FUTURE CONSTRUCTION AGREEMENT
THIS FUTURE CONSTRUCTION AGREEMENT (the “Agreement”) is made as of this __ day of May, 2004, by and between THE COUNTY OF ALBEMARLE, VIRGINIA (“County”) and HOLLYMEAD TOWN CENTER, LLC, a Delaware limited liability company (“Hollymead,”).
R-1. Hollymead owns a parcel of land near U.S. Route 29 in Albemarle County, containing approximately acres, (the “Hollymead Property”), and designated as TMP 32 Par 43 on that certain “Plat Showing Subdivision for Tax Map Parcels 42A, 42C, & 43, Hollymead Town Center, Regional Service Area B”, dated January 27, 2004, by Rivanna Engineering & Surveying, PLC, recorded in the Clerk’s Office of the County on Albemarle, Virginia in Deed Book , at page . Hollymead intends to develop the Hollymead Property as part of a shopping center and commercial development (the “Project”) pursuant to an approved site plan No. SDP-03-081 (the “Site Plan”).
R-2. In order to satisfy the future transportation requirements for the area known as Hollymead Town Center, including the initial portion contemplated by the Project’s Site Plan, Hollymead hereby agrees to construct an additional receiving lane, and related improvements to accommodate entering traffic once a signal is installed at the entrance to the Hollymead Property at Town Center Drive, all as more particularly described on Exhibit A hereto (the “Improvements”).
W I T N E S S E T H:
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00), cash in hand paid, and further in consideration of the covenants herein contained and for the mutual benefit of all present and prospective owners of the benefited parcels, the parties agree as follows:
1. Construction of the Improvements. In connection with development of the Hollymead Property pursuant to the Site Plan and subject to receipt of governmental approvals of any required site plan modifications, building permits and other governmental permits and approvals (collectively, the “Permits and Approvals”), Hollymead, at its sole cost and expense shall construct those Improvements designated on Exhibit A, at such time as a traffic signal is warranted, and installed at the intersection of Town Center Drive and the western-most entrance to the Hollymead Property, as shown on Exhibit A. Hollymead shall complete construction of the Improvements to the satisfaction of the County (for private Improvements) and for acceptance by the Virginia Department of Transportation (for public road Improvements) simultaneously with the installation of the traffic signal, provided such completion date may be reasonably deferred or delayed with the consent of the County in the event construction of such Improvements would otherwise occur during peak retail shopping periods, such as between November 15 and January 5, or during the winter months when asphalt plants are closed or in the event of inclement weather or other force majeure causes. Hollymead shall make necessary arrangements to assure that the Project maintains adequate parking after construction of the Improvements, including, if necessary, installing replacement parking spaces within the Project.
Nothing contained herein shall be construed as requiring Hollymead to install the traffic signal itself, nor to construct anything more than the lane improvements depicted on Exhibit A. Hollymead reserves the right, subject to receipt of the Permits and Approvals, to construct the Improvements at any time prior to the date it is obligated to do so hereunder, including without limitation before a traffic signal is installed at Town Center Drive and the western-most entrance to the Hollymead Property.
2. Counterparts. This Agreement may be executed in two or more counterparts.
3. Choice of Law. This Agreement shall be governed by and construed in accordance to the laws of the Commonwealth of Virginia.
4. Successors and Assigns. The terms and provisions of this Agreement are deemed to be covenants running with the land and fee ownership of the Hollymead Property that are binding upon and inure to the benefit of the transferees, successors, devisees and assigns of Hollymead and any person claiming by, through or under Hollymead during the period of their ownership. Upon any transfer or conveyance of the Hollymead Property, the grantor or other transferring party shall be automatically released from all further liability and obligations under this Agreement with respect or relating to the property so transferred or conveyed, and the grantee or other transferee shall be deemed to have automatically assumed all such liability and obligations during the period of its ownership of the Hollymead Property. Any obligations contained herein shall be construed as covenants and not as conditions, and a violation of any said covenants shall not result in a forfeiture or reversion of title.
5. Liquidated Damages. Because of the difficulty of ascertaining the amount of damages which would be sustained by the County by a breach of this Agreement by Hollymead, its successors or assigns, it is expressly agreed by the parties that in the event of a breach hereof by Hollymead, its successors or assigns, it will pay to the County the sum of __________________ thousand dollars ($__________), which amount shall be increased at the rate of two percent per annum, for such breach.
6. Time is of the essence. Time is of the essence of this Agreement.
7. Recordation. This Agreement shall be recorded among the land records in the Clerk’s Office of the Circuit Court of Albemarle County.
8. Termination. This Agreement shall terminate and be of no further force and effect upon completion of the Improvements.
View Exhibit A
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