PROFFER STATEMENT

NORTH POINTE CHARLOTTESVILLE, LLC

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

 

July 20, 2006

 

 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 Edward R. Jackson Trust is the fee simple owner of Tax Map 32, Parcel 22H (the “Jackson Trust 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 Trust 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 June 13, 2006 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 50-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, including hedgerows, along the Entrance Corridor frontage parcels owned by Owner.  The buffer will consist of a minimum 50-foot wide continuous visual landscape area that shall be subject to Albemarle County Architectural Review Board (“ARB”) review and approval (the “Buffer”).  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 Buffer on Owner’s property in order to maintain a minimum 40-foot 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 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 1 shall be submitted to the ARB with the first ARB submission for Building 14 or 19 identified on Sheet B to the Application Plan (“Sheet B”), or any such building that is proposed to be located where Building 14 is located on Sheet B pursuant to the terms of Section 3.2.  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 with the first ARB submission for any of Buildings 26 through 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 Section 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 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 buildings used for commercial, office, other uses, and hotels shown on Sheet A may be adjusted within a range of up to ten percent (10%), provided that the maximum gross floor area for each category of uses shown on Sheet A is not exceeded.  The footprints of Buildings 6, 14 and 36 as shown on Sheet A can be interchanged.  Notwithstanding the terms of this Section 3.2 to the contrary, Building 14 shall not initially exceed 88,500 square feet, provided, however, that after two years following the issuance of the certificate of occupancy for Building 14, Building 14 may be adjusted within a range of up to ten percent (10%), and if Building 14 is located in the location shown on Sheet B, any such expansion shall be located to the east so that the additional space is located along North Pointe Boulevard.  Notwithstanding the terms of this Section 3.2 to the contrary, but subject to the provisions of Section 8.1, the County may authorize Building 21 as shown on Sheet A to be adjusted by more than ten percent (10%).

 

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/best management practices (“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.  In addition, biofilters shall comprise a minimum of thirty-three and one-third percent (33 1/3%) of the total required parking lot landscaped areas within the “Commercial Area” of the Project, as such Commercial Area is delineated on Sheet G of the Application Plan (“Sheet G”). 

 

4.3       Erosion and Sediment Control

 

(a)        The Owner shall, to the “maximum extent practicable”, provide such additional appropriate erosion and sediment control measures that exceed State and Local minimum standards.  If there is a disagreement regarding whether the standard of “maximum extent practicable” is satisfied, the Virginia Department of Conservation and Recreation will be provided an opportunity to review and advise on such question.  

 

(b)        Post-Construction Stormwater Management:  The Owner shall, to the maximum extent practicable, provide post-construction stormwater BMPs that are designed to achieve an average annual sediment removal rate of 80% as published by the Center for Watershed Protection in Article 64 of The Practice of Watershed Protection (2000 edition).  These will include, but are not limited to, bioretention, bioretention filters and wet retention basins.

 

            4.4       Stream Buffer and Restoration.  Upon the commencement of the applicable comment period, the Owner shall notify the County and provide the County with a copy of any application(s) to the U.S. Army Corps of Engineers and/or DEQ for any stream disturbance.  In addition, if necessary, after first looking on-site for mitigation opportunities available to satisfy the permitting process, the Owner shall contact the County for a list of off-site opportunities within Albemarle County for such mitigation, and shall look for such mitigation opportunities off-site.

 

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 an internal street as shown on Sheet D-1 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 street 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 to the Application Plan and on 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.  The various phases of the Road Improvements are also shown for illustrative purposes on a color-coded copy of Sheet B that is attached hereto as Exhibit B.  Owner shall dedicate to public use any required right-of-way that it now or hereafter owns in fee simple.  For purposes of this Section 5.3, the use of the term “road” as it applies to internal streets shall also have the same meaning as the word “street” in the Albemarle County Subdivision Ordinance (Chapter 14 of the Albemarle County Code) where applicable.  

 

            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 Sections 5.3.1(a)(1)(ii) and (v) and Section 5.3.1(b)(1)(i)), 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, subject also to the County’s approval of private streets under the Subdivision Ordinance (Ch. 14 of the Albemarle County Code).

 

                        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 commercial subdivision plat or site plan within the Project, 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)        Southernmost Entrance on U.S. 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) starting at a point that is 1000 feet north of the southernmost entrance and extending 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 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. 

 

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

                                                       

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

 

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

 

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

 

                        (x)        Close existing crossover at U.S. Route 29 and Southernmost Entrance to SR 1515.

 

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


 

 

(2)               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 East or, if Northside Drive East 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)        The roundabout, or such other improvements as may be approved by VDOT and the County, at the intersection of Leake Road and Proffit Road shown on Sheet B and an additional westbound right turn lane on Proffit Road from Leake Road to U.S. Route 29 as shown on Sheet E.  In addition, for property acquisition that is required for the off-site public right-of-way for construction of the improvements required by this Section 5.3.1(a)(2)(ii), the Owner shall make a cash contribution or provide a letter of credit in a form approved by the County Attorney for such purpose in the amount as deemed necessary for the property acquisition by the County Attorney, provided that such amount shall not exceed one hundred fifty percent (150%) of the County’s fair market value appraisal prepared for acquisition and condemnation purposes.  The cash contribution or letter of credit described in this Section 5.3.1(a)(2)(ii) shall be used to pay for the total cost of the right of way acquisition.  The total cost of the right of way acquisition for the off-site property necessary to construct the improvements required by this Section 5.3.1(a)(2)(ii) shall include the normal costs associated with acquiring land, buildings, structures, easements and other authorized interests by condemnation or by purchase including, but not limited to, land acquisition, engineering, surveying, and reasonable attorneys fees.  The cash contribution or the letter of credit shall be provided by the Owner within thirty (30) days upon request by the County.  If the property is acquired by purchase, the contribution for the purchase price shall not exceed one hundred fifty percent (150%) of the County’s fair market value appraisal prepared for condemnation purposes without the consent of the Owner.  If the cost of the right of way acquisition exceeds the amount previously contributed, then the Owner shall reimburse the County all such excess costs within thirty (30) days upon request by the County.  The County shall refund to the Owner all excess contributions upon completion of the land acquisition. 

 

(iii)               Intentionally Omitted

 

(iv)       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.  In addition, for property acquisition that is required for the off-site public right-of-way for construction of the improvements required by this Section 5.3.1(a)(2)(iv), the Owner shall make a cash contribution or provide a letter of credit in a form approved by the County Attorney for such purpose in the amount as deemed necessary for the property acquisition by the County Attorney, provided that such amount shall not exceed one hundred fifty percent (150%) of the County’s fair market value appraisal prepared for acquisition and condemnation purposes.  The cash contribution or letter of credit described in this Section 5.3.1(a)(2)(iv) shall be used to pay for the total cost of the right of way acquisition.  The total cost of the right of way acquisition for the off-site property necessary to construct the improvements required by this Section 5.3.1(a)(2)(iv) shall include the normal costs associated with acquiring land, buildings, structures, easements and other authorized interests by condemnation or by purchase including, but not limited to, land acquisition, engineering, surveying, and reasonable attorneys fees.  The cash contribution or the letter of credit shall be provided by the Owner within thirty (30) days upon request by the County.  If the property is acquired by purchase, the contribution for the purchase price shall not exceed one hundred fifty percent (150%) of the County’s fair market value appraisal prepared for condemnation purposes without the consent of the Owner.  If the cost of the right of way acquisition exceeds the amount previously contributed, then the Owner shall reimburse the County all such excess costs within thirty (30) days upon request by the County.  The County shall refund to the Owner all excess contributions upon completion of the land acquisition. 

 

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

 

                        (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, 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)        Middle Entrance on U.S. Route 29 (Northside Drive East/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) starting at a point that is 1000 feet north of the Middle entrance and extending to the point where it connects with the portion of the lane constructed pursuant to Section 5.3.1(a)(1)(ii). 

 

 (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 right hand turn lane at the Middle Entrance, the geometrics of which will be subject to VDOT approval.

 

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

 

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

 

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

 

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

 

(ix)       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 East between U.S. Route 29 and North Pointe Boulevard as shown on Sheet D-1.

 

                        Completion of the Phase II Road Improvements.  Within fifteen (15) months after the issuance of the first building permit for a building within the lands subject to the first subdivision plat or 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 any building that causes such gross floor area to exceed two hundred ninety thousand (290,000) square feet, 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 a primary highway, or accepted by VDOT for public use or bonded to the County for VDOT’s acceptance if such Road Improvements are a secondary highway.

 

                        (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 Trust 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 Project, 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 U.S. 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 East 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 shall 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 written 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.  To allow the development of the School Lot, the Owner shall grant all temporary easements as necessary to allow ingress and egress for vehicles and construction equipment, grading, the installation and maintenance of erosion and sediment control structures or measures, and any other associated construction easements, as such temporary easements are shown on the subdivision plat or site plan for the School Lot and mutually agreed to by the Owner and the developer of the School Lot. 

                                               

                        Completion of the Phase III Road Improvements.  Within twelve (12) months after the occurrence of the applicable event in Section 5.3.1(c) which required the Owner to obtain all associated permits and post all associated bonds required for the construction of the Phase III Road Improvements, 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 a primary highway, or accepted by VDOT for public use or bonded to the County for VDOT’s acceptance if such Road Improvements are a secondary highway. 

                       

            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).  Subject to matters of force majeure, 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 all of the 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 after 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 shall be classified as shown on the Pedestrian Pathway Key on Sheet G and, except for the pathways to be constructed by the County, 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 plat or site plan, as the case may be, and bonded with the streets if the pathways are a subdivision improvement, or with a performance bond if the pathways are a site plan improvement.  The pathway shown on Sheet G along Flat Branch north and south of Northside Drive East shall not continue through a culvert if a culvert is used for the stream crossing.  The pathway intended for the culvert between Park E and Park F under North Pointe Boulevard shall conform to the applicable standards in VDOT’s “Subdivision Street Guidance” and Owner shall maintain the pathway if it is not accepted by VDOT for maintenance.

 

            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. 

 

                        (a)        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 uses that are compatible with the proposed surrounding uses, as determined by the County  (the “Library Lot”).  Notwithstanding the terms of the prior sentence to the contrary, if the requirements for the library building require a larger building footprint, the County may authorize the library building footprint to be larger than as stated in the prior sentence, provided, however, that the size of the area shown as “Park H” on Sheet B (“Park H”) and/or the size of the adjacent parking area immediately north of the Library Lot on Sheet B (the “Library Parking Lot”) shall be adjusted accordingly to accommodate such larger building footprint.  The Owner shall not be responsible for any utility tap fees, but Owner shall complete construction of the Library Parking Lot and other parking areas serving the Library Lot.  The Owner shall permit the County to use the Library Parking Lot and/or, if not already constructed, Park H, for purposes of construction staging.  Within twelve (12) months after written notice from the County that it intends to begin construction of the library, the Owner shall make the access roads and the area of the Library Parking Lot available with at least a four inch compacted stone base for use as access and construction staging.  Such street access serving the Library Lot and the Library Parking Lot shall be completed and available for use 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, Park H 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 Library Parking Lot and other 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 Lot and Park H 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 within three (3) years following the later of these dates, this proffer will be null and void.

 

                        (b)        Green Roof.  In the event that the requirements for the library building require a larger building footprint, and the County elects to authorize the library building footprint to be larger than 12,500 square feet pursuant to section 8.1(a) above, and in the further event that the building is developed as a condominium and the County requests the Owner to assume ownership for a portion of the larger building, Owner shall accept such ownership at a reasonable price upon which the parties may mutually agree, and shall contribute to the County, on a pro rata basis based on the proportional size of the portion of the library building owned by the Owner relative to the size of the library building as a whole, the cost of designing and constructing such building.  These costs may include, if desired by the County, installation of a “green roof,” and any additional expenses associated with structurally reinforcing the roof as necessary to support the green roof.  Within ten (10) days after receipt of a request for payment by the County that is accompanied by documentation to support the progress payment amount as provided in the construction contract, the Owner shall submit such payments to the County.  Alternatively, in the event the County elects to design the library building as a Leadership in Energy and Environmental Design (“LEED”) building, the Owner shall contribute to the County, on a pro rata basis based on the proportional size of the portion of the library building owned by the Owner relative to the size of the library building as a whole, the additional costs of constructing the library building to obtain LEED certification for the building.  Within ten (10) days after receipt of a request for payment by the County that is accompanied by documentation to support the progress payment amount as provided in the construction contract, the Owner shall submit such payments to the County.  The design of the green roof, or the criteria utilized to obtain the LEED certification, as applicable, shall be in the County’s discretion.

 

            8.2       Affordable Housing.  Subject to the terms and conditions of this Section 8.2, the Owner shall provide a minimum of forty (40)  “for-sale” residential dwelling units as affordable dwelling units, a minimum of sixty-six (66) “for-rent” residential dwelling units as affordable dwelling units, and a minimum of four (4) Carriage House Units (as Carriage House Units are defined in Section 8.2(d)).  The forty (40) “for-sale” residential dwelling units shall be comprised of the following types of dwelling units: twelve (12) from multi-family; twelve (12) from “other” (consisting of townhouses, duplexes, attached housing, condominiums in the commercial areas and other unidentified housing types); and sixteen (16) from single family detached, each at the sale prices and 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 (the “Affordable Unit Qualifying 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 Affordable Unit Qualifying Income, provided, however, that in no event shall the selling price of such affordable units be less than the greater of One Hundred Ninety Thousand Four Hundred Dollars ($190,400) or sixty-five percent (65%) of the applicable Virginia Housing Development Authority (“VHDA”) maximum mortgage for first-time home buyers at the beginning of the 90-day identification and qualification period referenced in Section 8.2(f).

 

                        (b)        Single Family Detached For-Sale Affordable Units (“Moderately-Priced Units”). For single family detached for-sale affordable units within the Property (“Moderately-Priced Units”), such Moderately-Priced Units shall be affordable to households with incomes less than one hundred twenty percent (120%) of the area median family income (the “Moderately-Priced Unit Qualifying Income”), such that the housing costs consisting of PITI do not exceed thirty percent (30%) of the Moderately-Priced Unit Qualifying Income, provided, however, that in no event shall the selling price of such Moderately-Priced Units be required to be less than the greater of Two Hundred Thirty Eight Thousand Dollars ($238,000) or eighty percent (80%) of the applicable VHDA maximum mortgage for first-time home buyers at the beginning of the 90-day identification and qualification period referenced in Section 8.2(f).

 

                        (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 the Affordable Unit Qualifying Income.  No for-rent affordable unit may be counted more than once towards the number of for-rent affordable dwelling units required by this Section 8.2.

 

                                    (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 affordable units (which, for this Section 8.2(e) shall include Moderately-Priced Units) shall designate the lots or units, as applicable, that will, subject to the terms and conditions of this proffer, incorporate affordable units as described herein.  The first such subdivision plat or site plan shall include a minimum of three (3) such affordable units.  Thereafter, and until the total number of affordable dwelling units proffered hereunder shall have been fulfilled, the Owner shall provide a minimum of three (3) such affordable dwelling units per year.  Each final subdivision plat and final site plan also shall include a running total of the number and percentage of affordable units previously provided and proposed to be provided by the subdivision plat or site plan.  For purposes of this Section 8.2(e), such units shall be deemed to have been provided when the subsequent owner/builder provides written notice to the County Housing Office or its designee that the unit(s) will be available for sale, as required by Section 8.2(f) below.  In the event that the Owner provides more than three (3) affordable dwelling units in a single year, the Owner may “carry over” or “bank” credits for such affordable units, such that the additional affordable units which exceed the minimum annual requirement may be allocated toward the minimum number of affordable units required to be provided for any future year.  The maximum number of affordable units that may be carried over or banked shall not exceed twelve (12) per year.  Notwithstanding the terms of this Section 8.2(e) to the contrary, upon the written request of the Owner, the County may authorize an alternative process and/or schedule for the provision and/or delivery of such affordable units upon a determination that the request is in general accord with the purpose and intent of Section 8.2 and/or otherwise furthers the goals of providing affordable housing in the County.

 

                        (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 Section 8.2.  The requirements of this Section 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 after the Board of Supervisors approval of ZMA 2000-009, the Owner shall cause to be contributed three hundred thousand dollars ($300,000) cash to the County of Albemarle for the Albemarle Housing Initiative Fund or such other similar fund as may be established or authorized by the County.  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 five (5) 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 (or a smaller portion of such land in the County’s sole discretion) (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 park and 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, Bus Stop Improvements, and Bus Service

 

                        (a)        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. 

 

                        (b)        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, then subject to matters of force majeure, 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. 

 

                        (c)        Within thirty (30) days after the introduction of public transportation to the Project, Owner shall contribute twenty-five thousand dollars ($25,000) cash to the County to be used for operating expenses related to such service, and shall thereafter annually contribute Twenty-Five Thousand Dollars ($25,000) cash to the County to be used for operating expenses related to such service for a period of nine (9) additional years, such that the total funds contributed to the County pursuant to this Section 9.2(c) shall not exceed Two Hundred Fifty Thousand Dollars ($250,000).  If the introduction of public transportation to the Project does not commence by the later of ten (10) years after the Board of Supervisors approves ZMA 2000-009, or seven (7) years after the date of the issuance of the first certificate of occupancy for the first commercial building within the Project, this Section 9.2(c) shall become null and void.

 

X.        ACCESS TO ADJACENT PROPERTIES

 

            10.1     Dedication of Right-of-Way-Extension to Parcel 22E.        Unless the dedication of public right-of-way and the construction of such street are required in conjunction with the approval of a subdivision plat under Albemarle County Code § 14-409 and related sections, or their successors:

 

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 a minimum of one hundred (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. 

 

10.2     Access to Tax Map 32A, Section 2, Parcel 4 (current Northwoods Mobile Home Park Property).  Unless the dedication of public right-of-way and the construction of such street are required in conjunction with the approval of a subdivision plat under Albemarle County Code § 14-409 and related sections, or their successors:

 

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 U.S. 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. 

 

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.

 

 

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