12 Apartment District, which proffers are recorded in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 20070601000735140 (the "A-12 Proffers") which will be vacated by the Grantee's approval of this change of Zoning District Classification and recordation of these Proffered Covenants, Restrictions and Conditions; 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 party of the first part acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, theparty of the first part has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-24 Zoning District by the existing overall Zoning Ordinance,. the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the party of the first part, for itself, 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 cru 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 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: 1. When the Property is developed, it shall be as a residential condominium in substantial conformance with the exhibit entitled "DEVELOPMENT EXHIBIT FOR SEASONS 2 AT BAKER' dated May 25, 2012, prepared by WPL, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (the "Concept Plan"). 2. When the Property is developed, it will be landscaped substantially as depicted and described on the Concept Plan, including a 6 foot fence and Category IV Landscape screening in the areas designated 10' Landscape Buffer, and vehicular Ingress and Egress shall be limited to one (1) entrance from Baker Road. 3. The total number of dwelling units permitted to be constructed on the Property shall not exceed fifty-six (56). 4. The architectural design and exterior building materials of the residential buildings will be substantially as depicted and described on page numbered 2 of the Concept Plan. 5. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes.the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia Beach, 3 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 name of the Grantor and the Grantee. El u WITNESS the following signature and seal: Grantor: Bribra Baker, Inc., a Virginia corporation B �---�" % (SEAL) nan C. STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this 1st day of June, 2012, by Brian C. Large, President of Bribra Baker, Inc., a Virginia corporation, Grantor. My Commission Expires: August 31, 2014 Notary Registration Number: 192628 9 WITNESS the following signature and seal: Grantor: Connie One, L.L.0 a Virginia lipited liability company LN W. Christophe�iAVood, Managing Member STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit - The foregoing instrument was acknowledged before me this 31St day of May, 2012, by W. Christopher Wood, Managing Member of Connie One, L.L.C., a Virginia limited liability company, Grantor. _ � e Notary Public My Commission Expires: August 31, 2014 Notary Registration Number: 192628 D EXHIBIT "A" LEGAL DESCRIPTION ALL THAT certain tract, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, known, numbered and designated as "PARCEL A" containing 4.657 acres as shown on that certain plat entitled "SUBDIVISION OF CONNIE MANOR (Including The Street Closure Of A Portion Of Connie Lane) Virginia Beach, Virginia", dated October 8, 20o8, and prepared by The Spectra Group, which plat is recorded in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 20081113001309770, to which reference is hereby made for a more particular description. GPIN: 1468-5o-6134 \\Sykesw2k\users\AM\Conditiona1 Rezoning\Bribra Baker\Proffer.doc 7 -64 - ITEM VI -K APPOINTMENTS ITEM #62284 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS: BOARD OF BUILDING CODE APPEALS COMMUNITY SER VICES BOARD HUMAN RIGHTS COMMISSION RESORT AREA PARKING COMMITTEE October 9, 2012 -65 - Item —VI -K APPOINTMENTS ITEM #62285 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Christopher L Jacobs Appointed: 3 year term — 07/01/2012 - 06/30/2015 BEACHES AND WATERWAYS Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 Item —VI -K APPOINTMENTS ITEM #62286 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Billy Almond Jason Barney Eddie Bourdon Claudia Cotton Jeanne Evans Christy Everett, Ex -Officio Andrew Fine Karen Forget Myrina Gaglione Mary Heinricht, Ex -Officio Wayne McCoy June Barrett McDaniels Robert Miller, III John Olivieri GREEN RIBBON COMMITTEE Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer, October 9, 2012 -67 - Item —VI -K APPOINTMENTS ITEM #62287 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Thomas B. Thames, MD Appointed: 3 year term — 04/01/2012 — 03/31/2015 HEALTH SERVICES ADVISORY BOARD Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 Item —VI -K APPOINTMENTS ITEM #62288 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Debbie L. Helfant Bright Kimberle Rizzo Reappointed. 2 year term —11/01/2012 —10/31/2014 HISTORICAL REVIEW BOARD Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 M Item —VI -K APPOINTMENTS ITEM #62289 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Captain Stephen Brennan Adalberto M. Diaz RADM Richard Dunleavy RADMMark Gemmill RADM Gary Jones Jerrold L. Miller RADM Phillip R. Olson, Sr. SPHR, PMP Paul T. Pierce RADM Fenton F. Priest, III Robert Rieve, USN, Ret. RADM Frederic Ruehe Daniel R. Walters Lieutenant General Frances C. Wilson, Ret. Reappointed. 5 year term — 03/01/2013 — 02/28/2018 MILITARYECONOMIC DEVELOPMENT ADVISORY COMMITTEE Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 -70 - Item —VI -K APPOINTMENTS ITEM #62290 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Debra R. "Debbi" Steiger Appointed. 3 year term — 09/0112012 — 0813112015 REVIEW and ALLOCATION COMMITTEE Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Barbara M. Henley, Vice Mayor Louis R. Jones, John D. Moss, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer October 9, 2012 -71 - Item -VI-O ADJOURNMENT ITEM #62291 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:46 P.M. /)Mz,w/M) - A anda Fin ey- arnes, tMC Chief Deputy City Clerk th Hodges raser, MMC City Clerk City of Virginia Beach Virginia William D. Sessoms, Jr. Mayor October 9, 2012 -72 - PUBLIC DIALOGUE Rufus Dalton stated he received a letter from the City Auditor regarding the notification of changes in the real estate tax. Mr. Dalton is disabled Senior Citizen and did qualify for 100% reduction if his real estate taxes but because of the changes it cost him approximately $4,500.00. Mr. Dalton requested City Council look into this and contact him with any questions. Christine Ross, 1647 Ocean Bay Drive, Phone: 905-1835, stated recently Parkinson's Disease has been linked to Lyme Disease and the Virginia Department of Health has recognized that Lyme Disease is in Virginia and prevention is the best way to stop the spread of the disease. So why don't you legalize the ownership of backyard chickens. Ms. Ross also requested the City close the abortion clinics within the City by rezoning the properties, buying the buildings where they operate and/or declaring the clinics as dangerous nuisances. Tracy Okray, 840 Crepe Myrtle Court, Phone: 513-7825, requested the City legalize backyard chickens. Ms. Okray stated the chickens are quiet, eat Lyme disease ticks and provide a source of nutrition. Ms. Okray requested City Council research the issue and invited them to come to her residence. Wally Erb, 150 Caguga Road, 581-4287, is concerned that official correspondence from the City with "CC" on back, including Congressmen. Beach Delegation and Constitutional Officers but the one name is missing is the City Clerk, the person who keeps the documents and archives the records for the City. The City Clerk is the "keeper of the record" and anything that goes on in the City should be copied and archived with the City Clerk. Mr. Erb requested City Council abide by the Law. Carolyn Lincoln, 1200 Gotheby Court, Phone: 499-4900, expressed her concerns regarding the development of Town Center but stated she did not speak during the Public Hearing because she did not have all of the facts. Ms. Lincoln stated the City needs to fund education and not put money into Town Center. Also, Ms. Lincoln feels the City should give others the opportunity to bid on this project. The Public Dialogue re Non Agenda Items concluded at 6:55 P.M. October 9, 2012 -71 - Item - VI- O ADJOURNMENT ITEM #62291 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:46 P.M. Amanda Finley -Barnes, CMC Chief Deputy City Clerk RYA Hodges Fraser, MMC City Clerk City of Virginia Beach Virginia William D. Sessoms, Jr. Mayor October 9, 2012