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HomeMy WebLinkAboutAPRIL 28, 1998 MINUTES City oi- Virbeach "WORLD'S LARGEST RESORT CITY" 0.11i_,+•BEq (:rev COUN(ai. J�4��g�a--�, C'M'G 4 MAYOR MEYERA L OBERNIN)RF,AL.ngr VI(:I.MAI OR WILLIAM I) SESSO.MS.JR.Ai•G'gr n JOHN A B.4UM,BD.karate.Br,mgh ` I.INU•tO)D n BRANCH III.tS.gm,,li,i,h hU...ch • ..• .� WILIJA.M U• HARRISON,JR.I..nnn.u.,i B•..,gh . � HAROLD HEIS(:HOHER.ALa.gr 48 BARBARA.M HENLEY.Punk,B••i•i,gh !t' LOUIS R /ONES.&stair.Borough 4-3 •S REBA S M,LIANAN.Pnn,ess Anne IS gh OF OUR Nit\ON NANCY K PARKER.A,•Ls.ge 1.011/SAM S-TRAYHORN.Krmpsnllr B71,140 city HALL BUILDING CITY COUNCIL AGENDA tun COURTHOUSE DRIVE JAMES K.SPORE,City Manage. VIRGINIA BEACH.VIRGINIA 23456-9005 17571 4274303 LESLIE L.LIMEY.City Attorney RUTH HOMES SMITH.CMC I AAE.COv Clerk April 28, 1998 I. CITY COUNCIL WORKSHOP - Conference Room- 2:00 PM A. Proposed RESOURCE MANAGEMENT PLAN (BUDGET) FY 1998-1999 II. REVIEW OF AGENDA - Conference Room - 3:00 PM III. COUNCIL CONCERNS IV. INFORMAL SESSION - Conference Room - 3:30 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO EXECUTIVE SESSION V. FORMAL SESSION - Council Chamber- 6:00 PM A. CALL TO ORDER- Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Larry E. Lenow Courthouse Community United Methodist Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF EXECUTIVE SESSION F. MINUTES 1. INFORMAL & FORMAL SESSIONS - April 14, 1998 2. SPECIAL FORMAL SESSION/PUBLIC HEARING - April 16, 1998 G. AGENDA FOR FORMAL SESSION The Consent Agenda will be determined during the Agenda Review Session and considered in the ordinary course of business by City Council to be enacted by one motion. H. MAYOR'S PRESENTATION 1. PROCLAMATION - SPECIAL OLYMPICS DAY: May 2, 1998 I. PUBLIC HEARING 1. TAXES - REAL ESTATE a. Proposed Increase in Annual Assessment J. PUBLIC HEARING 1. RESOURCE MANAGEMENT PLAN a. Operating Budget - FY 1998-1999 b. Capital Improvement Program - FY 1998-99/2003-04 2. BONDS a. General Obligation Bonds $ 53,800,000. b. Storm Water Utility Bonds 9,100,000. c. Water and Sewer Utility Revenue Bonds 11,600,000. K. PUBLIC HEARING 1. AGRICULTURAL PRESERVATION PROGRAM (ARP) (Blackwater Borough) 1. W. F. Hudgins, III, William F., Jr. and Malvine B. Hudgins - (1998-19) 2. Photios Anthony, Thomas C. Kyrus and S. V. Camp, III - (1998-20) L. PUBLIC HEARING 1. LEASE OF EXCESS CITY REAL ESTATE (AGRICULTURAL) PROPERTY 74.5 acres off North Landing Road and Salem Road (PRINCESS ANNE and KEMPSVILLE BOROUGHS) M. ORDINANCES 1. Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations (Blackwater Borough): a. W. F. Hudgins, III, William F. Hudgins, Jr. and Malvine B. Hudgins 203 Acres - Installment Purchase Agreement No. 1998-19 - $ 545,490. b. Photios Anthony, Thomas C. Kyrus and S. V. Camp, III - 99.50 Acres Installment Purchase Agreement No. 1998-20 - $ 139,718. 2. Ordinance to authorize the City Manager to enter into a lease with E.R. COCKRELL,JR. for approximately 47.6 acres of city-owned property off North Landing Road,just West of the Municipal Complex and approximately 26.9 acres off Salem Road at Highland Drive and Lisban Road (PRINCESS ANNE AND KEMSPVILLE BOROUGHS). 3. Ordinances to AMEND City Code: a. Section 26-3 re Peddling or Selling on or in Public Parks, Public Buildings or on Public Property in the RT-1, RT-2, RT-3 and RT-4 Resort Tourist Districts. b. Section 26-3.1 re Peddling or Selling on Public Property in the Resort Area during the Prime Resort Season. c. Section 28-5 re procedure for installment payment agreements for Sanitary Sewer connection fees. d. Section 28-26 re reducing the monthly Sanitary Sewer rate charged to multi-unit properties with separate water meters. e. Section 37-9 re procedure for installment payment agreements for Water Connection Charges. 4. Ordinance to APPROPRIATE$228,353 from the Fund Balance of the Tourism Advertising Program to the FY 1997-98 Operating Budget of the Department of Convention and Visitor Development re expanding the City's advertising program. 5. Ordinance to APPROPRIATE $75,000 federal and state reimbursements to the Police Department's airplane enterprise fund re the transfer of prisoners;and,estimated revenue be increased accordingly. 6, License Refunds - $170,411.59 N. RESOLUTIONS 1. Resolution to approve issuance of the Virginia Beach Development Authority's Revenue Refunding Bond (Series 1995) (Suffolk Redevelopment and Housing Authority): Beach-Oxford Associates Limited Partnership $17,700,000 (Beach-Oxford Apartments) 2. Resolution to refer to the Planning Commission proposed Amendments to Sections 111, 235, 401, 501, 601, 801, 901, 1110, 1125, 1511, 1521 and 1531 of the City Zoning Ordinance (CZO) re housing for seniors and disabled persons. O. PUBLIC HEARING - PLANNING PLANNING BY CONSENT -To be determined during the Agenda Review Session. 1. Application of CLEARWATER INVESTMENT ASSOCIATES for enlargement of nonconforming use at the SHERATON HOTEL, Atlantic Avenue and 36th Street, Oceanfront, re construction of a seven-story hotel addition on the adjacent parking lot site (VIRGINIA BEACH BOROUGH). Recommendation: DEFER UNTIL MAY 12, 1998 2. Petition of WELDON T., JR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment of a portion of an unnamed right-of-way beginning at the Southeast corner of the Norfolk and Southern Railroad right-of-way and South Lowther Drive, running in an Easterly direction for 163.97 feet, containing 8,198.5 square feet (KEMPSVILLE BOROUGH). Recommendation: APPROVAL 3. Applications of 0 & R, INC.,A Virginia Corporation (BAYSIDE BOROUGH): a.. Petition for the discontinuance,closure and abandonment of a portion of Powhatan Avenue and running between Lots 1 through 4, Block 40, and Lots 6 through 14, Block 46, as shown on the plat entitled"Survey of Right-of-Way Street Closure for a Portion of Powhatan Avenue located between Block 40 and 46 of Ocean Park"and recorded in Map Book 5, Page 132, containing 35,594 square feet. b. Change ofZoning District Classification from BB=2 Community Business District, R- 5D Residential Duplex District & J. Preservation District to A-18 Apartment District with a PD-H Planned Unit Development Overlay on property located at the Northwest intersection of Shore Drive and W. Stratford Road (3800 Shore Drive), containing 4.039 acres. Recommendations: APPROVAL 4. Application of LARRY'S IMPORT CENTER,INC.,for a Conditional Use Permit for an automobile repair garage on the South side of Virginia Beach Boulevard, 150 feet more or less East of Riddle Avenue(1803 Virginia Beach Boulevard),containing 1 acre more or less (LYNNHAVEN BOROUGH). Recommendation: APPROVAL 5. Application of EDWARD P. and LESLIE A. KAPPES for a Conditional Use Permit for a miniature golf course with ice cream parlor at the Northeast corner of Shore Drive and Red Tide Road on Lots 15, 17 & 19, Block F, Lynnhaven Beach, containing 22,500 square feet (LYNNHAVEN BOROUGH). Recommendation: APPROVAL 6. Application of MATILDA RUSSELL for a Change of Zoning District Classification from A-12 Apartment District and 00=2 Office District to R-5S Residential Single Family District on the East side of S. Kentucky Avenue, 183 feet South of Bonney Road on Lot 7-12 & 13, Block 1, Midway, containing 20,996 square feet (KEMPSVILLE BOROUGH). Recommendation: APPROVAL P. APPOINTMENTS WETLANDS BOARD Q. UNFINISHED BUSINESS R. NEW BUSINESS S. ADJOURNMENT FY 1998-1999 OPERATING BUDGET & CAPITAL IMPROVEMENT PROGRAM SCHEDULE EVENT DATE TIME PLACE Election Day Tuesday, May 5 No Council Meeting Reconciliation Workshop Wednesday, May 7 10:30 AM - 1:00 PM Conference Room Adopt Budget & CIP Tuesday, May 12 2:00 PM City Council Chamber * * * * * * * * * * If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) * * * * * * * * * * 04/24/98BAP AGENDA\04-28-98.PLN www.virginia-beach.va.us 1111A BE4,4s, pc *=L s -., ' -r out NA MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia April 28, 1998 Mayor Meyera E. Oberndorf called to order City Council's WORKSHOP for the Proposed RESOURCE MANAGEMENT PLAN(BUDGET)FY1998-1999 and CAPITAL IMPROVEMENT PROGRAM (CIP) in the Council Conference Room, City Hall Building, on April 28, 1998, at 2:00 P.M, after which the AGENDA REVIEW SESSION commenced at 3:30 P.M. Council Members Present: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Absent: John A. Baum [Ill returning from Virginia Beach General Hospital] . '"Ctr"fir 441 'i. ;+Air 1i` V City of Virginia Be$cri °F °uR ,um°46 RUTH HODGES SIXTH,CMC/AAE PHONE: (757)427.4303 CITY CLERK FAX: (757)4265060 MUNICIPAL CENTER BUILDING I,ROOM 201 2401 COURTHOUSE DRIVE VIRGINIA BEACH,VA 23468-9005 April 22, 1998 HONORABLE MAYOR MEMBERS OF CITY COUNCIL Vice Mayor Sessoms requested we share with you certain information regarding Schools which Mr. Charles Gardner shared with him. Best regards. L..7.�w Ruth Hodges Smith,CMC/AAE City Clerk Attachment cc: James K. Spore,City Manager Leslie L. Lilley, City Attorney • • 1. 298Y6l998RaWMg MONEY AND SCHOOL PERFORMANCE Lessons from the Kansas City Desegregation Experiment BY PAUL CIOTTI Executive Summary For decades critics of the public schools have been saying, "You can't solve educational problems by throwing money at them. " The education establishment and its support- ers have replied, "No one' s ever tried. " In Kansas City they did try. To improve the education of black students and encourage desegregation, a federal judge invited the Kansas City, Missouri, School District to come up with a cost-is-no- object educational plan and ordered local and state taxpayers to find the money to pay for it . Kansas City spent as much as $11, 700 per pupil--more money pei pupil, on a cost of living adjusted basis, than any other of the 280 largest districts in the country. The money bought higher teachers ' salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwa- ter viewing room, television and animation studios, a robot- ics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal . The student-teacher ratio was 12 'or 13 to 1, the lowest of any major school district in the country. The results were dismal. Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration. The Kansas City experiment suggests that, indeed, educa- tional problems can' t be solved by throwing money at them, that the structural problems of our current educational system are far more important than a lack of material re- sources, and that the focus on desegregation diverted atten- tion from the real problem, low achievement. • Paul Ciotti lives in Los Angeles and writes about education. Page 2 Ths KiDAAA City Story In 1985 a federal district judge took partial control over the troubled Kansas City, Missouri, School District (KCMSD) on the grounds that it was an unconstitutionally segregated district with dilapidated facilities and students who performed poorly. In an effort to bring the district into compliance with his liberal interpretation of federal law, the judge ordered the state and district to spend nearly $2 billion over the next 12 years to build new schools, integrate classrooms, and bring student test scores up to national norms . It didn' t work. When the judge, in March 1997, finally agreed to let the state stop making desegregation payments to the district after 1999, there was little to show for all the money spent . Although the students enjoyed perhaps the best school facilities in the country, the percentage of black students in the largely black district had continued to increase, black students' achievement hadn' t improved at all, and the black-white achievement gap was unchanged. The situation in Kansas City was both a major embar- rassment and an ideological setback for supporters of in- creased funding for public schools . From the beginning, the designers of the district ' s desegregation and education plan openly touted it as a controlled experiment that , once and for all, would test two radically different philosophies of • education. For decades critics of public schools had been saying, "You can ' t solve educational problems by throwing money at them. " Educators and advocates of public schools, on the other hand, had always responded by saying, "No one ' s ever tried. " In Kansas City they did try. A sympathetic federal judge invited district educators literally to "dream" -- forget about cost, let their imaginations soar, put together a list of everything they might possibly need to increase • the achievement of inner-city blacks--and he, using the extraordinarily broad powers granted judges in school deseg- regation cases, would find a way to pay for it . By the time the judge took himself off the case in the spring of 1997, it was clear to nearly everyone, including the judge, that the experiment hadn' t worked. Even so, some advocates of increased spending on public schools were still arguing that Kansas City' s only problem was that it never got enough money or had enough time. But money was never the issue in Kansas City. The KCMSD got more money per pupil than any of 280 other major school districts in the Page 3 • country, and it got it for more than a decade. The real issues went way beyond mere funding. Unfortunately, given the current structure of public education in America, they were a lot more intractable, too. An Average American City Unlike New York or Los Angeles, Kansas City has a low- key, sleepy feel to it . There's no sense of pounding human- ity on the downtown streets or even much in the way of traffic congestion. The poorer residential areas have a • strangely depopulated feel to them. Some old tree-lined streets have three or four fading frame houses in a row followed a series of concrete steps leading to grassy vacant lots where houses once stood. In downtown Kansas City there are skyscrapers and even a new convention center (it looks like a cross between 'a Mississippi River steamboat and the Brooklyn Bridge) , but overall, expectations are modest and so are ambitions. It is not surprising that Kansas City, which sits in the middle of the country, has an average amount of culture, an average amount of poverty, and an average amount of crime. What it didn' t have by the late 1970s was an average number of good schools. In the three decades following the Supreme Court ' s 1954 decision in Brown y. Board of Education, which banned separate-but-equal schools, white flight totally reversed the demographics of the KCMSD--enrollment slowly declined from 70, 000 to 36, 000 students, and racial composition went from three-fourths white to three-fourths nonwhite (mostly blacks, with small percentages of Hispanics and Asians) . ' As whites abandoned the schools, the school district ' s ability to raise taxes disappeared. The last year that the voters approved a tax increase for the schools was 1969, the same year that blacks first became a majority. Over the next two decades, the voters of the district declined to approve a tax increase for the school district 19 times in a row. ' After middle-class whites pulled their children out of the school district, leadership declined. It was hard to find people to run for the school board. Those who did run tended not to be particularly sophisticated, usually earned less than $30, 000 a year, and had difficulty dealing with complex financial issues . ' With neither adequate leadership from the school board nor sufficient funding from taxpayers, the school system basically collapsed--test scores plummeted, assaults rose, Page 4 the good teachers either burned out or accepted better offers elsewhere. By the time the plaintiffs (originally, schoolchildren and the school district itself) filed suit against the state of Missouri in 1977, wooden windows in the school buildings had rotted to the point where panes were literally falling out, ceiling tiles were coming down, and the halls reeked of urine. There were exposed electrical boxes, broken lights, crumbing asbestos falling from over- head pipes, nonworking drinking fountains, and rainwater running down the stairwells. Textbooks were decades out of date, with pages missing and the covers torn off . Emergency doors were chained shut . Boilers were so erratic that in some classrooms students wore coats and gloves all winter while in other classrooms in the same school it was so hot that the windows had to be kept open in the coldest weather. ` When plaintiffs ' attorney Arthur Benson took mature men, presidents of corporations, into those schools in the 1980s, they came out with tears in their eyes. Years later Judge Clark, an unpretentious man who wore cowboy boots on the bench, would remark that in all his years as a judge he had never seen a prison in as bad shape as the Kansas City schools. '' Winning Big in Federal Court In the mid-1970s, in response to what appeared to be • the imminent financial and educational bankruptcy of the school system, a group of mothers and educational activists took over the KCMSD school board. Then in 1977, with the schools in collapse and the voters unwilling to approve levy increases or school bond measures, members of the school board, the school district, and 2 (later increased to 10) plaintiff schoolchildren brought suit against the state of Missouri and assorted federal agencies, alleging that the state, the surrounding school districts, and various federal agencies had caused racial segregation within the district.' Federal Judge Russell Clark, who had just been appointed to the federal bench by President Jimmy Carter, got the case shortly thereafter. The following year he dropped the federal agencies from the case and realigned the school district, making it a defendant rather than a plaintiff' (in practice, however, the district and the plaintiffs always had a "friendly adversary" relationship) .` In April 1984 after five months of trial, Clark ren- dered his first major decision, releasing the suburban districts from the case. Three years later he found that Page 5 the district and the state were "jointly and severally liable" for the segregated conditions in the Kansas City schools, a decision that meant that if Clark ordered the district to spend money to improve the schools and the district didn' t have it, the state had to make up the dif- ference . Originally, the plaintiffs' goal had been to get the judge to consolidate Kansas City' s dozen small suburban districts with the KCMSD to create one big district that would then be subdivided into three or four smaller dis- tricts, each with a mandatory busing plan for integrating the schools . But when Judge Clark dismissed the suburban districts from the case, the plaintiffs were forced into a radical shift in strategy. '' Because the KCMSD was already 73 percent nonwhite, the only way to really integrate it was to bring in white chil- dren from the suburbs. Although critics had told Benson that such a plan wouldn' t work--whites simply wouldn' t go to majority black schools--Benson was operating on a Field of Dreams theory- - "If you build it, they will come. " As he saw it , parents didn' t care about race. They didn' t care how long the bus ride was . They didn' t care what kind of neigh- borhood the school was in. What they wanted was a good, safe school that would provide their children with a good education. Benson considered it his job, therefore, to build a school system that would give students a better education than they could get anywhere else in the area. Then, as suburban middle-class whites flooded into the district, they would integrate the schools, and their mid- dle-class aspirations would change the school culture from one of failure to one of success, whereupon blacks' achieve- ment would rise to match that of whites . Because the judge had no expertise in devising a plan that would both desegregate the district and provide a quality education for the students, he asked the state and • the plaintiffs each to come up with a remedy and he would chose between the two. The state took the aggressive but (as events would later show) not entirely irrational position that most of what was wrong with the KCMSD had more to do with crime, poverty, and dysfunctional families than it did with the failure of the state to meet its constitutional obligations . Under the circumstances, the state argued, all that was legally required was a little reroofing, patching, painting, and carpet repair coupled with curriculum reform and empha- sis on better teaching. Page 6 The plaintiffs, on the other hand, encouraged by what they saw as the increasing sympathy of the judge for their position, decided to "go for the moon"--to ask for far more than they thought they could ever get . The choice for Clark was a stark one--he could go with the state 's plan, which in the words of Harvard researcher Alison Morante was "laughably insufficient, " or he could go with the plaintiffs ' plan, which was basically a wish list of everything they had ever wanted. Given the choice be- tween doing hardly anything and giving the plaintiffs the moon, Clark decided to go for the moon. '' Once Clark decided for the plaintiffs, he didn't ask them to do things on the cheap. When it came time to fill in the plan' s specifics, he invited them to "dream --to use their imaginations, push the envelope, try anything that would both achieve integration and raise student scores. The idea was that Kansas City would be a demonstration project in which the best and most modern educational think- ing would for once be combined with the judicial will and the financial resources to do the job right . No longer would children go to schools with broken toilets, leaky roofs, tattered books, and inadequate curricula. The schools would use the most modern teaching techniques; have the best facilities and the most motivated teachers; and, on top of everything else, be thoroughly integrated, too. Kansas City would show what could be done if a school dis- • trict had both the money and the will . It would be a model for educational reformers throughout the nation. When estimates of the cost of the initial version of the plan came back, the lawyers and education activists who had designed the plan were shocked at their own audacity. '° The $250 million cost was a staggering amount in a district whose normal budget was $125 million a year. But that was only the start. By the time he recused himself from the case in March 1997, Clark had approved dozens of increases, bringing the total cost of the plan to over $2 billion--$1 . 5 billion from the state and $600 million from the school district (largely from increased property taxes) . With that money, the district built 15 new schools and renovated 54 others. Included were nearly five dozen magnet schools, which concentrated on such things as computer science, foreign languages, environmental science, and classical Greek athletics. Those schools featured such amenities as an Olympic-sized swimming pool with an underwa- ter viewing room; a robotics lab; professional quality recording, television, and animation studios; theaters; a Page 7 planetarium; an arboretum, a zoo, and a 25-acre wildlife sanctuary; a two-floor library, art gallery, and film stu- dio; a mock court with a judge ' s chamber and jury delibera- tion room; and a model United Nations with simultaneous translation capability. To entice white students to come to Kansas City, the district had set aside $900, 000 for advertising, including TV ads, brochures, and videocassettes . If a suburban stu- dent needed a ride, Kansas City had a special $6 .4 million transportation budget for busing. If the student didn't live on a bus route, the district would send a taxi . Once the students got to Kansas City, they could take courses in garment design, ceramics, and Suzuki violin. The computer magnet at Central High had 900 interconnected computers, one for every student in the school . In the performing arts school, students studied ballet, drama, and theater produc- tion. They absorbed their physics from Russian-born teach- ers, and elementary grade students learned French from native speakers recruited from Quebec, Belgium, and Came- roon. ' For students in the classical Greek athletic program, there were weight rooms, racquetball courts, and a six-lane indoor running track better than those found in many colleg- es . The high school fencing team, coached by the former Soviet Olympic fencing coach, took field trips to Senegal and Mexico. ' The ratio of students to instructional staff was 12 or 13 to 1, the lowest of any major school district in the country." There was $25, 000 worth of beads, blocks, cubes, weights, balls, flags, and other manipulatives in every Montessori-style elementary school classroom. Younger children took midday naps listening to everything from chamber music to "Songs of the Humpback Whale . " For working parents the district provided all-day kindergarten for youngsters and before- and after-school programs for older students . A District Overwhelmed For the KCMSD such a sudden change in fortune was overwhelming. Within a few years, a small neglected inner- city school district that never paid its bills on time, had horrible credit, couldn' t balance its books at the end of the year, and suffered from a grossly bloated bureaucracy had as much as an extra $300 million a year coming in over the transom.`0 Page 8 It was more than the district could handle. District expenditures took quantum leaps from $125 million in fiscal year 1985 to $233 million in FY88 to $432 million in FY92 .-- There were too much largesse, too many resources, and too little security. A woman in the Finance Department went to jail for writing checks to her own account . Hundreds of thousands of dollars worth of equipment and supplies were lost to "rampant theft" every year.' "It was like taking a Third World country, a totally deprived community, and giving them unlimited wealth, " said one local activist . "And that ' s how they acted--like kids in a candy store. They misused it, mismanaged it, and misappropriated it . They we're just not prepared for what Judge Clark thrust upon them. Perhaps the worst problem for what one school board president called the district ' s "modestly qualified" admin- istrators was the sheer volume of paperwork.-' When the judge started building schools and inviting school princi- pals to order whatever they wanted, purchase orders flooded into the central administrative office at the rate of 12, 000 a month. Clerks were overwhelmed, devastated, and too ashamed to admit they couldn' t handle the crush. The system just collapsed. ' There was such a rush to build or remodel so many schools in so short a time that contractors were starting work before educators had fully decided exactly what they wanted to build. Equipment arrived before the schools were ready to receive it . Everything moved so fast that, as one former board member would later recall, "it was like build- ing a train while it was rolling down the tracks. "' To outsiders, it appeared that the KCMSD had gone on a spending binge. At $400 million, Kansas City' s school budget was two to three times the size of those of similar districts elsewhere in the country. The Springfield, Mis- souri, school district, for instance, had 25, 000 students, making it two-thirds as big as the KCMSD. Yet Springfield' s budget ($101 million) was only one-quarter to one-third the size of Kansas City' s ($432 million at its peak) .- Everything cost more in Kansas City.` Whereas nearby districts were routinely building 500-student elementary schools for around $3 million, in Kansas City comparably sized schools cost $5 million to $6 million. Whereas the nearby Blue Valley district built a 1, 600-student high school at a cost of $20.5 million, including furniture and equipment, in Kansas City the 1,200-student Central High cost $33 million (it came with a field house larger than Page 9 those of many colleges, ubiquitous computers, and an Olym- pic-sized swimming pool) .-' warehouses filled up with equipment that schools had ordered but later decided they didn't want . One school ordered light fixtures that cost $700 apiece. Principals of some schools ordered replacements for desks and light fix- tures that were in perfectly good condition. (The workmen who were installing the new desks and fixtures took the discards to their home districts and installed them in their own schools . ) The district spent $40, 000 for a display case for a high school that had no trophies. It bought 286- and 386-model computers and then left them sitting on the shelves so long they became obsolete without ever having been in a classroom. At one point, complained state attor- ney general Jay Nixon, the district couldn't account for some 23 , 000 items, including TV sets, CD players, bookcases, office furniture, and (temporarily) a baby grand piano. ' The Desegregation Monitoring Committee, which Clark had appointed to oversee the district under his direction, was irate at the district ' s nonchalance toward money. "The attitude has been prevalent throughout the . . . program that money is no object and the court will provide all that is necessary and no one will take any punitive action, " complained the committee ' s 1992 report. " With some 600 employees for a district of 36, 000 stu- dents, the KCMSD had a central administration that was three to five times larger than the administrations of other comparably sized public school districts. It was also 150 times larger than the administration of the city' s Catholic school system, in which four people--one superintendent, two assistant superintendents, and a part-time marketing manag- er--ran a school district of 14, 000 students. The KCMSD was so top-heavy that a 1991 audit discovered that 54 per- cent of the district ' s budget never made it to the class- room; rather, it was used for food service, transportation, and, most of all, central administration.- At one point, complained Nixon, 44 percent of the entire state budget for elementary and secondary education was going to just the 9 percent of the state 's students who lived in Kansas City and St. Louis. " Missouri was spending more on desegregation than it was spending on prisons, courts, the highway patrol, and the state fire marshal combined. 3L To parents in the state ' s 529 other school districts, it seemed extraordinarily unfair that Kansas City was awash Page 10 in money while their districts had to cope two years in a row with funding declines that forced them to hold bake sales and car washes to finance programs, sell hot dogs and sodas to buy school athletic uniforms, and clip soup coupons to buy computers . To replace the money that the state sent to St . Louis and Kansas City, other districts in the state had to cancel field trips and extracurricular activities, defer mainte- nance, fire teachers, and freeze salaries. ' The decline in state revenue cost the Springfield school district $4 mil- lion--4 percent of its entire budget . As there was no slack in the budget, Springfield had to fire 19 employees; defer grouting the mortar on 100-year-old brick buildings; cancel public speaking classes; dispense with water safety courses; and beg for money to send students to the Civil War battle- field at Wilson ' s Creek, an annual trip that had been made for decades . ' In the meantime, the KCMSD was spending $50, 000 a month to bring students to school in taxis, send- ing its fencing team to Senegal, and dispatching the dis- trict superintendent on a goodwill mission to Moscow. ' In some parts of the country, such excesses wouldn' t have caused much of an outcry. "But these were Midwestern- ers and it was too much for their sensibilities, " one Kansas City legislator noted. "If [Judge Clark] had gone slowly, built a few schools, renovated a few others, they wouldn' t have minded so much. But there was this huge excess. And it was too much. ""' From time to time, Clark did try to rein in the dis- trict . Once when the district tried to appoint someone with no magnet experience to be the principal of a magnet school, the judge forced the district to rescind the appointment . Another time he fined the school district when it failed for two years in a row to order books for the start of school . "The school district is like a small child, " he once com- mented. "They' ll push their parents as far as they can push them. "" Still, because Clark lived and worked in Springfield, 175 miles south of Kansas City, there was only so much he could do in person. Even more important, early on he made a conscious decision not to try to micromanage the school district . Clark felt that Arthur Garrity, the Boston feder- al judge who had earlier tried to implement his own remedy in that city' s troubled schools, had failed dismally. Clark didn 't want to make the same mistake. ' Page 11 Ths Poster Boyoff the Iiperial Judiciary Because the state was paying 75 percent of the desegre- gation costs, Clark wanted to equalize the burden by having the school district increase property taxes . But local voters, the majority of whom were older and white, repeated- ly refused, whereupon Clark, taking matters into his own hands, ordered that property taxes in the district be dou- bled (from $2 . 05 to $4 for each $100 of assessed value) . Later, to help pay for what would eventually become a 40 percent raise for teachers, he ordered a further increase-- to $4 . 96 .` He also ordered a 1 .5 percent surcharge on income earned by people who worked in Kansas City but lived elsewhere . It was one thing to take control of a local school district . It was another thing entirely for a judge to take the view that citizens weren't taxing themselves enough. In the ensuing outcry, editorial writers and news commentators denounced Clark as "King George" and "the poster boy of the imperial judiciary. "' "Politicians do polls and get their negatives rated, " Benson later commented. "He is the most unpopular man in Jackson County and he doesn' t even live here . "" He began to get death threats, enough hostile letters to fill two big file drawers, and so many phone calls from outraged citizens that he quit answering the phone . For politicians who needed something or someone to run against, Judge Clark was a godsend. Not only did state and federal representatives run against him, but so did council members in other cities. "The animosity was mind-boggling, " said former school board president Sue Fulson. For three years running, whenever citizens tried to lobby the legisla- ture, they got back a form letter lamenting that, much as their representative would like to help, the matter was out of his hands-- "All the money is going to Kansas City. Write Judge Clark. "" Clark was unswayed. "I had to balance two constitu- tional issues, " he later said. "One was no taxation without representation and the other was the kids ' right to an equal opportunity. I decided it in favor of the school chil- dren. "'' A group of local taxpayers and property owners, repre- sented by the Landmark Legal Foundation, appealed the order. Eventually, the issue got to the U.S. Supreme Court, which, by a five-to-four vote, decided in April 1990 that (1) Judge Clark did not have the right to raise taxes by himself but Page 12 that (2) he could order the district to raise taxes to satisfy its debt obligations.°` Justice Byron White justi- fied the tax increase with the argument that "a local gov- ernment with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation. "' In dissent, Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor, and Antonin Scalia complained of the majority' s "casual embrace of taxation imposed by the unelected, life-tenured federal judiciary. "` In the meantime, the Eighth Circuit Court of Appeals rescinded Clark' s 1 . 5 percent income surcharge (which had brought in $32 million the first year, double what had been expected) on the grounds that it was an entirely new tax requiring the creation of a new tax collection bureaucracy and thus unconstitutionally interfered with the right of local jurisdictions to manage their own affairs. Although the tax issue upset voters all over the state, what especially irked Kansas City parents was the district 's inept running of its magnet school busing plan. To achieve the best possible racial balance within the Kansas City schools (as well as to transport those white suburban stu- dents who wanted to attend district schools) , the desegrega- tion plan called for a massive criss-crossing, door-to-door busing system. Once the magnet plan started, the district suddenly went from having 100 bus routes to having 850. At a given bus stop, it was not uncommon to find 10 kids going to 10 different schools . ''- The opening of school each year was a media circus--and every year the buses were late . The Kansas City Star once ran a picture of two little girls sitting on a street corner hours after their buses were supposed to have come. On another occasion, a little girl who fell asleep on the bus ended up with frostbite when she found herself locked in the bus all night . Eventually, the district brought in a pro- fessional transportation manager who finally was able to make the buses run on time, but by then parents hated the magnet busing plans'' and Kansas City had earned a reputation as a district that couldn't do anything right . The atmosphere at school board meetings didn' t help. There were so much paranoia and shouting and so many accusa- tions that board president Sue Fulson had to walk on eggs. ''° If she didn' t call on some board members, they would claim that they had been slighted. White liberals who came on the board thinking of themselves as "good guys" found their Page 13 commitment to blacks constantly in question. Some members of the black community thought that the white board members told the black board members how to vote . Black board members regularly asked white colleagues, "What are you getting out of this?" The school board tried to do something about the antag- onism, at one point calling in an attorney to hold up a little flag of truce when things got too far out of hand and, on another occasion, holding a weekend retreat in the country, but nothing helped--the races didn' t trust each other. Teacher Connttence vs. the Community' s geed for Jobi The school board ' s obsession with racial politics greatly complicated its efforts to hire a superintendent who was qualified to handle a $300 million to $400 million • budget and yet willing to work with the school board. "Race is the first and foremost consideration in almost anything to .do with the district, " said former school board president Sue Fulson. "Once you decide which way you are going on [race] then you make the decision on the merits of whatever is left . And it has been that way for years. Kansas City never did solve that problem. Candidates with national reputations voluntarily took themselves out of consideration for the Kansas City superintendent ' s position once they actually met the school board. Furthermore, once a superintendent was hired, the antagonism only got worse . The board rode one superintendent so relentlessly that he developed suicidal tendencies, took multiple out-of- state trips, and faked a back injury (for which he was subsequently fired) to avoid going back to work. " When Judge Clark recused himself from the case, he noted in his final state-of-the-district order that the KCMSD had had 10 superintendents in the last nine years, most of them bought out or fired (at one point the district had five superinten- dents on the payroll simultaneously) . With such turnover, he complained, it was hard to hold anyone accountable . ' The turnover problem also left the district with nei- ther the ability nor the political will to do anything about improving the quality of teachers and principals. Promo- tions to principal were based less on merit than on race . "We so desperately need good principals and we just continue to support hacks, " Benson complained.61 Page 14 Before the desegregation plan, the KCMSD could always argue that for more than 30 years it had not had the money to offer high enough salaries to attract a first-class teaching staff . But even after the desegregation money started rolling in, the district still didn' t do anything to upgrade instructional personnel . It was less traumatic to concentrate on what Benson called the "easy expensive" things (new buildings, new equipment, busing plans) than to tackle the "difficult inexpensive" things that really make a difference in children' s lives--appointing qualified princi- pals, supervising instructional practices, developing a curriculum, providing incentives, hiring good teachers, and firing bad ones . ` The result, education activist and gadfly Clinton Adams maintained, was that 50 percent or more of the teachers in the district were "not focused, rather vacuous, totally devoid of intellectual capacity, ill suited for the mission at hand. Benson, more tactful, argued that only 20 percent of the teachers were "totally. incompetent" and that another 20 percent could be brought up to speed with re- training. - The biggest problem faced by KCMSD superintendents was that they didn' t have a free hand when it came to personnel decisions . In Kansas City the two largest employers of middle-class blacks were the post office and the school district . Just the rumor of a dismissal sent tremors through the entire black community--there was no other place to go; the community needed the jobs. At the same time, school district employees were the mainstay of the black churches . (Kansas City mayor Emanuel Cleaver, a Methodist minister, had 200 teachers in his parish. ) `' The black preachers closely monitored the district 's hiring and promo- tion practices, with the result that the district essential- ly couldn' t fire anyone . `' Since it could do nothing about inadequate teachers, the district sidestepped the matter by simply raising every- one 's (including cafeteria workers ' and janitors ' ) salary 40 percent .' But that didn' t so much attract better teachers as convince poor teachers to stick with the district as long as they could because they were getting salaries they couldn' t get anywhere else . " The Kansas City Plan Dors Awry When Clark first authorized the desegregation plan, he made what he now regards as a serious error--he ordered Page 15 enough schools built to accommodate the 5, 000 to 10, 000 suburban students he believed would flock to Kansas City to enroll in the new magnet schools.° But despite a $900 , 000 television advertising budget and a $6 . 4 million special budget for door-to-door transpor- tation of suburban students, the district did not attract the 5, 000 to 10, 000 white suburban students the designers of the desegregation plan had envisioned. The largest number it ever enrolled was 1, 500, and most white students returned to their old suburban schools or to local private schools after one year, which forced the district to recruit a whole new cohort of white students every fall ." Even that modest number drastically declined after the Supreme Court ' s 1995 ruling that the judge had no authority to spend taxpayer dollars to transport suburban students into the district . By the 1996-97 school year, only 387_ suburban students were still attending school in the KCMSD. • Given that the district ' s annual desegregation budget was approximately $200 million, the cost of attracting those suburban students was half a million dollars per year per child. Some people in the black community regarded the white reluctance to attend school in the KCMSD as further proof of white racism-- "You can ' t just build a $6 million school facility, call it a magnet, offer some romantic courses and think all the white students are going to come, " said Kansas City mayor Emanuel Cleaver. But to others the problem wasn' t so much racism as hard-nosed parental realism. What suburban white parents really wanted were schools that would enable their children to compete effectively and successful- ly in the marketplace . The real reason whites wouldn ' t send their children to school in Kansas City was quite simple-- the KCMSD couldn ' t offer white students as good an education as they were already getting in their neighborhood suburban schools ." The desegregation plan called for the district to close old schools as new ones were built, but because of objec- tions from the community, which suspected the district of trying to close schools in black neighborhoods, the district found it difficult to raze even the oldest and most dilapi- dated buildings. '" As a result of that (and the never- realized tide of suburban enrollees) , the district ended up with seats for a maximum of 54, 000 students even though actual enrollment never exceeded 37, 000 .1.' Not only were the high schools of Kansas City "rattlingly empty, " they were financial white elephants .'6 "It ' s my fault we built a school system the tax base can' t support, " Clark conclud- ed." Finally, in the summer of 1997, with state desegrega- Page 16 tion funding rapidly ending, the school board voted to do what it could never find the political will to do before-- close two high schools and a middle school.'` Results of the Kansas City X4Rarimeat By the time Judge Clark took himself off the case in March 1997, he was a deeply frustrated man. For more than 20 years he had devoted 20 percent of his time as a judge to the Kansas City case . " And despite all the effort he had made to order the plan, fund the plan, and keep the plan on track--often in the face of intense opposition from the very people he was trying to help--the plan wasn' t working. The number of white suburban students attracted to the district by all the new magnet schools was less than 10 percent of the number that Clark had expected.' Year after year the test scores would come out, the achievement levels would be no higher than before, and the black-white gap (one-half a standard deviation on a standard bell curve) would be no smaller. ' Although the initial gap was small, by the 12th grade, blacks ' scores on standardized tests were about three years behind those of whites (10 .1 vs . 13 . 1) .'' At Central High School, which tended to attract suburban white computer hackers, white males were five years ahead of black males on standardized tests . `' "While there is some good teaching and learning going on in KCMSD schools, " Clark concluded in his March 1997 final order, "there is a great deal of poor teaching and little learning in many schools . "F' Despite intense and unrelenting effort, the district also found it impossible to eliminate almost-all-black schools. The reason wasn ' t racism, either--the district had a black school superintendent, a majority black school board, and a black school board president . In 1996 nonwhite enrollment exceeded 90 percent at 4 high schools, 2 middle schools, and 10 elementary schools. ". Clark could have ordered intradistrict transfers to distribute whites equal- ly, but he feared that the white parents would do what other whites had done in the past--enroll their children in pri- vate schools or pull up stakes and leave the district or even the state . The border between Kansas City, Missouri, and Johnson County, Kansas, runs right down the middle of the metropolitan area. For people wanting to escape the reach of the court by leaving Missouri entirely, doing so was in some cases as simple as moving across the street."' Page 17 Although the district had once hoped to have enough white suburban students to bring down the black/white ratio to 60 percent black, 40 percent white, the percentage of nonwhites (blacks, Hispanics, and Asians) increased every year, going from 73 percent at the start of the_ desegrega- tion plan to 80 percent in the spring of 1997 . ' In his final order, Judge Clark blamed the failure on the district : "Because of the KCMSD' s troubled past, the district has lost the confidence of many of its staff, students, parents, and the community at large--already low achievement scores have fallen in the last year or two and the debacles of the School Board have provided near constant fodder for the news media . ""F' The average black student ' s reading skills increased by only 1 . 1 grade equivalents in four years of high school .`• At Central High, complained Clark, black males were actually scoring no higher on standardized tests when they graduated as seniors than they had when they enrolled as freshmen four years before . ' Most annoying to the judge, the district seemingly had no idea what it really spent on various budget line items . Instead of adhering to a budget, Clark wrote, the district simply "threw" some money into a given account , and the departments could overspend or underspend as they saw fit . Despite repeated requests from the court, the district couldn ' t put together a security plan, a staff development program, or a core curriculum--something it had needed since the desegregation plan had gone into effect 12 years earlier. Clark had reason to be annoyed. Back in 1985 his chief educational adviser had sat on the witness stand in his court and had confidently assured him that, if he funded the proposed plan, student achievement on standardized tests would climb above state averages in less than five years." But then Kansas City got all the money any school district . could ever want, and essentially nothing changed. "I don' t know who sold the judge that bill of goods [that students would meet state norms in five years, ) " Annette Morgan, a Kansas City Democrat and chairwoman of the Missouri House Education Committee said in 1995. "I always thought that was ludicrous . If they had done that they • would have achieved the attention of everyone else because that has not been done any place I know of. No one was more disappointed than former school board president Sue Fulson. "I truly believed, " she told the Harvard Project on School Desegregation in 1992, "if we gave Page 18 teachers and administrators everything they said they needed that they would truly make a huge difference. I knew it would take time, but I did believe by five years into this program we would see not just results, but dramatic results, educationally. And [the fact we didn' t] is my bitterest disappointment . "'' Judge Clark was so disappointed that at one point he suggested that he would keep control of the district until test scores reached national norms . That left Missouri in a bit of a bind. For one thing, no big city school district had ever met national norms (they had their own standard-- big city norms) , and, as Justice Scalia pointed out in exasperation when the case finally got to the Supreme Court, by definition, "half the country is below national norms ! "5' The other problem was one of incentives. As long as Clark kept control, the state was obligated to send the district upwards of $100 million a year with no say in how the money was spent . Furthermore, given the extensive facilities and new programs the district had created, it was money the district couldn' t do without . If the district did unexpect- edly and unaccountably happen to raise test scores to na- tional norms, the money would cease and the district would go bankrupt . The Kansas City plan did have some successes. The district had perhaps the best facilities in the country. The equipment was state of the art . One former student won a Rhodes scholarship. Some of the students got an opportu- nity to visit other parts of this country or Europe. David Armor, an educational consultant and sociologist who testi- fied in Clark' s court on educational achievement in January 1997, found that the desegregation plan did integrate the system "as far as was possible, " given the conditions that existed in Kansas City. "But educationally, " he noted, "it hasn' t changed any of the measurable outcomes. "'( Scores on standardized tests didn' t go up at all . And the average three-grade-level black-white achievement gap was as big as it always had been. In perhaps the biggest surprise, Armor's studies found that black elementary students who go to magnet schools (which have the highest percentages of whites) score no better on standardized tests than do blacks who go to all- black nonmagnet schools.97 In short, Armor found that, contrary to the notion on which the whole desegregation plan was founded--that going to school with middle-class whites would increase blacks ' achievement--the Kansas City experi- ment showed that "integration has no effect . "" • Page 19 H . Desegr.gat of lan Hurt lansas City The most pressing problem with the Kansas City schools, which were mostly black to begin with, was not that they weren' t integrated but that the schools were falling down and the students weren' t learning. However, the lawsuit filed by the plaintiffs' attorney didn' t concentrate on learning--it focused on segregation. One reason was that Benson initially assumed that segregation was the cause of poor achievement among blacks and once you cured that, bringing up test scores would be a trivial matter. " There was also the practical question of finding a way to pay for the buildings, equipment, programs, amenities, transportation, and salary hikes . As one high school guid- ance counselor observed, "It ' s not unconstitutional to give the students a lousy education; it ' s only unconstitutional to give them a segregated one . "'0C If the goal is to get a federal court to pour a billion dollars into a district, Landmark Legal Foundation's then-president Jerald Hill noted in 1995, "you have to come up with a constitutional viola- tion. ,,101 In Kansas City, segregation had become the constitu- tional tail that wagged the educational dog. Back before it became clear that there was no way the district could ever meet the prescribed desegregation ratio of 60 percent black to 40 percent white, Judge Clark' s Desegregation Monitoring Committee was forever badgering the district : "Show us your progress . What are we getting for our money? How much integration have you got? How many white kids from the suburbs? What are your [black/white) ratios? What is the disparity index?"' By worrying so much about integration in a district that was already three-quarters nonwhite, the judge and the plaintiffs ended up ignoring a whole list of far more likely reasons for students ' lack of achievement. Because of steadfast union opposition, the district rejected merit pay for teachers. 103 It promoted principals on the basis of their race instead of their merit (which it had no systemat- ic way to assess in any event) . Because it failed to devel- op a core curriculum, many teachers simply geared their teaching to the Iowa Test of Basic Skills, a standardized multiple choice exam- -a short-run strategy that hurt stu- dents long term. 10` For fear such a plan would reduce en- rollment and jobs (and possibly show up the school dis- trict) , the district rejected an initiative by 50 private schools to take 4, 000 Kansas City students and educate them in return for vouchers for one-third to one-half of what the Page 20 district was currently spending. "' The KCMSD also rejected an offer by the Missouri Department of Education to run a demonstration school in the district because the state insisted on the right to pick its own teachers. -' An overzealous commitment to their desegregation plan sometimes led proponents of the plan to take positions seemingly at odds with their ultimate goal of helping inner- city blacks . At one point the Landmark Legal Foundation had to go to court to stop the district from enforcing a quota that allowed desks to sit empty in new magnet schools (wait- ing for whites who never came) while some overcrowded all- black schools had to house their students in trailers. "' If a white suburban student wanted to go to a magnet school, admission was automatic because that brought the district closer to the 60/40 black/white ratio ordered by the judge. If a black student wanted to go to the same school, however, that student often ended up on a waiting list . As a result, some black parents registered. their children as white in order to get them into certain schools . " Finally, the district had discovered that it was easier to meet the court ' s 60/40 integration ratio by letting black students drop out than by convincing white students to move in. As a result, nothing was done in the early days of the desegregation plan about the district ' s appalling high school dropout rate, which averaged about 56 percent in the early 1990s (when desegregation pressures were most intense) and went as high as 71 percent at some schools (for black males it was higher still) . 10" Although the plan was ostensibly designed to benefit black inner-city students, in practice it required spending hundreds of millions of dollars on fancy facilities to attract white suburban students--who didn' t need help--while neglecting the needs of inner-city blacks for health care, counseling, .,and basic instruction in reading, writing, and arithmetic . That seeming perversion of logic left some black parents confused and angry and less than eager to give their full support to a desegregation plan that pulled their children out of neighborhood schools for the questionable benefits of riding across town to go to school with whites whose parents, in some cases, had left the Kansas City schools to avoid blacks in the first place.'" The fact that the desegregation plan called upon the district to abandon neighborhood schools in favor of a massive magnet busing plan also weighed heavily on Judge Clark. In successful school districts, neighborhood schools are the hub of much community social activity. When stu- Page 21 dents are bused clear across the district to a faraway magnet school, the fabric of the community is torn apart . Such considerations notwithstanding, Clark still came down on the side of busing for desegregation. "There were two objects to the Kansas City plan, " he later said. "One was integration and the other was_a quality education, and you can' t necessarily have both. ""- Finally, in June 1995, with $1 . 6 billion in desegrega- tion funding down the drain and no end in sight, the U.S. Supreme Court made its third ruling in the case, telling Clark to quit trying to solve social problems beyond his purview; forget about what Chief Justice Rehnquist called "desegregative attractiveness" (building a school system so fancy it will attract students from other districts) ; quit holding the state hostage until test scores reach national norms; focus his energy on overcoming the vestiges of any remaining discrimination; and., as soon as possible, return control to local authorities. ' Although irked by what he regarded as the Court ' s faulty understanding of the issues, ' Judge Clark bowed to the inevitable and two years later in March 1997 began the process of dismantling the desegregation plan by approving an agreement between the state of Missouri and the school district that would end the state ' s annual $110 million desegregation payment to the KCMSD after 1999 . " Clark' s final order left many people wondering how the KCMSD would manage to survive without state desegregation funding. Not only would the district lose approximately $110 million a year from the state, it also stood to lose an additional $75 million provided by Clark' s $4 . 96 property tax levy. Eventually the court would have to relinquish control of the district to local authorities (called "re- storing unitary status" ) . Once it did that, legal authority for the district 's court-ordered property tax increase would expire, allowing the rates to drop back down to the state- ordered minimum of $2 .75 per $100 of assessed value. That $75 million drop, on top of the already negotiated $110 million a year drop in state funding, would leave the dis- trict--assuming it got no additional help--with a budget of about $140 million. Although there are many similarly sized school dis- tricts around the country that are surviving quite well on budgets that size, such as Montgomery County, Alabama, and Richmond County (Augusta) , Georgia, the KCMSD would probably need a minimum of $240 million a year to survive. " It had too many built-in expenses. The magnet school busing plan Page 22 alone cost $30 million a year. The district had too many schools that were only half full . Many schools had exten- sive landscaping and athletic facilities, as well as expen- sive high-tech heating and air conditioning systems .- Just the cost of heating the much-ballyhooed 650, 000-gallon Olympic-sized swimming pool at Central High ran to several hundred thousand dollars a year. For his part, Judge Clark was miffed at what seemed to him to be some kind of informal collusion between the state and the district to convince him to withhold unitary status (and thus keep his property tax levies from expiring) . "It is not the duty of this court to ensure funding for the KCMSD, " he pointed out in his final order. If the district needed more money after the court orders expired, it ought to submit a property tax increase to the voters, or the state legislature ought to put together some kind of long- term financial aid package. Even so, in his final order of March 1997, Judge Clark expressed deep concern over what would happen to the KCMSD when a subsequent court finally did return control of the district to local authorities. Given its past performance, he wrote, the district would probably cut school services rather than reduce its "lavish" administration. To prevent that, he urged whatever judge took his place on the case to consider appointing a special master to run the district until such time as it proved itself capable of handling its own affairs . "The KCMSD must come to grips with fiscal reality, " he wrote . "It cannot continue to spend money on either excess or incompetent personnel . ' What Went Wrong At one time the Kansas City experiment was going to be a progressive light unto the educational nation. Instead, it became the most expensive desegregation plan in the nation and, in terms of achievement-bang-for-the-education- al-buck, the biggest failure, too. Kansas City did all the things that educators had always said needed to be done to increase student achievement--it reduced class size, de- creased teacher workload, increased teacher pay, and dramat- ically expanded spending per pupil--but none of it worked. Although official class size in the KCMSD ranged from 22 per room in kindergarten to 25 in high school, so many students cut classes that the effective class size was often closer to 15. 11' If such small class sizes were helping achievement, it didn' t show up on exams. Neither did at- Page 23 tempts to reduce the teacher workload. At Central High, complained Clark, teachers taught only three classes per day, but student scores on standardized tests were lower at Central than they were at schools where teachers taught six daily classes ." Although Kansas City did increase teacher pay a total of 40 percent to an average of about $37, 000 (maximum was $49,008 per year for Ph.D. s with 20 years experience) , test scores for the district were consistently below state and national averages. '" Parochial school teachers, in con- trast, earned an average of $24, 423, but their students' test scores were consistently above state and national averages . :-- In fact, the supposedly straightforward correspondence between student achievement and money spent, which educators had been insisting on for decades, didn' t seem to exist in the KCMSD. At the peak of spending in 1991-92, Kansas City was shelling out over $11, 700 per student per year. "' For the 1996-97 school year, the district ' s cost per student was $9, 407, an amount larger, on a cost-of-living-adjusted basis, than any of the country' s 280 largest school dis- tricts spent . ' " Missouri ' s average cost per pupil, in contrast , was about $5 , 132 (excluding transportation and construction) , and the per pupil cost in the Kansas City parochial system was a mere $2 , 884 . - The lack of correspondence between achievement and money was hardly unique to Kansas City. Eric Hanushek, a University of Rochester economist who testified as a witness regarding the relationship between funding and achievement before Judge Clark in January 1997, looked at 400 separate studies of the effects of resources on student achievement . What he found was that a few studies showed that increased spending helped achievement; a few studies showed that increased spending hurt achievement; but most showed that funding increases had no effect one way or the other. "' Between 1965 and 1990, said Hanushek, real spending in this country per student in grades K-12 more than doubled (from $2 , 402 to $5, 582 in 1992 dollars) , but student achiev- ement either didn't change or actually fell . And that was true, Hanushek found, in spite of the fact that during the same period class size dropped from 24 . 1 students per teach- er to 17 .3, the number of teachers with master' s degrees doubled, and so did the average teacher ' s number of years of experience. `� Page 24 As Hanushek saw it, the real problem in American public education wasn' t so much financial as structural . There were no incentives in the current system to improve student performance--nothing rested on whether students achieved or not . The KCMSD should have been looking at incentives to increase academic productivity, such as merit pay, charter school vouchers, rewards for successful teachers, and penal- ties for unsuccessful ones . But the KCMSD, along with virtually the entire educational establishment, was institu- tionally biased against the notion of competition: As a result, state and federal governments had "spent tens of billions of dollars on school reforms over the last 15 years with nothing to show for it. That didn' t mean that money couldn' t ever be important, Hanushek said, only that "in the current structure it doesn 't help. " Conclusion All the money spent in Kansas City brought about nei- ther integration nor higher levels of achievement . The lessons of the Kansas City experiment should stand as a warning to those who would use massive funding and gold- plated buildings to encourage integration and improve educa- tion: ▪ The political realities of inner-city Kansas City made it impossible to fire incompetent teachers and principals and hire good ones . • Because the community regarded the school system as much as an employment opportunity as an educational institution, less than half the education budget ever made it to the classroom. • School superintendents found it hard to function because every decision was second-guessed by the court- appointed monitoring committee; the attorney for the plaintiffs; and the state of Missouri, which was paying most of the bills. • Because the designers of the Kansas City plan assumed that inner-city blacks couldn't learn unless they sat in classrooms with middle-class whites, the district wasted exorbitant amounts of time and money on expen- sive facilities and elaborate programs intended to attract suburban whites instead of focusing its atten- tion on the needs of inner-city blacks . Page 25 • By turning virtually every school in the district into a magnet school , the Kansas City plan destroyed schools as essential parts of neighborhoods, fractured neighborhoods ' sense of community, and alienated par- ents . • The mechanism used to fund improvements to the school system (a federal desegregation lawsuit) deflected attention from the real problem--the need to raise black achievement . • The ideological biases of local educators and politi- cians, and the federal court, made them reject solu- tions that might have worked, such as merit pay, char- ter schools, or offers by private schools to educate students in return for vouchers . • Because the district had no way to evaluate the performance of teachers and administrators, promotions couldn ' t be based on merit . • The desegregation plan created inverse achievement incentives- -the district got hundreds of millions of extra dollars in court-ordered funding each year but only if student test scores failed to meet national norms. Postscript: Confirmation from Sausalito People who believe there' s a strong connection between money spent on education and student achievement have a hard time explaining what ' s going on in the tiny 284-student Sausalito, California, Elementary School District . The district spends more than $12, 300 per student each year-- nearly three times the state average. '3c Students go to school in freshly painted buildings, with manicured lawns and new playground equipment. Class size is a mere 16 students per room, half that of many larger districts. The district has special instructors for art, drama, science, and computers. Yet, when it comes to student achievement, none of that seems to matter. Test scores are the lowest in Marin County; a third of the students are in special educa- tion classes; classrooms are "chaotic" ; teachers are "frus- trated, distressed and exhausted" and afraid to "turn their backs" on their classes. ' How could that happen in Sausalito, a wealthy liberal community of some 7, 200 artists, writers, and professionals just across the bay from San Francisco at the northern end Page 26 of the Golden Gate Bridge? "Why, " asked one Los Angeles Tim reporter, "aren ' t children performing better in a dis- trict that wants for nothing money can buy?""- One reason, certainly, is parental influence, or lack thereof. Sausalito shares its school district with an unincorporated area called Marin City, a federal housing project built to house the families of workers who flocked to area shipyards to build oil tankers during World War II . The contrast between Marin City and Sausalito couldn' t be more striking. Sausalito, which is 94 percent white, has an average family income of $107, 500, an unemployment rate of 3 . 8 percent, and hillside homes that overlook San Francisco Bay. Marin City, in contrast, suffers from a 38 percent unemployment rate; two-thirds of its 2, 000 residents live in public housing best known for fostering dependence on wel- fare, crime, alcoholism, and drug abuse . "' Even so, the situation of the schools was stable until 1990, when the Department of Defense closed three nearby bases . When the military left, a lot of social stability went with it and the schools quickly began to deteriorate. Concerned white parents began to transfer their children from the local public schools to private schools . By 1997 only 13 of the estimated 200 elementary-school-age children in Sausalito were going to school in their own school dis- trict . "' Eighty percent of the district ' s students were black, and most came from Marin City. Their chaotic home life came with them to the class- room. Students were "disruptive, ill-trained, ill-prepared, often without the most basic academic and social skills . "' During the 1996-97 school year, teachers and principals called the police on 50 different occasions. According to a Marin County civil grand jury report, the district lacked strong leadership, the teachers were demoralized, and the students were so violent that the teachers feared "turning their backs" on them. ' When parents complained, some board school members blamed low test scores on poverty, unemployment, and drugs. But a group of concerned parents pointed out that there were schools in San Francisco and nearby San Rafael where stu- dents had just as many disadvantage and those students were doing fine. Many people have suggested ideas for improving the schools : replacing the school board; hiring a dean and a full-time counselor for troubled children; coming up with a new curriculum; encouraging parental involvement, now close Page 27 to nonexistent ; and improving communication. ' So far, however, no one has suggested solutions that might actually work. One reason is that school officials are so wedded to the notion that money is the solution to low achievement that, when they have money and it doesn' t help, they don 't know what to do. In the meantime, they ignore ideas that might work. They might fire poor teachers and reward good ones with merit pay, give parents vouchers so they could send their children to private schools, or stop trying to solve the problem of dysfunctional families after the fact and look upstream for a solution--the elimination of welfare to end the resulting social chaos . Nctes 1 . Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. , 1997) , order of Judge Russell Clark . Cited hereafter as Clark, order. 2 . Arthur Benson, "School Segregation and Desegregation in Kansas City, " www.bensonlaw.com/deseg/deseg_history.htm, work in progress, Spring 1995 with 1996 epilogue . 3 . Author' s interview with attorney Arthur Benson, August 24 , 1995 . 4 . Author' s interview with former Kansas City school board president Sue Fulson, September 13 , 1995 . 5 . Author ' s interview with Benson, August 24 , 1995 . 6 . Alison Morantz, Harvard graduate student, intreview with Judge Russell Clark for the Harvard Project on School Desegregation, September 2, 1992 . The project published "Money, Choice and Equity in Kansas City" in April 1994 . Morantz provided the author transcripts of the interviews she conducted. 7 . School District of Kansas City. Missouri v. Missouri, 438 F. Supp. 830 (W.D. Mo. , 1977) . 8 . School District of Kansas amity. Missouri v. Missouxj., 460 F. Supp. 421 (W.D. Mo. , 1978) . 9 . Jenkins v. Missouri. 593 F. Supp. 1487 (W.D. Mo. , 1984) . Page 28 10 . Ibid. 11 . Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo. , 1987) . 12 . Author' s interview with Benson, August 24 , 1995. 13 . Ibid. 14 . Author' s interview with Alison Morantz, September 8, 1995 . 15 . Stephen Chapman, "An Educational Experiment Yields Some Astonishing Sobering Lessons, " Chicago Tribune, June 22, 1995 . 16 . Alison Morantz, interview with Sue Fulson for the Har- vard Project on School Desegregation, August 26 , 1992 . 17 . Author's interview with Benson, August 24 , 1995 . 18 . Author ' s interview with Missouri attorney general Jay Nixon, September 13 , 1995 . Cited hereafter as Nixon . 19 . Author ' s interview with George Mason University sociol- ogist David Armor, July 24 , 1997. Cited hereafter as Armor. 20 . Author ' s interview with Fulson . 21 . Desegregation Division, Missouri Department of Elemen- tary and Secondary Education. 22 . Lynn Horsley, "Audit Suggests Possible Savings, " Kansas City Star, August 8, 1997 . 23 . Author' s interview with Kansas City attorney Clinton Adams, September 8, 1995 . Cited hereafter as Adams. 24 . Author' s interview with Fulson. 25 . Author' s interview with Benson, August 24, 1995 . 26 . Author' s interview with former school board member Paul Ballard, Septemvber 19, 1995. Cited hereafter as Ballard. 27 . Author' s interview with Springfield attorney Ed Payton, September 15, 1995 . Cited hereafter as Payton. 28 . Author' s interview with Missouri state attorney John Munich, September 14, 1995 . Cited hereafter as Munich. Page 29 29 . Lynn Horsley, "Costs of KC' s Improvements, " Kansas City Star, November 18 , 1991 . 30 . Nixon. 31 . Quoted in Jim Mosely, "Kansas City' s Plush Schools Lure Students, " St . Louis Post Dispatch,, February 9, 1992 . 32 . Author's interview with Kansas City Catholic diocese school superintendent Sister Anne Shepard, August 20, 1997 . Cited hereafter as Shepard. 33 . Lynn Horsley and Tim O' Connor, "KC School District Lacks Leadership and Vision, " Kansas City Star, January 24, 1991 . 34 . Nixon . 35 . Charles Crumpley and Lynn Horsley, "Who Pays the Price?" Kansas City Star, May 10, 1994 . 36 . Payton. 37 . Ibid . ' 38 . Author' s interview with Kansas City attorney Richard Miller, September 13, 1995 . Miller filed a petition with the court on behalf of black parents asking Clark to approve a voucher plan to allow black children to attend desegregat- ed private schools . The matter was dropped after Miller' s "angel" ran out of money. 39 . Author' s interview with state legislator Annette Mor- gan, September 14 , 1995 . Cited hereafter as Morgan. 40 . Morantz, interview with Clark. 41 . Ibid. 42 . Author' s interview with Landmark Legal Foundation attorney Mark Bredemeir, August 8, 1995 . 43 . Blake Hurst, "Runaway Judge, " American Enterprise, May- June 1995, pp. 53-56 . 44 . Author's interview with Benson, August 24 , 1995 . 45 . Author' s interview with Judge Russell Clark, September 15, 1996 . Page 30 46 . Author' s interview with Fulson. 47 . Author' s interview with Clark. 48 . Missouri v . Jenkins, 110 S. Ct . 1651 (1990) . 49 . Ibid. at 1666 . 50 . Ibid. at 1667 . 51 . Jenkins v. Missouri, 855 F. 2d 1295 (8th Cir. , 1988) . 52 . Ballard. 53 . Author ' s interview with Fulson. 54 . Ibid. 55 . Ballard. 56'. Ibid. 57 . Author's interview with Fulson. 58 . Author ' s interview with Benson, August 24, 1995 . 59 . Ballard. 60 . Clark, order at 1174 . 61 . Author' s interview with Benson, August 24 , 1995 . 62 . Ibid. 63 . Adams . 64 . Author ' s interview with Benson, August 24, 1995 . 65 . Alison Morantz, interview with Kansas City mayor Eman- uel Cleaver for the Harvard Project on School Desegregation, August 3 , 1992 . 66 . Author' s interview with Benson, August 24, 1995. 67 . Ibid. 68 . Adams. 69 . Twenty-five percent of the KCMSD' s 37, 000 students were white. Thus, to meet the court-mandated ratio of 40 percent Page 31 white to 60 percent black, the district needed to attract 10, 000 additional white students. 70 . Author ' s interview with Gene Eubanks, professor of education at the University of Missouri, Kansas City, Sep- tember 12, 1995 . 71 . Desegregation Division, Missouri Department of Elemen- tary and Secondary Education. 72 . Morantz interview with Cleaver . 73 . Adams . 74 . Author' s interview with Benson, August 24 , 1995 . 75 . Munich. 76 . Author' s interview with Benson, August 24 , 1995. 77 . Author' s interview with Clark. 78 . Phillip O' Connor and Lynn Horsley, "Three Schools Slated to Close, " Kansas City Star, August 2, 1997 . 79 . Author ' s interview with Clark. 80 . Desegregation Division, Missouri Department of Elemen- • tary and Secondary Education. 81 . Clark, order at 1160 . 82 . Ibid. 83 . Author' s interview with school board president Edward Newsome, September 12, 1995 . Cited hereafter as Newsome. . 84 . Clark, order at 1173 . 85 . Ibid. at 1165 . 86 . Author' s interview with Fulson. 87 . Clark, order at 1165 . 88 . Ibid. at 1178 . 89 . Ibid. at 1158 . 90 . Ibid. Page 32 91 . Ibid. at 1173 , 1174 . 92 . Chapman. 93 . Morgan. 94 . Morantz interview with Fulson. 95 . Jenkins v. Missouri , 115 S . Ct . 2038 (1995) . 96 . Armor. 97 . Ibid. 98 . Ibid. 99 . Author's interview with Benson, August 24 , 1995 . 100 . Author' s interview with school counselor Dorothy Phil- lips, September 12, 1995 . 101 . Author' s interview with Jerald Hill, president of Landmark Legal Foundation, Octobeer 4, 1995. Cited hereafter as Hill . 102 . Author ' s interview with Benson, August 24 , 1995 . 103 . Ibid. 104 . Ibid. 105 . Author ' s interview with John Coons, law professor at the University of California, Berkeley, School of Law, September 7, 1995 . 106 . Morgan. 107. Hill . 108 . Ibid. 109 . Ibid. 110 . Newsome. 111 . Hill . 112 . Author's interview with Clark. 113 . Missouri v. Jenkirig, 115 S. Ct . 2054 , 2054, 2055. Page 34 135 . Fimrite . 136 . Ibid. 137 . LaGanga, "Audit Sees ' Chaos ' in Sausalito Schools. " Page 33 114 . Author' s interview with Clark. 115. Clark, order at 1152 . 116 . Author' s interview with Arthur Benson, August 27, 1997 . 117 . Lynn Horsley, "Fine Schools Will Need Years of Expen- sive Care, " Kansas City Star, November 18, 1991 . 118 . Clark, order at 1177 . 119 . Armor. 120 . Clark, order at 1177 . 121 . Salary data from KCMSD Research Office. 122 . Shepard. 123 . Desegregation Division, Missouri Department of Elemen- tary and Secondary Education. 124 . Clark, order at 1170 . 125 . Average cost is from Desegregation Division, Missouri Department of Elementary and Secondary Education. The Kansas City parochial figure is from Shepard. 126 . Author's interview with Eric Hanushek, July 7, 1997. 127 . Eric Hanushek, "Remedial Math, " New Democrat, December 1995, pp. 25-27 . 126 . Ibid. 129 . Author' s interview with Hanushek. 130. Peter Fimrite, "Sausalito Schools Get Low Grades, " Francisco Chronicle, August 22, 1997 . i 131 . Ibid. 132 . Maria L. LaGanga, "Audit Sees ' Chaos ' in Sausalito Schools, " Los AneJes Times, September 26, 1997. 133 . Maria L. LaGanga, "Sausalito Schools: Money Isn't Enough, " Los Angeles Times, May 16, 1997. 134 . Ibid. 283 . Ten Myths about Financial Derivatives by Thomas F. Siems (September 11, 1997) 282 . Campaign Finance "Reform" Proposals: A First Amendment Analysis by Lillian R. BeVier (September 4, 1997) 281 . How the Budget Revolution Was Lost by Stephen Moore (September 2, 1997) 280 . Renewable Energy: Not Cheap, Not "Green" by Robert L. Bradley Jr. (August 27, 1997) 279 . The End of Representation: How Congress Stifles Electoral Competition by Eric O'Keefe and Aaron Steelman (August 20, 1997) 278 . The Threat to Independent Education: Public Subsidies and Private Colleges by Gary Wolfram (August 15, 1997) 277 . With Friends Like These: Why Community Radio Does Not Need the Corporation for Public Broadcasting by Jesse Walker (July 24 , 1997) 276 . Should Congress Transfer Federal Lands to the States? by Randal O'Toole (July 3 , 1997) 275. Tobacco Medicaid Litigation: Snuffing Out the Rule of Law by Robert A. Levy (June 20, 1997) 274 . How Rent Control Drives Out Affordable Housing by William Tucker (May 21, 1997) 273 . • Help or Hindrance: Can Foreign Aid Prevent International Crises? by Doug Bandow (April 25, 1997) 272 . Emancipating America from the Income Tax: Row a National Sales Tax Would Work by David R. Burton and Dan R. Mastromarco (April 15, 1997) 271 . Dereliction of Duty: The Constitutional Record of President Clinton by Timothy Lynch (March 31, 1997) 270 . Chilling the Internet? Lessons from PCC Regulation of Radio Broadcasting by Thomas W. Hazlett and David W. Sosa (March 19, 1997) 269. Vouchers and Educational Freedom: A Debate Joseph L. Bast and David Harmer versus Douglas Dewey (March 12, 1997) OTHER STUDIES IN THE POLICY ANALYSIS SERIES 297 . Flawed Democracies: The Dubious Political Credentials of NATO' s Proposed New Members by Thomas M. Magstadt (March 6, 1998) 296 . Microsoft and the Browser Wars: Fit to Be Tied by Robert A. Levy (February 19, 1998) 295 . Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector by Solveig Singleton (January 22, 1998) 294 . Homeschooling: Back to the Future? by Isabel Lyman (January 7, 1998) 293 . The Mounting Case for Privatizing Freddie Mac and Fannie Mae by Vern McKinley (December 29 , 1997) 292. The Inherent Flaws of HUD by Howard Husock (December 22, 1997) 291 . IOLTA: Interest without Principle by Charles E. Rounds Jr. (December 18 , 1997) 290 . Restoring Health Freedom: The Case for a Universal Tax Credit for Health Insurance by Sue A. Blevins (December 12, 1997) 289. The National Sales Tax: Who Hears the Burden? by Gilbert E. Metcalf (December 8, 1997) 288 . Replace FDA Regulation of Medical Devices with Third-Party Certification by Noel D. Campbell (November 12, 1997) 287 . ISTEA: A Poisonous Brew for America' s Cities by Randal O'Toole (November 5, 1997) 286 . The High Cost of NATO Expansion: Clearing the Administration's Smoke Screen by Ivan Eland (October 29, 1997) 285 . The Advancing Nanny State: Why the Government Should Stay Out of Child Care by Darcy Olsen (October 23, 1997) 284 . Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun by Jeffrey R. Snyder (October 22, 1997) • 2' r ' ; -�. "nr�l�i + # F) ?•' ri_ *may -2- A GENDA REVIEW SESSION 3:23 P.M. ITEM#43474 Council Lady McClanan indicated a VERBAL NAY vote: M1 Ordinances to authorize the acquisition of Agricultural Land Preservation Easements(ARP)and the issuance by the City of its contract obligations (Blackwater Borough): 1. W. F. Hudgins, III, William F. Hudgins,Jr. and Malvine B. Hudgins 203 Acres-Installment Purchase Agreement No. 1998-19- $545,490. 2. Photios Anthony, Thomas C. Kyrus and S. V. Camp, III 99.50 Acres-Installment Purchase Agreement No.1998-20-$ 139,718. ITEM#43475 Council Lady Parker inquired if contact had been made with the Retail Association re: M3 Ordinances to AMEND City Code: 1. Section 26-3 re Peddling or Selling on or in Public Parks, Public Buildings or on Public Property in the RT-1,RT-2,RT-3 and RT-4 Resort Tourist Districts. The City Attorney advised this Amendment is not a substantive change. Permits are issued now and after this ordinance is adopted permits will continue to be issued. The Ordinance establishes the criteria for the City Manager relative issuing the permits and also excludes the first amendment,or any assumption that first amendment activities, might be included within that ordinance. ITEM#43476 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: ORDINANCES M1 Ordinances to authorize the acquisition of Agricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations(Blackwater Borough): a. W. F. Hudgins, III, William F. Hudgins, Jr. and Malvine B. Hudgins 203 Acres-Installment Purchase Agreement No. 1998-19- $545,490. b. Photios Anthony, Thomas C. Kyrus and S. V. Camp, III 99.50 Acres-Installment Purchase Agreement No.1998-20-$ 139,718. M2 Ordinance to authorize the City Manager to enter into a lease with E. R. COCKRELL, JR.for approximately 47.6 acres of city-owned property off North Landing Road,just West of the Municipal Complex and approximately 26.9 acres off Salem Road at Highland Drive and Lisban Road(PRINCESS ANNE AND KEMSPVILLE BOROUGHS). -3- A GENDA REVIEW SESSION ITEM#43476(Continued) M3 Ordinances to AMEND City Code: a. Section 26-3 re Peddling or Selling on or in Public Parks, Public Buildings or on Public Property in the RT-1, RT-2, RT-3 and RT-4 Resort Tourist Districts. b. Section 26-3.1 re Peddling or Selling on Public Property in the Resort Area during the Prime Resort Season. c. Section 28-5 re procedure for installment payment agreements for Sanitary Sewer connection fees. d. Section 28-26 re reducing the monthly Sanitary Sewer rate charged to multi-unit properties with separate water meters. e. Section 37-9 re procedure for installment payment agreements for Water Connection Charges. M4 Ordinance to APPROPRIATE$228,353 from the Fund Balance of the Tourism Advertising Program to the FY 1997-98 Operating Budget of the Department of Convention and Visitor Development re expanding the City's advertising program. M5 Ordinance to APPROPRIATE $75,000 federal and state reimbursements to the Police Department's airplane enterprise fund re the transfer of prisoners; and, estimated revenue be increased accordingly. M6 License Refunds- $170,411.59 RESOLUTIONS N.1 Resolution to approve issuance of the Virginia Beach Development Authority's Revenue Refunding Bond (Series 1995) (Suffolk Redevelopment and Housing Authority): Beach-Oxford Associates Limited Partnership $17,700,000 (Beach-Oxford Apartments) N.2 Resolution to refer to the Planning Commission proposed Amendments to Sections 111,235,401,501, 601, 801,901, 1110, 1125, 1511, 1521 and 1531 of the City Zoning Ordinance(CZO) re housing for seniors and disabled persons. *Council Lady McClanan will vote a VERBAL NAY on Item M.1. **Councilman Harrison will ABSTAIN on Item Ni. April 28, 1998 - 4- A GENDA REVIEW SESSION ITEM#43477 Karen Laslie, Planning Co-ordinator, advised the advertisement has been corrected and referenced corrections in the Agenda. There is a portion of R-5 which was not included. The acreage is corrected. Councilman Harrison referenced Planning items on the Formal Session. M3. Applications of0&R,INC.,A Virginia Corporation(BAYSIDE BOROUGH): a. Petition for the discontinuance, closure and abandonment of a portion ofPowhatan Avenue and running between Lots 1 through 4, Block 40, and Lots 6 through 14, Block 46, as shown on the plat entitled "Survey of Right-of-Way Street Closure for a Portion of Powhatan Avenue located between Block 40 and 46 of Ocean Park"and recorded in Map Book 5,Page 132,containing 35,594 square feet. b Change of Zoning District Classification from BB=2 Community Business District, R-5D Residential Duplex District & PP=1 Preservation District to A-18 Apartment District with a PD-H Planned Unit Development Overlay on property located at the Northwest intersection of Shore Drive and W. Stratford Road (3800 Shore Drive), containing 4.039 acres. Council Lady Parker referenced the term vinyl siding was utilized;however,the applicant advised wolverine grade horizontal vinyl will be utilized to cover the homes. These issues will be discussed during the City Council Session. ITEM#43478 Council Lady McClanan indicated a VERBAL NAY vote: M4 Application of LARRY'S IMPORT CENTER, INC., for a Conditional Use Permit for an automobile repair garage on the South side of Virginia Beach Boulevard, 150 feet more or less East of Riddle Avenue (1803 Virginia Beach Boulevard), containing 1 acre more or less(LYNNHAVENBOROUGH). ITEM#43479 Councilman Harrison advised he wished to hear the presentation relative this item. M5 Application of EDWARD P. and LESLIE A. KAPPES for a Conditional Use Permit for a miniature golf course with ice cream parlor at the Northeast corner of Shore Drive and Red Tide Road on Lots 15, 17 & 19, Block F, Lynnhaven Beach, containing 22,500 square feet(LYNNHAVENBOROUGH). April28, 1998 - 5- A GENDA REVIEW SESSION ITEM#43480 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA. 0.1 Application of CLEARWATER INVESTMENT ASSOCIATES for enlargement of nonconforming use at the SHERATON HOTEL, Atlantic Avenue and 36`" Street, Oceanfront, re construction of a seven-story hotel addition on the adjacent parking lot site(VIRGINIA BEACH BOROUGH). 0.2 Petition of WELDON T.,JR. and GERTRUDE A.BYRNS for the discontinuance, closure and abandonment of a portion of an unnamed right-of-way beginning at the Southeast corner of the Norfolk and Southern Railroad right-of-way and South Lowther Drive, running in an Easterly direction for 163.97 feet, containing 8,198.5 square feet(KEMPSVILLE BOROUGH). 0.4 Application of LARRY'S IMPORT CENTER, INC., for a Conditional Use Permit for an automobile repair garage on the South side of Virginia Beach Boulevard, 150 feet more or less East of Riddle Avenue (1803 Virginia Beach Boulevard), containing 1 acre more or less (LYNNHAVENBOROUGH). 0.6 Application of MATILDA RUSSELL for a Change of Zoning District Classification from A-12 Apartment District and 0-2 Office District to R-5S Residential Single Family District on the East side of S.Kentucky Avenue, 183 feet South of Bonney Road on Lot 7-12 & 13, Block 1, Midway, containing 20,996 square feet(KEMPSVILLE BOROUGH). Item 0.1. will DEFERRED BY CONSENT until the City Council Session of May 12, 1998 Council Lady McClanan will vote a VERBAL NAY on Item 0.5. April 28, 1998 - 6- ITEM#43481 Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the City Council Conference Room, City Hall Building, on Tuesday,April 28, 1998, at 3:32 P.M Council Members Present: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M.Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf, Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Absent: John A. Baum April 28, 1998 - 7- ITEM#43482 Mayor Oberndorf entertained a motion to permit City Council to conduct its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of Virginia, as amended,for the following purpose: PERSONNEL MATTERS: Discussion or consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion,performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees pursuant to Section 2.1-344(A) (1). To Wit: Appointments:Boards and Commissions Wetlands Board Prospective Candidate for Employment: City Attorney's Office PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownership by such institution pursuant to Section 2.1-344(A)(3). To-Wit: Agricultural Reserve Program-Pungo Borough Acquisition of Property: Princess Anne Borough Virginia Beach Borough Kempsville Borough Encroachments-Hurricane Protection Program LEGAL MATTERS: Consultation with legal counsel or briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requesting the provision of legal advice by counsel pursuant to Section 2.1-344(A)(7). To-Wit:: Royal Restaurant, Inc. t/a Chicho's v City of Virginia Beach Carmichael Development Company, Inc. v City of Virginia Beach Upon motion by Vice Mayor Sessoms,seconded by Councilman Branch, City Council voted to proceed into EXECUTIVE SESSION. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 - 8- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL April 28, 1998 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, April 28, 1998, at 6:00 P.M Council Members Present: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Absent: John A. Baum INVOCATION: Reverend Larry E. Lenow Courthouse Community United Methodist Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Sessoms, being a Corporate Officer of Wachovia Bank, disclosed there were no matters on the agenda in which he has a "personal interest" as defined in the Act, either individually or in his capacity as an officer of Wachovia Bank. The Vice Mayor regularly makes this Disclosure as he may or may not know of the Bank's interest in any application that may come before City Council. Vice Mayor Sessoms'letter of January 1, 1998, is hereby made a part of the record. April 28, 1998 -9- Item V-E. CERTIFICATION OF EXECUTIVE SESSION ITEM#43483 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Strayhorn, City Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Executive Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R.Jones, Reba S.McClanan, Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms,Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 irm U ! otr y9 0, Op OUR NAIION ith! iwLutiun CERTIFICATION OF EXECUTIVE SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION, pursuant to the affirmative vote recorded in ITEM#43482, Page 7, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the governing body that such Executive Session was conducted in conformity with Virginia law. NOW,THEREFORE,BE IT RESOLVED:That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by Virginia Beach City Council. Ruth Hodges Smith, CMC/AAE City Clerk April 28, 1998 - 10- Item V-F.1. MINUTES ITEM#43484 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Parker, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSIONS 01Apr11 Apri114, 1998,and the SPECIAL FORMAL SESSION of Apri116, 1998. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R.Jones, Reba S.McClanan, Mayor Meyera E. Oberndorf, Nancy K Parker, Vice Mayor William D. Sessoms,Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April28, 1998 - 11 - Item V-G. ADOPT AGENDA FOR FORMAL SESSION ITEM#43485 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION April 28, 1998 - 12- Item V-H.1. MAYOR'S PRESENTATION ITEM#43486 PROCLAMATION Mayor Meyera E. Oberndorf PROCLAIMED: MAY 2, 1998 SPECIAL OLYMPICS DAY Special Olympics is an international movement of sports training and competition which gives children and adults who are mentally challenged, an opportunity to develop their physical skills, display their abilities and most importantly,fulfill their human potential. Robert Miller, President-Area II, and Anthony Sweeney, Athlete, ACCEPTED the Proclamation. The Area Il Annual Track and Field games including Virginia Beach Special Olympics,will be held on Saturday, May 2, 1998, at Bayside High School in Virginia Beach. The following weekend the Virginia Beach Games will be held at Plaza Middle School. April 28, 1998 - 13- Item V-H.2. MAYOR'S PRESENTATION ITEM#43487 Mayor Oberndorf RECOGNIZED the following Boy Scouts in attendance to earn their merit badges: TROOP#944 CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS TROOP#363 HAYGOOD UNITED METHODIST CHURCH April28, 1998 - 14- Item V-I.1. PUBLIC HEARING ITEM#43488 Mayor Oberndorf DECLARED A PUBLIC HEARING: TAXES-REAL ESTATE Proposed Increase in Annual Assessment The following citizens were registered and shared their concern: Jean Collins, 3817 South Plaza Trial 23452, Phone: 340-9367,personal property tax and real estate- elderly. There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April28, 1998 - 15- Item V-J 1. PUBLIC HEARING ITEM#43489 Mayor OberndorfDECLARED A PUBLIC HEARING: RESOURCE MANAGEMENT PLAN Operating Budget-FY 1998-1999 Capital Improvement Program-FY 1998-99/2003-04 The following citizens were registered and shared their concern: Dean DaSilva,President of Virginia Beach Professional Firefighters,Phone:431-3728,additional personnel for firefighters Kevin Dilley, 1328 Harris Road 24352, Phone: 431-0949, CIP 5-112& 6-049. Harris Road Widening/and opposition to Bike Path to Eagles Nest Jeffrey Nicholls, 3413 Club House Road 23452, Phone: 340-0728, presented letters in support of the acquisition and redevelopment of the Bow Creek Motel property.Said letters are hereby made a part of the record. Lloyd Mills, 3405 Club House Road 23452, Phone: 340-0673, Bow Creek Motel Eva Lynn Bialas, President Bayside Elementary PTA, 5712 Rossburn Court 23455, Phone: 497-4643, Bayside Elem. School full funding of renovation.Petitions were presented in support and are hereby made a part of the record. Justin Bialas, Student-Bayside Elementary, 5712 Rossburn Court 23455, Phone: 497-4643, Bayside Elementary School renovation. Steven Sokolowski,President-Princess Anne Civic League,3416 Plainsman Trail 23452,Phone:431-1197, Bow Creek Motel John Haver, 3305 Glen Eden Quay 23452, Phone:463-9865, Harris Road Bike Path Emily Trezisan, 413 Dauphin Lane 23452, Phone: 340-3833, Bow Creek Motel Sarah Ray, President- Virginia Beach Firefighters Auxiliary and Human Resources Professional, 1833 Maple Shade Ct 23456, Phone: 427-8844, Fire Department Budget Al Strazzullo, 3120 Sand Pine Rd 23451, Phone: 481-0024, Privatization of golf courses (Red Wing, Bow Creek and Kempsville) Angie Nicholls, 3413 Club House Rd, 23452, Phone: 340-0728, Bow Creek Motel Geraldine Freehill, 443 Dauphin Lane 23452, Phone: 340-4507, Bow Creek Motel Joseph Freehill,443 Dauphin Lane 23452, Phone: 340-4507, Bow Creek Motel Mr. &Mrs. Edison Granger, 1532 Shorehaven Ct. 23451, Phone: 481-3044, Bow Creek Motel Mark Maples, 736 Greenwing Drive 23433, Phone: 437-4834, Fire Depart. Budget Kevin Moyer,Peer Counselor-Endependence Center, 215 Atlantic Ave.Rm. 628 23451,Phone:425-5222, requesting additional funding for Endependence Center Stephen Young, 3305 Welwyn Muse 23452, Phone: 463-3762, Harris Road Bike Path Donna Chugg, 457 Bernice Place 23452, Phone: 340-4432, Bow Creek Motel Jamie Sims, 3329 Club House Rd 23452, Phone: 498-8286, Bow Creek Motel Larry Burroughs, 909 Kings Cross 23452, Phone: 490-6200, Harris Rd Widening Dan Thurston, 913 Kings Cross 23452, Phone: 498-0515, Harris Road Bike Path April Elmore, Firefighter, 5009 Westgrove Rd. 23455, Phone: 497-0837, Fire Department Manpower Leona Shuler, 2448 Rose Hall Dr. 23454, Phone: 481-5371, Lake Trant Dredging Bob Kerr, 1100 Allenwood Ave 23454, Phone: 481-2946, Lake Trant Dredging Wayne Bilger, 2321 Trant Lake Dr. 23454, Phone: 481-0710, Lake Trant Dredging Janice Glover, 2408 Blackburn La. 23454, Phone: 481-4048, Lake Trant Dredging Everett Landers, 1101 Hartwood Ave. 23454, Phone: 481-1831, Lake Trant Dredging Mary Haislip, 1112 Blackburn La. 23454, Phone: 481-7652, Lake Trant Dredging Reed Jeavons, 2460 Rose Hall Dr. 23454, Phone: 481-3926, Lake Trant Dredging Evelyn Hopper, 1044 Old Canterbury Dr. 23455, Phone: 464-2180, Bayside Elementary David Hopper, 1044 Old Canterbury Dr. 23455, Phone: 464-2180, Bayside Elementary Carol Bowen, 800 Crossing Ct. #101 23455, Phone: 499-1093 Funding for Handi-Ride Diana Thomas, 2800 Blue Bill Drive 23456, Phone: 426-6982, Funding for Handi-Ride Jack Newcomes, 2513 Eagles Lake Road 23456, Funding for Handi-Ride April 28, 1998 - 16- Item V-J.1. PUBLIC HEARING ITEM#43489(Continued) Joanne Mancuso, 1952 John Brown Lane 23464, Phone: 479-0439, Funding for Handi-Ride Elizabeth Dees, 3812 Ewing Court 23456, Phone: 471-0419, Funding for Handi-Ride Deborah Shears, 4739 Rosecroft Street, 23464, Phone: 467-1350, TRT Erin Jones, 5009 Westgrove Road 23455, Phone: 497-0837, Fire Department Manpower George Wadsworth, President- Council of Civic Organizations, 1533 Princess Anne Road 23456, Phone: 426-6363, Bow Creek Motel and Lake Trant Dredging Frank Babonis, 1247 Culver Lane 23454, Phone: 427-6826,funding for TRT, Southeastern Expressway, Culver Lane and a Housing Redevelopment Authority. There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April 28, 1998 - 17- Item V-J.2. PUBLIC HEARING ITEM#43490 Mayor Oberndorf DECLARED A PUBLIC HEARING: BONDS General Obligation Bonds $53,800,000 Storm Water Utility Bonds 9,100,000 Water and Sewer 11,600,000 There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April 28, 1998 - 18- Item V-K 1/2. PUBLIC HEARING ITEM#43491 Mayor Oberndorf DECLARED A PUBLIC HEARING: AGRICULTURAL PRESERVATION PROGRAM(ARP) (BLACKWATER BOROUGH) W. F. Hudgins, III, William F., Jr. and Malvine B. Hudgins- (1998-19) Photios Anthony, Thomas C. Kyrus and S. V. Camp, III - (1998-20) There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April28, 1998 - 19- Item V-L.1. PUBLIC HEARING ITEM#43492 Mayor Oberndorf DECLARED A PUBLIC HEARING: LEASE OF EXCESS CITY REAL ESTATE(AGRICULTURAL)PROPERTY 74.5 acres off North Landing Road and Salem Road(PRINCESS ANNE and KEMPSVILLE BOROUGHS) There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. April 28, 1998 -20- Item V-M/N ORDINANCES/RESOLUTIONS ITEM#43493 Upon motion by Vice Mayor Sessoms,seconded by Councilman Branch, City Council APPROVED IN ONE MOTION Ordinances 1,2, 3, 4, 5 and 6 and Resolutions 1 and 2 of the CONSENT AGENDA. Voting: 10-0 Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: John A. Baum Council Members Absent: None Council Lady McClanan voted a VERBAL NAY on Ordinances M. la/b Councilman Harrison ABSTAINED on Resolution N.1. April 28, 1998 -21 - Item V-M1.a/b. ORDINANCES ITEM#43494 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinances to authorize the acquisition ofAgricultural Land Preservation Easements (ARP) and the issuance by the City of its contract obligations (Blackwater Borough): 1. W. F. Hudgins, III, William F. Hudgins,Jr. and Malvine B. Hudgins 203 Acres-Installment Purchase Agreement No. 1998-19 - $545,490. 2. Photios Anthony, Thomas C. Kyrus and S. V. Camp, III 99.50 Acres-Installment Purchase Agreement No.1998-20 - $ 139,718. Voting: 9-1 (By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R. Jones, Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: Reba S. McClanan Council Members Absent: John A. Baum April 28, 1998 1 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN 2 AGRICULTURAL LAND PRESERVATION EASEMENT AND 3 THE ISSUANCE BY THE CITY OF ITS CONTRACT 4 OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF 5 $545, 490 . 6 WHEREAS, pursuant to the Agricultural Lands Preservation 7 Ordinance (the "Ordinance") , Appendix J of the Code of the 8 City of Virginia Beach, there has been presented to the City 9 Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $545, 490; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1 . The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 5 .25% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7 . 00% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2 . The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3 . The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City' s interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement . 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement . 2 60 4 . The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this 28 day of april , 1998 . 67 68 Adoption requires an affirmative vote of a majority of 69 all members of the City Council . 70 CA-6967 71 WMM/ARP/PURCHASE/HUDGINS.ORD 72 R-2 73 April 16, 1998 74 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL 75 SUFFICIENCY: 76 ;/ALd-, e (.3.6-a; A410„,, th .01/10‘ 77 griculture Depa ment Law Department 78 CERTIFIED AS TO AVAILABILITY OF FUNDS : 79 c. Ol &Afl1Ct Ora JIJC_[ 80 Director of Finance 3 W. F. HUDGINS,III., WILLIAM F. HUDGINS, JR., AND MALVINE B. HUDGINS the "Seller" and CITY OF VIRGINIA BEACH,VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1998-19) i TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Page RECITALS 1 AGREEMENTS 1 ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions 2 SECTION 1.2 Rules of Construction 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights 4 SECTION 2.2 Delivery of Deed of Easement 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price 5 SECTION 3.2 Registration and Transfer of this Agreement 5 SECTION 3.3 Mutilated, Lost, Stolen or Destroyed Agreement 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City 7 SECTION 4.2 Representations and Warranties of the Seller 8 ii Section Page ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City 9 SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar 9 SECTION 6.2 Ownership of Agreement 9 SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar 10 SECTION 6.4 Qualifications of Successor Registrar 10 SECTION 6.5 Successor by Merger or Consolidation 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City 10 SECTION 7.2 Parties in Interest 10 SECTION 7.3 Binding Effect 11 SECTION 7.4 Severability 11 SECTION 7.5 Prior Agreements Cancelled;No Merger 11 SECTION 7.6 Amendments, Changes and Modifications 11 SECTION 7.7 No Personal Liability of City Officials 11 SECTION 7.8 Governing Law 11 SECTION 7.9 Notices 11 SECTION 7.10 Holidays 12 Signatures and Seals 13 EXHIBIT A- Form of Deed of Easement EXHIBIT B - Description of Land EXHIBIT C - Permitted Encumbrances EXHIBIT D - Form of Assignment EXHIBIT E- Transfer of Agreement- Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1998-19) THIS INSTALLMENT PURCHASE AGREEMENT(this"Agreement")is made as of the day of , 199_between W. F. HUDGINS,III, WILLIAM F., JR. and MALVINE B. HUDGINS (collectively, the "Seller") and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia(the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act,Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance(hereinafter defined in Section 1.1)to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance,the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1)which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell, and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW,THEREFORE,in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: 1 ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. As used in this Agreement,the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including,but not limited to,the production of fruits,vegetables,honey,grains,meat,poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii)the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and(iii) accessory uses directly related to agricultural activities conducted on the same property,including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural,horticultural or aquacultural products, except as an accessory use. "Business Day"or"business day"means a day on which(a)banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City"means the City of Virginia Beach,Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City,which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be 2 limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation"means,collectively,(1)the Open Space Land Act,Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and(2)the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing , 199_. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately 203 acres,and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing,by the City. "Person" or "person" means any natural person, firm, association, corporation, company, trust,partnership,public body or other entity. "Purchase Price" means $545,490, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date"means the fifteenth(15th)day(whether or not a Business Day)of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner" means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. 3 "Seller"means,collectively,W.F.Hudgins,III,William F.Hudgins,Jr. and Malvine Hudgins. "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and"agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made(i) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City,the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on , 202 [25-year maturity date]. The Purchase Price$545,490. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including , 202_, at the rate of_% per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s)appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection(a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and whenthe same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement;and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered 5 on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe,the ownership of this Agreement. The Registrar,however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer,this Agreement may not be transferred by the Registered Owner prior to the expiration of a one(1)year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers(other than an Estate Settlement Transfer)on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one(1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing,upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D, or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer;provided,however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement,whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. 6 SECTION 3.3 Mutilated.Lost.Stolen or Destroyed Agreement. In the event that this Agreement is mutilated,lost,stolen or destroyed,the City and the Registered Owner(as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement;provided that,in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees,if any,in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement(in lieu of which such substitute Agreement was issued)presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The City makes the following representations and warranties: (a) The City is a body politic and corporate and a political subdivision of the State. (b) The City has the necessary power and authority to acquire the Development Rights,to enter into this Agreement,to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. 7 SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement,and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller,constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller,will materially adversely affect the authority of the Seller to enter into,or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is(i)no provision of any existing mortgage,indenture,contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents, waivers or, if necessary, releases or subordinations, have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land(other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (f) The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 230-46-2526 (for W. F. Hudgins, III), 224-50-3321 (for William F. Hudgins, Jr.) 227-02-8718 (for Malvine B. Hudgins). The representations in subsections(f) and(g) above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. 8 (h) To the best of the knowledge,information and belief of the Seller,the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly,the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond"within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel,dated the date hereof,to the effect that under existing laws,regulations,rulings and decisions, interest payable under this Agreement is not includable in the gross income of the Seller for federal income tax purposes,which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby(including, but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel,with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar, in its individual capacity or as trustee for holders of participation interests in this Agreement,may in good faith buy, sell, 9 own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent,may also engage, or have an interest, in any financial or other transaction with the City,and may act as depository,trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar,to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar's duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either(a)the Department of Finance of the City, (b) an officer or employee of the City, or(c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank,trust company or other financial institution,any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any)of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer,board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered 10 Owner and the Registrar, any right,remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City,the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto,their respective heirs,personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason,be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled: No Merger. This Agreement shall completely and fully supersede all other prior agreements,both written and oral,between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In addition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart of any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement, all notices, demands,requests,consents, approvals,certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been 11 properly given three Business Days after the same is mailed by certified mail, postage prepaid,return receipt requested,addressed to the person to whom any such notice,demand, request, approval,certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 Seller: W. F. Hudgins, III 1400 Weaver Lane Chesapeake, Virginia 23320 William F. Hudgins, Jr. and Malvine B. Hudgins 4221 Cheswick Lane Virginia Beach, Virginia 23455 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond, Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right,as provided in this Agreement,shall not be a Business Day,such payment may,unless otherwise provided in this Agreement,be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) (SEAL) (SEAL) Approved as to Legal Approved as to Sufficiency of Sufficiency: Funds: Deputy City Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach,Virginia,this day of , 19_,by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach,Virginia, on its behalf. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by W. F. Hudgins, III. Notary Public (SEAL) My Commission Expires: 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by William F. Hudgins, Jr. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by Malvine B. Hudgins. Notary Public (SEAL) My Commission Expires: 15 This instrument was prepared by EXHIBIT A Virginia Beach City Attorney's Office Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this day of# , 1998, by and between WILLIAM F. HUDGINS,JR. and MALVINE B. HUDGINS, his wife and W. F. HUDGINS, III (marital status??) (collectively, the "Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia(the "City")whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach,Virginia, as amended(the"City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS,in furtherance of the purposes of the Act and the Ordinance,the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS,the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights(hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1389-36-8502 WHEREAS,the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS,the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS,in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith(the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for Grantor, Grantor's heirs,personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey,with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns, forever and in perpetuity,all of the Development Rights with respect to the Land. TERMS. COVENANTS. CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs,personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity,or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use,it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and(2)that this Deed of Easement shall create a perpetual easement,running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: 2 (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term"Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits,vegetables,honey,grains,meat,poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity,(ii)the repair,expansion or replacement of no more than one(1)bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland,and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv)reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate,prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. Anything herein to the contrary notwithstanding, MALVINE B. HUDGINS AND , execute(s)this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and rights set forth herein. 3 GRANTOR: (SEAL) William F. Hudgins, III (SEAL) Malvine B. Hudgins (SEAL) W. F. Hudgins, Jr. APPROVED AS TO FORM AND ACCEPTED ON BEHALF OF THE CITY OF VIRGINIA BEACH CITY ATTORNEY COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia,this day of , 1998,by William F. Hudgins, Jr. and Malvine B. Hudgins, his wife, Grantor. Notary Public (SEAL) My Commission Expires: 4 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 1998, by W. F. Hudgins, III, Grantor. Notary Public (SEAL) My Commission Expires: 5 EXHIBIT A ALL THAT certain tract, piece or parcel of land, together with the improvements thereon and the appurtenances thereto belonging or in anywise appertaining,situate,lying and being in Blackwater, City of Virginia Beach, formerly Princess Anne County, Virginia, said tract of land being near Blackwater Bridge, and containing two hundred fifty (250) acres, more or less, bounded on the north by Highway No. 774, on the east by the lands now or formerly belonging to J. B. Howell and Nathaniel Williams, on the south by the lands now or formerly belonging to William Jones,Jersey Wilson, Miles Martin and White, and on the west by the lands now or formerly belonging to George W. Wilson. LESS SAVE AND EXCEPT ALL THAT certain lot,piece or parcel of land,with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, being known, numbered and designated as"0.2756 ACRES,WILLIAM F. HUDGINS,JR.,ET UX(DEED BOOK 803,PAGE 105)"as shown on that certain plat entitled"PLAT OF A PORTION OF PROPERTY OF WILLIAM F. HUDGINS, JR., ET UX TO BE ACQUIRED BY WILLIAM M. BOYETTE,ET UX, BLACKWATER BOROUGH, VIRGINIA BEACH" Scale: 1" =60',dated October 1993,made by Harold C. Warren,Jr., Land Surveyor,"conveyed to William M.Boyette and Kim L. Boyette by deed of William F. Hudgins and Malvine B. Hudgins, husband and wife, and William F. Hudgins, III, unmarried, by deed dated April 1, 1994, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3392, at page 588. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3)Nawney Silt Loam; or(4) Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", 6 Scale #" = #', dated #, prepared by #, which plat is attached hereto and recorded simultaneously herewith. IT BEING the same property conveyed to William F. Hudgins,Jr., from Howard W. Strickland et ux, et al,by deed dated September 27, 1963,duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 803, at page 105; and the same property conveyed to William F. Hudgins, III, from William F. Hudgins, III, et ux, by deed dated February 3, 1994, duly recorded in the aforesaid Clerk's Office in Deed Book 3348, at page 1512, and from William F. Hudgins, Jr., et ux, by deed dated October 11, 1995, duly recorded in the aforesaid Clerk's Office in Deed Book 3549, at page 1150, by deed dated April 8, 1996, duly recorded in the aforesaid Clerk's Office in Deed Book 3606, at page 1499, and by deed dated December 15, 1997, duly recorded in the aforesaid Clerk's Office in Deed Book 3825, at page 375, resulting in William F. Hudgins, Jr., presently owning a 51.25% interest and William F. Hudgins, III,presently owning a 48.75% interest in the above described property. 7 EXHIBIT B ALL THAT certain tract,piece or parcel of land, together with the improvements thereon and the appurtenances thereto belonging or in anywise appertaining, situate, lying and being in Blackwater, City of Virginia Beach, formerly Princess Anne County,Virginia, said tract of land being near Blackwater Bridge, and containing two hundred fifty(250) acres,more or less,bounded on the north by Highway No. 774, on the east by the lands now or formerly belonging to J. B. Howell and Nathaniel Williams, on the south by the lands now or formerly belonging to William Jones,Jersey Wilson, Miles Martin and White, and on the west by the lands now or formerly belonging to George W. Wilson. LESS SAVE AND EXCEPT ALL THAT certain lot,piece or parcel of land,with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia,being known, numbered and designated as "0.2756 ACRES, WILLIAM F. HUDGINS, JR., ET UX (DEED BOOK 803, PAGE 105)"as shown on that certain plat entitled"PLAT OF A PORTION OF PROPERTY OF WILLIAM F. HUDGINS, JR., ET UX TO BE ACQUIRED BY WILLIAM M. BOYETTE, ET UX, BLACKWATER BOROUGH, VIRGINIA BEACH" Scale: 1" =60' dated October 1993, made by Harold C. Warren, Jr., Land Surveyor,"conveyed to William M. Boyette and Kim L. Boyette by deed of William F. Hudgins and Malvine B. Hudgins, husband and wife, and William F. Hudgins, III, unmarried,by deed dated April 1, 1994,recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3392,pages 588. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1)Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3)Nawney Silt Loam; or (4)Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract,piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale#" =#', dated#, prepared by#,which plat is attached hereto and recorded simultaneously herewith. IT BEING the same property conveyed to William F. Hudgins, Jr., from Howard W. Strickland et ux, et al,by deed dated September 27, 1963, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach,Virginia, in Deed Book 803, at page 105, and the same property conveyed to William F. Hudgins, III, from William F. Hudgins, III, et ux,by deed dated February 3, 1994, duly recorded in the aforesaid Clerk's Office in Deed Book 3348, at page 1512, and from William F. Hudgins, Jr., et ux,by deed dated October 11, 1995, duly recorded in the aforesaid Clerk's Office in Deed Book 3606, at page 1499, and by deed dated December 15, 1997, duly recorded in the aforesaid Clerk's Office in Deed Book 3825, at page 375, resulting in William F. Hudgins Jr. presently owning a 51.25% interest and William F. Hudgins, III presently owning a 48.75% interest in the above described property. EXHIBIT "C" PERMITTED ENCUMBRANCES 1. Taxes for the fiscal year 1998/1999 and any/all stormwater fees,which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. 3. Easement granted Virginia Electric and Power Company over the subject property, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 238, at page 321, and shown in Map Book 18, at page 47. 4. Rights of others in and to the use of any drains and/or ditches located over, across, in or under the property and rights to enter upon same for maintenance purposes. 5. Such other restrictions and encumbrances which,in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. EXHIBIT D ASSIGNMENT FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto ,without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement)to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents,warrants and certifies that there have been no amendments to such Agreement [except ]. Date: Signature guaranteed: NOTICE: Signature must be NOTICE: The signature on this guaranteed by a member firm Assignment must correspond with of the New York Stock the name of the Registered Owner Exchange or a commercial as it appears on the registration bank or trust company. books for the Installment Purchase Agreement referred to herein in every particular, without alteration or enlargement or any change whatever. 19 EXHIBIT E TRANSFER OF AGREEMENT - SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar,who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Name and Tax I.D. No. of Signature of Registrar Registration of Address of Transferee Transfer Transferee Registered Seller 1. 2. 3. 4. 5. 6. 20 1 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN 2 AGRICULTURAL LAND PRESERVATION EASEMENT AND 3 THE ISSUANCE BY THE CITY OF ITS CONTRACT 4 OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF 5 $139, 718 . 6 WHEREAS, pursuant to the Agricultural Lands Preservation 7 Ordinance (the "Ordinance") , Appendix J of the Code of the 8 City of Virginia Beach, there has been presented to the City 9 Council for approval an Installment Purchase Agreement for the 10 acquisition of the Development Rights (as defined in the 11 Installment Purchase Agreement, a true copy of which is hereto 12 affixed) on certain property located in the City and more 13 fully described in Exhibit B of the Installment Purchase 14 Agreement for a purchase price of $139, 718; and 15 WHEREAS, the aforesaid Development Rights shall be 16 acquired through the acquisition of a perpetual agricultural 17 land preservation easement, as defined in, and in compliance 18 with, the requirements of the Ordinance; and 19 WHEREAS, the City Council has reviewed the proposed terms 20 and conditions of the purchase as evidenced by the Installment 21 Purchase Agreement; 22 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 1 . The City Council hereby determines and finds that 25 the proposed terms and conditions of the purchase of the 26 Development Rights pursuant to the Installment Purchase 27 Agreement, including the purchase price and manner of payment, 28 are fair and reasonable and in furtherance of the purposes of 29 the Ordinance, and the City Manager is hereby authorized to 30 approve, upon or before the execution and delivery of the 31 Installment Purchase Agreement, the rate of interest to accrue 32 on the unpaid principal balance of the purchase price set 33 forth hereinabove as the greater of 5 .50% per annum or the per 34 annum rate which is equal to the yield on United States 35 Treasury STRIPS purchased by the City to fund such unpaid 36 principal balance; provided, however, that such rate of 37 interest shall not exceed 7 . 00% unless the approval of the 38 City Council by resolution duly adopted is first obtained. 39 2 . The City Council hereby further determines that 40 funding is available for the acquisition of the Development 41 Rights pursuant to the Installment Purchase Agreement on the 42 terms and conditions set forth therein. 43 3 . The City Council hereby expressly approves the 44 Installment Purchase Agreement in the form and substance 45 presented at this meeting and, subject to the determination of 46 the City Attorney that there are no defects in title to the 47 property or other restrictions or encumbrances thereon which 48 may, in the opinion of the City Attorney, adversely affect the 49 City' s interests, authorizes the City Manager to execute and 50 deliver the Installment Purchase Agreement in substantially 51 the same form and substance as presented at this meeting with 52 such minor modifications, insertions, completions or omissions 53 which do not materially alter the purchase price or manner of 54 payment, as the City Manager shall approve. The City Council 55 further directs the City Clerk to affix the seal of the City 56 to, and attest same on, the Installment Purchase Agreement . 57 The City Council expressly authorizes the incurrence of the 58 indebtedness represented by the issuance and delivery of the 59 Installment Purchase Agreement . 2 60 4 . The City Council hereby elects to issue the 61 indebtedness under the Charter of the City rather than 62 pursuant to the Public Finance Act of 1991 and hereby 63 constitutes the indebtedness a contractual obligation bearing 64 the full faith and credit of the City. 65 Adopted by the Council of the City of Virginia Beach, 66 Virginia, on this 28 day of April , 1998 . 67 68 Adoption requires an affirmative vote of a majority of 69 all members of the City Council . 70 CA-6966 71 WMM/ARP/PURCHASE/KYRUS .ORD 72 R-2 73 April 16, 1998 74 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL 75 SU /ZCIENCY: 76 e , Ir'L 'r�" ,e4/( 77 griculture Departm nt Law Department 78 CERTIFIED AS TO AVAILABILITY OF FUNDS : 0-1.4./iL) 79 CIP 0,(r.,c_ 80 Director of Finance 3 PHOTIOS ANTHONY, THOMAS C. KYRUS, AND S. V. CAMP, III the "Seller" and CITY OF VIRGINIA BEACH, VIRGINIA the "City" INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1998-20) i TABLE OF CONTENTS (This Table of Contents is not part of the Installment Purchase Agreement and is only for convenience of reference) Section Page RECITALS 1 AGREEMENTS 1 ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions 2 SECTION 1.2 Rules of Construction 4 ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights 4 SECTION 2.2 Delivery of Deed of Easement 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price 5 SECTION 3.2 Registration and Transfer of this Agreement 5 SECTION 3.3 Mutilated, Lost, Stolen or Destroyed Agreement 7 ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City 7 SECTION 4.2 Representations and Warranties of the Seller 8 ii Section Page ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City 9 SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction 9 ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar 9 SECTION 6.2 Ownership of Agreement 9 SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar 10 SECTION 6.4 Qualifications of Successor Registrar 10 SECTION 6.5 Successor by Merger or Consolidation 10 ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City 10 SECTION 7.2 Parties in Interest 10 SECTION 7.3 Binding Effect 11 SECTION 7.4 Severability 11 SECTION 7.5 Prior Agreements Cancelled;No Merger 11 SECTION 7.6 Amendments, Changes and Modifications 11 SECTION 7.7 No Personal Liability of City Officials 11 SECTION 7.8 Governing Law 11 SECTION 7.9 Notices 11 SECTION 7.10 Holidays 12 Signatures and Seals 13 EXHIBIT A- Form of Deed of Easement EXHIBIT B - Description of Land EXHIBIT C - Permitted Encumbrances EXHIBIT D - Form of Assignment EXHIBIT E - Transfer of Agreement- Schedule of Transferees iii INSTALLMENT PURCHASE AGREEMENT (Agreement No. 1998-20) THIS INSTALLMENT PURCHASE AGREEMENT(this "Agreement")is made as of the day of , 199_ between PHOTIOS ANTHONY, THOMAS C. KYRUS,and S.V.CAMP,III(collectively,the"Seller")and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia(the "City"). RECITALS A. Pursuant to the authority granted by the Open-Space Land Act,Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Ordinance(hereinafter defined in Section 1.1)to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City. B. In furtherance of the purposes of the Act and the Ordinance,the City has established the Agricultural Reserve Program of the City which provides for the acquisition of Development Rights (hereinafter defined in Section 1.1) through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance. C. The Seller is the owner in fee simple of Land (hereinafter defined in Section 1.1)which is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance. D. The Seller has agreed to sell,and the City has agreed to purchase, Seller's Development Rights in the Land on and subject to the terms and conditions hereinafter set forth. AGREEMENTS NOW, THEREFORE,in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Seller and the City hereby agree as follows: 1 ARTICLE 1 DEFINITIONS SECTION 1.1 pefinitions. As used in this Agreement,the following terms have the following meanings, unless the context clearly indicates a different meaning: "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including,but not limited to,the production of fruits,vegetables,honey,grains,meat,poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity, (ii)the repair, expansion or replacement of no more than one (1) bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the Virginia Beach City Code, and(iii) accessory uses directly related to agricultural activities conducted on the same property,including the sale of agricultural products as permitted by Section 401 of the Virginia Beach City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural,horticultural or aquacultural products, except as an accessory use. "Business Day"or"business day"means a day on which(a)banks located in the City and in the city in which the principal office of the Registrar is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "City" means the City of Virginia Beach,Virginia, a body politic and corporate and a political subdivision created and existing under and by virtue of the Constitution and laws of the State, its successors and assigns. "City Council" means the Council of the City. "City Manager" means the City Manager of the City. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to the Code herein shall be deemed to include the United States Treasury Regulations in effect or proposed from time to time with respect thereto. "Deed of Easement" means the Deed of Easement of even date herewith from the Seller to the City,which shall convey the Development Rights to the City in perpetuity. The Deed of Easement shall be substantially in the form attached hereto as Exhibit A and made a part hereof. "Development Rights" mean the rights of the Seller in the Land to develop the Land for any use other than an Agricultural Use. Development Rights shall include, but not be 2 limited to, the right to develop the Land for any commercial, industrial or residential use except as expressly permitted by the Ordinance. "Enabling Legislation"means,collectively,(1)the Open Space Land Act,Chapter 17 of Title 10.1 of the Code of Virginia of 1950, as amended, and(2) the Ordinance. "Estate Settlement Transfer" means the transfer by the legal representative of the estate of a deceased Seller of such Seller's rights in and to this Agreement in connection with the distribution of the deceased Seller's estate or other settlement of such decedent Seller's estate. "Interest Payment Date" means June 1 and December 1 in each year, commencing , 199_. "Land" means the tract or tracts of land located in Virginia Beach, Virginia, containing approximately 99.50 acres,and more particularly described in Exhibit B attached hereto and made a part hereof. "Ordinance" means the Agricultural Lands Preservation Ordinance adopted by the City Council on May 9, 1995, as Appendix J to the City Code, as the same may be amended or modified from time to time. "Permitted Encumbrances" mean the encumbrances listed on Exhibit C attached hereto and made a part hereof and any encumbrances on or with respect to the Land or any portion thereof hereafter approved, in writing,by the City. "Person" or "person" means any natural person, firm, association, corporation, company,trust,partnership,public body or other entity. "Purchase Price" means $139,718, the purchase price to be paid by the City to the Registered Owner in accordance with this Agreement. "Record Date" means the fifteenth(15th)day(whether or not a Business Day)of the calendar month immediately preceding each Interest Payment Date and the principal payment date. "Registered Owner"means the registered owner of this Agreement as shown on the registration books maintained by the Registrar. "Registrar" means First Union National Bank of Virginia or any other person hereafter appointed by the City to act as Registrar and paying agent for this Agreement. 3 "Seller" means, collectively,Photios Anthony, Thomas C. Kyrus, and S. V. Camp, III. "State" means the Commonwealth of Virginia. SECTION 1.2 Rules of Construction. (a) The words"hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Agreement in its entirety. (b) The terms "agree" and"agreements" contained herein are intended to include and mean "covenant" and "covenants." (c) References to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement. (d) The headings of this Agreement are for convenience only and shall not define or limit the provisions hereof. (e) All references made (i) in the neuter,masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made,respectively, in the plural or singular number as well. ARTICLE 2 SALE AND PURCHASE OF DEVELOPMENT RIGHTS SECTION 2.1 Agreement to Sell and Purchase Development Rights. The Seller agrees to sell the Development Rights in the Land to the City and the City agrees to purchase the Development Rights in the Land from the Seller on the date hereof for the Purchase Price. SECTION 2.2 Delivery of Deed of Easement. In order to evidence the sale of the Development Rights to the City, the Seller shall execute and deliver to the City on the date hereof the Deed of Easement in the form attached hereto as Exhibit A and made a part hereof. The Deed of Easement shall be recorded in the Clerk's Office of the Circuit Court of the City. 4 ARTICLE 3 PAYMENT OF PURCHASE PRICE SECTION 3.1 Payment of Purchase Price. (a) The City shall pay the principal portion of the Purchase Price to the Registered Owner in a single installment on , 202_ [25-year maturity date]. The Purchase Price$139,718. (b) Interest on the unpaid principal balance of the Purchase Price shall accrue from the date of recordation of the Deed of Easement and shall be payable to the Registered Owner on , 199_, and semiannually thereafter on June 1 and December 1 in each year to and including , 202_, at the rate of_% per annum. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (c) Both the single installment of principal of the Purchase Price and the interest on the unpaid balance thereof are payable in lawful money of the United States of America at the time of payment. (d) Payment of interest on the unpaid balance of the Purchase Price shall be made by the City on each Interest Payment Date to the Registrar. The Registrar shall forward all such interest payments by check or draft mailed to the person(s)appearing on the registration books of the City maintained by the Registrar as the Registered Owner on the Record Date, at the address of such Registered Owner as it appears on such registration books. The single installment of principal of the Purchase Price shall be paid on the principal payment date set forth in Subsection(a) above by the Registrar to the Registered Owner as of the Record Date upon presentation and surrender of this Agreement at the office of the Registrar. (e) The City's obligation to pay the Purchase Price hereunder and to pay interest on the unpaid balance of the Purchase Price is a general obligation of the City, and the full faith and credit and the unlimited taxing power of the City are irrevocably pledged to the punctual payment of the Purchase Price and the interest on the unpaid principal balance of the Purchase Price as and when the same respectively become due and payable. SECTION 3.2 Registration and Transfer of this Agreement. (a) Until the Purchase Price and all interest thereon have been paid in full, the City shall maintain and keep at the offices of the Registrar, registration books for the registration and transfer of this Agreement;and upon presentation of this Agreement for such purpose at the offices of the Registrar, the Registrar shall register or cause to be registered 5 on such registration books, and permit to be transferred thereon, under such reasonable regulations as the City or the Registrar may prescribe,the ownership of this Agreement. The Registrar,however, shall not be required to make any such registration and transfer during the period from the Record Date to the next succeeding Interest Payment Date or final principal payment date. (b) Except for an Estate Settlement Transfer,this Agreement may not be transferred by the Registered Owner prior to the expiration of a one(1)year period from the date this Agreement has been fully executed, delivered and become effective, and any such attempted transfer shall be null and void. The Registrar shall be instructed not to make any such transfers(other than an Estate Settlement Transfer)on its registration books kept for the purpose of registering the transfer of this Agreement prior to the expiration of said one (1) year period. (c) The Seller is the original Registered Owner. This Agreement shall be transferable only upon the books of the City maintained for such purpose by the Registrar, at the written request of the Registered Owner as then shown on such registration books or his attorney duly authorized in writing, upon presentation and surrender of this Agreement, together with a written instrument of transfer substantially in the form attached hereto as Exhibit D,or as may otherwise be satisfactory to and approved by the Registrar in writing, duly executed by the Registered Owner or his attorney duly authorized in writing. Upon the surrender for transfer of this Agreement, the Registrar shall complete the Schedule of Transferees attached hereto as Exhibit E with the name, address and tax identification number of the transferee Registered Owner, and the date of the transfer;provided, however, that if there is any conflict between the information set forth in Exhibit E hereto and the registration books maintained by the Registrar, the information shown on such registration books shall control. The City and the Registrar may deem and treat the person in whose name this Agreement is registered upon the books of the City maintained by the Registrar as the absolute owner of this Agreement,whether any payments hereunder shall be overdue or not, for the purpose of receiving payment of, or on account of, the Purchase Price and interest thereon and for all other purposes, and all such payments so made to any such Registered Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Agreement to the extent of the sum or sums so paid, and neither the City nor the Registrar shall be affected by any notice to the contrary. For every registration of transfer of this Agreement, the City or the Registrar may make a charge sufficient to reimburse themselves for any tax or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such transfer as a condition precedent to the exercise of the privilege of registering such transfer. 6 SECTION 3.3 Mutilated.Lost.Stolen or Destroyed Agreement. In the event that this Agreement is mutilated,lost,stolen or destroyed,the City and the Registered Owner(as then shown on the registration books maintained by the Registrar) shall execute and deliver a substitute agreement having the same terms and provisions as the mutilated, lost, stolen or destroyed Agreement;provided that,in the case of any mutilated Agreement, such mutilated Agreement shall first be surrendered to the Registrar, and, in the case of any lost, stolen or destroyed Agreement there shall be first furnished to the City and the Registrar evidence of such loss, theft or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to each of them in their sole discretion. The City and the Registrar may charge the Registered Owner requesting such new Agreement their expenses and reasonable fees,if any,in this connection. If after the delivery of such substitute Agreement, a bona fide purchaser of the original Agreement(in lieu of which such substitute Agreement was issued)presents for payment such original Agreement, the City and the Registrar shall be entitled to recover such substitute Agreement from the person to whom it was delivered or any other person who receives delivery thereof, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor or otherwise to the extent of any loss, damage, cost or expense incurred by the City and the Registrar in connection therewith. ARTICLE 4 REPRESENTATIONS AND WARRANTIES SECTION 4.1 Representations and Warranties of the City. The City makes the following representations and warranties: (a) The City is a body politic and corporate and a political subdivision of the State. (b) The City has the necessary power and authority to acquire the Development Rights,to enter into this Agreement,to perform and observe the covenants and agreements on its part contained in this Agreement and to carry out and consummate all transactions contemplated hereby. By proper action, the City has duly authorized the execution and delivery of this Agreement. (c) This Agreement has been duly and properly authorized, executed, sealed and delivered by the City, constitutes the valid and legally binding obligation of the City, and is enforceable against the City in accordance with its terms. (d) There are no proceedings pending or, to the knowledge of the City, threatened before any court or administrative agency which may affect the authority of the City to enter into this Agreement. 7 SECTION 4.2 Representations and Warranties of the Seller. The Seller makes the following representations and warranties: (a) The Seller has full power and authority to execute and deliver this Agreement and the Deed of Easement,and to incur and perform the obligations provided for herein and therein. No consent or approval of any person or public authority or regulatory body is required as a condition to the validity or enforceability of this Agreement or the Deed of Easement, or, if required, the same has been duly obtained. (b) This Agreement and the Deed of Easement have been duly and properly executed by the Seller,constitute valid and legally binding obligations of the Seller, and are fully enforceable against the Seller in accordance with their respective terms. (c) There is no litigation or proceeding pending or, so far as the Seller knows, threatened before any court or administrative agency which, in the opinion of the Seller,will materially adversely affect the authority of the Seller to enter into,or the validity or enforceability of, this Agreement or the Deed of Easement. (d) There is(i)no provision of any existing mortgage,indenture,contract or agreement binding on the Seller or affecting the Land, and (ii) to the knowledge of the Seller, no provision of law or order of court binding upon the Seller or affecting the Land, which would conflict with or in any way prevent the execution, delivery, or performance of the terms of this Agreement or the Deed of Easement, or which would be in default or violated as a result of such execution, delivery or performance, or for which adequate consents,waivers or, if necessary, releases or subordinations,have not been obtained. (e) There exist no liens, security interests or other encumbrances on or with respect to the Land(other than Permitted Encumbrances), and at the time of execution and delivery of the Deed of Easement there will be no liens, security interests or other encumbrances of the Development Rights to be conveyed thereby. (0 The Seller is not a nonresident alien of the United States of America for purposes of federal income taxation. (g) The Social Security Numbers of the Seller are 231-40-0130 (for Photios Anthony),225-36-0604(for Thomas C. Kyrus), and 223-52-5344 (for S. V. Camp, III). The representations in subsections(0 and(g)above are made under penalties of perjury and the information contained therein may be disclosed by the City to the Internal Revenue Service. The Seller acknowledges that any false statement in such subsections could be punished by fine, imprisonment or both. 8 (h) To the best of the knowledge,information and belief of the Seller,the Land has not been used for the manufacture, storage, treatment, disposal or release of any hazardous waste or substance. ARTICLE 5 PROVISIONS RELATING TO EXCLUSION OF INTEREST FROM INCOME FOR FEDERAL INCOME TAXATION SECTION 5.1 Intent of City and Tax Covenant of City. The City intends that the interest payable under this Agreement shall not be includable in the gross income of the Registered Owner for purposes of federal income taxation pursuant to Section 103 of the Code. Accordingly,the City shall not knowingly take or permit to be taken any other action or actions or omit or fail to take any action, which would cause this Agreement to be an "arbitrage bond"within the meaning of Section 148 of the Code, or which would otherwise cause interest payable under this Agreement to become includable in the gross income of any Registered Owner for purposes of federal income taxation. SECTION 5.2 Acknowledgment of Seller with Regard to Tax Consequences of Transaction. The Seller has received an opinion from Kaufman & Canoles, P.C., Bond Counsel,dated the date hereof,to the effect that under existing laws,regulations,rulings and decisions,interest payable under this Agreement is not includable in the gross income of the Seller for federal income tax purposes,which opinion assumes continuous compliance with certain covenants in the Tax Certificate and Compliance Agreement to be executed and delivered by the City on the date of delivery of this Agreement and is otherwise limited in accordance with its terms. The Seller acknowledges that Seller has made Seller's own independent investigation and has consulted with such attorneys, accountants and others as the Seller shall have selected in the Seller's sole discretion to advise the Seller with respect to all other tax considerations related to the transaction contemplated hereby(including,but not limited to, installment sales treatment under Section 453 of the Code, charitable contribution deductions under Section 170 of the Code, and federal estate tax implications); and the Seller certifies that the Seller has not looked to or relied upon the City or any of its officials, agents or employees, or to Bond Counsel,with respect to any of such matters. ARTICLE 6 THE REGISTRAR SECTION 6.1 Appointment of Registrar. First Union National Bank of Virginia is hereby designated and appointed to act as Registrar for this Agreement. SECTION 6.2 Ownership of Agreement. The Registrar,in its individual capacity or as trustee for holders of participation interests in this Agreement,may in good faith buy,sell, 9 own and hold this Agreement, and may join in any action which any Registered owner may be entitled to take with like effect as if it did not act as Registrar hereunder. The Registrar, in its individual capacity, either as principal or agent, may also engage, or have an interest, in any financial or other transaction with the City,and may act as depository,trustee or agent for other obligations of the City as freely as if it did not act in any capacity hereunder. SECTION 6.3 Removal of Registrar and Appointment of Successor Registrar. The City shall have the right, subject to the terms of any agreement with the Registrar,to remove the Registrar any time by filing with such Registrar to be removed, and with the Registered Owner, an instrument in writing. Notwithstanding the foregoing, such removal shall not be effective until a successor Registrar has assumed the Registrar's duties hereunder. The City shall have the sole right to select a successor Registrar. SECTION 6.4 Qualifications of Successor Registrar. Any successor Registrar shall be either(a) the Department of Finance of the City, (b) an officer or employee of the City, or(c) a bank, trust company or other financial institution duly organized under the laws of the United States or any state or territory thereof which is authorized by law and permitted under the laws of the State to perform all the duties imposed upon it as Registrar by this Agreement. SECTION 6.5 Successor by Merger or Consolidation. If the Registrar is a bank,trust company or other financial institution,any institution or corporation into which the Registrar hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Registrar hereunder shall be a party or any institution or corporation succeeding to the corporate trust business (if any)of the Registrar, shall be the successor Registrar under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Agreement to the contrary notwithstanding. ARTICLE 7 MISCELLANEOUS SECTION 7.1 Successors of City. In the event of the dissolution of the City, all the covenants, stipulations, promises and agreements in this Agreement contained, by or on behalf of, or for the benefit of, the City, the Seller, any other Registered Owner and the Registrar, shall bind or inure to the benefit of the successors of the City from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the City shall be transferred. SECTION 7.2 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm or corporation, other than the City, the Seller, any other Registered 10 Owner and the Registrar, any right,remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the City,the Seller, any other Registered Owner from time to time of this Agreement and the Registrar. SECTION 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs,personal representatives, successors and assigns, including, without limitation, all Registered Owners from time to time of this Agreement. SECTION 7.4 Severability. In case any one or more of the provisions of this Agreement shall, for any reason,be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. SECTION 7.5 Prior Agreements Cancelled: No Merger. This Agreement shall completely and fully supersede all other prior agreements,both written and oral,between the City and the Seller relating to the acquisition of the Development Rights. Neither the City nor the Seller shall hereafter have any rights under such prior agreements but shall look solely to this Agreement and the Deed of Easement for definitions and determination of all of their respective rights, liabilities and responsibilities relating to the Land, the Development Rights and the payment for the Development Rights. In addition, this Agreement shall survive the execution and recording of the Deed of Easement in all respects and shall not be merged therein. SECTION 7.6 Amendments. Changes and Modifications. This Agreement may not be amended, changed, modified, altered or terminated except by an agreement in writing between the City and the then Registered Owner. An executed counterpart of any such amendment shall be attached to this Agreement and shall be binding upon such Registered Owner and all successor Registered Owners. SECTION 7.7 No Personal Liability of City Officials. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, agent or employee of the City in his or her individual capacity, and neither the officers or employees of the City nor any official executing this Agreement shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 7.8 Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. SECTION 7.9 Notices. Except as otherwise provided in this Agreement,all notices, demands,requests, consents, approvals, certificates or other communications required under this Agreement to be in writing shall be sufficiently given and shall be deemed to have been 11 properly given three Business Days after the same is mailed by certified mail, postage prepaid,return receipt requested,addressed to the person to whom any such notice,demand, request, approval,certificate or other communication is to be given, at the address for such person designated below: City: City Manager Municipal Center Virginia Beach, VA 23456 with a copy to: City Attorney Municipal Center Virginia Beach, VA 23456 Seller: Photios Anthony 148 Thole Street Norfolk, Virginia 23505 Thomas C. Kyrus 4008 Lambs Creek Court Virginia Beach, Virginia 23455 S. V. Camp, III Land Management Association Route 2,Box 150 Courtland, Virginia 23837 Registrar: First Union National Bank of Virginia Corporate Trust Department 2nd Floor 901 East Cary Street Richmond,Virginia 23219 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. SECTION 7.10 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right,as provided in this Agreement,shall not be a Business Day, such payment may,unless otherwise provided in this Agreement,be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Agreement, and in the case of payment no interest shall accrue for the period after such nominal date. 12 WITNESS the signatures and seals of the parties hereto as of the date first above written. CITY: [CITY'S SEAL] CITY OF VIRGINIA BEACH, VIRGINIA ATTEST: By: James K. Spore, City Manager City Clerk SELLER: (SEAL) (SEAL) (SEAL) Approved as to Legal Approved as to Sufficiency of Sufficiency: Funds: Deputy City Attorney Director, Department of Finance 13 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach,Virginia,this day of , 19_,by James K. Spore, City Manager of the City of Virginia Beach, Virginia, and attested to by , City Clerk of the City of Virginia Beach,Virginia, on its behalf. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach,Virginia,this day of , 19 ,by Photios Anthony. Notary Public (SEAL) My Commission Expires: 14 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 19 , by Thomas C. Kyrus. Notary Public (SEAL) My Commission Expires: COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach,Virginia,this day of , 19 ,by S.V. Camp,III. Notary Public (SEAL) My Commission Expires: 15 This instrument was prepared by EXHIBIT A Virginia Beach City Attorney's Office Exemption Claimed: § 58.1-811(A)(3) § 58.1-811(C)(4) DEED OF EASEMENT THIS DEED OF EASEMENT is made this_day of , 1998, by and between S. V. CAMP, III, (marital status???) , and KYRUS ANTHONY PARTNERSHIP,a Virginia general partnership (collectively,the"Grantor"), and CITY OF VIRGINIA BEACH, VIRGINIA, a body politic and corporate of the Commonwealth of Virginia(the "City") whose address is Municipal Center, Virginia Beach, Virginia 23456, Grantee. RECITALS WHEREAS, pursuant to the authority granted by the Open-Space Land Act, Chapter 17, Title 10.1 of the Code of Virginia of 1950, as amended (the "Act"), the City adopted the Agricultural Lands Preservation Ordinance (the "Ordinance") as Appendix J to the Code of the City of Virginia Beach,Virginia, as amended(the"City Code"), to promote and encourage the preservation of agricultural land in designated areas within the southern portion of the City; and WHEREAS,in furtherance of the purposes of the Act and the Ordinance,the City has established the Agricultural Reserve Program of the City which provides for the acquisition of development rights through the purchase of agricultural land preservation easements with respect to property located in the portions of the City covered by the Ordinance; and WHEREAS, the Grantor is the owner in fee simple of certain agricultural real property located in the City and more particularly described in Exhibit A hereto (the "Land"); and WHEREAS,the Land is located in that portion of the City subject to the Ordinance and meets the eligibility criteria of Section 7 of the Ordinance; and WHEREAS, the Grantor has agreed to sell to the City the Grantor's Development Rights(hereinafter defined) in the Land by executing and delivering this Deed of Easement and thereby restrict the use of the Land as described herein; and GPIN 1480-46-6738 WHEREAS,the City has agreed to purchase the Grantor's Development Rights in the Land to fulfill the policy and purposes of the City as set forth in the Act and the Ordinance; and WHEREAS,the transfer by the Grantor of the Development Rights in the Land shall be in perpetuity; and WHEREAS, in order to provide for the payment of the purchase price for the rights in the Land created hereby, the Grantor and the City have entered into an Installment Purchase Agreement of even date herewith(the "Installment Purchase Agreement"); GRANT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00), the covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Grantor, for Grantor, Grantor's heirs,personal representatives, devisees, successors and assigns, and for any subsequent owner of the Land does hereby grant and convey, with general warranty and English covenants of title, unto the City, and its successors and assigns, forever and in perpetuity, an agricultural land preservation easement in, on, over and with respect to the Land restricting the Land to Agricultural Use and in furtherance thereof, does hereby grant and convey, with general warranty and English covenants of title, to the City, and its successors and assigns,forever and in perpetuity,all of the Development Rights with respect to the Land. TERMS. COVENANTS. CONDITIONS AND AGREEMENTS A. The Grantor for Grantor, Grantor's heirs,personal representatives, devisees, successors and assigns covenants with the City, (1) to refrain from engaging in any act or activity,or permitting to occur or suffering to exist any act or activity upon the Land which would constitute the exercise of a Development Right or a use other than an Agricultural Use,it being the intention of the parties that the Land shall be preserved for Agricultural Use in accordance with the provisions of the Ordinance; and(2)that this Deed of Easement shall create a perpetual easement,running with the Land and all portions thereof as an incorporeal and nonpossessory interest therein, enforceable against the Grantor and upon any purchaser, grantee, lessee, owner or other transferee of all or any portion of the Land and any other person or entity having any right, title or interest therein and upon their respective heirs, personal representatives, devisees, successors and assigns; and (3) that the covenants, conditions, limitations and restrictions contained herein are intended to limit the use of the Land as herein set forth. B. The parties, for themselves, their heirs, personal representatives, devisees, successors and assigns, further covenant and agree as follows: 2 (1) As used in this Deed of Easement the term "Development Rights" shall mean the right to develop the Land for any use, including without limitation, any commercial, industrial or residential use, other than for Agricultural Use. (2) As used in this Deed of Easement the term "Agricultural Use" means (i) the bona fide production of crops, animal or fowl, including, but not limited to, the production of fruits,vegetables,honey, grains,meat,poultry and dairy products, the raising of livestock and poultry, and the production and harvest of products from horticultural, silvicultural or aquacultural activity,(ii)the repair,expansion or replacement of no more than one(1)bona fide dwelling occupied by the landowner or tenant as of the date of application for entry in the Agricultural Reserve Program and no more than one freestanding mobile home, as permitted by Section 19-19 of the City Code, and (iii) accessory uses directly related to agricultural activities conducted on the same property, including the sale of agricultural products as permitted by Section 401 of the City Zoning Ordinance. The term does not include the processing of agricultural, silvicultural, horticultural or aquacultural products, except as an accessory use. (3) This Deed of Easement does not grant the public any right of entry or access or any rights of use of the Land. (4) THIS EASEMENT SHALL EXIST IN PERPETUITY AND RUN WITH THE ENTIRE ACREAGE OF THE LAND. (5) The purpose of this Deed of Easement shall be to (i) promote and encourage the preservation of farmland,and promote and enhance agriculture as an important industry within the City, (ii) preserve the rural character of the southern part of the City, (iii) conserve and protect environmentally sensitive lands, waters and other resources, (iv)reduce and defer the need for major infrastructure improvements in the southern part of the City and the expenditure of public funds for such improvements, (v) preserve open spaces, and (vi) assist in shaping the character, direction and timing of community development. (6) In the event of a violation or attempted violation of any of the provisions hereof, the City and its successors and assigns, may institute and prosecute any proceeding at law or in equity to enforce the provisions hereof or to abate, prevent or enjoin any such violation or attempted violation. WITNESS, the hand and seal of the Grantor as of the date first above written. #{NOTE-USE IF GRANTOR IS MARRIED BUT SPOUSE IS NOT ON DEED--Anything herein to the contrary notwithstanding, executes this Deed of Easement for the sole purpose of consenting to the conveyance of and releasing any marital or augmented estate interest in the easement and rights set forth herein. 3 GRANTOR: (SEAL) S. V. Camp, III (SEAL) KYRUS ANTHONY PARTNERSHIP, a Virginia general partnership Photios Anthony, general partner Thomas C. Kyrus, general partner APPROVED AS TO FORM AND ACCEPTED ON BEHALF OF THE CITY OF VIRGINIA BEACH CITY ATTORNEY COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach,Virginia,this day of , 1998,by S. V. Camp, III,[ and ,his wife,] Grantor. Notary Public (SEAL) My Commission Expires: 4 COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 1998, by Photios Anthony, general partner of Kyrus Anthony Partnership, a Virginia general partnership, Grantor, on its behalf. Notary Public (SEAL) My Commission Expires: • COMMONWEALTH OF VIRGINIA AT LARGE, to-wit: The foregoing instrument was acknowledged before me in the City of Virginia Beach, Virginia, this day of , 1998, by Thomas C. Kyrus, general partner of Kyrus Anthony Partnership, a Virginia general partnership, Grantor, on its behalf. Notary Public (SEAL) My Commission Expires: 5 EXHIBIT A ALL THAT certain lot,piece or parcel of land,together with the improvements thereon and the appurtenances thereunto belonging, lying, situate and being in Blackwater Borough, City of Virginia Beach, Virginia, containing a total of 108.5 acres,more or less, and designated and described as "Area= 103.2 Ac.f, 50'Right of Way 'A' to 'B' 2.9 Ac.±, 50'Right of Way 'B' to 'C' to 'D' 2.4 Ac. ±"all as shown on a certain plat of survey entitled"SURVEY OF PROPERTY OF A. C. CLARK CO., INC., BLACKWATER BOROUGH, VIRGINIA BEACH, VA," dated November 27, 1965, and made by Palmer L. Smith, Certified Land Surveyor, 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 67,at page 51,reference to which plat is hereby made for a more particular description of said property. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1) Back Bay Mucky Peat; (2) Dorovan Mucky Peat; (3)Nawney Silt Loam; or(4)Pamlico Mucky Peat, Ponded. [LESS AND EXCEPT that certain tract,piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale #" =#', dated #, prepared by#, which plat is attached hereto and recorded simultaneously herewith.] IT BEING a portion of the same property conveyed to the Grantor from Nancye Heffington Clark and Deborah Anne Clark Daugherty, by deed dated February 5, 1988, duly recorded in the aforesaid Clerk's Office in Deed Book 2709, at page 0290. 6 • EXHIBIT B ALL THAT certain tract,piece or parcel of land, together with the improvements thereon and the appurtenances thereto belonging or in anywise appertaining, situate, lying and being in Blackwater, City of Virginia Beach, formerly Princess Anne County,Virginia, said tract of land being near Blackwater Bridge, and containing two hundred fifty (250) acres, more or less,bounded on the north by Highway No. 774, on the east by the lands now or formerly belonging to J. B. Howell and Nathaniel Williams, on the south by the lands now or formerly belonging to William Jones, Jersey Wilson, Miles Martin and White, and on the west by the lands now or formerly belonging to George W. Wilson. LESS SAVE AND EXCEPT ALL THAT certain lot,piece or parcel of land,with the buildings and improvements thereon and appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia,being known, numbered and designated as"0.2756 ACRES, WILLIAM F. HUDGINS, JR., ET UX (DEED BOOK 803, PAGE 105)" as shown on that certain plat entitled"PLAT OF A PORTION OF PROPERTY OF WILLIAM F. HUDGINS, JR., ET UX TO BE ACQUIRED BY WILLIAM M. BOYETTE, ET UX, BLACKWATER BOROUGH, VIRGINIA BEACH" Scale: 1" =60'dated October 1993, made by Harold C. Warren, Jr., Land Surveyor,"conveyed to William M. Boyette and Kim L. Boyette by deed of William F. Hudgins and Malvine B. Hudgins, husband and wife, and William F. Hudgins, III, unmarried,by deed dated April 1, 1994,recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 3392,pages 588. LESS AND EXCEPT all portions of the above-described property, if any, which contain any of the following soil types: (1)Back Bay Mucky Peat; (2)Dorovan Mucky Peat; (3)Nawney Silt Loam; or (4)Pamlico Mucky Peat, Ponded. LESS AND EXCEPT that certain tract, piece or parcel being a portion of the above described property designated and described as "#" as shown on that certain plat entitled: "#", Scale#" _#', dated#,prepared by#,which plat is attached hereto and recorded simultaneously herewith. IT BEING the same property conveyed to William F. Hudgins, Jr., from Howard W. Strickland et ux, et al, by deed dated September 27, 1963, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 803, at page 105, and the same property conveyed to William F. Hudgins, III, from William F. Hudgins, III, et ux,by deed dated February 3, 1994, duly recorded in the aforesaid Clerk's Office in Deed Book 3348, at page 1512, and from William F. Hudgins, Jr., et ux,by deed dated October 11, 1995, duly recorded in the aforesaid Clerk's Office in Deed Book 3606, at page 1499, and by deed dated December 15, 1997, duly recorded in the aforesaid Clerk's Office in Deed Book 3825, at page 375, resulting in William F. Hudgins Jr. presently owning a 51.25% interest and William F. Hudgins, III presently owning a 48.75% interest in the above described property. EXHIBIT "C" PERMITTED ENCUMBRANCES 1. Taxes for the fiscal year 1998/1999 and any/all stormwater fees,which are liens not yet due and payable, and taxes and stormwater fees for all subsequent billing periods. 2. Roll Back Taxes. 3. Easement granted Virginia Electric and Power Company over the subject property, as established by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 249, at page 169. 4. Right of Way easement of ingress and egress over the fifty foot right of way as shown in Map Book 67, at page 51, reserved unto George A. Waller, et al, as duly recorded in the aforesaid Clerk's Office in Deed Book 948, at page 95. 5. Right of way dated October 31, 1931, recorded in Deed Book 166, at page 273, for ditches and drains with right of ingress/egress and reservation to drain into the ditches. 6. Right of way dated December 12, 1930 recorded in Deed Book 162, at page 276, for ditches and drains with right of ingress/egress and reservation to drain into the ditches. 7. Rights of others in and to the use of any drains and/or ditches located over, across, in or under the property and rights to enter upon same for maintenance purposes. 8. Such other restrictions and encumbrances which,in the opinion of the City Attorney, do not adversely affect the interest of the City of Virginia Beach in and to the agricultural land preservation easement and the rights granted to the City in the Deed of Easement. EXHIBIT D ASSIGNMENT FOR VALUE RECEIVED, and ([collectively,] the "Registered Owner") hereby sell[s], assign[s] and transfer[s] unto ,without recourse, all of the Registered Owner's right, title and interest in and to the Installment Purchase Agreement to which this Assignment is attached; and the Registered Owner hereby irrevocably directs the Registrar (as defined in such Agreement)to transfer such Agreement on the books kept for registration thereof. The Registered Owner hereby represents,warrants and certifies that there have been no amendments to such Agreement [except ]. Date: Signature guaranteed: NOTICE: Signature must be NOTICE: The signature on this guaranteed by a member firm Assignment must correspond with of the New York Stock the name of the Registered Owner Exchange or a commercial as it appears on the registration bank or trust company. books for the Installment Purchase Agreement referred to herein in every particular,without alteration or enlargement or any change whatever. 19 EXHIBIT E TRANSFER OF AGREEMENT- SCHEDULE OF TRANSFEREES The transfer of this Installment Purchase Agreement may be registered only by the Registered Owner under such Agreement in person or by its duly authorized officer or attorney upon presentation hereof to the Registrar,who shall make note thereof in the books kept for such purpose and in the registration blank below. Date of Name and Tax I.D. No. of Signature of Registrar Registration of Address of Transferee Transfer Transferee Registered Seller 1. 2. 3. 4. 5. 6. 20 -22- Item V-M2. ORDINANCES ITEM#43495 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize the City Manager to enter into a lease with E.R. COCKRELL,JR.for approximately 47.6 acres of city-owned property off North Landing Road, just West of the Municipal Complex and approximately 26.9 acres off Salem Road at Highland Drive and Lisban Road(PRINCESS ANNE AND KEMPSVILLE BOROUGHS Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 , 1 AN ORDINANCE AUTHORIZING THE 2 CITY MANAGER TO ENTER INTO A 3 LEASE WITH E. R. COCKRELL, JR. 4 FOR APPROXIMATELY 74.5 ACRES OF 5 CITY OWNED PROPERTY IN THE 6 PRINCESS ANNE AND KEMPSVILLE 7 BOROUGHS TO BE USED FOR 8 AGRICULTURAL PURPOSES. 9 WHEREAS, the City of Virginia Beach ("the City") 10 desires to enter into a lease agreement (the "Lease") with E. R. 11 Cockrell, Jr. , for the lease of approximately 74 . 5 acres of City 12 owned property located off of North Landing Road and Salem Road, 13 in the City of Virginia Beach, Virginia (the "Premises") , for use 14 as agricultural farming; and 15 WHEREAS, the Lease is for a term of one (1) year, 16 with four renewal options of one (1) year per renewal; and 17 WHEREAS, the Lease will assist the City in 18 maintaining and controling the condition of the Premises until 19 such time that a development plan is implemented; 20 THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF 21 THE CITY OF VIRGINIA BEACH, VIRGINIA: 22 That the City Manager is hereby authorized and directed to enter 23 into the Lease substantially in the form attached hereto. 24 Adopted by the Council of the City of Virginia 25 Beach, Virginia on the 28 day of April , 1998 . PROVED AS TO CONTENTS SIGN TURF e the t064C F DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORM 1/4,/a4tel4ace_40-4 CITY ATTORNEY PROPOSED LEASE TERM SHEET [CITY AS LANDLORD] DEPARTMENT: PW/Real Estate PREMISES DESCRIPTION: @ 75 Acres of agricultural land located in various places along Salem Road, Lisban Road, Highland Drive and North Landing Road; portions of which are part of the Princess Anne Commons property and the Lake Ridge property. TENANT: E. R. (Dick) Cockrell, Jr. INITIAL LEASE TERM: 1 year BEGINNING: 1/1/98 RENEWAL OPTION(S) : four - 1 year renewal options at City' s sole discretion RENT: $1, 629 . 00 annually TERMINATION PROVISIONS: City may terminate upon default, upon 48 hours notice in the event of governmental action or upon 90 days notice for any reason. OTHER SIGNIFICANT PROVISIONS: 1 . Use - agricultural purposes only 2 . Tenant responsible for maintenance and upkeep. 3 . City to pay damages for unharvested crops in the event of termination before harvest, subject to mutual approval or final determination by the City' s Director of the Department of Agriculture. 4 . Indemnity and required insurance by Tenant . G:\DATA\FORMS\DEEDS\WORKING\DF4576.OUT I ! THIS LEASE AGREEMENT, made this AI - day of AiA,eei( 1998, by and between the CITY OF VIRGINIA BEACH (GRANTOR/LESSOR), a municipal corporation of the Commonwealth of Virginia, hereinafter referred to as"CITY" or"LESSOR," party of the first part, and E. R. COCKRELL, JR. (GRANTEE/LESSEE), hereinafter referred to as "Lessee," party of the second part. WITNES SETH 1. LEASED PREMISES. That for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of Lessee to be observed and performed, CITY leases to Lessee and Lessee rents from CITY the following property, hereinafter referred to as the"Property",delineated as shaded area upon the attached plats labeled "Exhibit A" and "Exhibit B" entitled "EXHIBIT "A" 26,9 ACRES OF FARM LAND TO BE LEASED TO E. R. (DICK) COCKRELL, JR. BY THE CITY OF VIRGINIA BEACH" and "EXHIBIT "B" 47.6 ACRES OF FARM LAND TO BE LEASED TO E. R. (DICK) COCKRELL, JR. BY THE CITY OF VIRGINIA BEACH",reference being made to said exhibits for a more accurate description thereof; provided, however, no portion of the property leased to the TPC of Virginia Beach for a golf course shall be included in the Property. 2. RENT. That for and in consideration of the sum of$1,629.00, payable j within ninety(90)days of the date of this Lease, CITY does hereby lease and demise unto Lessee the Property. SII 3. TERM. The term of this Lease shall be for one year from January 1, 1998, ; 11 to December 31, 1998. This Lease may be renewed for four (4) successive one-year terms at CITY's sole discretion, based on the following conditions and stipulations: A. Lessee must request,in writing, a renewal not later than November 30 before the then current lease term shall expire; and B. Lessee must be in compliance with all terms and conditions of this Lease; and C. The leased area is subject to modification for each year's renewal; I and D. The rental amount is subject to negotiation for each year's renewal and must be paid within thirty(30) days of receipt of CITY's acknowledgment of renewal; and E. All other terms and conditions of this Lease shall remain in force for each renewal term, at CITY's sole discretion. 4. USE OF PROPERTY - AGRICULTURAL PURPOSES. Lessee covenants that the Property shall be used solely for agricultural purposes. All the Property that can be placed under irrigation and is suitable for farming, shall be farmed during the term of the lease,in a good and farm like manner. If the Property or any part thereof is not so farmed, or is permitted to deteriorate, or if any waste is caused or permitted thereon by Lessee, this Lease may be terminated on thirty (30) days' notice by CITY. Waste, as the term is employed herein, shall include the cutting or removal of any timber on the Property, except as approved in writing by CITY. ; i II Lessee shall use the Property only for the purposes listed herein and any Ii other use thereof, unless necessarily incidental to such listed and allowed uses, shall constitute a breach of this Lease and cause its immediate termination. The Property is leased by CITY to I Lessee"as is,"and the sole responsibility for the maintenance and upkeep of the Property shall be with Lessee. II 2 ii 5. ASSIGNMENT AND SUB-LEASE. This Lease may not be assigned or transferred, and the Property shall not be sublet, either in whole or in part, by Lessee without CITY's prior written consent. 6. TERMINATION AND RIGHT OF ENTRY BY CITY. A. Lessee shall not be entitled to renew this Lease in the event Lessee is in default in the performance of any of the covenants, terms or conditions of this Lease. B. CITY reserves the right at any time without prior written notice to enter upon the Property , after it has been determined that an emergency exists,. C. The parties acknowledge that CITY has certain powers, purposes and responsibilities. To discharge its powers, purposes or responsibilities, CITY shall have the right to require Lessee to immediately dismantle and remove any and all improvements from the Property,within forty-eight hours after notice is given to Lessee. Thereafter, CITY shall have the exclusive right to enter upon and use the Property, and Lessee shall surrender possession and control thereof to CITY. D. Further, CITY reserves the right to terminate this Lease by giving written notice to Lessee at least ninety(90) days prior to the date of termination. If harvesting of the Lessee's crop has not been completed, all rent paid in advance shall be refunded. E. Should it become necessary for CITY to enter upon the Property in accordance with either ofara ahs 6.0 or 6.D P gr p of this Lease, and if such action causes damage to, or loss of, any or all of Lessee's unharvested crop, CITY agrees to pay to Lessee a mutually ii agreed upon sum to cover Lessee's loss. Lessee must submit a written claim to CITY within sixty I ' (60) days of the date on which damage was sustained. F. Should CITY and Lessee disagree on the monetary amount of the 3 • damage sustained per paragraph 6.E of this Lease, CITY's Director of the Department of Agriculture shall determine the amount of damage and his decision shall be final. 7. Lessee will keep all equipment and improvements, if any, placed upon the Property by Lessee, in a safe, clean, and orderly condition; be responsible for all activities on the Property that fall under his control; and will act immediately in response to any notices by CITY with reference to the forgoing. It is further understood and agreed as part of the consideration on hereof, that � Lessee shall be responsible for the maintenance and/or repair of the Property arising out of Lessee's use of the Property. Should any maintenance and/or repair work be deemed necessary, then the decision of CITY as to the scope of the required work and the amount of such liability shall control and be binding on Lessee. 8. CITY'S RIGHT TO GRANT EASEMENTS. CITY reserves the right to grant easements and rights of way across or upon the Property, for streets, alleys, public highways, drainage, utilities, telephone and telegraph transmissions lines, pipelines, irrigation canals, and similar purposes. 9. INDEMNIFICATION/INSURANCE BY LESSEE. Lessee shall indemnify and save harmless CITY and all its officials, agents and employees from and against all losses and expenses incurred because of claims, demands,payments, suits, actions, recoveries, and judgements of every nature and description brought or recovered against them by reason of any injuries to property or person, including death, occurring on the Property, arising out of or in connection with Lessee's use of the Property. During the term of this Lease, Lessee shall obtain and keep in force the following policies of insurance: 4 • I Workers' Compensation Insurance as required under Title 65.2 of the Code of Virginia. Commercial General Liability Insurance in an amount not less than two hundred thousand dollars ($200,000) combined single limits(CSL). Such insurance shall name CITY as an additional insured. Automobile Liability Insurance including coverage for non-owned and hired vehicles in an amount not less than two hundred thousand dollars ($200,000) combined single limits (CSL). All policies of insurance required herein shall be written in a form, and by insurance companies licensed to conduct the business of insurance in Virginia and, acceptable to I CITY, and shall carry the provision that the insurance will not be canceled or materially modified without thirty days(30)prior written notice to CITY. Lessee shall provide a certificate evidencing the existence of such insurance. 10. APPLICABLE LAW. This Lease shall be deemed to be a Virginia Lease j and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all it questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been ! delivered and accepted by the parties in the Commonwealth of Virginia. ii 11. COMPLIANCE WITH ALL LAWS. Lessee shall comply with all laws, rules and regulations of CITY and all other governmental authorities respecting the use, operation I and activities on the Property,including all applicable environmental Laws, and shall not make or be a party to any unlawful, improper or offensive use of such premises or nuisance thereon. 5 I ' i It is expressly understood and agreed that Lessee, in no way, represents or acts on behalf of CITY or any department thereof. 12. VENUE. Any and all suits for any claims or for any and every breach or dispute arising out of this Lease shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. 13. INVALIDITY. If any section,paragraph, subparagraph, sentence, clause 11 or phrase of this Lease shall be declared or judged invalid or unconstitutional, such adjudication shall not affect the other sections, paragraphs, sentences, clauses or phrases. 14. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Lease shall be delivered or sent by certified mail, prepaid, return receipt requested, and addressed as follows: If to Lessee, to: E.R. COCKRELL, JR. 2940 NORTH LANDING ROAD VIRGINIA BEACH, VA. 23456 ! I If to CITY, to: CITY REAL ESTATE AGENT OPERATIONS BUILDING, ROOM 170 MUNICIPAL COMPLEX VIRGINIA BEACH, VA. 23456 i I 6 ! I I IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed by their proper representatives as of the day and year first above written. CITY OF VIRGINIA BEACH BY City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: Ruth Hodges Smith City Clerk Lessee: (SE ) E. R. Cockrell, Jr. , II APPROVED AS TO LEGAL SUFFICIENCY ' APPROVED AS ' TO CONTENT iI s ()Sc Yi1. SIGNATURE ( Ltar_ lib /&S r f DEPARTMENT I 7 , I ! 1 ' STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a notary public in and for the city and state I aforesaid, do hereby certify that , CITY MANAGER/AUTHORIZED ; DESIGNEE OF THE CITY MANAGER,whose name as such is signed to the foregoing writing, 1 , bearing date the day of , 1998, has acknowledged the same before I , me in my city and state aforesaid. Given under my hand this day of , 1998. I ' Notary Public it My Commission Expires: STATE OF VIRGINIA 11 CITY OF VIRGINIA BEACH, to-wit: I, , a notary public in and for the city and state aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk, whose name as such is signed to the foregoing writing,bearing date the day of , 1998, has II acknowledged the same before me in my city and state aforesaid. Given under my hand this day of , 1998. Notary Public My Commission Expires: 8 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, /Cie j. AI/W--9S , a notary public in and for the city and state aforesaid, do hereby certify that E. R. COCKRELL, JR., Lessee, whose name as such is signed to the foregoing writing, bearing date the 'V day of ,i4A,e , 1998, has it acknowledged the same before me in my city and state aforesaid. I Given under my hand this 4 e day of A,eei( , 1998. , Notary Public My Commission Expires: C (0? . 3 I / ,2 0 0/ I Ii it li ii ii I ' i 1 _--__'_ �� / - _ _ - ' Cl. 0 likt,tii .... - . ' , \ f ...,...\\.,;(4**; : .. .1 it , i':\ ......0 . aettilirel - . ..17, if 1‘0.0 1 ' -.--- ---t----. i 400 7 -.----1:n5:74-1-41.--7-Noilift. 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(DICK) COCKRELL, JR. , d -`' BY THE CITY OF VIRGINIA BEAC i .•. or' ,7). .a .0' • .... . 0 0 0 v. ':..,.... 00c.",,,•4. 0 ....„;‘,104,\,. k`. • . • `' r'�! ' , SCALE: 1 �' ! ) •••:• 1 k • �• 1�, ...`1t,c.�;� —400 M •. -23- Item V-M3. ORDINANCES ITEM#43496 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinances to AMEND City Code: Section 26-3 re Peddling or Selling on or in Public Parks,Public Buildings or on Public Property in the RT-1, RT-2, RT-3 and RT-4 Resort Tourist Districts. Section 26-3.1 re Peddling or Selling on Public Property in the Resort Area during the Prime Resort Season. Section 28-5 re procedure for installment payment agreements for Sanitary Sewer connection fees. Section 28-26 re reducing the monthly Sanitary Sewer rate charged to multi-unit properties with separate water meters. Section 37-9 re procedure for installment payment agreements for Water Connection Charges. Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K. Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 1 AN ORDINANCE TO AMEND THE CITY CODE 2 PERTAINING TO PEDDLING OR SELLING ON 3 PUBLIC PROPERTY IN THE RESORT AREA 4 DURING THE PRIME RESORT SEASON 5 SECTION AMENDED: SECTION 26-3 . 1 6 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 7 BEACH, VIRGINIA: 8 That Section 26-3 . 1 of the City Code is hereby amended and 9 reordained to read as follows : 10 Sec. 26-3 .1. Peddling or selling on public property in the resort 11 area during the prime resort season. 12 (a) Notwithstanding any provision of this code to the 13 contrary, it shall be unlawful for any person to engage in the 14 activity of selling or offering for sale, or renting or offering for 15 rent, any goods, wares, merchandise, foodstuffs, refreshments or 16 other kinds of property or services whatsoever on any public 17 property in the "resort area" during the period from, and including, 18 thc fifteenth day of April, to and including, thc thirtieth day of 19 Ccptcmbcr of each year. "prime resort season" while such person or 20 any table, stand, cart, trailer, or similar structural component of 21 such person' s activity is located on public property. 22 (b) The restriction set forth in subsection (a) above shall 23 not be applicable to: 24 (1) Special events conducted pursuant to a permit granted 25 under section 4-1 of this Code; 26 (2) Events conducted pursuant to the city' s contract for 27 general entertainment and major events; 28 (3) Duly-licensed or permitted concessions granted by the 29 city pursuant to a competitive procurement process; 30 (4) Franchises granted in accordance with sections 31 15 . 1 307 15 . 2-2100 et seq. of the Code of Virginia; or 32 (5) The sale, or offer for sale, of publications of 33 general circulation. 34 (c) For purposes of this section, the following terms shall 35 have the meanings respectively ascribed to them: 36 (1) Public property shall include, without limitation, 37 the boardwalk, the grassy area adjacent thereto, streets, alleys, 38 sidewalks, bicycle paths, parks, the sand beach, city-owned or 39 operated facilities, and all other public placc3 property. 40 (2) Publication of general circulation shall mean a 41 publication which is published at regular intervals primarily for 42 the dissemination of news, intelligence and opinions on recent 43 events or newsworthy items of a general nature and which is 44 available to the general public. 45 (3) Resort area shall mean the area bordered on the north 46 by the northernmost curb line of 38th Street, on the east by the 47 mean low water line of the Atlantic Ocean, on the south by Rudee 48 Inlet, and on the west by the imaginary line running north to south, 49 fifteen (15) feet to the west of the westernmost curb line of 50 Pacific Avenue. 51 (4) Prime resort season shall mean the period from, and 52 including, the fifteenth day of April, to and including, the 53 thirtieth day of September of each year. 54 Adopted by the City Council of the City of Virginia Beach on 55 this 28th day of April, 1998 . 56 57 CA-6976 58 DATA/ORDIN/PROPOSED/26-003-1 .ORD 59 R3 60 PREPARED: 04/14/98 APPROVED AS TO CONTENTS: APPROVED AS TO LEGAL SUFFICIENCY: Convention & Visitor Development Law Department 2 1 AN ORDINANCE TO AMEND THE CITY CODE 2 PERTAINING TO PEDDLING OR SELLING ON 3 OR IN PUBLIC PARKS, PUBLIC BUILDINGS, 4 OR ON PUBLIC PROPERTY IN THE RT-1, RT- 5 2, RT-3 , AND RT-4 RESORT TOURIST 6 DISTRICTS 7 SECTION AMENDED: SECTION 26-3 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 That Section 26-3 of the City Code is hereby amended and 11 reordained to read as follows: 12 Sec. 26-3 . Peddling or soliciting selling on or in public 13 parks, public buildings, or on public property in 14 the resort arca RT-1, RT-2, RT-3, and RT-4 Resort 15 Tourist Districts. 16 (a) It shall be unlawful for any person to engage in the 17 activity of 3c11 selling promotc thc or offering for sale, e€7 18 markct, advcrti3c, Solicit renting, or offering for rent or takc 19 taking orders for, goods, wares, merchandise, public-ation3 20 beverages, foods, prepackaged or otherwise, or any service e 21 commodity whatsoever, to or from any prospective customers or 22 passersby while such person, prospective customcrs customer or 23 passcrsby passerby arc is in any public park, on the grounds of the 24 city municipal complex, in any city-owned or -leased building, or 25 on public property in the RT-1, RT-2, RT-3, and RT-4 Resort Tourist 26 Districts without obtaining a permit from the city manager or his 27 or her designee as set forth in subsection (d) of this section. 28 29 of thc city manager bascd upen the public health, 3afcty and 30 wclfarc, and thc public convcnicncc and ncccssity. Such permit shall 31 be in addition to any other permit required by this chaptcr code. 32 (b) The restriction set forth in subsection (a) above shall 33 not be applicable to: 34 (1) Special events conducted pursuant to a permit granted 35 under section 4-1 of this Code; 36 (2) Events conducted pursuant to the city' s contract for 37 general entertainment and major events; 38 (3) Duly licensed or permitted concessions granted by the 39 city pursuant to a competitive procurement process; 40 (4), Franchises granted in accordance with section 15 . 2- 41 2100 et seq. of the Code of Virginia; or 42 (5) Activities commonly associated with expression as 43 guaranteed by the First Amendment of the Constitution of the United 44 States . 45 (c) For the purposes of this section, the following terms 46 shall have the meanings respectively ascribed to them: 47 (1) Public property in the RT-1, RT-2, RT-3, and RT-4 48 Resort Tourist Districts shall include, without limitation, the 49 boardwalk, the grassy area adjacent thereto, streets, alleys, 50 sidewalks, bicycle paths, parks, the sand beach, city-owned or 51 operated facilities, and all other public property. 52 (2) The terms selling, offering for sale, renting, 53 offering for rent, or taking orders for shall include selling or 54 taking orders for goods, wares, merchandise, food, beverages, 55 prepackaged or otherwise, or any service whatsoever from a walk-up 56 window or an opening on private property adjacent to a public right- 57 of-way, public alley, or other public property. 58 (d) An application for a permit required by this section shall 59 be filed with the city manager' s office, on forms provided by the 60 city, and processed as follows: 61 (1), A completed application shall be processed and either 62 granted or denied within thirty (30) days of receipt of such 2 63 apQlication. All decisions shall be in writing, setting forth the 64 conditions of the permit, if granted, or the reasons for denial . 65 (2) No permit shall be granted unless the city manager 66 or his or her designee finds that : 67 (i), In consideration of factors such as public 68 safety, noise, and vehicular and pedestrian 69 traffic, the proposed activity will not 70 unreasonably interfere with the normal and 71 intended use of the public property by the city 72 or the general public; 73 (ii) The proposed activity will not adversely affect 74 the city' s efforts to protect the general 75 welfare and to promote tranquility and the high 76 Quality of life associated with resort 77 community living and recreation; and 78 (iii) The proposed activity is not inconsistent with 79 city policies for the use of the public 80 property at the particular location. 81 (3) The city manager or his or her designee may impose, 82 as conditions to granting a permit, such further requirements and 83 restrictions as will reasonably protect the public health, safety, 84 welfare, peace, and order. Such conditions may include, but are not 85 limited to: 86 (i) A limitation on the dates and hours of 87 operation, the number of peddlers or 88 salespersons, or location of the peddling or 89 sales activity; and/or 3 90 (ii), The provision of adequate crowd and traffic 91 control, food handling, waste and refuse 92 disposal, and noise restrictions . 93 (4) The city manager or his or her designee is authorized 94 to revoke or suspend any permit previously granted: (i) for 95 violation of any provision of this code or of any condition of the 96 permit; (ii) for damage to city property; (iii) for any material 97 misrepresentation, intentional or otherwise, made in connection with 98 the application; (iv) when weather conditions render the subject 99 activity unsafe; or (v) when revocation or suspension is required 100 in the interest of public health, safety, and welfare, or 101 environmental considerations . In the event a permit is revoked or 102 suspended, the permittee shall immediately discontinue, or cause to 103 be discontinued, the activity for which the permit was granted, but 104 shall be thereafter entitled to a hearing before the city manager 105 or his or her designee concerning the revocation or suspension 106 within ten (10) days of the date of such revocation or suspension. 107 (6), A permit granted under the provisions of this section 108 shall expire after such period as determined by the city manager or 109 his or her designee, not to exceed one (1) year from the date of 110 issuance. The holder of the permit may thereafter apply for a new 111 permit as set forth in subsection (d) (1) . 112 (7), No permit issued under this section shall be 113 transferred to another person or entity without the approval of the 114 city manager or his or her designee. Such approval, if granted, 115 shall be granted in the same manner as for original applications for 116 permits. 117 (8) In addition to any penalty imposed under section 26- 118 1, the city may institute legal action to enjoin a continuing 4 119 violation of any of the provisions of this section or any terms and 120 conditions of a permit issued pursuant to this section. 121 Adopted by the City Council of the City of Virginia Beach on 122 this 28th day of April, 1998 . 123 124 CA-6959 125 DATA/ORDIN/PROPOSED/26-003 .ORD 126 R3 127 PREPARED: 04/14/98 APPROVED AS TO CONTENTS: Convention & Visitor Development APPROVED AS TO LEGAL SUFFICIENCY: City Attorney 5 1 AN ORDINANCE TO AMEND THE PROCEDURES 2 FOR INSTALLMENT PAYMENT AGREEMENTS 3 FOR SEWER LINE FEES 4 SECTION AMENDED: CITY CODE § 28-5 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 That Section 28-5 of the City Code is hereby amended and 8 reordained to read as follows : 9 Sec. 28-5 . Installment, etc. , payment of line fees. 10 (a) The director of public utilities is hereby authorized to 11 accept, on behalf of the city, notes for the payment of the line 12 fees due under subsection (b) (1) and (b) (3) of section 28-4, for 13 single-family residences and duplexes (no more than two (2) 14 residential units) . The terms of each such note shall be all tap 15 and cleanout fees, given as a down payment, with the full line fee 16 to be paid within four (4) years . Installation payments must be 17 made at least annually in four (4) equal installments during the 18 four-year period, but may be made more frequently if agreed to by 19 the owner and the director of public utilities. Interest shall be 20 charged at a rate equal to the Prime Rate for U.S . Banks, as 21 published in the Wall Street Journal, when the installment contract 22 is executed, plus three (3) percentage points, not to exceed twelve 23 (12) percent per annum. No Such note shall be accepted unlc33 thc 24 property ewr demenstrates that at least twe (2) commcrcial 25 lcnding in3titution3 havc rcfuied to make 26 and for thc purpooc of financing, thc aforesaid linc fcc3 . 27 (b) When a hardship exists, the director of public utilities 28 may allow the down payment prescribed in paragraph (a) above, to be 29 paid by installments over a one-year period; or, if the property is 30 being offered for sale, the director of public utilities may enter 31 into an agreement whereby all fees shall be paid from the proceeds 32 of the sale or within ninety (90) days of the date of the 33 agreement, whichever shall be the sooner. 34 BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF 35 VIRGINIA BEACH, VIRGINIA: 36 That this ordinance shall become effective on July 1, 1998 . 37 Adopted by the City Council of the City of Virginia Beach on 38 this 28th day of April, 1998 . 39 40 CA-6857 41 Wmm\ordres\28-5 .ord 42 R-3 43 April 8, 1998 APPROVED AS TO CONTENTS: Public Utilities APPROVED AS TO LEGAL SUFFICIENCY: Department of Law 2 .s:AV g .,,,,9. 94�d -. 0'''' Po%c Report 0, -0-u--R--„-.,;,00 FINANCING OF SANITARY SEWER CONNECTION CHARGES A Proposal for Amending the Procedures for Installment Payment Agreements for Sanitary Sewer Connection Charges BACKGROUND The purpose of this policy report is to recommend a change in the procedures for allowing installment payment agreements for sanitary sewer connection charges. As stated in the Virginia Beach City Code Section 28-2, the Department of Public Utilities requires mandatory connection to the public sewer system within one year from the date the service becomes available. The fees involved with connecting to this service may place a financial burden on some customers who may not have the resources available to pay all fees in full. Because of this, the Department finds that it is necessary and responsible to provide an alternative payment method for these individuals. The solution to this has been to finance fees for these individuals. This provision is only made, however, after individuals obtain refusals from two commercial lending institutions. Customers have responded to this policy with great concern and dissatisfaction. Current City Code At this time, City Code Section 28-5 stipulates that the Director of Public Utilities is authorized to accept a note for payment of sanitary sewer connection charges only after the property owner's application for loan to pay said fees has been refused by two commercial lending institutions. At that point, financing is available with an interest rate at the Prime Rate for U.S. Banks, as published in the Wall Street Journal, plus three percentage points, not to exceed 12% per annum. Prior to October 1992, the City offered financing with no commercial refusal necessary (City Code Section 28-5). CONSIDERATIONS Adoption of the proposed amendment would eliminate the requirement for a property owner to be denied a loan by two commercial lending institutions. Payment in full of tap and clean out fees would serve as a down payment. All other connection fees would be eligible for 1 out fees would serve as a down payment. All other connection fees would be eligible for financing. The interest rate would remain at the Prime Rate for U.S. Banks, as published in the Wall Street Journal, plus three percentage points, not to exceed 12% per annum. The cost for providing this service would not impact negatively on the Department's budget. As stated above, interest would be accrued and customer service quality would be greatly enhanced. The expected administrative impact is negligible. Information available on the City's capital improvement projects indicates that prior to 1992, approximately 20% of sewer and water customers took advantage of the financing available through the Department of Public Utilities. PUBLIC INFORMATION No special public information procedures are required for adoption of the ordinance. The Department of Public Utilities will make the information available to the general public. ALTERNATIVE COURSES OF ACT/ON 1. Taking no action would preserve the status quo and would continue to cause an inconvenience and embarrassment to customers. 2. The two refusals could be reduced to one refusal, thereby lessening the amount of inconvenience and embarrassment, but not entirely changing the existing procedure. 3. Elimination of two refusals. Financing would be available to customers at the Prime rate plus three percentage points, not to exceed 12% per annum. RECOMMENDATIONS It is recommended that the City Council adopt the attached ordinance to amend Section 28-5 of the Virginia Beach City Code, eliminating the current requirement that property owners be denied a loan by two commercial lending institutions prior to obtaining financing through the Department of Public Utilities for sanitary sewer connection charges. This action will enhance customer service quality and improve convenience when a property owner finds it necessary to finance sanitary sewer connection charges. This arrangement is not available to developers. 2 REVIEW AND APPROVAL City Manager � '� . (316)( City Man:ger Date: y-a,U X18 Public Utilities Department Director Date:¢•13. 18 Finance • i .L ( 01 Department Director Date: - Budget „,l[/J /1r Depart •=n Dir-c o Date: (S It 3 1 AN ORDINANCE TO REVISE CITY SANITARY 2 SEWER CHARGES 3 SECTION AMENDED: CITY CODE § 28-26 4 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 That Section 28-26 of the Code of the City of Virginia Beach, 8 Virginia, is hereby amended and reordained to read as follows : 9 Sec. 28-26 . Sanitary sewer sewer a=ntenance charges established. 10 The following monthly maintcnancc charges are hereby 11 established with respect to all property connected directly or 12 indirectly to the public sewer system maintained by the City: 13 (1) Residential uses: 14 a. Single-family detached residences : $9 . G5 cffcctivc 15 Octobcr 1, 1990, and $10 . 58 cffcctivc July 1, 1991, 16 a $11 .38 effective July 1, 1992 . 17 b. Structures with two (2) or more family residential 18 units with one (1) connection to the public sewer 19 system, except where structures meet the criteria 20 set forth in subsection (e) , and trailer parks : 21 1 . First unit or trailer: $9.G5 cffcctivc Octobcr 22 1, 1990, and $10 . 58 cffcctivc July 1, 1991, 23 a $11 . 38 effective July 1, 1992 . 24 2 . Each additional unit or trailer: $7 .24 25 cffcctivc Octobcr 1, 1990, and $7 . 94 26 cffcctivc July 1, 1991, and $8 . 54 effective 27 July 1, 1992 . 28 c. Hotels and motels : 29 1 . For the first room provided for occupancy: 30 $9. 65 cffcctivc Octobcr 1, 1990, and $10 . 58 31 cffcctivc July 1, 1991, and $11 . 38 effective 32 July 1, 1992 . 33 2 . Each additional room for occupancy: $3 . 88 34 cffcctivc Octobcr 1, 1990, and $1 .25 cffcctivc 35 July 1, 1991, and $4 . 57 effective July 1, 36 1992 . 37 d. Campgrounds : 38 1 . For the first space provided: $9 . 65 cffcctivc 39 Octobcr 1, 1990, and $10 . 58 cffcctivc July 1, 40 1991, and $11 .38 effective July 1, 1992 . 41 2 . For each additional space provided: $3 . 88 42 cffcctivc Octobcr 1, 1990, and $4 .25 cffcctivc 43 July 1, 1991, and $4 . 57 effective July 1, 44 1992 . 45 e. If a structure or property with has two (2) or more 46 family residential units - - - - - _- - - - -- - - 47 - - -- - _ ' -= ' . ' = -- - , each of which 48 is directly connected to the public sewer system 49 owned and operated by the City, the acwcr 50 maintcnancc charge for the individually mctcrcd 51 individual unit (s) shall be no less than ninc 52 dollara and 3ixty fivc ccnt3 ($9 . C5) per watcr 53 mctcr cffcctivc Octobcr 1, 1990, and tcn dollar3 54 and fifty cight ccnto ($10 . 58) per watcr mctcr 55 cffcctivc July 1, 1991, and eleven dollars and 56 thirty-eight cents ($11 .38) per water meter 57 effective July 1, 1992 and eleven dollars and 58 thirty-eight cents ($11 .38) per unit effective July 59 1, 1998 . 60 . . . . 2 61 Adopted by the City Council of the City of Virginia Beach on 62 this 28th day of April, 1998 . 63 CA-6865 64 WMM/ordres/28-26 .ord 65 January 22, 1998 R-2 APPROVED AS TO CONTENT Department of Public Utilities APPROVED AS TO LEGAL SUFFICIENCY Department of Law 3 1 AN ORDINANCE TO AMEND THE PROCEDURES FOR 2 INSTALLMENT PAYMENT AGREEMENTS FOR WATER 3 CONNECTION CHARGES 4 SECTION AMENDED: CITY CODE § 37-9 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 That Section 37-9 of the City Code is hereby amended and 8 reordained to read as follows : 9 Sec. 37-9 . Installment, etc. , payment of rccovery fcce connection 10 charges. 11 (a) The director of public utilities is hereby authorized to 12 accept, on behalf of the city, notes for the payment of recovery 13 fees due under subsections (b) (1) and (b) (2) of section 37-7 . 1 for 14 single-family residences and duplexes (no more than two (2) 15 residential units) . The terms of such note shall be all tap and 16 meter fees, given as a down payment, with the full remaining fees 17 to be paid within four (4) years. Installment payments must be made 18 at least annually in four (4) equal installments during the four- 19 year period, but may be made more frequently if agreed to by the 20 owner and the director of public utilities. Interest shall be 21 charged at a rate equal to the Prime Rate for U. S. Banks, as 22 published in the Wall Street Journal, when the installment contract 23 is executed, plus three (3) percentage points, not to exceed twelve 24 (12) percent per annum. No such notc Shall be acccptcd unlc33 thc 25 property owner deme-x3tratee that at least two (2) commcrcial 26 lcnding in3titutiono have refuecd to makc a loan in thc amount of, 27 and for thc purpe3c of financing, the afeeesaid linc fccs. 28 (b) When a hardship exists, the director of public utilities 29 may allow the down payment prescribed in paragraph (a) above, to be 30 paid by installments over a one-year period; or, if the property is 31 being offered for sale, the director of public utilities may enter 32 into an agreement whereby all fees shall be paid from the proceeds 33 of the sale or within ninety (90) days of the date of the 34 agreement, whichever shall be the sooner. 35 BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF 36 VIRGINIA BEACH, VIRGINIA: 37 That this ordinance shall become effective on July 1, 1998 . 38 Adopted by the City Council of the City of Virginia Beach on 39 this 28th day of April, 1998 . 40 41 CA-6858 42 Wmm\ordres\37-9 .ord 43 R-3 44 April 8, 1998 APPROVED AS TO CONTENTS: Public Utilities APPROVED AS TO LEGAL SUFFICIENCY: Department of Law 2 o -'ice fir►'-`„!,p0' r //► t e• ,,-• r, ti v '' K. OF OUR NA1‘13a Policy Report FINANCING OF WATER CONNECTION CHARGES A Proposal for Amending the Procedures for Installment Payment Agreements for Water Connection Charges BACKGROUND The purpose of this policy report is to recommend a change in the procedures for allowing installment payment agreements for water connection charges. As stated in the Virginia Beach City Code Section 37-5, the Department of Public Utilities requires mandatory connection to the public water system within one year from the date the service becomes available. The fee involved with connecting to this service may place a financial burden on some customers who may not have the resources available to pay all fees in full. Because of this, the Department finds that it is necessary and responsible to provide an alternative payment method for these individuals. The solution to this has been to finance fees for these individuals. This provision is only made, however, after individuals obtain refusals from two commercial lending institutions. Customers have responded to this policy with great concern and dissatisfaction. Current City Code At this time, City Code Section 37-9 stipulates that the Director of Public Utilities is authorized to accept a note for payment of water connection charges only after the property owner's application for loan to pay said fees has been refused by two commercial lending institutions. At that point, financing is available with an interest rate at the Prime.Rate for U.S. Banks, as published in the Wall Street Journal, plus three percentage points, not to exceed 12% per annum. Prior to October 1992, the City offered financing with no commercial refusal necessary (City Code Section 37-9). CONSIDERATIONS Adoption of the proposed amendment would eliminate the requirement for a property owner 1 to be denied a loan by two commercial lending institutions. Payment in full of tap and meter fees would serve as a down payment. All other connection fees would be eligible for financing. The interest rate would remain at the Prime Rate for U.S. Banks, as published in the Wall Street Journal, plus three percentage points, not to exceed 12% per annum. The cost for providing this service would not impact negatively on the Department's budget. As stated above, interest would be accrued and customer service quality would be greatly enhanced. The expected administrative impact is negligible. Information available on the City's capital improvement projects indicates that prior to 1992, approximately 20% of sewer and water customers took advantage of the financing available through the Department of Public Utilities. PUBLIC INFORMATION No special public information procedures are required for adoption of the ordinance. The Department of Public Utilities will make the information available to the general public. AL TERNA T/VE COURSES OF ACT/ON 1. Taking no action would preserve the status quo and would continue to cause an inconvenience and embarrassment to customers. 2. The two refusals could be reduced to one refusal, thereby lessening the amount of inconvenience and embarrassment, but not entirely changing the existing procedure. 3. Elimination of two refusals. Financing would be available to customers at the Prime rate plus three percentage points, not to exceed 12% per annum. RECOMMENDATIONS It is recommended that City Council adopt the attached ordinance to amend Section 37-9 of the Virginia Beach City Code, eliminating the current requirement that property owners be denied a loan by two commercial lending institutions prior to a property owner obtaining financing through the Department of Public Utilities for water connection charges. This action will enhance customer service quality and improve convenience when a property owner finds it necessary to finance water connection charges. This arrangement is not available to developers. 2 REV/EW AND APPROVAL II City Manager I - Cit Hager Date : y-gyp-413 Public Utilities Department D Date: 4 •/ Finance 901 ,€.1,er / Si I Department Director Date: - -•g, li Budget iii jiff .� Departure t Di e Date: 1) 3 -24- Item V-M4. ORDINANCES ITEM#43498 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to APPROPRIATE $228,353 from the Fund Balance of the Tourism Advertising Program to the FY 1997-98 Operating Budget of the Department of Convention and Visitor Development re expanding the City's advertising program. Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 1 AN ORDINANCE TO APPROPRIATE FUNDS IN 2 THE AMOUNT OF $228, 353 FROM THE FUND 3 BALANCE OF THE TOURISM ADVERTISING 4 PROGRAM FUND TO THE FY 1997-98 5 OPERATING BUDGET OF THE DEPARTMENT OF 6 CONVENTION AND VISITOR DEVELOPMENT FOR 7 THE PURPOSE OF EXPANDING THE CITY' S 8 ADVERTISING PROGRAM 9 WHEREAS, the Tourism Advertising Program Fund was 10 established by City Council to provide a consistent funding source 11 for both the City' s tourism advertising program and the Visitor 12 Information Center; 13 WHEREAS, there is a need to expand the advertising 14 program to provide support to programs such as sports marketing 15 initiatives, regional cooperative advertising campaigns, and the 16 AAU Junior Olympics; and 17 WHEREAS, there are sufficient funds available in the fund 18 balance of the Tourism Advertising Program Fund to support these 19 programs while maintaining other fund balance reserve policies . 20 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 21 OF VIRGINIA BEACH, VIRGINIA: 22 1 . That funds in the amount of $228, 353 are hereby 23 appropriated from the fund balance of the Tourism Advertising 24 Program Fund to the FY 1997-98 Operating Budget of the Department 25 of Convention and Visitor Development for the purpose of expanding 26 the City' s advertising program; and 27 2 . That estimated revenues for FY 1997-98 in the fund 28 balance of the Tourism Advertising Program Fund are hereby adjusted 29 to reflect this appropriation. 30 Adopted by the Council of the City of Virginia Beach, 31 Virginia, on the 28 day of april , 1998 . 32 CA-6971 33 ODIN\DATA\NUANCED\TOURISM.ORD 34 R4 35 APRIL 21, 1998 36 APPROVED AS TO CONTENT APPROVED AS TO LEGAL 37 SUFFICIENCY 38 / :FA!39 anagement Services 'department of Law G:\DATA\ORDIN\NONCODE\TOURISM.ORD 2 -25- Rem V-M 5. ORDINANCES ITEM#43499 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to APPROPRIATE$75,000 federal and state reimbursements to the Police Department's airplane enterprise fund re the transfer of prisoners; and, estimated revenue be increased accordingly. Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf, Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 1 AN ORDINANCE TO APPROPRIATE $75, 000 TO THE 2 POLICE DEPARTMENT' S AIRPLANE ENTERPRISE FUND 3 TO COVER ADDITIONAL ANTICIPATED EXPENDITURES 4 ASSOCIATED WITH THE TRANSFER OF PRISONERS 5 WHEREAS, the Police Department provides airborne prisoner 6 transportation primarily for the extradition of State prisoners, 7 resulting in cost savings for both the City and the State law 8 enforcement agencies when compared to other means of 9 transportation; 10 WHEREAS, the costs of this service are covered by the 11 Airplane Enterprise Fund which is entirely self-supporting, with 12 revenues based on charges to the State and federal government for 13 providing the service; and 14 WHEREAS, the frequency of providing prisoner 15 transportation has been greater in FY 1997-98 than in previous 16 years; 17 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 18 OF VIRGINIA BEACH, VIRGINIA, 19 1 . That funds in the amount of $75, 000 are hereby 20 appropriated to the Police Department' s FY 1997-98 Airplane 21 Enterprise Fund to allow continuation of the prisoner 22 transportation service; and 23 2 . That the appropriation is hereby offset by an 24 increase in estimated revenue from State and federal reimbursement 25 for prisoner transportation charges . 26 Adopted by the Council of the City of Virginia Beach, 27 Virginia, on the 28 of April , 1998 . Approved as t- Content Approved as to Legal Sufficiency CA-6985 DATA/ODIN/NUANCED/AIRPLANE.ORD R2 APRIL 21, 1998 -26- Item V-M6. ORDINANCES ITEM#43500 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: License Refunds-$170,411.59 Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April28, 1998 FORM NO.C.A.e REV.3/88 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Lifetouch Portrait Studios Inc. 11000 Viking Drive#200 1996-1997 Audit 12.78 1.02 13.80 Eden Prairie, MN 55344 Norfolk Wire&Electronics Inc. 6133 N. River Road, S-1000 1996-1997 Audit 4,121.44 234.90 4,356.34 Rosemont, IL 60018 Nulaser Inc. 1998 3/26/98 532.96 532.96 5241 Cleveland Street#101 Virginia Beach, VA 23462 Certified a to Pay ent: 7.--/-‘4- Philip J. Kellam Commissioner of the Revenue Approved as to form: (ZfilL-_. Ile Y City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $4,903.10 were approved by the Council of the City of Virginia Beach on the 28 day of April ,19 98 . Ruth Hodges Smith City Clerk FORM NO.C.A.!REV.NW AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Owl Creek Veterinary Hospital Inc. 587 S. Birdneck Road 1998 3/30/98 40.00 40.00 Virginia Beach, VA 23451 Raines, Stephen E. 1998 3/25/98 30.44 30.44 3701 Heathmoor Court Virginia Beach, VA 23452 Solutions4 Inc. 1996-1997 Audit 187.61 39.86 227.47 184 Business Park Drive Virginia Beach, VA 23462 Sweeney,John R. 1998 3/11/98 10.00 10.00 1821 Keelingwood Lane Virginia Beach, VA 23454 Certified as to Payment: hilip J. Kellam Commissioner of the Revenue Approved as to form: elleY City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $307.91 were approved by the Council of the City of Virginia Beach on the 28 day of April 19 98 Ruth Hodges Smith City Clerk FORM NO.C.A.B REV.3/1:18 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Terri Shapiro, CPA, PC 1998 3/11/98 10.00 10.00 2248 Haversham Close Virginia Beach, VA 23454 Thor Enterprises Inc. 1996-1997 Audit 10.00 0.80 10.80 T/A Color Graphics 355 Independence Blvd. Virginia Beach, VA 23462 Tidewater Driving School Inc. T/A Va. Beach Driving School 1554 Jameson Drive 1998 3/11/98 10.00 10.00 Virginia Beach, VA 23464 Tidewater Psychotherapy Sery 256 N. Witchduck Road, S-G 1996-1997 Audit 38.48 3.08 41.56 Virginia Beach, VA 23462 Certified as to Payment: 7"." P i ip J. Kellam Commissioner of the Revenue Approved as to form: e ie L. Lilley City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $72.36 were approved by the Council of the City of Virginia Beach on the 28 day of April ,19 98 Ruth Hodges Smith City Clerk FORM NO,C.A.8 REV.3/88 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Capehart Surgical Services Inc. P. O. Box 65218#329 1998 3/26/98 229.92 229.92 Virginia Beach, VA 23467 Cherry Hill Photo Enterprises Inc. 1200 Haddonfield Road 1998 3/12/98 10.00 10.00 Cherry Hill, NJ 08002 Dunn, Frank L. Sr. 1998 3/26/98 280.96 280.96 T/A Aim Fence &Construction Co. 920 Wildwood Square Court Virginia Beach, VA 23454 FF Acquisition L.L.C. 1998 1/27/98 105,000.00 105,000.00 T/A Farm Fresh Supermarket#193 P. O. Box 1289 Norfolk, VA 23501 Certified as to Payment: Philip J. Kellam Commissioner of the Revenue Approved as to form: Leslie L. Lilley City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $105,520.88 were approved by the Council of the City of Virginia Beach on the 28 day of April ,19 98 Ruth Hodges Smith City Clerk FORA NO.C.A.0 REV.3/06 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Vacation Sales Associates LP P. O. Box 9295 1994-1997 Audit 49,966.08 8,032.77 57,998.85 Virginia Beach, VA 23450 Ward &Hollingsworth Realty 4868 Haygood Road 1996-1997 Audit 14.10 1.13 15.23 Virginia Beach, VA 23455 Winborne, Herbert Jr. 1998 3/24/98 43.02 43.02 T/A H 0 Winborne Jr. &Associates 223 72nd Street Virginia Beach, VA 23451 Wood, Pamela J. 1998 3/12/98 10.00 10.00 T/ATAURS 516 S. Independence Blvd. Virginia Beach, VA 23452 Zimmerman, Kenneth 1995-1997 Audit 256.92 11.02 267.94 T/A Super Lawns Of Va. Beach Certified as to Payment: 2 P. O. Box 2378 Virginia Beach, VA 23450 Philip J. Kellam Commissioner of the Revenue Approved as to form: ee ie e Y C7r(726722(1. City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $58,335.04 were approved by the Council of the City of Virginia Beach on the 28 day of April ,19 98 Ruth Hodges Smith City Clerk FORM NO.C.A.e REV.3/88 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID First Meridian Medical Corporation T/A MRI Diagnostics 1996-1997 Audit 290.30 23.21 313.51 4668 Pembroke Blvd. Virginia Beach, VA 23455 Foley, Robert W. Jr. 1998 3/11/98 10.00 10.00 T/A Seabreeze High Pressure 931 N. Oriole Drive Virginia Beach, VA 23451 Hallal, Jerry T. 1996-1997 Audit 13.11 2.33 15.44 T/A Beach Bazaar 5024 Westgrove Road Virginia Beach, VA 23455 Hebron,James E. 1998 3/12/98 10.00 10.00 5508 Fairwood Lane Virginia Beach, VA 23455 Certified as to Payment: hilip J. Kellam Commissioner of the Revenue Approved as to form: L she L. Lilley City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $348.95 were approved by the Council of the City of Virginia Beach on the 28 day of April 1998 • Ruth Hodges Smith City Clerk FORM NO.CA.8 REV.3/88 AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,VIRGINIA: That the following applications for license refunds, upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE PENALTY INTEREST TOTAL YEAR PAID Huff, Maurice L. 1998 3/17/98 10.00 10.00 T/A M &J Originals P. O. Box 68491 Virginia Beach, VA 23455 Inscoe, Wade 1995-1997 Audit 91.03 19.67 110.70 T/A Karpet Kingdom 2964 Virginia Beach Blvd. Virginia Beach, VA 23452 Kah Imports Inc. 1996-1997 Audit 733.07 59.58 792.65 T/A Virginia Beach Acura 3496 Holland Road Virginia Beach, VA 23452 Kearney, Andrew J. 1998 3/19/98 10.00 10.00 T/A Andys Fine Furniture 589 S. Birdneck Road, Unit 205 Virginia Beach, VA 23451 Certified as to Payment: hilip J. Kellam Commissioner of the Revenue Approved as to form: eslie L. Lilley City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $923.35 were approved by the Council of the City of Virginia Beach on the 28 day of April ,1998 Ruth Hodges Smith City Clerk FORM NO.C .B FEY.3/0E AN ORDINANCE AUTHORIZING LICENSE REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE COMMISSIONER OF THE REVENUE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,VIRGINIA: That the following applications for license refunds,upon certification of the Commissioner of the Revenue are hereby approved: NAME LICENSE DATE BASE INTEREST TOTAL YEAR PAID Barnes,Lauvenia P. 1998 4/03/98 10.00 10.00 Bauman,George II 1998 4/02/98 65.95 65.95 Bedford Inc. 1996-1997 Audit 32.00 6.69 38.69 CDI Corporation 1998 3/30/98 10,124.00 10,124.00 Coastal Safety Services Inc. 1998 3/11/98 10.00 10.00 Credit Control Corporation 1998 3/13/98 2,605.81 2,605.81 Crockett,Roy I. 1998 2/25/98 377.34 377.34 Eckerd Corporation 1998 3/19/98 3,117.60 3,117.60 Exxon Corp.-2-8389 Tax Dept. 1998 4/07/98 134.16 134.16 Gragas,Ivo P. 1998 4/01/98 40.00 40.00 Greene,Peter V. 1998 3/11/98 10.00 10.00 Greene,Vicki M. 1998 3/11/98 10.00 10.00 Holcomb,Tony 1995-1997 Audit 78.00 78.00 Jucksch,William J. 1996-1997 Audit 53.90 9.46 63.36 Kellam-Gerwitz Engineering Inc. 1996-1997 Audit 70.24 12.55 82.79 Ken Hall Inc. 1996-1997 Audit 45.09 6.78 51.87 L E Industries Inc. 1998 3/31/98 559.64 559.64 Lindner,Harry L. 1998 3/31/98 75.43 75.43 Lindsley,Robert S.Jr. 1998 3/11/98 10.00 10.00 Meixel,Everett Carter 1998 3/11/98 10.00 10.00 Michael Lee Company 1995-1997 Audit 566.85 212.09 778.94 Miracle Man Productions Inc. 1998 3/18/98 416.96 416.96 Morris,Thomas N.Jr. 1998 3/11/98 10.00 10.00 Palais Royal 1995-1997 Audit 27.27 27.27 Pope,Robert Andrew,D.D.S. 1996-1997 Audit 310.71 47.62 358.33 Riverside Heat&A/C&Petroleum 1998 3/11/98 10.00 10.00 Schelling,Darlene K. 1998 3/11/98 10.00 10.00 Travel House Of VA Inc. 1996-1997 Audit 11.95 2.50 14.45 W M Grace Inc. 1996-1997 Audit 70.00 8.59 78.59 Certified as to Paymen j/ Philip J.Kellam Commissioner of the Revenue Approved as to form: GLLHI0Y City Attorney This ordinance shall be effective from date of adoption. The above abatement(s) totaling $19,179.18 were approved by the Council of the City of Virginia Beach on the 28 day of April 19 98 Ruth Hodges Smith City Clerk -27- Item V-N.1. RESOLUTIONS ITEM#43501 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Resolution to approve issuance of the Virginia Beach Development Authority's Revenue Refunding Bond (Series 1995) (Suffolk Redevelopment and Housing Authority): Beach-Oxford Associates Limited Partnership $17,700,000 (Beach-Oxford Apartments) Voting: 9-0(By Consent) Council Members Voting Aye: Linwood O.Branch,III,Harold Heischober,Barbara M Henley,Louis R. Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Abstaining: William W. Harrison, Jr. Council Members Absent: John A. Baum Councilman Harrison ABSTAINED as his law firm provides legal services to the applicant April 28, 1998 RESOLUTION APPROVING THE ISSUANCE OF REVENUE REFUNDING BONDS (Beach-Oxford Apartments Project) WHEREAS,the City of Virginia Beach Development Authority (the"Authority") has considered the application of Beach-Oxford Associates Limited Partnership, a Maryland limited partnership (the"Developer"),to the Suffolk Redevelopment and Housing Authority (the "Issuer") for the issuance of the Issuer's revenue refunding bonds in an amount not to exceed $17,700,000 (the "Bonds")to refund the Issuer's $17,700,000 Multifamily Housing Revenue Refunding Bonds(Beach-Oxford Apartments Project), Series 1995 (the"1985 Bonds"), the proceeds of which were used to refund all or a portion of the Issuer's $18,650,000 Floating Rate Monthly Demand Multi-Family Housing Revenue Bonds, Series 1984 (Beach-Oxford Apartments Project) (the"1984 Bonds"),the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximately 365,748 square foot 440-unit multi-family residential rental project located at 100 Runaway Bay Drive in the City of Virginia Beach, Virginia(the"Project"), twenty percent(20%) of which is for occupancy by individuals of low or moderate income, and has held a public hearing thereon on March 17, 1998; and WHEREAS, the Authority has requested the City Council (the "Council") of Virginia Beach, Virginia(the"City")to approve the refunding of the 1995 Bonds and issuance of the Bonds by the Issuer to comply with Section 147(0(2) of the Internal Revenue Code of 1986, as amended, and proposed final Treasury regulations issued thereunder; and 1-161087.1 VIRGINIA Bl k`iC 1 Development Authority One Columbus Center, Suite 300 Virginia Beach, VA 23462 (757)437-6464 FAX (757)499-9894 F. Dudley Fulton, Chair Stephen W. Burke, Vice-Chair W. Brantley Basnight III,Secretary David A.King,Jr.,Assistant Secretary Kenneth D. Barefoot, Treasurer Elizabeth A. "Betsy" Duke Kenneth F. Palmer March 17, 1998 The Honorable Meyera E. Oberndorf, Mayor Members of City Council Municipal Center Virginia Beach, VA 23456 Re: $17,700,000 Suffolk Redevelopment and Housing Authority Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Apartments Project) Series 1998 Dear Mayor Oberndorf and Members of City Council: We submit the following in connection with a project for Suffolk Redevelopment and Housing Authority Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Apartments Project) Series 1998 located at 100 Runaway Bay Drive in Virginia Beach, Virginia. (1) Evidence of publication of the notice of hearing is attached as Exhibit A , and a summary of the statements made at the public hearing is attached as Exhibit B . The City of Virginia Beach Development Authority's (the "Authority") resolution recommending Council's approval is attached as Exhibit C. (2) The Disclosure Statement is attached as Exhibit D . (3) The statement of the Authority's reasons for its approval as a benefit for the City of Virginia Beach and its recommendation that City Council approve the modification of the bonds described above is attached as Exhibit E . The Honorable Meyera E. Oberndorf, Mayor March 17, 1998 Members of City Council Page 2 (4) The Fiscal Impact Statement is attached as Exhibit F. (5) Attached as Exhibit G is a summary sheet setting forth the type of issue, and identifying the Project and the principals. (6) Attached as Exhibit H is a letter from the appropriate City department commenting on the Project. Very tru • !rs, jOudley Fult Chair FDF/GLF/rab Enclosures EXHIBIT A NOTtta OP PUBLIC HIARINO ON PROPOSED MINUS RIFUNDINO POND FINANCINGh.4• BY T111 CRY OP VIRGINIA MACH DIVILOPMINT AUTNOGIV. Notice is hereby given that a public hearing will be held bet:WI N City of Virginia Beach Development Authority(the"Authority9);:an the issuance of not ntto exceed$17,700,000 of the Suffolk Redevel- opment Refunding g Bondsg A Series 1998a(Bach cel-Oxford Aparr Hondas Project)pursuant to a plan of financing and the approval obsueh bonds by the Authority and by the City Council of Virginia Beads VI nia (the "Council"). The bonds will be issued under the authority of the Virginia Housing Authorities Law(Chapter 1,The • 36 of the Code of Virginia of 1950,as amended),to refund all era portion of Issuer's $17,700,000 Multifamily Housing Revenue Refunding Bonds(Beach-Oxford Apartments Project).Series 1995 (the'1995 Bonds"),the proceeds of which were issued to refund all or a portion of the Issuer's 518,650.000 Floating Rate Mont ly Demand Multi-Family Housing Revenue Bonds, Series 1984 (Beach-Oxford Apartments Project)(the"1984 Bonds") the pro- ceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximaeNy- locatsquare748 ed at 100 Runawayquart Drive f Inmthe City nt(Virg nl al Beach, l Virginia, twenty percent (20%) of which is for occupancy by Individuals of low or moderate income. -Mb el!The Issuance of the refundingrevenue bonds as requested by ch- Oxford Associates Limited artnership will not be deemed tocomet- ' tute a debt or pledge of the faith and credit of the Commonwealth I of Virginia or the City of Virginia Beach, Virginia, Neither.the Commonwealth of Virginia nor any political subdNIsion thereof, including the Authority and the City of Virginia Beach,Virginia.shall be obligated to pay the bonds,or the Interest therein,or otherboost Incident thereto, except from the revenues and money pl5d d therefor,and neither the faith and credit nor the taxing power Otte Commonwealth of Virginia nor any political subdivision therebR 9s pledged to the payment of principal of such bonds or the Interest thereon, or other costs incidental thereto. The public hearing,which may be continued or adjourned,*Mice held at 8:30 a,m. on Tuesday, March 17 1998 beforert e Authority at One Columbus Center, Suite 300, Virginia BEaWh, Virginia.Any persons interested in the issuance of the bontls)br location or nature of the project,may appear at the hear(ng'std present his or her views and may send written comments before such hearing to the Authority,do the Secretary of the A One Columbus Center,Suite 300,Virginia Beach,Virginia 23462. The address and principal place of business of Bach-Oxford Mao- dates Limited Partnership Is:7200 Wisconsin Avenue,Suite 1100, Bethesda, Maryland 20814. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY VP March 2 and March 9, 1998 THE VIRGINIAN-PILOT STATEMENT NO. PAGE INVOICE DATE 148 1 03/15/98 BILLED ACCT* AD NUMBER INVC NUMBER 027651606 2R860040 184317001 BILLED ACCOUNT PLEASE ENTER AMOUNT OF ENCLOSED PAYMENT BELOW WILLCOX & SAVAGE, P.C. 1800 NATIONSBANK CENTER $ NORFOLK, VA 23510 ISSUE EDITION INVC NBR DESCRIPTION SIZE GROSS AMT. 03/02/98 FULL 184317001 NOTICEOFPUBLICH 2 X 0055 317.90 03/09/98 FULL 184317002 NOTICEOFPUBLICH 2 X 0055 317.90 TOTAL 635.80 State of Virginia to-wit: AFFIDAVIT City of Norfolk This day D. Johnson personally appeared before me and after being duly sworn made oath tha : (1) (He) (She) is affidavit clerk of The Virginian-Pilot a newspaper published by Landmark Communications Inc. , in the cities of Norfolk, Portsmouth, Chesapeake, Suffolk, and Virginia Beach, State of Virginia; (2) That the advertisement hereto annexed at NOTICEOFPUBLICH has been published in said newspaper during the following dates: 03/02/98 - 03/09/98 I/ Affiant Subscribed and sworn to before me in my city and state aforesaid this 15TH day of MARCH 1998 My commission expires AUGUST 31, 1999 �cf'(��) ��E%L t37c--. Notary Public NOTICE OF PUBLIC HEARING ON PROPOSED REVENUE REFUNDING BOND FINANCING BY THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Notice is hereby given that a public hearing will be held before the City of Virginia Beach Development Authority (the "Authority"), on the issuance of not to exceed $17,700,000 of the Suffolk Redevelopment and Housing Authority's (the "Issuer") Multifamily Housing Revenue Refunding Bonds, Series 1998 (Beach-Oxford Apartments Project) pursuant to a plan of financing and the approval of such bonds by the Authority and by the City Council of Virginia Beach, Virginia (the "Council"). The bonds will be issued under the authority of the Virginia Housing Authorities Law (Chapter 1, Title 36 of the Code of Virginia of 1950, as amended), to refund all or a portion of Issuer's $17,700,000 Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Apartments Project), Series 1995 (the "1995 Bonds"), the proceeds of which were issued to refund all or a portion of the Issuer's $18,650,000 Floating Rate Monthly Demand Multi-Family Housing Revenue Bonds, Series 1984 (Beach-Oxford Apartments Project) (the "1984 Bonds"), the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximately 365,748 square foot 440-unit multi-family residential rental project located at 100 Runaway Bay Drive in the City of Virginia Beach, Virginia, twenty percent (20%) of which is for occupancy by individuals of low or moderate income. The issuance of the refunding revenue bonds as requested by Beach-Oxford Associates Limited Partnership will not be deemed to constitute a debt or pledge of the faith and credit of the Commonwealth of Virginia or the City of Virginia Beach, Virginia. Neither the 1-160959.1/O1kF,JLS 2120196 Commonwealth of Virginia nor any political subdivision thereof, including the Authority and the City of Virginia Beach, Virginia, shall be obligated to pay the bonds, or the interest therein, or other cost incident thereto, except from the revenues and moneys pledged therefor, and neither the faith and credit nor the taxing power of the Commonwealth of Virginia, nor any political subdivision thereof, is pledged to the payment of principal of such bonds or the interest thereon, or other costs incidental thereto. The public hearing, which may be continued or adjourned, will be held at 8:30 a.m. on Tuesday, March 17, 1998 before the Authority at One Columbus Center, Suite 300, Virginia Beach, Virginia. Any persons interested in the issuance of the bonds or location or nature of the project, may appear at the hearing and present his or her views and may send written comments before such hearing to the Authority, c/o the Secretary of the Authority, One Columbus Center, Suite 300, Virginia Beach, Virginia 23462. The address and principal place of business of Beach-Oxford Associates Limited Partnership is: 7200 Wisconsin Avenue, Suite 1100, Bethesda, Maryland 20814. EXHIBIT B CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY RECORD OF PUBLIC HEARING (Beach-Oxford Apartments Project) The Chairman of the City of Virginia Beach Development Authority (the "Authority") announced the commencement of a public hearing on the request of Beach-Oxford Associates Limited Partnership, a Maryland limited partnership (the "Developer"), and that a notice of the hearing was published once a week for two consecutive weeks in a newspaper having general circulation in the City of Virginia Beach, Virginia,the first publication being not less than fourteen(14) days prior to the hearing and the second publication being not more than twenty- one (21) days prior to the hearing. The Chairman indicated that a copy of the notice and a certificate of publication of such notice have been filed with the records of the City Council of the City of Virginia Beach. The following individuals appeared and addressed the Authority: Mr. Guy R. Friddell, III appeared on behalf of the Developer. Mr. Friddell gave a brief description of the Project(below defined). He explained that this was a refunding of the Suffolk Redevelopment and Housing Authority's (the "Issuer") $17,700,000 Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Associates Project), Series 1995, the proceeds of which were used to refund the Issuer's $18,650,000 Floating Rate Monthly Demand Multi- Family Housing Revenue Bonds, Series 1984 (Beach-Oxford Apartments Project), the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximately 365,748 square foot 440-unit multi-family residential rental project located at 100 Runaway Bay Drive, Virginia Beach, Virginia 23452 (the "Project"). He 1-170084.1 related that the Project was completed in 1985 and public approval was given prior to the issuance of the original bond financing in 1983. The approval is being renewed at this time as technically required by the Internal Revenue Code because the weighted average life of the bonds is being extended. The original benefits of this Project—the provision of safe, attractive and sanitary housing for low to moderate income families within the City of Virginia Beach— will continue under the refinancing. The refinancing will preserve and extend the restrictions placed upon the property when the initial bond financing was entered into in 1983,thereby assuring the City of Virginia Beach that the benefits of the income restrictions applicable to these apartments will continue. He closed his remarks by estimating an issuance date for the Bonds of June 15, 1998. No other persons appeared to address the Authority, and the Chairman closed the public hearing. The Authority hereby recommends that the City Council of the City of Virginia Beach, Virginia approve the issuance of the proposed financing and hereby transmits the Fiscal Impact Statement to the City Council of the City of Virginia Beach and asks that this recommendation be received at its next regular or special meeting at which this matter can be properly placed on the Council's agenda for hearing. 1-170084.1 EXHIBIT C RESOLUTION OF THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (Beach-Oxford Apartments Project) WHEREAS,there has been presented to the Suffolk Redevelopment and Housing Authority (the"Issuer")by and on behalf of Beach-Oxford Associates Limited Partnership, a Maryland limited partnership (the"Developer"), its plans to refinance the Issuer's $17,700,000 Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Apartments Project), Series 1995 (the "1995 Bonds"),the proceeds of which were issued to refund all or a portion of the Issuer's $18,650,000 Floating Rate Monthly Demand Multi-Family Housing Revenue Bonds, Series 1984 (Beach-Oxford Apartments Project) (the "1984 Bonds"),the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximately 365,748 square foot 440-unit multi-family residential rental project located at 100 Runaway Bay Drive in the City of Virginia Beach, Virginia(all land and improvements being collectively referred to as the"Project"); and WHEREAS, in connection with the issuance of the 1984 Bonds, the City of Virginia Beach invited and encouraged the Issuer to issue its revenue bonds for the benefit of the City of Virginia Beach and the Developer and found that the issuance of such bonds would provide needed housing units in that City; and WHEREAS, the Developer has described to the Issuer the benefits which the Project will continue to bring to the City of Virginia Beach, Virginia, and its environs through the provision of housing, twenty percent(20%) of which is for occupancy by individuals of low or moderate income, and has requested the Issuer to agree to issue its revenue bonds pursuant to the Virginia Housing Authorities Law(Chapter 1, Title 36 of the Code of Virginia of 1950, as amended) (the "Act") in a principal amount not to exceed $17,700,000 (the"Bonds")to refund all or a portion of the 1995 Bonds; and WHEREAS,the City of Virginia Beach Development Authority (the "Authority") has considered the application of the Developer to the Issuer for the issuance of the Issuer's Bonds to assist in the refinancing of the Project in the City of Virginia Beach; and WHEREAS,the Authority has caused a notice of public hearing to be published in a newspaper of general circulation in the Cities of Suffolk and Virginia Beach, Virginia, and has this date held a public hearing, all in accordance with the provisions of§147(f)(2) of the Internal Revenue Code of 1986, as amended, proposed final Treasury regulations issued thereunder and §15.1-1378.1, Code of Virginia, 1950, as amended, and other applicable laws of the Commonwealth of Virginia. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY: 1-160997.1 1. After considering the Developer's application to the Issuer for revenue bond financing in a public hearing pursuant to proper notice, all as provided in §147(0(2) of the Internal Revenue Code of 1986, as amended,proposed final Treasury regulations issued thereunder and the applicable laws of the Commonwealth of Virginia,the Authority hereby finds and determines that the issuance of the Bonds to refund the 1995 Bonds,the proceeds of which were used to refund all or a portion of the 1984 Bonds,the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of the Project by the Developer and providing housing opportunities for citizens of low or moderate income, will be of benefit to Virginia Beach, Virginia, and will be consistent with the general purposes of the Issuer and the Act. 2. The Authority hereby recommends that the City Council of the City of Virginia Beach,Virginia approve the issuance of the Bonds by the Issuer and directs the Chairman of the Authority to transmit the Fiscal Impact Statement and a copy of this resolution to the Council of the City of Virginia Beach. 3. The proper representative of the Authority is hereby authorized and directed to transmit this recommendation to the members of the City Council of the City of Virginia Beach, Virginia, at its next regular or special meeting at which this matter can be properly placed on the Council's agenda for hearing. Adopted this 17th day of March, 1998. CITY OF VIRGINIA BEACH DEVE PMENT AUTHOR' Y By: c(fillY\ trbi 4‘ 1 Secre ary 1-160997.1 2 EXHIBIT D DISCLOSURE STATEMENT Date:Dkrclt 16.1998 Applkanti Name(s):apightQtford Antiolanljrnited Pump Maryland limited partnership All Owners(i/dtdWrAytoer gippcend: Typc of AppUgtliont Rezoning: Prom To Conditieaal Use Permit Striet Closure: 11.01. Subdivision Varlaoca: Other f iwIh a RnalMta eii•►ifiKiiiii mire i;fi►iiii*ii*itii• The legowlig Is to be completed by or for the Applicant: 1. If the applicant is a CORPORATION,list all the offices of the Corporation: 2. lithe syplicaat is a PARTNERSHIP,FIRM or other Unincorporated Orpnimdon,list all members or maws le she wiwaiaatioa: herd Reuldea Cmeeratinn�Irl�iY1i=a� iv im peri PWn Lears..Zinl:lar.t3eneral t+r�er . The followic`is to be completed by or for the Owner(tdowpows w,p...1 1. If*.owner lea CORPORATION,list all the ot&caa of the Corporation: 2. It tbe owner is a PARTNERSHIP,FIRM or other Unincotpors ed Otganiatiou.list all members or partners in the orgnniz t ar: allACtr.OX,ORD AcaocIA IBS L1MI1'61D PAATPBRWW, Maryland limited pwmccihlp By: OXFORD EQUITIES CORPORATION, ao Indiana corporation,eieoecal Pamier By: N s rig.. SSAI.) Tale: Com_ l >-1701,,.1 • VIRGINIA EXHIBIT E BEACH Development Authority One Columbus Center, Suite 300 Virginia Beach, VA 23462 (757)437-6464 FAX(757)499-9894 F. Dudley Fulton, Chair Stephen W. Burke, Vice-Chair W. Brantley Basnight III,Secretary David A.King,Jr.,Assistant Secretary Kenneth D. Barefoot, Treasurer Elizabeth A. "Betsy" Duke Kenneth F. Palmer EXHIBIT E SUFFOLK REDEVELOPMENT AND HOUSING AUTHORITY MULTIFAMILY HOUSING REVENUE REFUNDING BONDS SERIES 1998 (MANSARDS ASSOCIATES PROJECT) The Authority recommends approval the captioned financing. The Runaway Bay Apartments facility (the "Project") was built in 1985 and public approval was given prior to the issuance of the original bond financing in 1983. The approval is being renewed at this time as technically required by the Internal Revenue Codes because the weighted average life of the bonds is being extended. The original benefits of this Project - the provision of safe, attractive and sanitary housing for low to moderate income families within the City of Virginia Beach - continues to be the basis for recommendation. The refinancing will preserve and extend the restrictions placed upon the property when the initial bond financing was entered into in 1983, thereby assuring the City of Virginia Beach that the benefits of the income restrictions applicable to these apartments will continue. EXHIBIT F FISCAL IMPACT STATEMENT CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (BEACH-OXFORD APARTMENTS PROJECT) Date: March 17, 1998 TO: THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA PROJECT NAME: Beach-Oxford Associates Limited Partnership, a Maryland limited partnership TYPE OF FACILITY: An approximately 365,748 square foot 440-unit multi-family residential rental project located at 100 Runaway Bay Drive in Virginia Beach, Virginia 1. Maximum amount of financing sought: $17,700,000 2. Taxable value of the facility's real property to be constructed in the municipality 0 3. Real property tax per year using present tax rates $ 233,513 4. Personal property tax per year using present tax rates $ 270 5. Merchants' capital tax per year using present tax rates 0 6. Estimated dollar value per year of goods and services that will be purchased locally $ 475,000 7. Number of regular employees on year round basis 12 8. Average annual salary per employee $ 27,000 (including taxes and benefits) The information contained in this Statement is based solely on facts and esti , •tes provided by the Applicant, and the Authority has made no i pe i+ent investigate 1. respect thereto. Chai an, City of Virginia Beach,►.evelopment Authority 1-161032.1 EXHIBIT G SUMMARY SHEET SUFFOLK REDEVELOPMENT AND HOUSING AUTHORITY MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (BEACH-OXFORD APARTMENTS PROJECT) SERIES 1998 1. PROJECT NAME: Beach-Oxford Apartments Project 2. LOCATION: 100 Runaway Bay Drive Virginia Beach, Virginia 23452 3. DESCRIPTION OF PROJECT: Refinance the Suffolk Redevelopment and Housing Authority's (the"Issuer") $17,700,000 Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Associates Project), Series 1995, the proceeds of which were used to refund the Issuers $18,650,000 Floating Rate Monthly Demand Multi-Family Housing Revenue Bonds, Series 1984 (Beach- Oxford Apartments Project), the proceeds of which were used to provide financing of a portion of the cost of the acquisition and construction of an approximately 365,748 square foot 440-unit multi- family residential rental project located at 100 Runaway Bay Drive, Virginia Beach, Virginia 23452. 4. AMOUNT OF BOND ISSUE: $17,700,000 5. PRINCIPALS: Oxford Equities Corporation, an Indiana corporation, General Partner Leo E. Zickler, General Partner 6. ZONING CLASSIFICATION: a. Present zoning classification of the Property: A-18 b. Is rezoning proposed? Yes No X c. If so, to what zoning classification? N/A The Authority recommends approval the captioned financing. The Project was built in 1985 and public approval was given prior to the issuance of the original bond financing in 1983. The approval is being renewed at this time as technically required by the Internal Revenue Code because the weighted average life of the bonds is being extended. The original benefits of this Project—the provision of safe, attractive and sanitary housing for low to moderate income families within the City of Virginia Beach—continues to be the basis for recommendation. The refinancing will preserve and extend the restrictions placed upon the property when the initial bond financing was entered into in 1983,thereby assuring the City of Virginia Beach that the benefits of the income restrictions applicable to these apartments will continue. 1-170084.1 „0.0141A,B 4. 44 EXHIBIT H ((1I 41"%a ' DEPARTMENT OF HOUSING AND MUNICIPAL CENTER NEIGHBORHOOD PRESERVATION BUILDING ISA (757)425-5750 2424 COURTHOUSE DRIVE FAX(757)426.5766 VIRGINIA BEACH.VA 23466.90®3 Ton(757)426-5794 CODE ENFORCEMENT DIVISION (757)427-4421 March 14, 1998 Chairman Virginia Beach Development Authority Virginia Beach, Virginia Re: Suffolk Redevelopment and Housing Authority 317,700,000 Multifamily Housing Revenue Refunding Bonds (Beach-Oxford Apartments Project), Series 1998 Dear Chairman: The noted project, Beach-Oxford Apartments, located at 100 Runaway Bay Drive must, as a requirement of the funding, rent 20% of its units to low and moderate income households. To the extent that the project is being managed in accordance with these requirements, it is fulfilling the original purpose of providing this funding. In addition, since the refinancing extends these requirements, it will provide additional benefits. Therefore, I recommend that the refunding be approved. Si erely, i, / .• 1 , •Y dr w N1. Friedman Dir!or' AMF:jap c: Mr. Guy R. Friddell, III, Wilcox & Savage Mr. Gary Fentress, City Attorney's Office 1.�•--1 k _�, J,-- r -1.2 c/1`* ` a� n ...�Boto !IiQfj;'T'•:Y -171 . - V & dk 42 ;e:,:, ... m 1 ;P:� y 'y ��--_ •%• rhe .-,LL1- UM - •' �_ -ii r; �' W •' 'Air - ��•r � Park •. "�C'r.., .. i' r. ......t.:, ....... ,w 14 �Y�_�siii._.�•r f?' 1 Millimma&N r 1 -l� ffc, _ "'�' ' '�' 1 `>` St,,, ;•y, ' Vi:". 9 i r y �� -0,.... . ..• d4- - A "9l' :;1 Tr -y tr • • .3.: pr^ . _ 1 t ♦♦ j13 ,r 1- n ,.... .' 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' �r--7 J-. _ ._ ._ __ .._1 -28- Item V-N.2. RESOLUTIONS ITEM#43502 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Resolution to refer to the Planning Commission proposed Amendments to Sections 111, 235, 401, 501, 601, 801, 901, 1110, 1125, 1511, 1521 and 1531 of the City Zoning Ordinance (CZO) re housing for seniors and disabled persons. Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf; Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 1 A RESOLUTION REFERRING TO THE PLANNING 2 COMMISSION PROPOSED AMENDMENTS TO 3 SECTIONS 111, 235, 401, 501, 601, 801, 4 901, 1110, 1125, 1511, 1521 AND 1531 5 OF THE CITY . ZONING ORDINANCE, 6 PERTAINING TO HOUSING FOR SENIORS AND 7 DISABLED PERSONS 8 9 WHEREAS, the City of Virginia Beach Senior Housing Committee to has studied comprehensively the need for housing for seniors; and 11 WHEREAS, on April 10, 1998, the Committee issued a Policy 12 Report on Senior Housing Multifamily Issues, which report 13 identifies certain desirable amendments to the City Zoning 14 Ordinance to the end that Virginia Beach be an environment where 15 senior citizens can live independently; can be involved in, and 16 contribute to, the community; have a choice of living arrangements 17 and accommodations; live in an intergenerational city; and have 18 opportunities to improve and maintain good health; and 19 WHEREAS, the said report also identifies the focus for 20 multifamily senior housing to be on community impact and filling 21 the gap for affordable senior housing consistent with the City' s 22 six businesses; and 23 WHEREAS, the public necessity, convenience, general welfare 24 and good zoning practice so require; 25 BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 26 VIRGINIA: 27 There is hereby referred to the Planning Commission, for its 28 consideration and recommendation, proposed amendments to Sections 29 111, 235, 401, 501, 601, 801, 901, 1110, 1125, 1511, 1521 and 1531 30 of the City Zoning Ordinance, pertaining to housing for seniors and 31 disabled persons . A true copy of such proposed amendments is 32 hereto attached. 33 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 34 BEACH, VIRGINIA: 35 That the Planning Commission is hereby requested to consider 36 and make its recommendations upon the foregoing amendments at its 37 meeting of May 13, 1998 . 38 Adopted by the City Council of the City of Virginia 39 Beach, Virginia, on the 28 day of April , 1998 . 40 CA-98-6982 41 WMM\ORDRES\SENIORS.RES 42 R-2 43 April 21, 1998 44 APPROVED AS TO CONTENT: - 45ATI\( ^'V 41 f dabbl' 46 Dartment . `of Housing and 47 Neighborhood Preservation 48 APPROVED AS TO LEGAL 49 SUFFICIENCY: 50 /4AA/ 51 Law Department 3 1 AN ORDINANCE AMENDING THE CITY ZONING 2 ORDINANCE BY PROVIDING A DEFINITION OF, AND 3 STANDARDS PERTAINING TO, HOUSING FOR SENIORS 4 AND DISABLED PERSONS, AND PRESCRIBING THE 5 ZONING DISTRICTS IN WHICH SUCH USE IS 6 PERMITTED 7 SECTIONS AMENDED: CITY ZONING ORDINANCE 8 SECTIONS 111, 235, 401, 501, 601, 801, 901, 9 1110, 1125, 1511, 1521 AND 1531 10 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 11 BEACH, VIRGINIA: 12 That Sections 111, 235, 401, 501, 601, 801, 901, 1110, 1125, 13 1511, 1521 and 1531 of the City Zoning Ordinance be, and hereby 14 are, amended and reordained, and shall read as follows : 15 Sec. 111. Definitions. 16 . . . . 17 Ilomcs for the aged, disabled and handicapped. Structures 18 19 (a) Familics whose head of household i3 sixty two (G2) years 20 of agc or older; or 21 (b) Cinglc persons sixty two (G2) years of agc or older; or 22 (c) Handicapped peTseno and otheT persons mccting fcdcral 23 eligibility criteria for housing as3i3tancc to a 24 handicapped person or his family. 25 This use is charactcrined by welling density above that which 26 would otherwise be allowed in conventional multifamily 27 dwclling structures. This use may include support facilities 28 ouch as dilaing halls and emergency medical ears facilities but 29 is distinguished from nuroin,,g homes, hospitals and other 30 similar treatme t faeilitiee by the absence of extended 31 medical care capability. 32 . . . . 33 Housing for seniors and disabled persons. A category of multiple- 34 family housing that includes one or more of the following types of 35 housing facility: 36 (a), Independent Living Facilities are intended for residency 37 by individuals capable of functional independence. Such facilities 38 stress the social, rather than the medical needs of the resident; 39 (b) Assisted Living Facilities provide regular medical, 40 nursing, social and rehabilitative services, in addition to room 41 and board, for functionally impaired persons incapable of 42 independent living. Such facilities provide less intensive care 43 for residents than is provided by Nursing Facilities; and 44 (c) Nursing Facilities provide 24-hour nursing service for 45 infirm or incapacitated persons. 46 . . . . 47 Nuraing, convalescent er rest home. A dwelling place for 48 three (3) or more aged, infirm or incapacitated percono whcrc 49 nursing care and miner medical ocrviees only arc available to 50 - - ' _ - - - - _ . - -_ - - _ - - - - - 51 facility devoted to the diagnoois, treatment or care of the Sick or 52 injured. 53 . . . . 54 COMMENT 55 This section replaces existing definitions with new ones for the terms "independent living 56 facilities,""assisted living facilities,"and"nursing facilities." All three of these terms fall within the 57 general heading of"housing for seniors and disabled persons." Age criteria for residency in such 58 facilities have also been deleted from this section and placed in Section 235. 59 Authority: Virginia Code Section 15.2-2283 60 ARTICLE 2 . GENERAL REQUIREMENTS AND PROCEDURES APPLICABLE TO 61 ALL DISTRICTS 62 . . . . 63 C. CONDITIONAL USES AND STRUCTURES . 2 64 . . . . 65 Sec. 235. Housing for the agcd, seniors and disabled and 66 handicapped persons. 67 Housing for thc agcd, seniors and disabled and handicappcd 68 persons shall be subject to the following condition3 provisions : 69 (a) Fire standards. The fire chief of the City of Virginia 70 Beach shall review each application and make appropriate 71 recommendations for fire protection requirements which 72 may be more stringent than those specified by the Uniform 73 Statewide Building Code. These recommendations may be 74 made conditions of the conditional use permit by city 75 council . 76 (b) Location and dcnaity critcria Development guidelines. 77 Projects should conform to the Senior Housing Facility 78 Development Guidelines set forth in Appendix 2 of the 79 Report on Senior Housing, Multi-family Issues, dated 80 April 10, 1998, which Appendix is hereby incorporated by 81 reference in this ordinance. The density of the project 82 shall be determined by the city council upon 83 consideration of the extent to which such project 84 conforms to the Development Guidelines and-- 85 (1) Thc location of thc projcct; 86 (2) The the adequacy of public facilities and services 87 to meet the proposed needs of the project; and 88 (3) Thc compatibility of thc projcct with the 89 Surrounding ncighborhood. 90 (c) Parking requirements. There shall be one (1) parking 91 space provided for each independent living dwelling unit. 92 For assisted living dwelling units, there shall be one 93 (1) parking space provided for every two (2) residents. 94 For convalc3ccnt or nursing homca facilities, there shall 95 be one (1) space per each for every four (4) three (3) 96 patient beds . However, this requirement may be modified 97 by the city council when it is found that special 98 conditions warrant such a modification. 99 (d) Occupancy criteria. Independent and assisted living 100 facilities shall contain dwelling units for occupancy 101 only by (1) families who have at least one family member 102 who is sixty-two (62) years of age or older; (2) single 103 persons sixty-two (62) years of age or older; or (3) 104 disabled or ill persons or their family members as care 105 givers. For purposes of this section, a person is deemed 106 "disabled" if he or she is found by a licensed physician 107 to be unable to engage in any substantial gainful 108 activity by reason of any medically determinable physical 109 or mental impairment or deformity which can be expected 110 to result in death or to last for the duration of such 111 person' s life. 3 112 COMMENT 113 This section sets forth standards for housing for seniors and disabled persons. Most of the 114 standards are contained in the Senior Housing Facility Development Guidelines set forth in Appendix 115 2 of the Report on Senior Housing,Multi-family Issues,dated April 10, 1998. The Guidelines,which 116 are incorporated by reference into this section, set forth standards for project applications, site 117 selection,site design,and building design. They are attached to the ordinance. 118 Authority: Virginia Code Sections 15.2-2283,-2286. 119 ARTICLE 4. AGRICULTURAL DISTRICTS. 120 . . . . 121 Sec. 401. Use regulations. 122 (a) Principal and conditional uses. The following chart lists 123 those uses permitted within the AG-1 and AG-2 Agricultural 124 Districts. Those uses and structures in the respective agricultural 125 districts shall be permitted as either principal uses indicated by 126 a "P " or as conditional uses indicated by a "C. " Uses and 127 structures indicated by an "X" shall be prohibited in the 128 respective districts. No uses or structures other than as specified 129 shall be permitted. 130 Use AG-1 AG-2 131 . . . . 132 Homca for the agcd, diaablcd or 133 handicappcd, including conval 134 csccnt or nuraing homca C C 135 . . . . 136 COMMENT 137 The amendment deletes housing for seniors and disabled persons as a use in Agricultural 138 Zoning Districts. 139 Authority: Virginia Code Section 15.2-2280. 140 ARTICLE 5 . RESIDENTIAL DISTRICTS. 141 . . . . 142 Sec. 501. Use regulations. 4 143 (a) Principal and conditional uses. The following chart lists 144 those uses permitted within the R-40 through R-2 . 5 Residential 145 Districts . Those uses and structures in the respective residential 146 districts shall be permitted as either principal uses indicated by 147 a "P " or as conditional uses indicated by a "C. " Uses and 148 structures indicated by an "X" shall be prohibited in the 149 respective districts. No uses or structures other than as specified 150 shall be permitted. 151 Uses R-40 R-30 R-20 R-15 R-10 R-7.5 R-5D R-5R R-5S R-2.5 152 . . . . 153 Homes for the 154 agcd, disabled 155 When not opera 156 ted by a public 157 agency X X X C C C C C C X 158 . . . . 159 Housing for 160 seniors and 161 disabled per- 162 sons X X X C C C C X 163 . . . . 164 Nursing homes, 165 when not oper 166 atcd by a public 167 agency X X X C C C C C C X 168 . . . . 169 COMMENT 170 The amendments to this section only change the terminology employed and do not change the 171 zoning districts in which the use is allowed. 172 Authority: Virginia Code Section 15.2-2280. 173 ARTICLE 6 . APARTMENT DISTRICTS. 174 . . . . 175 Sec. 601. Use regulations. 176 (a) Principal and conditional uses. The following chart lists 177 those uses permitted within the A-12 through A-36 Apartment 178 Districts . Those uses and structures in the respective apartment 179 districts shall be permitted as either principal uses indicated by 5 180 a "P " or as conditional uses indicated by a "C. " Uses and 181 structures indicated by an "X" shall be prohibited in the 182 respective districts. No uses or structures other than as specified 183 shall be permitted. 184 Use A-12 A-18 A-24 A-36 185 . . . . 186 Ilomca for the agcd, dis 187 ablcd or handicappcd, 188 including convalc3ccnt 189 or nursing homcs E E 190 . . . . 191 Housing for seniors and 192 disabled persons C C C C 193 . . . . 194 COMMENT 195 The amendments to this section only change the terminology employed and do not change the 196 zoning districts in which the use is allowed. 197 Authority: Virginia Code Section 15.2-2280. 198 ARTICLE 8. OFFICE DISTRICTS. 199 . . . . 200 Sec. 801. Use regulations. 201 (a) Principal and conditional uses. The following chart lists 202 those uses permitted within the 0-1 and 0-2 Office Districts. Those 203 uses and structures in the respective Office Districts shall be 204 permitted as either principal uses indicated by a "P" or as 205 conditional uses indicated by a "C. " Uses and structures indicated 206 by an "X" shall be prohibited in the respective districts. No uses 207 or structures other than as specified shall be permitted. 6 208 Use 0-i 0-2 209 . . . . 210 Housing for seniors and disabled 211 persons. C C 212 . . . . 213 - -_ _ - Q-- - , 214 matcrnity homc3, homc3 for thc 215 agcd and Similar in3titution3 for 216 thc 3hcltcr and circ of persons 4c E 217 . . . . 218 COMMENT 219 The amendments to this section allow housing for seniors and disabled persons as a conditional 220 use in the 0-1 Office District,as well as in the 0-2 Office District. 221 Authority: Virginia Code Section 15.2-2280. 222 ARTICLE 9. BUSINESS DISTRICTS. 223 . . . . 224 Sec. 901. Use regulations. 225 (a) Principal and conditional uses. The following chart lists 226 those uses permitted within the B-1 through B-4 Business Districts . 227 Those uses and structures in the respective business districts 228 shall be permitted as either principal uses indicated by a "P" or 229 as conditional uses indicated by a "C. " Uses and structures 230 indicated by an "X" shall be prohibited in the respective 231 districts . No uses or structures other than as specified shall be 232 permitted. 233 Use B-1 B-1A B-2 B-3 B-3A B-4 234 . . . . 235 IIomcs Housing for thc agcd, 236 seniors and disabled persons 237 or handicappcd, including 238 convalc3ccnt or nursing 239 homcs; maternity homes; 240 child care centers other 241 than covered under permitted 7 242 Use B-1 B-1A B-2 B-3 B-3A B-4 243 principal uses hereinabove, 244 whcn not operatcd by a public 245 agcncy, provided that thc max 246 imum dcn3ity for homcs for thc 247 agcd 311311 be sixty (GO) dwclling 248 unit3 per acrc and the maximum 249 height shall not exceed one 250 hundred and sixty-five (165) 251 feet; provided, however, that 252 no structure shall exceed the 253 height limit established by 254 section 202 (b) regarding 255 air navigation 4iC C X X C C 256 . . . . 257 COMMENT 258 The amendments to this section allow housing for seniors and disabled persons as a conditional 259 use in the B-1 Neighborhood Business District and the B-1A Limited Community Business District, 260 as well as in the B-3A Pembroke Central Business Core District and B-4 Resort Commercial District, 261 as presently allowed. The amendments also delete density restrictions from this section in light of the 262 fact that density is to be determined under Section 235. 263 Authority: Virginia Code Section 15.2-2280. 264 ARTICLE 11. PLANNED DEVELOPMENT DISTRICTS. 265 . . . . 266 A. PD-H1 PLANNED UNIT DEVELOPMENT DISTRICT 267 Sec. 1110 . Land use regulation. 268 (a) The land use plan approved by city council, or as 269 modified, for each planned unit development project shall govern 270 the development, and all land uses shall be in accordance with it . 271 (b) Modifications to the land use plan by city council shall 272 be in the manner of a zoning change. 273 (c) Within a PD-H1 District, all of the principal uses and 274 structures permitted within an A-12 Apartment District other than 275 hospitals and sanitariums, together with the following enumerated 276 uses and structures, shall be permitted: 8 277 (1) Fraternity and sorority houses, student dormitories and 278 student centers; 279 (2) Ilomca Housing for the agcd, seniors and disabled er 280 - _ _:-_ , - - -_ ' -_ -=nvalcaccnt or nuraing homcs and 281 matcrnity homcs persons, with a conditional use permit; 282 (3) Marinas; 283 (4) Private clubs or social centers provided that clubs where 284 conduct of commercial affairs is a principal activity 285 shall not be permitted. 286 . . . . 287 COMMENT 288 The amendments to this section allow housing for seniors and disabled persons in PD-Hl 289 Planned Unit Developments Districts with a conditional use permit. 290 Authority: Virginia Code Section 15.2-2280. 291 B. PD-H2 PLANNED UNIT DEVELOPMENT DISTRICT. 292 . . . . 293 Sec. 1125 . Allowed uses. 294 Within the PD-H2 District, only the following uses and 295 structures shall be permitted: 296 . . . . 297 (c) Conditional uses. 298 . . . . 299 (4) Housing for seniors and disabled persons . 30 0 COMMENT 301 The amendments to this section allow housing for seniors and disabled persons in PD-H2 302 Planned Unit Developments Districts with a conditional use permit. 303 Authority: Virginia Code Section 15.2-2280. 304 ARTICLE 15. RESORT TOURIST DISTRICTS. 305 . . . . 306 B. RT-2 RESORT TOURIST DISTRICT 9 307 . . . . 308 Sec. 1511 . Use regulations . 309 . . . . 310 (c) Conditional uses and structures: Uses and structures 311 hereinafter specified, subject to compliance with the provisions of 312 part C of article 2 hereof; provided, however, that except as set 313 forth in subdivision (5 . 5) , drive-through facilities shall not be 314 permitted as a conditional or accessory use: 315 . . . . 316 (8) Ilomc3 Housing for the agcd, seniors and disabled persons 317 318 maternity homes; child care centers, other than those 319 covered under permitted principal uses and structures 320 hereinabove, whcn not operatcd by a public agcncy; 321 . . . . 322 COMMENT 323 The amendments to this section allow housing for seniors and disabled persons as a conditional 324 use in the RT-2 Resort Tourist District. 325 Authority: Virginia Code Section 15.2-2280. 326 327 C. RT-3 RESORT TOURIST DISTRICT. 328 . . . . 329 Sec. 1521. Use regulations. 330 . . . . 331 (c) Conditional uses and structures: Uses and structures 332 hereinafter specified, subject to compliance with the provisions of 333 part C of article 2 hereof; and provided, that except as set forth 334 in subdivision (5 . 5) , drive-through facilities shall not be 335 permitted as a conditional or accessory use in any portion of the 10 336 district east of Arctic Avenue, south of Winston-Salem Avenue and 337 4th Street, or north of 35th Street : 338 . . . . 339 (8) Ilomc3 Housing for thc agcd, seniors and disabled persons 340 or handic ppcd, including eenvalc cert or nursing homc3; 341 maternity homes; child care centers, other than those 342 covered under permitted principal uses and structures 343 hereinabove, whcn not operatcd by a public agcncy; 344 . . . . 345 COMMENT 346 The amendments to this section allow housing for seniors and disabled persons as a conditional 347 use in the RT-3 Resort Tourist District. 348 Authority: Virginia Code Section 15.2-2280. 349 350 351 D. RT-4 RESORT TOURIST DISTRICT 352 Sec. 1531. Use regulations. 353 . . . . 354 (c) Conditional uses and structures: Uses and structures 355 hereinafter specified, subject to compliance with the provisions of 356 part C of article 2 hereof : 357 . . . . 358 (3) Homcs Housing for thc agcd, seniors and disabled persons 359 or handicappcd, ineltsding convalcsccnt or nursing homc3; 360 maternity homes; , whcn not operatcd by a public agcncy; 361 . . . . 362 COMMENT 363 The amendments to this section allow housing for seniors and disabled persons as a conditional 364 use in the RT-4 Resort Tourist District. 365 Authority: Virginia Code Section 15.2-2280. 366 367 11 368 Adopted by the City Council of the City of Virginia Beach on 369 the day of , 1998 . 370 CA-98-6983 371 wmm\ordres\45-235et .com 372 R-1 373 April 17, 1998 374 APPROVED AS TO CONTENT 375 376 APPROVED AS TO LEGAL 377 SUFFICIENCY 378 379 Law Department 12 SENIOR HOUSING FACILITY DEVELOPMENT GUIDELINES APRIL 10, 1998 City of Virginia Beach Senior Housing Committee Mrs. Barbara M. Henley Chair ((//^^'ix141.A.BEES nim � _� txd 000 f,4 Alter e1� • PAIW „vi *kr / V Op �0" OUR NAt SENIOR HOUSING FACILITY DEVELOPMENT GUIDELINES A. Preface Senior housing facilities are designed to serve older adults in multifamily units. They are characterized by densities above those typically found in conventional multifamily dwelling structures. Senior housing facilities may include support facilities such as dining halls and emergency medical care facilities but are distinguished from hospitals and other similar treatment facilities by the absence of extended medical care capability. These guidelines are an attempt to meet the needs of senior housing residents while encouraging an improved direction in senior housing facility development. The best approach is to use sound land use planning practice with the use of design and aesthetic elements. Good design and aesthetics can go a long way toward helping define the character of any development. B. Development Application Process The conditional use permit(CUP)application process provides opportunities for certain safeguards that reflect the intent of sound land use planning for senior housing. Special attention should be placed on these two opportunities. 1. Rezoning requests that involve a CUP request should be submitted as a conditional rezoning applications. 2. Rezoning requests for apartment districts should reflect the lowest density apartment district necessary to achieve the desired result. In other words, avoid requesting A-36 zoning, when A-18 will suffice. 3. The minimum lot area for senior housing facilities located in non-residential zoning categories should be three (3) acres. However, city council may modify this guideline based on the number of units, lot configuration or development related amenities. 4. Every effort should be made to earmark a reasonable percentage of senior housing units to those who quality for low and moderate income assistance as defined by the U. S. Department of Housing and Urban Development. C. Site Selection Guidelines Developers of senior housing facilities should strive to select sites that meet the guidelines identified here. The goal is to locate senior housing developments within areas that can provide a reasonable level of service to the residents of those units. These guidelines should be judiciously applied where appropriate and not used to restrict the development of this type of housing within any area. 1. The development should be located within reasonable proximity to useful services and 1 facilities. These include banks, shopping centers, parks, libraries, and recreation areas, among others. Effort should be made to locate such facilities within reasonable walking distance to bus stops. This criterion is less critical for Assisted Living Facilities and Nursing Facilities. 2. Senior and/or Disabled developments should provide alterative transportation services where appropriate such as vans, buses or others modes of travel. 3. The development should be located within reasonable proximity to hospitals, medical offices and pharmacies. 4. The development should be located in aesthetically pleasing areas reasonably protected from excessive noise, air pollution and other negative physical influences. D. Site Design Guidelines Existing Natural Features During the design process, existing natural characteristics of a site should be identified. Natural site features and land forms should be considered during site design and building placement. Natural site amenities may consist of a significant stand of trees, unusual topographic conditions, natural drainage patterns and similar natural features. These features should be preserved to the greatest degree possible. These features create a sense of place on undeveloped sites that can be expanded on during the development process. All significant views present within the development boundaries, both on and from a site, should be maintained and enhanced. Access and Circulation The provision of clear and convenient vehicular and non-vehicular access to all new senior housing developments is and should remain a high priority during the development process. Vehicular and pedestrian access should be distinct and clearly separated. 11 Access should be coordinated with or provided from the secondary street system or by cross-parcel access driveways whenever possible. 21 To minimize traffic conflicts, entrances and exits to a development should be consolidated and in one general location, a safe distance away from street intersections exhibiting high volumes of traffic. An internal circulation system should be utilized to provide access to uses within the development site. 31 Entrances and driveways should permit safe and convenient pedestrian crossing where they intersect sidewalk and other pedestrian access ways. A change in paving material to make the driver aware of the crossing is encouraged. 41 Where appropriate, pedestrian pathways, not necessarily associated with the public roadways(s) fronting the property, should be provided. Senior housing facilities located adjacent to existing or planned commercial areas should provide safe and convenient pedestrian access ways between the 2 facilities and the commercial area. These access ways should be an adequate width with a landscaped strip that includes trees and lighting that is both safe and attractive. 51 Uses that are part of the operation of senior housing facilities, such as traffic areas and deliveries, should be located so as to not be disruptive to adjacent residential neighborhoods. Parking Areas The visual appearance of new parking lots is controlled in part by adopted ordinances regarding parking lot landscaping. However, there are additional location and circulation characteristics that can further improve the appearance and function of lots. 11 The parking area should be broken into separate subareas to avoid the 'sea of asphalt' appearance. Parking areas should be situated so that they are buffered from the arterial highway by landscaping or other physical means and provide safe, well marked and well- lit access to the units. 21 Landscaping for the parking area should be strategically located to provide visual relief, shading of the lot, green areas, and screening while insuring that unobstructed lines-of- sight are maintained, both at the time of planting and when the plants have matured . Landscaping 11 Senior housing facilities that adjoin areas planned for residential use should provide effective screening. Trash collection areas should be located in a way that significantly minimizes related noise and odor. Landscape plants should be provided as an effective buffer between such uses according to ordinance requirements. 21 Screening may include fences, walls, berms, hedgerows and massing of plant material. All enclosures should be designed with attractive, durable materials or be from a selection of hardy native plant materials. If walls are used, they should match the dominant material and color schemes used in the building. Design continuity should be maintained between the building, trash enclosure area, and the wall plane used for screening. Height and placement of the walls and fences should comply with zoning ordinance requirements. 31 When selecting the type, size and location of landscaping at critical areas such as intersections, parking lot crossways and driveways, always consider providing safe, unobstructed lines-of-sight for motorists that meet or exceed development standards. The size of the plants at planting and at maturity should be considered. Additionally, an inspection and maintenance schedule should be developed and adhered to insure that lines- of-sight are always adequate. Stormwater Management as Landscape Features 11 Whenever possible, stormwater retention and detention systems are encouraged to be designed as open space or landscape amenities or located adjacent to the highway right-of- 3 way. Grass swales should be used to accommodate surface drainage when possible. 21 When structural systems are provided, plant material should be used to soften the appearance. The design of the system should blend in with the natural site features and become a design element of the overall development. 31 Nonstructural systems can be of a variety of landscape plant materials which include ground cover, low to mid-height shrubs or a combination thereof. 41 Where possible, fountains and other amenities should be included as part of an attractive stormwater management feature to complement the overall site design of the facility. Lighting All outdoor lighting should provide a safe and attractive environment for drivers and pedestrians. Outdoor lighting should be designed to avoid glare intruding into adjacent residential area. Signs All signs should be clearly marked, attractive and consistent in color and theme with the primary building. Setback and Building Location This section describes how senior housing structures should be situated on a development parcel when located in relationship to the roadway. 1� Where opportunities present themselves, structures should be sited to create courtyards or open spaces that promote a "sense of place" or a human scale for the development. Particular attention should be directed at the appearance of the buildings from the arterial highway created by the way in which the buildings are sited. The "barracks" appearance should be avoided. 21 Where appearances depend on the character of the surrounding development, buildings should be generally oriented within a well-landscaped green area. The height, bulk, and architecture of these structures should convey a sense of openness, ensuring substantial sunlight access. 31 Buildings should be oriented to the street and designed and scaled to accommodate safe and convenient pedestrian movement. 41 Usable open space areas should be included as part of the development and where possible, be strategically located with adjacent open space areas such as a residential area or an arterial highway that would allow future transit stops. 4 E. Building Design Guidelines Of paramount concern is the actual design of the building in relationship to surrounding buildings and the surrounding area. Good site design cannot compensate for poor building design nor can good building design compensate for poor site design. Both are interrelated. This section provides some guidance regarding the principles of building design that should be utilized in planning a building or other structure. Compatibility The relationship of a building to its surroundings, both natural and built, is important to its success. That relationship is primarily conveyed through the scale, mass, height, and proportion utilized in the design. 11 Scale is vital to achieving compatibility. The three most important aspects of scale to achieve compatibility are: 1. The ratio of the parts of a structure to the entire structure, 2. The structure's size in relationship to its surroundings, and 3. The structure's size in relationship to an individual. 21 The mass, or overall size, and height of the structure should be appropriate to the surroundings. The closer the building or structure is to the highway, the less the mass and height should be. One way to accomplish this is by using a staggered tiered or"wedding cake"design. The effort is to create an easily recognizable and rememberable "place." Increase in mass should be accompanied by an increase in the quality of the site design, including amenities and landscaping. 31 Proportion is the relationship on one dimension to another. Good proportion is expressed by each component of a building (height to width of a door, for example);the relationship of each component to each other(wall to window, for example) and the ratio of building mass to the spaces around it. Other Building Design Elements This section will focus on various aspects of building design that should be addressed for any structure. 11 All elevations visible from a roadway should be of equal quality in design, detail and material. Visual interest should be provided through window and door details, varied roof lines, consistent textures and color, etc. In the case of several buildings, staggered placement of the buildings can create that interest. 21 Materials used on structures should be long-lasting, attractive, and high quality. Cinder block, large expanses of vinyl siding, and plywood sidings are some examples of inappropriate materials. 31 Like material, color should be more sensitive to the character of the surrounding area. 5 Color should be less intense, blending with the surrounding landscape, and not obtrusive. The appropriate design of the building itself should be sufficient to attract the necessary attention; color should only be an accent. 41 The building should possess details that are pedestrian in nature. Architectural details should be included in the design of buildings that are scaled to the pedestrian, that draw the pedestrian's eye, and that creates a memory of the building and the place. Amenity features such as public plazas, staggered buildings, gazebos, fountains, circular passenger drop-off points and distinctive architecture should be included in the design of senior housing development. 51 Lighting of buildings should be designed as an integral part of the building's architecture to be as unobtrusive as possible. This lighting especially on the rear of buildings should be designed and placed so that it does not direct or reflect any illumination into residential areas. 61 The height, bulk, and architecture of structures should convey a sense of openness, ensuring substantial sunlight access. 71 Applicants are encouraged to provide areas for growing flowers or vegetables. These areas may include, but are not limited to, courtyards that have small, raised garden plots that are constructed to allow ease of access for those residents with limited movement who may require wheelchairs or walkers. 81 Facilities such as small playgrounds should be provide for visiting children. 6 -29- Item V-O. PUBLIC HEARING ITEM#43503 PLANNING Mayor Meyera E. Oberndorf DECLARED a PUBLIC HEARING on: PLANNING 1. CLEARWATER INVESTMENT ASSOCIATES ENLARGEMENT OF A NONCONFORMING USE (Sheraton Hotel) 2. WELDON T.,JR.AND STREET CLOSURE GERTRUDE A. BYRNS 3. O&R,INC.,A VIRGINIA CORPORATION STREET CLOSURE CHANGE OF ZONING 4.LARRY'S IMPORT CENTER,INC. CONDITIONAL USE PERMIT 5.EDWARD P.AND LESLIE A.KAPPES CONDITIONAL USE PERMIT 6.MATILDA RUSSELL CHANGE OF ZONING April28, 1998 - 30- Item V-O. PUBLIC HEARING ITEM#43504 PLANNING Upon motion by Vice Mayor Sessoms,seconded by Councilman Branch, City Council APPROVED in one motion Items 1, 2, 4 and 6 of the PLANNING BY CONSENT. Voting: 10-0 Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum Council Lady McClanan voted a VERBAL NAY on Item 0.4. April28, 1998 -31 - Item V-0.1. PUBLIC HEARING ITEM#43505 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council AUTHORIZED DEFERRAL UNTIL MAY 12, 1998, CITY COUNCIL MEETING the Application of CLEARWATER INVESTMENT ASSOCIATES for enlargement of nonconforming use at the SHERATON HOTEL: ORDINANCE UPON APPLICATION OF CLEARWATER INVESTMENT ASSOCIATES FOR ENLARGEMENT OF A NONCONFORMING USE Ordinance upon application of Clearwater Investment Associates for enlargement ofa nonconforming use at the Sheraton Hotel,Atlantic Avenue and 36`h Street, Oceanfront, re construction of a seven-story hotel addition on the adjacent parking lot site. VIRGINIA BEACH BOROUGH Voting: 10-0(By Consent) Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 - 32- Item V-0.2. PUBLIC HEARING ITEM#43505 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council APPROVED, BY CONSENT, SUBJECT TO COMPLIANCE OF CONDITIONS BY OCTOBER 27, 1998, the Petition of WELDON T., JR. and GERTRUDE A. BYRNS for the discontinuance, closure and abandonment of a portion of an unnamed right-of-way: Petition of Weldon T, Jr. and Gertrude A. Byrne for the discontinuance, closure and abandonment of a portion of an unnamed street beginning at the southeast corner of the Norfolk and Southern Railroad right-of-way and running in an easterly direction a distance of 163.97 feet. Said parcel is 50 feet in width and contains 8,198.5 square feet. KEMPSVILLE BOROUGH. The following conditions shall be required: 1. The purchase price to be paid to the City shall be determined according to the "Policy regarding Purchase of City's Interest in Streets pursuant to Street Closures", approved by City Council. 2. The applicant is required to resubdivide the property and vacate all internal lot lines. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant is required to ensure all private utility easements are maintained in a manner satisfactory to the utility company. 4. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 180 days of approval by City Council(October 27, 1998). Voting: 10-0(By Consent) Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 -33- Bern V-0.3. PUBLIC HEARING ITEM#43506 PLANNING Attorney Robert Jones, represented the applicant David S. Russotto, President- 0&R., Inc., spoke relative the exterior finish James J.McElligott,Jr.,3668 Seagull BluffDrive,Phone:363-8112,represented Ocean Park Civic League, and spoke in support of the application Upon motion by Vice Mayor Sessoms, seconded by Councilman Harrison, City Council APPROVED, SUBJECT TO COMPLIANCE OF CONDITIONS BY OCTOBER 27,1998,the Petition of 0&R,INC., a Virginia Corporation,for the discontinuance,closure and abandonment of aportion of Powhatan Avenue and, Ordinance upon application of 0&R,INC.,a Virginia Corporation,for a Change of Zoning District Classification: Petition of 0 & R, Inc., a Virginia Corporation,for the discontinuance, closure and abandonment of a portion of Powhatan Avenue beginning on the west side of Powhatan Avenue and running between Lots 1 through 4, Block 40 and Lots 6 through 14, Block 46 as shown on the plat entitled "Survey of Right-of-Way Street Closure for a Portion of Powhatan Avenue located between Block 40 and 46 of Ocean Park" and recorded in Map Book 5, Page 132. Said parcel contains 35,594 square feet. BAYSIDE BOROUGH. The following conditions shall be required: 1. The purchase price to be paid to the City shall be determined according to the "Policy regarding Purchase of City's Interest in Streets pursuant to Street Closures", approved by City Council. 2. The applicant will work with H.R.S.D. to adequately address the requested maintenance easement. 3. The applicant is required to resubdivide the property and vacate all internal lot lines. The plat must be submitted and approved for recordation prior to final street closure approval. 4. The applicant is required to verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company, must be provided. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 180 days of approval by City Council(October 27, 1998). AND, April 28, 1998 -35- Item V-0.3. PUBLIC HEARING ITEM#43506(Continued) PLANNING This Ordinance shall be effective in accordance with Section 107(O of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of April, Nineteen Hundred and Ninety-Eight Voting: 10-0 Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M.Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum Councilman Jones DISCLOSED pursuant to Section 2.1-639.14(G),Code of Virginia,the law firm ofJones, Russotto& Walker,P.C. which represents 0&R,Inc., on its applications, leases office space in a building he owns and 0&R, Inc., subleases office space in his building from Jones, Russotto& Walker. However, he does not have any type of contractual arrangement with 0&R,Inc. nor does he have any interest in the parcels ofproperty which are subject of the applications submitted by 0&R,Inc.Although the City Attorney has advised that he is not required to disclose this interest as it does not meet the criteria of personal interest, he wishes to disclose this interest and DECLARE that he is able to participate in this transaction fairly, objectively, and in the public interest. Councilman Jones' letter of April 28, 1998, is hereby made a part of the record. April 28, 1998 G1lIA*$E4C u 5 City of Virginia Beach 9 Op OUR NA:0°NS LOUIS R JONES 1008 WITCH POINT TRAIL COUNCILMAN-BAYSIDE BOROUGH VIRGINIA BEACH,VIRGINIA 23455 (804)583-0177 April 28, 1998 Mrs. Ruth Hodges Smith, CMC/AAE City Clerk Municipal Center Virginia Beach, VA 23456 Dear Mrs. Smith: Re: Disclosure Pursuant to Section 2.1-639.14(G), Code of Virginia Pursuant to the Virginia Conflict of Interests Act, Section 2.1-639.14(G), Code of Virginia, I make the following declaration: 1. The transactions for which I am executing this written disclosure are the applications of O&R, Inc., for the discontinuance of a portion of Powhatan Avenue, and for a change of zoning district classification on a parcel of property located in the Bayside Borough. The applications are scheduled for consideration by City Council at its April 28, 1998, meeting. 2. The reason for my disclosure is that the law firm of Jones,Russotto & Walker, P.C., which represents O&R, Inc., on its applications, leases office space in a building I own and O&R, Inc., subleases office space in my building from Jones, Russotto & Walker. However, I do not have any type of contractual arrangement with O&R, Inc.,nor do I have any interest in the parcels of property which are the subject of the applications submitted by O&R, Inc. 3. The City Attorney has advised me that, based on the facts presented, I do not have a personal interest in the transactions and, therefore, am permitted to participate in Council's discussion and vote on the applications without restriction. Mrs. Ruth Hodges Smith, CMC/AAE 2 April 28, 1998 4. Although the City Attorney has advised me that I am not required to disclose this interest as it does not meet the criteria of a personal interest in a transaction under the Conflict of Interests Act,I wish to disclose this interest and declare that I am able to participate in the transactions fairly, objectively, and in the public interest. Accordingly,I respectfully request that you record this declaration in the official records of the City Council. I have enclosed an opinion letter from Leslie L. Lilley, City Attorney, which addresses this same matter. Thank you for your assistance and cooperation in this matter. Sincerely, Louis R. Jon Councilmem er LRJ/lcb Enclosure 1NIA•BR4 _ City of Vir- it iia I-each '•. • : . 9 � G 9�s OF OUR NASO LESLIE L.LILLEY CITY ATTORNEY MUNICIPAL CENTER BUILDING t 2401 COURTHOUSE DRIVE February 10, 1998 VIRGINIA BEACH,VA 23456-9004 (757)427-4531 OP-490 FAX(757)426-5687 TDD(757)427-4305 Councilmember Louis R. Jones Municipal Center Virginia Beach, VA 23456 Re: Request for Conflict of Interests Act Opinion Dear Councilmember Jones: I am writing in response to your request for an opinion as to whether you are permitted to meet with the legal representative of O&R, Inc. to discuss its application for a change of zoning district classification on certain parcels of property located in the Ocean Park subdivision of the Bayside Borough. SUMMARY CONCLUSION Based upon my review of the State and Local Government Conflict of Interests Act and the facts provided by you, I am of the opinion that you do not have a personal interest in the above-referenced application of O&R, Inc. for a change of zoning district classification. Therefore, you are permitted to meet with the legal representative of O&R, Inc. to discuss its application. Furthermore, you are also permitted to participate, without restriction, in City Council's discussion and vote on the application when it comes before the Council for formal consideration. I base this conclusion on the following facts which you have presented. Please review, and verify the accuracy of, the facts set forth herein since you may only rely upon this opinion to the extent that the facts are compete and accurate. FACTS PRESENTED O&R, Inc. has submitted an application for a change of zoning district classification on certain parcels of property located in the Ocean Park subdivision of the Bayside Borough. The applicant's representative with respect to the application is Robert G. Jones, an attorney with the law firm of Jones, Russotto & Walker, P.C. Since the parcels of property which are the subject of the application are located in the Bayside Borough, Robert Jones has asked to meet with you, as the Council representative from the Bayside Borough, to discuss the application. You have advised that your concern, and reason for requesting this opinion, is Councilmember Louis R. Jones 2 February 10, 1998 that Jones, Russotto & Walker leases office space in a building owned by you, and pays you rent which exceeds $10,000 annually. You have further advised that O&R, Inc. subleases office space in your building from Jones, Russotto&Walker,but does not have any type of contractual arrangement with, or obligation to, you.' Finally,you have advised that you do not have any interest in the parcels of property which are the subject of the application submitted by O&R, Inc. ISSUE PRESENTED Are you permitted to meet with the legal representative of O&R, Inc. to discuss its application for a change of zoning district classification on certain parcels of property located in the Ocean Park subdivision of the Bayside Borough? DISCUSSION The State and Local Government Conflict of Interests Act(the "Act") is set forth in § 2.1-639.1 et seq. of the Code of Virginia(1950), as amended. The primary focus of the Act is on the personal interests of an officer or employee in the transactions of, and contracts with, the governmental or advisory agency of which he or she is a member. The critical inquiry, therefore, is whether your status as owner and lessor of the building in which the law offices of Jones, Rosutto & Walker are located causes you to have a personal interest in the application of O&R, Inc. Clearly,you have a personal interest in the building you own and lease to Jones, Russotto&Walker. However, in order to have a personal interest in the application of O&R, Inc., you must have a personal interest in O&R, Inc. or the parcels of property which are the subject of the application, or it must be reasonably foreseeable that you would receive a direct or indirect benefit or detriment as a result of any future action taken by City Council with respect to the application. CONCLUSION Based upon the facts presented, you do not have a personal interest in O&R, Inc. since O&R, Inc. does not lease office space from you, or have any other type of contractual arrangement with, or obligation to, you. Instead, O&R, Inc. subleases office space in your building from Jones, Russotto & Walker. Additionally, you do not have a personal interest in the parcels of property which are the subject of the application submitted by O&R, Inc. And finally, it is not foreseeable that you would receive a direct or 'Each month,Jones,Russotto&Walker sends you two checks,one from its firm account and one from O&R,Inc., which add up to the total monthly rent due The check from O&R,Inc. is made out to you directly,but only as a matter of convenience. You have indicated that if,for any reason,O&R,Inc. failed to pay rent to Jones,Russotto&Walker pursuant to its sublease with the law firm,or cancelled its sublease with the firm,Jones,Russotto&Walker would still be indebted to you for the full amount of the rent,and you would not have any recourse against O&R,Inc. for a shortfall, if any,in rent paid by Jones,Russotto&Walker. Councilmember Louis R. Jones 3 February 10, 1998 indirect benefit or detriment as a result of any future action taken by City Council with respect to the application. Therefore, you are permitted to meet with the legal representative of O&R, Inc. to discuss its application. Furthermore, you are also permitted to participate, without restriction, in City Council's discussion and vote on the application when it comes before the Council for formal consideration. The Conflict of Interests Act deals with types of influences upon a public officer's judgment which are clearly improper. The law does not, however, protect against all appearances of improper influence. In that respect, the Act places the burden on the individual officer to evaluate whether the facts presented create an appearance of impropriety which is unacceptable or which would affect the confidence of the public in the officer's ability to be impartial. I have opined that you may meet with the legal representative of O&R, Inc. to discuss its application, and that you may participate in City Council's discussion and vote on the application when it comes before the Council for formal consideration. However, if you are concerned that your participation in the transaction creates an unacceptable appearance, you may abstain from such participation under§ 2.1-639.14(E)provided that you first disclose your interest in the transaction. Should you decide to abstain, I would be more than happy to prepare, for your convenience, an abstention letter which complies with § 2.1-639.14(E). Please contact me should you'desire any additional information. Very truly yours, Leslie L. Lilley City Attorney LLL:sam G:\USE RS\SMURPHY\WP\WORK\O&R.OPN - 36- Item V-0.4. PUBLIC HEARING ITEM#43507 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED an Ordinance upon application of LARRY'S IMPORT CENTER,INC. for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF LARRY'S IMPORT CENTER, INC., FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOBILE REPAIR GARAGE RO4982186 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Larry's Import Center, Inc., for a Conditional Use Permit for an automobile repair garage on the south side of Virginia Beach Boulevard, 150 feet more or less east of Riddle Avenue. Said parcel is located at 1803 Virginia Beach Boulevard and contains 1 acre more or less. LYNNHAVEN BOROUGH. The following conditions shall be required: 1. The project shall substantially adhere to the submitted site plan entitled, "Conditional Use Permit for Automobile Repair Garage for Larry's Import Center"dated January 24, 1998 by Copeland Engineering Consultants P.C., as submitted, except that the landscape buffer along the rear south row of parking stalls adjacent to the R-7.5 zoning district shall be 17.5'in width and planted with a row of shrubbery. 2. No variances to setbacks, landscaping or other building/site improvement requirements for the approved facilities shall be permitted. 3. Portions of the proposed building containing mechanical repair, body repair, and paint booths that are adjacent to residential communities shall have an STC rating of 45 or greater. 4. The proposed paint facility will be developed in strict conformance to provisions of the most recently adopted BOCA Code. 5. All work is to be performed indoors with bay doors closed except when cars are entering and leaving the building. 6. No wrecked or inoperative vehicles are to be stored on the site without a valid service ticket outlining the work to be performed and date in which the project is promised to customers. 7. The buildings will be developed in substantial conformance with the architectural drawings entitled "Larry's Import Center"by Morrisette Architecture,dated December 3, 1997 and onfile with the Planning Department. Building materials will consist of grey brick veneer, brushed aluminum framing and tinted windows. Painted surfaces will be earth tone in color. April 28, 1998 - 37- Item V-0.4. PUBLIC HEARING ITEM#43507(Continued) PLANNING 8. All cars waiting for service, with obvious body damage, must be stored in the fenced compound area. 9. Signage for the property will conform to City Zoning Ordinance standards. Any sign erected will be developed with light blue lettering and a neutral color background. 10. The wooden privacy fence and chain-link security fence shall be arranged and constructed so that only the wooden privacy fence is visible off-site. This Ordinance shall be effective in accordance with Section 107(I) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of April, Nineteen Hundred and Ninety-Eight Voting: 9-1 (By Consent) Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley, Louis R. Jones,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: Reba S.McClanan Council Members Absent: John A. Baum April 28, 1998 -38- Item V-0.5. PUBLIC HEARING ITEM#43508 PLANNING Attorney R. Edward Bourdon, Pembroke One, Fifth Floor, represented the applicant Upon motion by Councilman Harrison, seconded by Vice Mayor Sessoms, City Council ADOPTED an Ordinance upon application of EDWARD P.AND LESLIE A.KAPPES for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF EDWARD P. & LESLIE A. KAPPES FOR A CONDITIONAL USE PERMIT FOR A MINIATURE GOLF COURSE RO4982187 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Edward P. & Leslie A. Kappes for a Conditional Use Permit for a miniature golf course with ice cream parlor at the northeast corner of Shore Drive and Red Tide Road on Lots 15, 17 &19,Block F,Lynnhaven Beach. Said parcel contains 22,500 square feet. LYNNHAVEN BOROUGH. The following conditions shall be required: 1. The development shall substantially adhere to the site plan entitled "Fair Winds Golfandlce Cream",and to the renderings submitted with the application including the sign rendering, building elevation, specifications for lighting, fencing specifications and the plant list. 2. The water used in the water features throughout the miniature golf course shall be natural and not artificially colored. 3. The hours of operation shall not exceed 10:00 a.m. to 12 midnight. 4. There shall be no outdoor speakers. 5. Any refuse dumpsters or containers shall not be located along the northern property. 6. Parking lot landscaping shall be addressed with the final site plan submittal. 7. The hours of operation will be reviewed by the Planning Department after 1 year. This Ordinance shall be effective in accordance with Section 107(fl of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of April, Nineteen Hundred and Ninety-Eight April 28, 1998 - 39- Item V-0.5. PUBLIC HEARING ITEM#43508(Continued) PLANNING Voting: 10-0 Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 -40- Item V-0.6. PUBLIC HEARING ITEM#43509 PLANNING Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED an Ordinance upon application of MATILDA RUSSELL for a Change of Zoning District Classification: ORDINANCE UPON APPLICATION OF MATILDA RUSSELL FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM A-12 AND 0-2 TO R-5S ZO4981105 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Matilda Russell for a Change of Zoning District Classification from A-12 Apartment District and 0-2 Office District to R-5S Residential Single Family District on the east side of South Kentucky Avenue, 183 feet south of Bonney Road on Lot 7-12& 13,Block 1,Midway. The proposed zoning classification change to R-5S is for single family residential land use on lots no less than 5000 square feet. The Comprehensive Plan recommends use of this parcel for suburban residential/medium & high density at densities that are compatible with townhouse and multi family use in accordance with other plan policies. Said parcels contains 20,996 square feet. KEMPSVILLE BOROUGH. This Ordinance shall be effective in accordance with Section 107(I) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of April, Nineteen Hundred and Ninety-Eight Voting: 10-0(By Consent) Council Members Voting Aye: Linwood 0. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April28, 1998 - 41 - Item V-P.1. APPOINTMENTS ITEM#43510 Upon NOMINATION by Vice Mayor Sessoms, City Council APPOINTED: WETLANDS BOARD B. W. "Rod"Rodriguez Unexpired term thru 9/30/98 Voting: 10-0(By Consent) Council Members Voting Aye: Linwood O. Branch, III, William W. Harrison, Jr., Harold Heischober, Barbara M Henley,Louis R.Jones,Reba S.McClanan,Mayor Meyera E. Oberndorf Nancy K Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M Strayhorn Council Members Voting Nay: None Council Members Absent: John A. Baum April 28, 1998 -42- Item V-Q. UNFINISHED BUSINESS ITEM#43511 BY CONSENSUS, City Council RECONSIDERED DATE FOR RECONCILIATION WORKSHOP: RESCHEDULED TO MAY 4, 1998 AT 12:00 NOON April 28, 1998 -43- Item V-S. ADJOURNMENT ITEM#43512 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 8:35 P.M 6152.ea04__ = 4.) Beverly"?). Hooks, CMC/AAE Chief Deputy City Clerk Ruth Hodges Smith, CMC/AAE Meyera E. Oberndorf City Clerk Mayor City of Virginia Beach Virginia April 28, 1998 - 43- Item V-S. ADJOURNMENT ITEM#43512 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 8:35 P.M Beverly O. Hooks, CMC/AAE Chief Deputy City Clerk - - - - Ruth Hodges Smith, CMC/AAE Meyers Oberndorf City Clerk Mayor City of Virginia Beach Virginia April 28, 1998