PROFFER STATEMENT

NORTH POINTE CHARLOTTESVILLE, LLC

REZONING APPLICATION: #ZMA-2000-009, SP -2002-72

 

December 9, 2005

 

 With respect to the property described in rezoning application #ZMA-2000-09 and SP-2002-72 (the “ZMA”), CWH Properties Limited Partnership is the fee simple owner and North Pointe Charlottesville, LLC is the contract purchaser of Tax Map 32, Parcels 20, 20A, 20A1, 20A2, 20A3 and 29I (the “North Pointe Property”), Violet Hill Associates, L.L.C. is the fee simple owner of Tax Map 32, Parcels 23, 23A, 23B, 23C, 23D, 23E, 23F, 23G, 23H and 23J (the “Violet Hill Property”), Virginia Land Trust is the fee simple owner of Tax Map 32, Parcel 22K (the “Virginia Land Trust Property”) and the Estate of Edward R. Jackson is the fee simple owner of Tax Map 32, Parcel 22H (the “Jackson Estate Property”).  The respective parties are collectively referred to herein as the “Owner”, which term shall include any successors in interest.  The North Pointe Property, the Violet Hill Property, the Virginia Land Trust Property and the Jackson Estate Property are referred to collectively as the “Property”.

 

Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, Owner hereby voluntary proffers the conditions listed in this Proffer Statement, which shall be applied to the North Pointe Property if the ZMA is approved by Albemarle County.  These conditions are proffered as part of the ZMA and it is agreed that: (1) the ZMA itself gives rise to the need for the conditions, and (2) such conditions have a reasonable relation to the rezoning requested.

 

                        This Proffer Statement shall relate to the multi-page application plan entitled “North Pointe Community”, prepared by Keeney & Co., Architects, as revised through November 21, 2005 and attached hereto as Exhibit A (the “Application Plan”), and the Albemarle County Code in effect as of the date of this Proffer Statement (the “County Code”).  The North Pointe Community shall be referred to as the “Project”.

 

I.          THIS SECTION INTENTIONALLY DELETED

 

II.        ENTRANCE CORRIDOR

 

2.1       Creation of a 25-Foot Buffer along the Entrance Corridor.  Within six (6) months after the acceptance by the Virginia Department of Transportation (“VDOT”) of the Road Improvements as defined in Section 5.3 that are along the northbound lanes of U.S. Route 29, Owner shall plant and thereafter maintain at all times a landscaped buffer along the Entrance Corridor frontage parcels owned by Owner.  The buffer will consist of a minimum 25-foot wide continuous visual landscape area that shall be subject to Albemarle County Architectural Review Board (“ARB”) review and approval.  In the event VDOT at any time in the future reduces any portion of the buffer located on VDOT property, the Owner shall compensate for such reduction by extending the visual landscape area on Owner’s property in order to maintain a minimum 25-foot planting buffer, even if such compensation shall require the removal of parking adjacent to such buffer.

 

2.2       Appearance of Storm Water Management (“SWM”) FacilitiesThe SWM facilities visible from the Entrance Corridor identified on the Application Plan (stormwater management facilities 1, 2, and 10) shall be shown on a plan and be subject to ARB review and approval.  SWM 1 should be designed such that its shape, placement, and land form (grading) transition between the adjacent conservation area and the adjacent hard edge of the parking lot and buildings.  The plan for SWM 1 shall be submitted to the ARB at the earlier of ARB submissions for Buildings 14 or 19, identified on Sheet B to the Application Plan (“Sheet B”).  SWM 2 shall have a more structured appearance than SWM 10 (see below) and shall be designed such that its shape, placement, and land form (grading) transition between the adjacent conservation area and the adjacent hard edge of the parking lot and buildings.  The plan for SWM 2 shall be submitted to the ARB at the earlier of ARB submissions for any of the buildings 26-31.  SWM 10 shall be designed such that its shape, placement, and land form (grading) are integral with the adjacent conservation area.  The plan for SWM 10 shall be submitted to the ARB at the time road plans are submitted to the County and VDOT for Northwest Passage. 

 

III.       DENSITIES

 

            3.1       Total Buildout.  The total number of dwelling units within the Project shall not exceed eight hundred ninety-three (893). Subject to Proffer 3.2, the building footprints and gross floor areas of commercial, office, and other uses, and the building footprints of hotels shall not exceed those set forth in the Commercial Land Use Breakdown Table on Sheet A to the Application Plan (“Sheet A”). 

           

             3.2      Limited Adjustments to the Elements of the Application Plan.  The gross floor area of the commercial, office and other uses, and the building footprint of the hotels shown on Sheet A may be adjusted within a range of up to ten percent (10%) and the footprints of Buildings 6, 14 and 36 as shown on Sheet A can be interchanged, provided that the maximum gross floor area for each category of uses shown on Sheet A is not exceeded.  

 

IV.       STORMWATER MANAGEMENT AND STREAM BED CONSERVATION

 

4.1       Flood Plain. The area of the 100-year flood plain within the Project shall remain undisturbed except for road crossings, public utility facilities and their crossings, and pedestrian and biking trails, and only to the extent such exceptions are permitted by County ordinances and regulations.  Upon the request of the County, Owner shall provide a survey and prepare the necessary documentation and dedicate the land within such flood plain to the County.

 

4.2       Stormwater Management Plan. The stormwater/BMP plan for the Project shall be prepared, and all stormwater management facilities for the Project shall be designed and constructed, to accommodate all current stormwater discharge from Tax Map Parcel 032A0-02-00-00400 (Northwoods Mobile Home Park Development) and from the existing developments on the northeast and northwest corners of Proffit Road and U.S. Route 29 specifically the following parcels shown on the current Albemarle County tax maps:  tax map 32, parcels 38, 38A, 39, and 39A; tax map 32A, parcels 2-1, 2-1A, 2-1A1, 2-1B, 2-1C and 2-1D.  The stormwater management facilities shall mitigate the stormwater quality and quantity impacts, for the stormwater generated both within the Project and for such existing offsite conditions as described herein, as though the entire preexisting condition of the drainage area is an undeveloped wooded site and is being developed to the existing off-site conditions and the proposed on-site conditions.

 

V.        TRANSPORTATION

 

            5.1       Internal Street Construction Standards.  Public streets, which in any event shall include at least Leake Road, North Pointe Boulevard, Northside Drive East and Northwest Passage, shall be (i) constructed in accord with the illustrative urban design cross sections shown on Sheet D-1 to the Application Plan (“Sheet D-1”) and also in accordance with VDOT design standards pursuant to detailed plans agreed to between Owner and VDOT, and (ii) dedicated for public use and offered for acceptance into the state highway system.  Trees (with a maximum spacing of fifty (50) feet), landscaping and sidewalks as shown on Sheet D-1 shall be installed and maintained by the Owner in accordance with County or VDOT standards, unless VDOT or the County agrees in writing to assume this responsibility.

 

            5.2       Timing of Completion for Internal Streets.   Before issuance of certificates of occupancy, Owner shall complete that segment of road within the Project which serves the building or residence for which a certificate of occupancy is sought with at least the stone base and all but the final layer of plant-mix asphalt. The final layer of plant-mix asphalt shall be installed within one (1) year following the issuance of the first certificate of occupancy for a building or residence served by the affected road segment.  

 

            5.3       Road Improvements.  Owner shall design and construct all of the road improvements referenced in Sections 5.3.1(a), 5.3.1(b) and 5.3.1(c) below, which are also shown on Sheet D-1 and Sheet E to the Application Plan, entitled “External Road Improvement Plan”  (“Sheet E”) (collectively, the “Road Improvements”), unless such Road Improvements are first constructed  or bonded by others.  Owner shall dedicate to public use any required right-of-way that it now or hereafter owns in fee simple. 

 

                        5.3.1    Design and Phasing.  All Road Improvements shall be designed and phased as follows:

 

                        Design. The Road Improvements shall be shown on detailed road plans satisfying VDOT design standards which shall be submitted by the Owner for review and, when satisfactory, approved by VDOT and the County (except for the Road Improvements to U.S. Route 29, which shall be subject only to VDOT approval) (hereinafter, the “Approved Road Plans”).  The Approved Road Plans shall show the width and length (except as specified in Proffer 5.3.1(a)(1)(i) and (iv) and Proffer 5.3.1(b)(1)(ii)), location, type of section, and geometrics of all lane improvements as required by VDOT design standards.  All of the Road Improvements shall be constructed in compliance with the Approved Road Plans.  The Road Improvements to U.S. Route 29 shall be based on the then-current VDOT design speed and cross-slope requirements.  Notwithstanding the provisions of this paragraph to the contrary, in the event that the internal residential street designs as shown on Sheet D-1 are not accepted by VDOT, the Owner shall submit detailed road construction plans for such streets to the County for review and, when satisfactory, approval. 

 

                        Phasing.  The Road Improvements shall be constructed and completed in three phases as set forth below:

 

                        (a)        Phase I Road Improvements.  Prior to approval of the first subdivision plat or site plan within the Project, and provided that VDOT allows the Owner to utilize the existing VDOT right-of-way, Owner shall obtain all associated permits and post all associated bonds required for the construction of the following (collectively, the “Phase I Road Improvements”):

 

                        (1)        Middle Entrance on U.S. Route 29 (Northside Drive - SR 1570):

 

(i)                U.S. Route 29 Southbound – construction of a continuous 12 foot wide through lane (with shoulders or guard rail as may be required by VDOT) from the entrance 1,000 feet north and 1,000 feet south by 12 feet wide.  

 

 (ii)       U.S. Route 29 Southbound - construction of dual left turn lanes with taper.

 

(iii)       U.S. Route 29 Southbound – construction of a right turn lane with taper.

 

(iv)       U.S. Route 29 Northbound – construction of a continuous 12 foot wide through lane (with shoulders or guard rail as may be required by VDOT) extending from Proffit (Airport) Road (Route 649) to the Northwest Passage entrance.

 

(v)        U.S. Route 29 Northbound – construction of right hand turn lanes at both the Middle and Southernmost entrances, the geometrics of which will be subject to VDOT approval.

 

                                                (vi)       U.S. Route 29 Northbound – construction of left turn lane with taper.

 

(vii)      SR 1570 Eastbound – construction of or restriping of lanes to result in separate left, through and right turn movements.

 

(viii)   Entrance road Westbound – installation of a traffic signal with 8 phase timing, video detection and associated intersection improvements on U.S. Route 29.

 

(ix)              Existing crossover at Cypress Drive – construction to close the crossover.

 

(x)        Frontage road from Cypress Drive to SR 1570 – construction of a public street to serve properties currently accessing U.S. Route 29 through Cypress Drive. 

 

(2)               Northside Drive, North Pointe Boulevard, Leake Road and Proffit Road:

 

            (i)         Leake Road and North Pointe Boulevard, in accordance with the design cross-sections shown on Sheet D-1, from Proffit Road to either Northside Drive or, if Northside Drive has not yet been constructed to the roundabout at North Pointe Boulevard, North Pointe Boulevard shall be extended to Northwest Passage.  The Owner shall provide a fifty (50) foot public right-of-way along Leake Road and shall construct a two-lane public street to be accepted by VDOT and as much of the other improvements shown on the cross-sections as possible within the available right-of-way as reasonably determined by the County Engineer.

 

            (ii)        Within the existing VDOT right-of-way, the roundabout at the intersection of Leake Road and Proffit Road shown on Sheet B and the additional westbound right turn lane on Proffit Road from Leake Road to U.S. Route 29, as shown on Sheet E to the Application Plan entitled “External Road Improvement Plan” (“Sheet E”); provided, however, that if existing right-of-way is not sufficient for the construction of the roundabout, Owner shall petition the County to pursue obtaining the necessary right-of-way.  If such additional right-of-way is not obtained, the intersection will otherwise be designed and constructed as approved by VDOT and the County, and prior to the approval of the first subdivision plat or site plan within the Project, the Owner shall cause to be contributed to the County of Albemarle ________ Dollars ($__________) cash for the future construction of the roundabout.  In the event the actual cost of such construction is less than ______________ Dollars ($__________), all excess funds shall be returned to the Owner within ninety (90) days after the completion of such construction.  In the event the actual cost of such construction is more than ______________ Dollars ($__________) the Owner shall have no additional obligation.  If construction of the roundabout or any portion of a road improvement project of which the roundabout is a part has not commenced within seven (7) years after the date the funds were contributed to the County, all unexpended funds shall be refunded to the Owner.     [Note: Great Eastern has requested an estimate for the cost of constructing the roundabout from Faulconer Construction.  As soon as that figure is received we will provide it to you.  That figure would be inserted in each of the blanks above]

 

                        (iii)       Northside Drive between U.S. Route 29 and North Pointe Boulevard as shown on Sheet D-1, or, alternatively, if North Pointe Boulevard has been constructed to Northwest Passage pursuant to Section 5.3.1(a)(2)(i), and Northside Drive between U.S. Route 29 and North Pointe Boulevard has not been constructed, Northwest Passage from North Pointe Boulevard to U.S. Route 29 as shown on Sheet D-1.

 

                        (iv)       If not previously constructed, bonded, or necessary for site plan approval for any development of the southeast corner of U.S. Route 29 and Proffit Road, and if right-of-way is made available at no cost to Owner, Owner shall either construct an additional through lane eastbound on Proffit Road from U.S. Route 29 to the roundabout at the intersection of Leake Road and Proffit Road, or Owner shall make a cash contribution  to the County or VDOT for the entire cost of constructing such additional through lane, which would be constructed by VDOT.  In the event the Owner makes a cash contribution as provided herein, and the cash contribution is not expended for the stated purposes by December 31, 2012, all unexpended funds shall be refunded to the Owner.

 

                        If North Pointe Boulevard has been extended to Northwest Passage, and Northwest Passage has been constructed to U.S. Route 29, Owner shall not be required to construct the Road Improvements set forth in Section 5.3.1(a)(1)(i), (ii), (iii), (vi), (vii), (viii), (ix), and (x) until such time as Owner constructs a signalized intersection at the Middle Entrance.  The Owner’s obligation to construct the Road Improvements set forth in Section 5.3.1(a)(1)(iv) and (v) shall at all times remain as Phase I Road Improvements.

 

                        Within fifteen (15) months after the issuance of the first building permit for a building or premises within the lands subject to the first subdivision plat or site plan within the Project, or prior to the issuance of a certificate of occupancy for such building or premises, whichever is earlier, all of the Phase I Road Improvements shall be accepted by VDOT for public use or bonded for VDOT’s acceptance if such Road Improvements are along a primary road, or accepted by VDOT for public use or bonded to the County for VDOT’s acceptance if such Road Improvements are along a secondary road.

 

                        (b)        Phase II Road Improvements.  Prior to approval of the first site plan that would authorize the aggregate commercial, office and hotel gross floor area as shown on Sheet A within the Project to exceed two hundred ninety thousand (290,000) square feet, and provided that VDOT allows Owner to utilize the existing VDOT right-of-way, Owner shall obtain all associated permits and post all associated bonds required for the construction of the following (collectively, the “Phase II Road Improvements”):

 

                     (1)        Southernmost Entrance on Route 29:

 

                        (i)         U.S. Route 29 Southbound – correction of the vertical curvature in the roadway just north of the entrance. 

 

            (ii)        U.S. Route 29 Southbound – construction of a continuous 12 foot wide through lane (with shoulders or guard rail as required by VDOT) extending from the entrance north to match improvements required with the Middle Entrance and south to Airport Road.

 

                        (iii)       U.S. Route 29 Southbound – construction of dual left turn lanes with taper at the crossover.

                                               

                        (iv)       U.S. Route 29 Southbound – construction of right turn lane with taper to serve northernmost entrance to SR 1515.

                                                       

                        (v)        U.S. Route 29 Northbound – construction of left turn lane with taper into SR 1515.

 

                        (vi)       SR 1515 Eastbound – construction and/or restriping to provide left turn lane with taper.

 

                        (vii)      Installation of a traffic signal with 8 phase timing, video detection and associated intersection improvements at the intersection with U.S. 29. 

 

                        (viii)      Close existing crossover at U.S. Route 29 and southernmost entrance to SR 1515.

 

                        (ix)       Proposed Entrance Road between North Pointe Boulevard and U.S. Route 29.

 

                        Owner shall have the right to reverse the order of Sections 5.3.1 (a) and (b) above and elect to construct the improvements set forth in (b) prior to those in (a), provided that if such election is made, the improvements set forth in Sections 5.3.1(a)(1)(iv) and (v) and in 5.3.1(a)(2) shall be included with those in (b); and provided further, that in any event at least one of the middle or southern entrances must be constructed. 

 

                        Within fifteen (15) months after the issuance of the first building permit for a building or premises within the lands subject to the first site plan that would authorize the aggregate commercial, office and hotel gross floor area as shown on Sheet A within the Project to exceed two hundred ninety thousand (290,000) square feet, or prior to the issuance of a certificate of occupancy for such building or premises, whichever is earlier, all of the Phase II Road Improvements shall be accepted by VDOT for public use or bonded for VDOT’s acceptance if such Road Improvements are along a primary road, or accepted by VDOT for public use or bonded to the County for VDOT’s acceptance if such Road Improvements are along a secondary road.

 

                        (c)        Phase III Road Improvements.  Prior to the earliest of: (i) the approval of the first subdivision plat or site plan that would authorize the aggregate number of dwelling units within the Project to exceed five hundred thirty-three (533); (ii) the approval of a subdivision plat or site plan for any development of either the Virginia Land Trust Property (Tax Map 32, Parcel 22K) or the Jackson Estate Property (Tax Map 32, Parcel 22H) or any portion thereof; or (iii) the five (5) year anniversary of the date of issuance of the first certificate of occupancy for a building or premises within the lands subject to the first subdivision plat or site plan within the Project or any portion thereof, and provided that VDOT allows Owner to utilize the existing VDOT right‑of-way, Owner shall obtain all associated permits and post all associated bonds required for the construction of the following road improvements to the extent any such road improvements have not already been completed:

 

(1)        Northernmost Entrance (opposite Lewis & Clark Drive) on Route 29:

 

                        (i)         U.S. Route 29 Southbound – construction of left turn lane with taper.

 

                        (ii)        Northwest Passage from U.S. Route 29 to North Pointe Boulevard.

 

                        (iii)       U.S. Route 29 Northbound – construction of a right hand turn lane, the geometrics of which will be subject to VDOT approval.

 

                        (iv)       If not already constructed, North Pointe Boulevard between Northside Drive and Northwest Passage.

 

                                                (v)        If the traffic signal to be constructed by others is in place prior to Owner commencing work on this Northernmost Entrance, and such traffic signal only includes three legs, Owner agrees to add the fourth leg to the signal, which shall include additional mast arms, signal heads and ancillary equipment necessary to support Northwest Passage’s use of the intersection, as determined by VDOT.  If such traffic signal is not in place and the vehicular traffic generated by the Project causes the VDOT signal warrants to be met, and VDOT requires that a traffic signal be installed as a condition of the entrance permit, Owner shall install such traffic signal.

 

            (2)        Notwithstanding any other provision contained in this Proffer Statement, within one hundred eighty (180) days after notice from the County that it intends to build an elementary school on the School Lot (as “School Lot” is defined in Section 9.1), the Owner shall submit road plans for the construction of Northwest Passage from North Pointe Boulevard to U.S. Route 29 to VDOT and to the County for review, and when satisfactory, approval.  Furthermore, within twelve (12) months after issuance of the building permit for construction of the elementary school, and if not already completed, Owner will complete (i) Northwest Passage from North Pointe Boulevard to U.S. Route 29, (ii) the improvements set forth in Section 5.3.1(c)(1) above, and (iii) North Pointe Boulevard from Northside Drive East to Northwest Passage.  The Owner shall grant the County access to the School Lot during construction of the school over North Pointe Boulevard and Northwest Passage as those roads may be under construction.

                       

                        Within twelve (12) months after the issuance of the first building permit for (i) the five hundred thirty-fourth (534th) dwelling unit within the Project; or (ii) any development of either the Virginia Land Trust Property (Tax Map 32, Parcel 22K) or the Jackson Estate Property (Tax Map 32, Parcel 22H) or any portion thereof, depending on which event required the Phase III road improvements to commence, or prior to the issuance of the certificate of occupancy for such building or premises, whichever is earlier, all of the Phase III road improvements shall be accepted by VDOT for public use or bonded for VDOT’s acceptance if such Road Improvements are along a primary road, or accepted by VDOT for public use or bonded to the County for VDOT’s acceptance if such Road Improvements are along a secondary road.

                       

                        5.3.2    Upon request by the County, Owner shall make a cash contribution to the County or VDOT for the cost of a cable or wireless radio system that will link one or more of the signals between Lewis and Clark Drive and Airport Road; provided, however, that the total cash contribution shall not exceed thirty-five thousand dollars ($35,000).  If the County does not request the funds, or does request the funds but the construction of the system does not begin by the later of December 31, 2010 or three (3) years after completion of the Phase III Road Improvements, said funds shall be refunded to the Owner.

 

                        5.3.3    Prior to the approval of plans for improvements at any U.S. Route 29 intersection, Owner shall provide VDOT traffic signal network timing plans that VDOT finds acceptably address the impacts of the proposed traffic signals for peak traffic periods.  

 

                        5.3.4    Regional Transportation Study; Cash Contribution.  Upon request by the County, Owner shall make a cash contribution of one hundred thousand dollars ($100,000) to the County for the purposes of funding a regional transportation study for the Route 29 corridor, which includes the South Fork and North Fork of the Rivanna River and the Hollymead Growth Area of which North Pointe is a part.  The contribution shall be made within thirty (30) days after requested by the County anytime after the rezoning is approved.  If the request is not made within one (1) year from the date of approval of the first final site plan for the first commercial building within the Project, this proffer shall become null and void.  If such cash contribution is not expended for the stated purpose within three (3) years from the date the funds were contributed to the County, all unexpended funds shall be refunded to the Owner.

 

VI.       OPEN SPACE AREAS AND GREENWAY

 

            6.1       Pedestrian Pathways. All pedestrian pathways in the nonresidential areas shall be classified as shown on the Pedestrian Pathway Key on Sheet G to the Application Plan (“Sheet G”) and shall be shown on the subdivision plat or site plan for the underlying or adjacent lands within the Project.  The pathways shall be constructed by Owner as Class A or Class B trails as identified on Sheet G, and in accordance with the applicable design and construction standards in the County’s Design Standards Manual. Such construction shall be in conjunction with the improvements for the subdivision or site plan, as the case may be, and bonded with the streets.  If required by VDOT, pathways constructed through culverts under streets shall conform to the applicable standards in VDOT’s “Subdivision Street Guidance” and Owner shall enter into a separate maintenance agreement with VDOT for such pathways, even if the paths are to be privately owned and maintained.     

 

            6.2       Lake.   Upon request by the County, Owner shall dedicate to the County the lake shown on the Application Plan for public use, provided that such lake will be available for use by Owner for stormwater management as described in Sheet C to the Application Plan entitled “Stormwater Management and Stream Conservation Plan” (“Sheet C”).

 

VII.     THIS SECTION INTENTIONALLY DELETED

           

VIII.    PUBLIC INFRASTRUCTURE AND FACILITIES PROFFERS

           

            8.1       Branch Library.  Upon request by the County, Owner shall dedicate to the County the fee simple interest in the land shown on Sheet B as a library, consisting of a 15,000 square foot fully graded pad site, with utilities, to accommodate a 12,500 square foot building footprint, a five foot perimeter strip and up to a 25,000 square foot building, together with a nonexclusive easement to the adjacent common area for ingress, egress, construction staging and sufficient County Code required parking, stormwater detention and water quality  facilities for the location of a freestanding Jefferson-Madison Regional Library and such other governmental uses that are not incompatible with the proposed surrounding uses, as determined by the County  (the “Library Lot”).  The Owner shall not be responsible for any utility tap fees, but Owner shall complete construction of the parking areas serving the Library Lot.  The Owner shall permit the County to use the adjacent parking area immediately north of the Library Lot and/or, if not already constructed, the area shown as “Park H” on Sheet B, for purposes of  construction staging.  The parking areas serving the Library Lot shall be completed no later than ten (10) months after issuance of the building permit for the library, provided, however, that asphalt pavement in areas used for construction staging by the County shall not be required to be installed until thirty (30) days (or such longer reasonable time as may be necessary due to weather conditions) after the County has removed its construction-related materials and equipment.  Upon the request of the County, the adjacent park area shall also be dedicated to public use, but the Owner shall not be responsible for maintaining such park.  Owner shall be responsible for maintenance of the parking spaces serving the Library Lot and the County shall have no obligation to be a member of any owner’s association. The County’s request for dedication of the land for the library and park area shall be made within three (3) years following the latter to occur of (i) issuance of the first residential building permit within the Project, (ii) Owner’s completion of the infrastructure (including but not limited to streets, water, sewer, electric, gas) required for the use of the Library Lot, or (iii) December 31, 2010.  If a request for such dedication is not made by the later of these dates, this proffer will be null and void.      

 

                        8.2       Affordable Housing.  Owner shall provide a minimum of thirty-six (36)  “for-sale” residential dwelling units as affordable dwelling units, one-third from each of (i) multi-family; (ii) “other” (consisting of townhouses, duplexes, attached housing, condominiums in the commercial areas and other unidentified housing types); and (iii) single family detached, each at the sale prices and under the terms and conditions set forth in this Section 8.2, plus a minimum of four (4) Carriage House Units (as Carriage House Units are defined in Section 8.2(d)).  The Owner shall also provide a minimum of forty (40) “for-rent” residential dwelling units as affordable units under the terms and conditions set forth in this Section 8.2.  The Owner shall convey the responsibility of constructing the affordable units to the subsequent owners of lots within the Property. 

 

                        (a)         Multi-Family and “Other” For-Sale Affordable Units.  For multi-family and “other” for-sale affordable dwelling units within the Property, such affordable units shall be affordable to households with incomes less than eighty percent (80%) of the area median family income (“Median Family Income”), such that the housing costs consisting of principal, interest, real estate taxes and homeowners insurance (PITI) do not exceed thirty percent (30%) of the Median Family Income, based on using an annual interest rate of not more than five and sixty-nine one hundredths percent (5.69%) to calculate such costs.   

 

                        (b)        Single Family Detached For-Sale Affordable (“Workforce”) Units. For single family detached for-sale affordable units within the Property, the initial maximum selling prices shall be based on the then-current and applicable Virginia Housing Development Authority (VHDA) price limits for first-time homebuyers, and such single family detached for-sale affordable units shall be available to households with incomes less than one hundred twenty percent (120%) of the Median Family Income.  

 

                        (c)  For-Rent Affordable Units.  For a period of five (5) years following the date the certificate of occupancy is issued by the County for each for-rent affordable unit, or until the units are sold as low or moderate cost units qualifying as such under either the Virginia Housing Development Authority, Farmers Home Administration, or Housing and Urban Development, Section 8, whichever comes first (the “Affordable Term”), such units shall be rented to households with incomes less than eighty percent (80%) of the Median Family Income. 

 

                                    (i) Conveyance of Interest.  All deeds conveying any interest in the for-rent affordable units during the Affordable Term shall contain language reciting that such unit is subject to the terms of this Section 8.2(c).  In addition, all contracts pertaining to a conveyance of any for-rent affordable unit, or any part thereof, during the Affordable Term, shall contain a complete and full disclosure of the restrictions and controls established by this Section 8.2(c).   Prior to the conveyance of any interest in any for-rent affordable unit during the Affordable Term, the then-current owner shall notify the County in writing of the conveyance and provide the name, address and telephone number of the potential grantee, and state that the requirements of this Section 8.2(c)(i) have been satisfied.

 

                                    (ii).   Annual Reporting.  During the Affordable Term and within ninety (90) days following the end of each calendar year, the then-current owner shall provide to the Albemarle County Housing Office a certified annual report of all for-rent affordable units for the immediately preceding year in a form and substance reasonably acceptable to the County Housing Office.  Subject to all federal, state and local housing laws, and upon reasonable notice during the Affordable Term, the then-current Owner shall make available to the County at the then-current Owner’s premises, if requested, any reports, copies of rental or lease agreements, or other data pertaining to rental rates as the County may reasonably require.

 

                        (d)        Carriage House Units.  Carriage House Units shall meet the requirements for a single family dwelling as defined in the Virginia Uniform Statewide Building Code, shall be on the same parcel as the primary dwelling unit to which it is accessory, and shall not be subdivided from the primary residence (“Carriage House Units”).  The subdivision restriction shall be included on the plat creating such parcels and be incorporated into each deed conveying title to such parcels.

 

                        (e)        Each subdivision plat and site plan for land within the Property which includes for-sale affordable units shall designate the lots or units, as applicable, that will, subject to the terms and conditions of this proffer, incorporate for-sale affordable units as described herein.  Until the total number of for-sale affordable dwelling units proffered hereunder shall have been fulfilled, such affordable dwelling units shall be provided at a rate of three (3) to eight (8) affordable units per year.  However, the Owner may “carry-over” or “bank” credits for such affordable units in the event an individual subdivision plat or site plan designates for-sale affordable units that in the aggregate exceed the minimum number required for such subdivision plat or site plan, and such additional for-sale affordable units may be allocated toward the minimum required for any future subdivision plat or site plan.  The maximum number of for-sale affordable units that may be carried over or banked shall not exceed eight (8) per year, except, however, that any for-sale affordable units in excess of such maximum carry-over that are actually sold to qualified purchasers may be carried over, and shall be counted toward the satisfaction of the requirements of this Section 8.2. [It is our understanding from our Dec. 5th meeting that this paragraph is acceptable if it could be made clearer, but that suggested revision language would be provided to the Applicant.]

 

            (f)         All purchasers of the for-sale affordable units shall be approved by the Albemarle County Housing Office or its designee.  The subsequent owner/builder shall provide the County or its designee a period of ninety (90) days to identify and prequalify an eligible purchaser for the affordable unit. The ninety (90)-day period shall commence upon written notice from the then-current owner/builder that the unit(s) will be available for sale.  If the County or its designee does not provide a qualified purchaser who executes a contract of purchase during this ninety (90)-day period, the then-current owner/builder shall have the right to sell the unit(s) without any restriction on sales price or income of the purchaser(s), provided, however, that any unit(s) sold without such restriction shall nevertheless be counted toward the number of affordable units required to be provided pursuant to this terms of this paragraph 8.2.  The requirements of this paragraph 8.2 shall apply only to the first sale of each of the affordable units.

 

                        (g)        The County shall have the right, from time to time, on reasonable notice and subject to all applicable privacy laws, to inspect the records of Owner or any successors in interest for the purposes of assuring compliance with this proffer.

 

                        (h)         Cash Proffer.  Within sixty (60) days following the approval of the first subdivision or site plan within the Project, Owner shall cause to be contributed three hundred thousand dollars ($300,000) cash to the County of Albemarle for the Albemarle Housing Initiative Fund.  The contribution shall be to fund affordable home ownership loan programs within the Project and other areas of Albemarle County, including those provided by non-profit housing agencies such as the Piedmont Housing Alliance, Habitat for Humanity, and the Albemarle Housing Improvement Program.  If such cash contribution is not expended for the stated purpose within three (3) years from the date the funds were contributed to the County, all unexpended funds shall be refunded to the Owner.

 

           

 IX.   EDUCATIONAL AND OTHER PUBLIC FACILITIES

 

            9.1       Elementary School Site.  Within two hundred seventy (270) days following  SEQ CHAPTER \h \r 1request by the County, Owner shall dedicate to the County the land shown on the Application Plan as “Elementary School 12.85 Acres Schematic Layout”, consisting of approximately 12.85 acres (the “School Lot”).  Prior to dedication, the School Lot shall be graded and compacted by Owner to a minimum of 95% compaction as measured by a standard Proctor test with suitable material for building construction as certified by a professional engineer or as otherwise approved by the County Engineer to establish a fully graded pad site to accommodate an elementary school.  The recreational field improvements shown on the Application Plan shall be fine graded and have top soil and soil amendments added, and the mains for an underground irrigation system serving the recreational fields shall be installed.  Such improvements shall be reasonably equivalent to those existing at the recreational fields at Baker-Butler Elementary School, exclusive of any above ground improvements.  The pedestrian pathways as shown on the perimeter of the School Lot on the Application Plan shall be reflected on the subdivision plat prepared by Owner creating the School Lot and the pathways shall be installed when the site is graded for the recreation fields. The Owner shall provide all utilities to the School Lot.  The dedication shall include easements across Owner’s land for access to and use of Storm Water Basins 5 and 10 shown on the Application Plan, together with all temporary construction easements to allow Stormwater Basin 10 to be redesigned and enlarged, if necessary, to accommodate the School Lot stormwater. The School Lot shall be used as an elementary school site, but if the County determines that the School Lot will not be used as an elementary school site, it shall be used by the County for a park or recreational purposes serving both the North Pointe community and the region.  If the County does not request by December 31, 2010 that the School Lot be dedicated, the Owner shall be under no further obligation to dedicate the School Lot for the purpose described herein, but shall, by January 30, 2011, contribute five hundred thousand dollars ($500,000) cash to the County to be used by the County for projects identified in the County’s CIP reasonably related to the needs of the North Pointe community, and in such event the School Lot may be used for other residential purposes as approved by the County after request by Owner for an amendment to the Application Plan.  After dedication and before the County uses the School Lot for a school or for park and recreational purposes, and if requested by the County, Owner shall maintain the School Lot until requested by the County to no longer do so, subject to the Owner’s right to exclusive use of the School Lot for park and recreational purposes.  Such park and recreational purposes shall be only those uses shown on an approved final site plan or subdivision plat for the area that includes the School Lot.  Upon being requested by the County, Owner shall cease all use and maintenance of the School Lot and remove all improvements established by Owner that the County requests be removed.  The County shall not be obligated to pay Owner for any improvements established by Owner that the County retains.  The deed of dedication for the School Lot shall provide that if the County accepts title to the School Lot and then does not construct either a park or a school within twenty (20) years following the date the Board of Supervisors approves ZMA 2000-009, then upon Owner’s request title to the School Lot shall be transferred to Owner at no expense to Owner.

 

            9.2       Bus stop Turnoffs and bus stop improvements.  Owner shall construct ten (10) public bus stop turnoffs as shown on the Application Plan, or otherwise two (2) in the southernmost residential area, four (4) in the commercial areas and four (4) in the other residential areas, each in a location mutually acceptable to Owner and the County.  The bus stop turnoffs shall be approved with street construction plans for the Project and bonded and constructed with the streets.  Upon the request by the County, Owner shall contribute the total sum of twenty five thousand dollars ($25,000) cash towards the design and construction of the above ground bus stop improvements such as benches and shelters meeting standards established by the County at each bus stop.  If the County does not request the funds, or requests the funds but does not construct the bus stop improvements by the later of December 31, 2015 or three (3) years after completion of the road network that includes the bus stop turnoffs, the unexpended funds shall, in the discretion of the County, either be returned to Owner or applied to a project identified in the County’s capital improvements program within or adjacent to the Project that benefits the Project.

 


 

X.        ACCESS TO ADJACENT PROPERTIES

 

         10.1        Dedication of Right-of-Way - Extension to Parcel 22E.      Owner shall reserve the fifty (50) foot wide right-of-way located within the area shown on Sheet B and identified as a “50’ R.O.W. Reserved for Future Dedication” connecting a right-of-way from the proposed middle entrance road into North Pointe to the southern property line of Tax Map 32, Parcel 22E (“TMP 32-22E”).  Prior to the issuance of a building permit for Building 32 as shown on the Application Plan, Owner shall record in the Clerk’s Office of the Circuit Court of Albemarle County, a current, irrevocable deed of dedication dedicating to public use for road purposes, the area labeled “50’ R.O.W. Reserved for Future Dedication.”  Owner acknowledges that if it is not part of a subdivision plat approved by the County, such offer of dedication must be first reviewed and approved by the Board of Supervisors and accepted by the Board.  Such deed of dedication shall include the following conditions: (i) that TMP 32-22E shall have been upzoned; and (ii) that prior to its use for road purposes, there shall have been constructed on the land so dedicated a road approved by the County and accepted by VDOT for public use or bonded for VDOT’s acceptance.  At the time of the construction of the access road serving Building 32, the Owner shall construct the intersection curb radii or the road serving TMP 32-22E and extend construction of such road for at least for a minimum of 100 feet from Northside Drive East.  The Owner shall also place at the end of such extended road, a sign, approved by the County, advising and notifying the public that such right-of-way is the location of a future road extension.  Owner shall grant temporary construction easements as determined necessary by the County Engineer to allow for the road to be extended to TMP 32-22E, which construction easements shall be on Owner’s property and outside of the dedicated right-of-way, and shall be established by the applicable site plan. No improvements shall be located within the temporary construction easements until construction of such road has been completed.  Owner agrees that the extension hereunder shall be governed by and subject to the Albemarle County Subdivision Ordinance as it may be amended in the future, provided that no amendment shall impose any more stringent requirements than those in such subdivision ordinance in effect as of the date of this Proffer Statement.  [We understand Greg will provide alternate language for this sentence.]

 

10.2     Access to Tax Map 32A, Section 2, Parcel 4 (current Northwoods Mobile Home Park Property).  Owner shall reserve an area in the location labeled “50’ R.O.W. Reserved for Future Dedication” at the eastern end of the main commercial access road from Route 29 on Sheet B for access to Tax Map 32A, Section 2, Parcel 4 (“TMP 32A-2-4”). Prior to the issuance of a building permit for Building 6 or Buildings V1 through V6, each as shown on the Application Plan, whichever is earlier, Owner shall record in the Clerk’s Office of the Circuit Court of Albemarle County, a current, irrevocable deed of dedication dedicating to public use for road purposes, the area labeled “50’ R.O.W. Reserved for Future Dedication.”  Owner acknowledges that if it is not part of a subdivision plat approved by the County, such offer of dedication must be first reviewed and approved by the Board of Supervisors and accepted by the Board.  Such deed of dedication shall include the following conditions: (i) that TMP 32A-2-4 shall have been upzoned; and (ii) that prior to its use for road purposes, there shall have been constructed on the land so dedicated a road approved by the County and accepted by VDOT for public use or bonded for VDOT’s acceptance.  At the time of the construction of the roundabout serving Building 6 and Buildings V1 through V6 the Owner shall construct the intersection curb radii and extend construction of the road for a distance of at least thirty feet beyond the roundabout.  The Owner shall also place at the end of such extended road, a sign, approved by the County, advising and notifying the public that such right-of-way is the location of a future road extension. After dedication and before the conditions of the dedication have been satisfied, and if requested by the County, Owner shall maintain the dedicated land until requested by the County to no longer do so, subject to the Owner’s right to exclusive use of the dedicated land for park, recreational, and/or greenspace purposes.  Upon being requested by the County, Owner shall cease all use and maintenance of the dedicated land and remove all improvements established by Owner (if any) that the County requests be removed.  Owner shall grant temporary construction easements as determined necessary by the County Engineer to allow for the road to be extended to TMP 32A-2-4, which construction easements shall be on Owner’s property and outside of the dedicated right-of-way, and shall be established by the applicable site plan. No improvements shall be located within the temporary construction easements until construction of such road has been completed.  Owner agrees that the extension hereunder shall be governed by and subject to the Albemarle County Subdivision Ordinance as it may be amended in the future, provided that no amendment shall impose any more stringent requirements than those in such subdivision ordinance in effect as of the date of this Proffer Statement. [We understand Greg will provide alternate language for this sentence]

 

XI.   SIGNATORY

 

12.1        Certificate. The undersigned certify that they are the only owners of the Property, which is the subject of ZMA-2000-09 and SP 2002-72.

 

12.2        The Owner. These proffers shall run with the Property and each reference to Owner within these proffers shall include within its meaning, and shall be binding upon, Owner’s successor(s) in interest and/or the developer(s) of the Property or any portion of the Property.

 

            This Proffer Statement may be signed in counterparts and/or via facsimile with the same full force and effect as if all signatures were original and on one document.

 

 

Signatures of Contract Purchaser and All Owners                                                         

           

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