PURCHASE AGREEMENT
PURCHASE
AGREEMENT
THIS PURCHASE AGREEMENT (this
“Agreement”) is made and
entered into as of the 2 day of May, 2008, by and between (i) DTC PARTNERS, LLC, a Virginia
limited liability company (“Seller”), and (ii) NATIONAL RURAL UTILITIES COOPERATIVE
FINANCE CORPORATION, a District of Columbia cooperative
association (“Purchaser”). This
Agreement shall be effective on the date on which the last party (Seller or
Purchaser) signs this Agreement (the “Effective
Date”).
RECITALS:
A. Seller
is the owner of approximately 189.51 acres of unimproved land located near the
intersection of Xxxxx 0 xxx Xxxxx 00 xx Xxxxxxx Xxxxxx, Xxxxxxxx comprising a
portion of the "Dulles Town Center Project" and known as Tax Map 80-102A (GPIN
No. ###-##-####) (the “Overall
Property”).
B. Seller
desires to sell, and Purchaser desires to purchase either the Option 1 Parcel
(defined below) or the Option 2 Parcel (as defined below), together with (i) all
appurtenances, easements, licenses, rights-of-way and privileges belonging or
appurtenant thereto; and (ii) all mineral, gas, oil and water rights
therein. The Option 1 Parcel or the Option 2 Parcel, as the case may
be, and the other rights referred to in clauses (i) and (ii) of the preceding
sentence are referred to collectively as the “Property.”
NOW, THEREFORE, in
consideration of the mutual promises hereinafter set forth, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the above recitals are hereby
incorporated as if set forth at length and further agree as
follows:
1. Purchase and Sale. Subject to the
terms and conditions of this Agreement, Seller agrees to sell and convey and
Purchaser agrees to purchase the Property on the Closing Date (defined in Section
11(a)). If (i) the Board of Supervisors of Loudoun County,
Virginia (the “Board of
Supervisors”) approves the Pending Rezoning (defined below) before the
Closing Date, and (ii) the Pending Rezoning, as approved, permits the
elimination prior to Closing of the additional extension of Century Boulevard
described in Section
3A(d), then the Land to be purchased and sold as a part of the Property
shall consist of the Option 1 Parcel. Otherwise the Land to be
purchased and sold as part of the Property shall consist of the Option 2
Parcel.
1A. Defined
Terms. For purposes of this Agreement, the following terms
have the respective meanings set forth below:
Affiliate: When
used with reference to any Person, any Person that, directly or indirectly
through one or more intermediaries controls, is controlled by, or is under
common control with, the specified Person (the term "control" for this purpose,
shall mean the ability, whether by the ownership of shares or other equity
interests, by contract or otherwise, to elect a majority of the directors of a
corporation, independently to select the managing partner of a partnership or
the Managing Member of a limited liability company, or otherwise to have the
power independently to remove and then select a
majority
of those Persons exercising governing authority over an entity, and control
shall be conclusively presumed in the case of the direct or indirect ownership
of 50% or more of the equity interests). In the case of Purchaser,
Affiliate shall also mean any member of Purchaser and any entity, the accounts
of which will be or are consolidated with those of Purchaser in its consolidated
financial statements.
Ancillary
Parcel: The area of the Land identified as such on Exhibit
A (Sheet 2 of 3 and Sheet 3 of 3).
Anticipated
Outside Closing Date: The four hundred fiftieth (450th)
calendar day after the Due Diligence Termination Date (or, if the 450th
calendar day is not a Business Day, on the first Business Day thereafter),
subject to extension on a day by day basis for any failure by Seller to provide
the approvals contemplated by Section
8 within the time periods in which Seller is required to provide such
approvals.
Approved Concept
Development Plans: As defined in Section
3A(e).
Approved Concept
Plan and Proffers: The Concept Plan and those certain Proffers
associated with ZMAP 1990-0014 approved by the Loudoun County Board of
Supervisors on December 17, 1991. Copies of the approved Concept Plan
and approved Proffers are attached as Exhibit
E and Exhibit
F, respectively, to this Agreement.
Business
Day: Any day other
than a Saturday, a Sunday or a day on which banking institutions in New York,
New York, or Washington, D.C., are not open for the normal conduct of banking
business.
Century Boulevard
CPAP: The construction plans and profiles for the Century
Boulevard Extension.
Century Boulevard
Easement Agreement: As defined in Section
7B(b).
Century Boulevard
Extension: As defined in Section
3A(c).
Closing: As
defined in Section
11(a).
Closing
Statement: As defined in Section
11(d).
XXX: The
United States Army Corps of Engineers.
Deed: The
Special Warranty Deed substantially in the form attached as Exhibit
B to this Agreement.
Deposit: As
defined in Section
2(b).
Due Diligence
Period: The period of time beginning on the Effective Date and
ending at midnight on the Due Diligence Termination Date.
Due Diligence
Termination Date: As defined in Section
2(b).
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Escrow
Agent: Loudoun Commercial Title, LLC, 000 Xxxxx
Xxxxxx XX, Xxxxx X, Xxxxxxxx, XX 00000-0000.
Future
Building: The building on the Option 1 Parcel or the Option 2
Parcel that is identified as “Future Building” on Exhibit
A to this Agreement and the Approved Concept Development Plans, including
the Pre-Emptive Option Parcel.
Governmental
Authority: The United States of America, the Commonwealth of
Virginia, Loudoun County, and any agency, department, commission, board, bureau,
instrumentality or political subdivision of any of the foregoing, now existing
or hereafter created, having jurisdiction over the use, development or
improvement of the Land or any part thereof.
Headquarters
Building Parcel: The area of the Land identified as such on
Exhibit
A (Sheet 1 of 3).
Land: The
Option 1 Parcel or the Option 2 Parcel, as applicable, to be included as a part
of the Property.
Legal
Requirements: All laws, statutes, ordinances, orders, rules,
regulations, codes, executive orders and requirements, of all Governmental
Authorities, whether now or hereafter in force, ordinary and extraordinary,
foreseen as well as unforeseen, to the extent they are applicable to the Land,
the use thereof or the improvements constructed, or to be constructed, thereon,
[and all other covenants, conditions and restrictions of record affecting the
use and occupancy of the Land or any improvements thereon.]
Non-Pond Concept
Development Plans: As defined in Section
3A(e).
Option 1
Parcel: The parcel of unimproved real property containing
41.97 acres, more or less, that is a part of the Overall Property and is
described on Sheet 2 of 3 of Exhibit
A to this Agreement.
Option 2
Parcel: The parcel of unimproved real property containing
42.06 acres, more or less, which is a part of the Overall Property and is
described on Sheet 3 of 3 of Exhibit
A to this Agreement.
Overall
Property: As defined in Recital
A.
Pending
Rezoning: As defined in Section
3A(b), including any Seller-initiated change that does not impose any
additional proffer obligations or other conditions or development restrictions
on the Land, other than those limiting the Land to development of PD-OP uses
under the 1993 Zoning Ordinance of Loudoun County, Virginia, that include
buildings and other improvements with a maximum gross floor area of 450,000
square feet.
Person: An
individual, corporation, trust, association, unincorporated association, estate,
partnership, joint venture, limited liability company or other legal entity,
including a governmental entity.
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Phase 1
Building: The building identified as the "Phase 1 Building" on
Sheet 1 of 3 of Exhibit
A.
Pond Concept
Development Plans: As defined in Section
3A(e).
Pond Easement
Agreement: As defined in Section
9(i).
Pre-Emptive
Option Agreement: The Pre-Emptive Option Agreement
substantially in the form attached as Exhibit
H to this Agreement.
Pre-Emptive
Option Parcel. The area of the Land identified as such on
Exhibit
A (Sheet 2 of 3 as to the Option 1 Parcel and Sheet 3 of 3 as to the
Option 2 Parcel).
Proffer
Allocation and Infrastructure Agreement: An agreement to be
signed by Seller and Purchaser at the Closing, in recordable form, containing
the provisions contemplated by Section
9(j) and any other provision of this Agreement that, by its terms, is to
be included in the Proffer Allocation and Infrastructure
Agreement. The Proffer Allocation and Infrastructure Agreement shall
be recorded among the applicable Land Records as a part of the Closing and shall
be a covenant running with the Property and the Overall Property.
Property: As
defined in Recital
B.
Property Owners
Association Covenants: The Property Owner Association
Covenants in the form attached as Exhibit
C to this Agreement, in their present form or as modified or amended by
an agreement between Seller and Purchaser signed and delivered before the Due
Diligence Termination Date.
Purchaser’s
Intended Use: The development and construction on the Land of
office buildings and related improvements containing 000,000 xxxxxx xxxx xx
xxxxx xxxxx xxxx as generally set forth on the Approved Concept Development
Plans.
Purchaser’s
Surviving Obligations: As defined in Section
3(c).
Repurchase Option
Agreement: The Repurchase Option Agreement in the form
attached as Exhibit
D to this Agreement.
Seller’s Closing
Certificate: As defined in Section
11(b)(2).
Seller’s Retained
Property: The Overall Property less and except the Property to
be sold to Purchaser pursuant to this Agreement.
SWM/BMP
Facility: As defined in Section
3A(f).
Wetlands
Disturbance Request: As defined in Section
8(a).
2. Purchase Price;
Deposit.
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(a) Payment of Purchase
Price. The purchase price of the Property (the “Purchase
Price”) shall be (i) FOURTEEN MILLION FOUR HUNDRED THOUSAND AND NO/100
DOLLARS ($14,400,000.00), if the Closing occurs on or before the Anticipated
Outside Closing Date, or (ii) FIFTEEN MILLION ONE HUNDRED TWENTY THOUSAND AND
NO/100 DOLLARS ($15,120,000.00), if the Closing occurs after the Anticipated
Outside Closing Date. On the Closing Date, and subject to the terms
and conditions of this Agreement, Purchaser shall pay the Purchase Price, less
the Deposit and subject to the adjustments and prorations pursuant to Section
11(d), in the manner provided in Section
11(a).
(b) Deposit. Within
two (2) Business Days (hereafter defined) after the Effective Date, Purchaser
shall pay the sum of One Thousand Dollars ($1,000) (the “Initial
Deposit”) by wire
transfer of immediately available funds to the Escrow Agent. Unless
this Agreement has previously been terminated pursuant to Section
3(d), on or before the sixtieth (60th) day
after the Effective Date (or, if the sixtieth (60th) day
after the Effective Date is not a Business Day, on or before the first Business
Day thereafter) (the “Due Diligence
Termination Date”), the Purchaser shall pay to the Escrow Agent, by wire
transfer of immediately available funds, an additional deposit in the amount of
Nine Hundred Thousand Nine Hundred and Ninety-nine Dollars ($999,000) to be held
by the Escrow Agent as an additional good faith deposit under this Agreement
(the “Additional
Deposit”). If Purchaser does not pay the Additional Deposit to
the Escrow Agent on or before the Due Diligence Termination Date, with time
being of the essence, this Agreement shall automatically terminate on the Due
Diligence Termination Date, the Escrow Agent shall promptly pay the Initial
Deposit to Purchaser and neither party shall have any further liability or
obligation to the other party under this Agreement, except for the Purchaser’s
Surviving Obligations. As used in this Agreement, the term “Deposit”
means the Initial Deposit and the Additional Deposit. The Escrow
Agent shall invest the Deposit in one or more federally-insured interest-bearing
accounts as Purchaser may direct and all interest earned thereon shall be deemed
to be part of the Deposit, except as otherwise expressly provided in this
Agreement. The Escrow Agent shall pay the Deposit to Seller on the
Closing Date in accordance with Section
11(a) or shall pay the Deposit to Seller or Purchaser in accordance with
the other provisions of this Agreement. After the Due Diligence
Termination Date, the entire Deposit shall be non-refundable to Purchaser except
as otherwise expressly provided in this Agreement.
(c) Holding of
Deposit. The Escrow Agent shall hold the Deposit, in trust,
and shall disburse the Deposit in accordance with the provisions of this
Agreement and the following additional provisions:
(1) If
this Agreement is terminated pursuant to Section
2(b) because the Purchaser does not pay the Additional Deposit to the
Escrow Agent on or before the Due Diligence Termination Date, or if this
Agreement is terminated by the Seller or the Purchaser pursuant to Section
3(d), Section
3(k), Section
4(b) or Section
4(c), the Escrow Agent shall return the Deposit to Purchaser promptly
after receipt of a written demand from Purchaser. For this purposes,
the Escrow Agent shall be fully protected in relying on a written demand from
Purchaser stating that it is entitled to the return of the Deposit pursuant to
Section
2(b),
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Section
3(d), Section
3(k), Section
4(b) or Section
4(c), and the Escrow Agent shall disregard any contrary instructions or
demands received by it from Seller.
(2) Except
as otherwise provided in Section
2(c)(1), if this Agreement is terminated in accordance with its terms
after the Due Diligence Termination Date and thereafter either Seller or
Purchaser makes a written demand on the Escrow Agent for payment of the Deposit,
the Escrow Agent shall give written notice of such demand to the other
party. If the Escrow Agent does not receive a written objection from
the other party to the proposed payment of the Deposit within 10 days after the
giving of such notice, the Escrow Agent shall pay the Deposit to the party
making the demand. If the Escrow Agent receives a written objection
from the other party within the 10-day period, the Escrow Agent shall continue
to hold the Deposit until otherwise directed by written instructions from Seller
and Purchaser or until otherwise directed by a court of competent
jurisdiction.
(3) In
the event of a dispute concerning the disposition of the Deposit, the Escrow
Agent shall have the right at any time to deposit any cash funds held by it
under this Agreement with the clerk of the court of general jurisdiction of the
city or county in which the Property is located. The Escrow Agent
shall give written notice of such deposit to Seller and
Purchaser. Upon such deposit the Escrow Agent shall be relieved and
discharged of all further obligations and responsibilities
hereunder.
(4) The
duties of the Escrow Agent are only as herein specifically provided and are
purely ministerial in nature. The Escrow Agent shall incur no
liability whatsoever except for willful misconduct or gross negligence, as long
as the Escrow Agent has acted in good faith. Seller and Purchaser
each releases the Escrow Agent from any act done or omitted to be done by the
Escrow Agent in good faith in the performance of its duties
hereunder.
(5) Seller
and Purchaser shall jointly and severally indemnify and hold harmless the Escrow
Agent from and against any loss, damage, liability or expense incurred by the
Escrow Agent not caused by its willful misconduct or gross negligence, arising
out of or in connection with its entering into this Agreement and the carrying
out of its duties hereunder, including the reasonable costs and expenses of
defending itself against any claim of liability or participating in any legal
proceeding. The Escrow Agent may consult with counsel of its choice,
and shall have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel.
(6) The
Escrow Agent is acting as a stakeholder only with respect to the monies to be
deposited in the escrow. Upon making delivery of such monies in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
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(7) The
Escrow Agent may resign at will and be discharged from its duties or obligations
hereunder by giving notice in writing of such resignation specifying a date when
such resignation shall take effect; provided, however, that (i)
prior to such resignation a substitute escrow agent is approved in writing by
Seller and Purchaser, which approval shall not be unreasonably withheld or
delayed, or (ii) the Escrow Agent shall deposit the Deposit with a court of
competent jurisdiction in the city or county in which the Property is
located. After such resignation, the Escrow Agent shall have no
further duties or liability hereunder.
(8) The
Escrow Agent shall sign a counterpart of this Agreement solely for the purpose
of confirming that the Escrow Agent is holding and will hold the Deposit in
escrow and will disburse the Deposit pursuant to the provisions of this
Agreement.
(d) Failure to Pay Initial
Deposit. If Purchaser fails to pay the Initial Deposit to the
Escrow Agent within the time required by Section
2(b), this Agreement shall automatically terminate and neither party
shall have any further liability or obligation to the other party under this
Agreement.
3. Inspection.
(a) Purchaser’s Right to
Inspect. Purchaser and its authorized agents shall have the
right, at Purchaser’s risk, cost and expense, to enter the Land at any time or
times before the Closing Date, during normal business hours and after reasonable
advance notice, for purposes of making such investigations and studies,
including appraisals, architectural and engineering studies, surveys, soil
tests, environmental studies, financial, market analysis, development and
economic feasibility studies, as Purchaser deems necessary or desirable to
evaluate the Property. Purchaser shall provide Seller at least one
Business Day’s notice in writing or by telephone in advance of its entry upon
the Property for purposes other than visual inspections. No advance
notice shall be required for visual inspections of the
Property. Purchaser shall not make or perform any borings or other
physically invasive or destructive tests without Seller’s prior written consent,
which shall not be unreasonably withheld, delayed or
conditioned. Telephone notices, when permitted, shall be given to
Seller’s representative, Xxxxxx X. Xxxxxxxx, at (000) 000-0000.
(b) Purchaser’s
Insurance. Purchaser shall not enter the Land for any purpose
other than visual inspections until Purchaser has delivered to Seller a
certificate of insurance evidencing that Purchaser has obtained a policy of
Commercial General Liability Insurance protecting Purchaser, as named insured,
and Seller, as an additional insured, against liability for bodily injury, death
and property damage occurring in or about the Land, with such policy to afford
protection to the limit of not less than $3,000,000 combined single limit annual
aggregate for bodily injury, death and property damage. Such
certificate shall also provide that the policy will not be canceled or
terminated, or the limits of liability thereunder reduced, unless Seller
receives at least 20 days advance notice thereof.
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(c) Purchaser’s
Indemnity. Purchaser shall not make any physical changes to
the Property (other than soil borings and associated tree clearing as reasonably
approved by Seller) and shall indemnify and hold harmless Seller from and
against (i) all physical damage to the Property caused by Purchaser’s tests
and investigations, (ii) all loss, liability or damage suffered or incurred by
Seller arising out of or resulting from injury or death to individuals or damage
to personal property caused by the tests and investigations conducted by, or at
the direction of, Purchaser, and (iii) all reasonable costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred by Seller in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to the foregoing, unless (in each case) such loss, liability or damage
arises out of Seller’s negligence or willful misconduct. Purchaser’s
obligations to indemnify Seller pursuant to this Section
3(c) and Purchaser’s obligations to return the Information to Seller
pursuant to Section
3(d) shall survive the termination of this Agreement and are referred to
in this Agreement as “Purchaser’s
Surviving Obligations.”
(d) Termination by
Purchaser. Purchaser may terminate this Agreement at any time
on or before the Due Diligence Termination Date by giving Seller and the Escrow
Agent written notification (the “Termination
Notice”) that
Purchaser elects not to consummate the purchase of the Property in accordance
with the terms of this Agreement. Purchaser shall have the absolute
right, in its sole and absolute discretion, to determine whether to give the
Termination Notice. If the Termination Notice is timely given on or
before the last day of the Due Diligence Period, the Escrow Agent shall promptly
return the Initial Deposit to Purchaser pursuant to Section
2(c)(1), and, except for Purchaser’s Surviving Obligations, no party
shall have any further liability to any other party under this
Agreement. If this Agreement is terminated pursuant to Section
2(b), this Section
3(d), Section
3(k), Section
4(b) or Section
4(c), Purchaser agrees, within 15 days after the date of termination, to
deliver to Seller copies of all title reports, title commitments, surveys,
written engineering reports and written environmental reports prepared by third
parties for Purchaser during the period of time in which this Agreement is in
effect, and to return to the Seller all written Information (defined in Section
3(f)) previously delivered by Seller to Purchaser pursuant to this
Agreement. All third party reports and studies shall be delivered to
Seller for information only without any right to rely thereon.
(e) Additional
Information. Within three (3) Business Days after the
Effective Date, Purchaser shall deliver to Seller a written notice identifying
all information Purchaser desires to receive with respect to the Property,
including the physical, regulatory and title characteristics of the
Property. Within five (5) Business Days after receipt of Purchaser’s
notice, Seller shall either deliver copies of the information requested by
Purchaser, if such information is within Seller’s possession or control, without
representation or warranty as to the accuracy or completeness of such
information, or if Seller does not have possession or control of some or all of
the information requested by Purchaser, Seller shall inform Purchaser in writing
of that fact within the period of five (5) Business Days.
(f) Confidentiality. Prior
to the Closing, Purchaser shall hold all information concerning the Property
obtained by Purchaser from Seller (the “Information”) in
8
confidence and shall not at any time disclose or permit the disclosure of the Information to any Person without Seller’s prior written consent. Purchaser further agrees to use the Information only for purposes of evaluating the Property in connection with its purchase of the Property in accordance with the terms of this Agreement. Notwithstanding the foregoing, (i) Purchaser may disclose the Information to its legal counsel, accountants, lenders, existing and prospective investors and other Persons who need to review the Information in connection with Purchaser’s purchase of the Property in accordance with the terms of this Agreement, (ii) the provisions of this Section 3(e) shall not apply to any portions of the Information that are available from public sources other than through the actions of Purchaser or its agents, and (iii) Purchaser may disclose the Information to the extent that such disclosure is required by law, regulation or court order, but Purchaser first shall provide written notice thereof to Seller. Before the Closing Date, neither Seller nor Purchaser shall make any public announcements concerning the sale of the Property pursuant to this Agreement without first obtaining the prior written consent of the other except Purchaser may make general announcements to its employees and Purchaser may make any disclosures required by applicable law, court order or Governmental Authority, including, but not limited to any disclosures required to be made by the Securities and Exchange Commission as part of any required periodic filing.
(g) Purchaser’s Covenant Not to
Xxx. Except for claims arising out of Seller’s actual fraud or
a breach of any of the Seller’s covenants, representations or warranties
expressly set forth in this Agreement or any document executed by or on behalf
of Seller at the Closing, Purchaser, for itself and its agents,
affiliates, successors and assigns, hereby agrees not to assert against Seller,
its agents, affiliates, successors and assigns, any rights, claims or demands at
law or in equity, arising out of the physical, environmental, economic or legal
condition of the Property, including any claim for indemnification or
contribution arising under (i) any Environmental Law (defined in Section
5(f)), (ii) any similar federal, state or local statute, rule or
ordinance relating to the liability of property owners for environmental
matters, or (iii) the common law.
3A.
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Zoning, Development and Related
Matters.
|
(a) Existing
Zoning. On the Effective Date, the Property is zoned PD-OP
under the 1972 zoning ordinance Loudoun County, Virginia. A copy of
the approved Concept Plan and a copy of the approved Proffers are attached Exhibit
E and Exhibit
F, respectively, to this Agreement. Pursuant to the approved
Concept Plan the Property may be developed up to a FAR of 0.4. Seller
and Purchaser agree that the amount of gross floor area to be allocated to the
Property shall consist of 450,000 square feet.
(b) Purchaser
acknowledges that, as of the Effective Date, Seller is pursuing a rezoning of
the Overall Property, as well as other portions of the property owned by Seller
which is known as “Dulles Town Center,” and that Seller’s pending rezoning
application includes the Land (the "Pending
Rezoning"). Purchaser agrees to cooperate with Seller in
obtaining the Board of Supervisor’s approval of the Pending Rezoning, provided
the Pending Rezoning does not impose any additional proffer obligations or other
conditions or development restrictions on the Land, other than those limiting
the Land to development of PD-OP uses under the 1993 Zoning Ordinance of Loudoun
9
County,
Virginia, that include buildings and other improvements with a maximum gross
floor area of 450,000 square feet. Seller agrees that the Pending
Rezoning shall not restrict the ability of Purchaser to develop the Property for
Purchaser's Intended Use. Subject to the restriction contained
in Section 7A(c), this
Agreement shall not preclude Purchaser from pursuing a subsequent amendment to
the rezoning applicable to the Property, including, but not limited to
increasing the gross floor area or FAR applicable to such Property, provided
such subsequent rezoning does not decrease the density of development otherwise
permitted on the Overall Property (exclusive of the
Property).
(c) Century
Boulevard. Purchaser acknowledges that, as of the Effective
Date, Seller has constructed a portion of a road known as Century Boulevard, as
required by the Approved Concept Plan and Proffers, that terminates at the
location shown on Exhibit
A. Exhibit
A also shows the proposed extension of Century Boulevard across a portion
of the Overall Property and the Land (the “Century Boulevard
Extension”). Purchaser agrees, after the Closing Date, to
construct, at its expense, the Century Boulevard Extension as shown on Sheet 3
of 3 of Exhibit
A as the "Century Boulevard Extension", as provided in Section
7A(b). Additionally, if, on the Closing Date, Purchaser
purchases the Option 2 Parcel, Purchaser shall thereafter diligently and
continuously pursue, at its sole cost and expense, the construction of that
portion of the private access road within the area depicted as Private Road
Joint Maintenance Area on Sheet 3 of 3 of Exhibit
A that
is necessary to
permit the access to Seller’s Retained Property as shown on Sheet 3 of 3 of
Exhibit
A. Furthermore, at any time after the Closing Date, Purchaser
shall, upon receipt of a written request from Seller, without consideration,
dedicate to public use the portion of the Option 2 Parcel that is necessary to
construct Future Century Boulevard as shown on Sheet 3 of 3 of Exhibit
A, provided
Seller has bonded the construction of Future Century Boulevard with Loudoun
County and has agreed to construct Future Century Boulevard within twelve (12)
months after the land dedication is completed. Seller agrees that, at
all times during the construction of Future Century Boulevard, Purchaser shall
have reasonable access to the Land and Seller shall use commercially reasonable
efforts to minimize any disruption to Purchaser, and its operations on its
property, during any such construction. The provisions of this Section
3A(c) shall be set forth in the Proffer Allocation and Infrastructure
Agreement.
(d) Elimination of Part of
Century Boulevard. Purchaser also agrees that, as part of the
Pending Rezoning, Seller shall have the right to seek and shall seek, to
eliminate the requirement of the Approved Concept Plan and Proffers that Century
Boulevard be extended by the construction of an additional road from the
terminus of the Century Boulevard Extension across the Overall Property and
Option 1 Parcel and extending to a bridge over Atlantic
Boulevard. The portion of the Century Boulevard Extension that Seller
has the right to and shall seek to eliminate is described on Sheet 1 of 3 of
Exhibit
A as "Century Boulevard To Be Eliminated."
(e) Concept Development
Plan. Before the Effective Date, Purchaser prepared and
submitted to Seller, for its approval, two (2) concept development plans showing
its general concept for the development of improvements on the Option 1 Parcel
(if the Option 1 Parcel is purchased) and two (2) concept development plans
showing its general concept for the development of improvements on the Option 2
Parcel (if the
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Option 2
Parcel is purchased), including, in each case, the approximate location and
height of the buildings to be constructed on the Land, the general type of
materials (including color) to be used for the exterior façade of the first
building to be constructed and the approximate location of entrances to and
exits from the Land in relation to the existing dedicated streets that abut or
are adjacent to the Land (the “Concept
Development Plans”). Seller has approved such Concept
Development Plans. The Concept Development Plans prepared by
Purchaser and approved by Seller are referred to in this Agreement as the “Approved Concept
Development Plans.” The Approved Concept Development Plans are
attached as Exhibit
G to this
Agreement and consist of four (4) different site layouts, two (2) covering the
Option 1 Parcel and two (2) covering the Option 2 Parcel. Two (2) of
the Approved Concept Development Plans, provide for a SWM/BMP Facility (the
"Pond
Concept Development Plans") and the other two (2)
concept development plans do not provide for a SWM/BMP Facility (the "Non-Pond Concept
Development Plans"). [Note: The term
SWM/BMP Facility is defined in Section 1A.]
(f) SWM/BMP
Facility. Purchaser shall have the right, in its sole
discretion, to elect to develop and construct improvements on the Land utilizing
either the Pond Concept Development Plans or the Non-Pond Concept Development
Plans. Purchaser shall deliver notice of its election to Seller on or
before the Due Diligence Termination Date. If Purchaser fails to
deliver notice of its election to Seller on or before the Due Diligence
Termination Date, Purchaser shall be conclusively deemed to have elected to
develop and construct improvements on the Land utilizing the Non-Pond Concept
Development Plans as part of its initial construction of the Phase 1
Building. If Purchaser elects (or is deemed to elect) to develop and
construct improvements on the Land utilizing the Non-Pond Concept Development
Plans, then Seller shall have the right, at Closing, to reserve, for a period of
fifty (50) years from the Closing Date (the “Pond Construction
Option Period”), an easement over and across the Land (either the Option
1 Parcel or the Option 2 Parcel, as the case may be), in the location generally
as shown on Exhibit
G for the purposes of Seller’s future construction of a storm water
management/BMP facility ("SWM/BMP
Facility") within such easement area, together with the right to receive
reimbursement of a part of its design and construction costs pursuant to Section
9(j) during the first fifteen (15) years of the Pond Construction Option
Period (the “Pond Construction Reimbursement Period”). Purchaser
shall also have the right, within the Pond Construction Option Period, to
construct the SWM/BMP Facility, together with the right to receive reimbursement
for a part of its design and construction costs pursuant to Section
9(j) during the Pond Construction Reimbursement Period. The
party, i.e., Seller or Purchaser, who desires to construct the SWM/BMP Facility
shall notify the other party of its intention to do so at least ninety (90) days
before it commences such construction. Seller’s right to reserve the
easement referred to in this subsection and the parties reimbursement
obligations shall be included in the Proffer Allocation and Infrastructure
Agreement.
(g) Option 1 Parcel Tree
Preservation Area. The Approved Concept Development Plans for
the Option 1 Parcel depict a “Potential Tree Preservation Area” on the Option 1
Parcel and Seller’s Retained Property. Seller agrees that, if
Purchaser acquires the Option 1 Parcel, Seller will not remove the mature stand
of trees within the
11
“Potential
Tree Preservation Area” shown on Sheet 1 of 3 of Exhibit A and such area shall
be preserved to protect the view shed from the Property. The terms of
this agreement shall be included in the Proffer Allocation and Infrastructure
Agreement.
(h) Architectural Review Board
Approvals. Seller and Purchaser acknowledge that the Approved
Concept Development Plans do not include any elevations or materials for the
building designated on Exhibit
A and on the Approved Concept Development Plans as "Future
Buildings".
4. Title
and Survey.
(a) Title Commitment and
Survey. Promptly after the Effective Date, Purchaser, at its
expense, shall cause to be prepared a current, effective commitment for an ALTA
policy of owner’s title insurance (1992 form or equivalent) for the Property
(the “Title
Commitment”) to be issued by Commonwealth Land Title Insurance Company,
Lawyers Title Insurance Company, First American Title Insurance Company Chicago
Title Insurance Company or another nationally recognized title insurance company
(the “Title
Company”), which
names Purchaser as the proposed insured. Purchaser shall have the
option to cause to be prepared, at its expense, a current ALTA/ACSM
survey
of the Property (the “Survey”). Not
later than 10 days before the Due Diligence Termination Date (the “Title Delivery
Date”), Purchaser shall deliver to Seller a copy of the Title Commitment,
accompanied by true, complete, and legible copies of all documents referred to
in Schedule B to the Title Commitment. Not later than 10 days before
the Due Diligence Termination Date (the “Survey Delivery
Date”), Purchaser shall deliver to Seller a copy of the Survey, if
obtained.
(b) Purchaser’s Title
Objections. If Purchaser, for any reason whatsoever, objects
to the condition of Seller’s title to the Property, it shall do so by notifying
Seller in writing on or before the Title Delivery Date concurrently with its
delivery to Seller of a copy of the Title Commitment. If Purchaser
does not object to the condition of Seller’s title to the Property on or before
the Title Delivery Date, Purchaser shall be conclusively deemed to have accepted
the condition of title as set forth in the Title Commitment and to have approved
all exceptions to title described in Schedule B to the Title Commitment other
than the exceptions for unfiled mechanics’ liens, mortgages and other liens
which may be removed by the payment of money. Within five Business
Days after receipt of Purchaser’s notice of title objections and a copy of the
Title Commitment, Seller shall either agree in writing to cure such objections
or shall notify Purchaser in writing that Seller is unable or unwilling to do
so. In the event Seller fails to give either notice required by the
preceding sentence, Seller shall be deemed to have agreed to cure such
objections. If Seller timely notifies Purchaser that it is unable or
unwilling to cure the title objections, Purchaser may terminate this Agreement
within five Business Days thereafter by giving notice of termination to Seller,
in which case this Agreement shall terminate on the date of Purchaser’s notice,
the Escrow Agent shall return the Deposit to Purchaser pursuant to Section
2(c)(1) and neither party shall have any further liability or obligation
to the other party under this Agreement except for the Purchaser’s Surviving
12
Obligations. If
Purchaser does not terminate this Agreement pursuant to the preceding sentence,
Purchaser shall be conclusively deemed to have waived the title objections, the
title objections shall be deemed to be Permitted Exceptions (defined in Section
4(e)) and Purchaser shall be obligated to purchase the Property in
accordance with the terms of this Agreement without a reduction in the Purchase
Price. If Seller timely notifies Purchaser that it will cure the
title objections or Seller is deemed to have agreed to cure such title
objections, such title objections shall not be Permitted Exceptions and Seller
shall be obligated to cure such objections on or before the Closing
Date. Any new exceptions to title contained in any update of the
Title Commitment shall not be Permitted Exceptions unless approved in writing by
Purchaser.
(c) Purchaser’s Survey
Objections. If Purchaser, for any reason whatsoever, objects
to any matter disclosed by the Survey, it shall do so by notifying Seller in
writing on or before the Survey Delivery Date concurrently with its delivery to
Seller of a copy of the Survey. If Purchaser does not object to a
matter disclosed by the Survey on or before the Survey Delivery Date, Purchaser
shall be conclusively deemed to have accepted the Survey and to have approved
all matters disclosed by the Survey. Within five Business Days after
receipt of Purchaser’s notice of survey objections and a copy of the Survey,
Seller shall either agree in writing to cure such objections or shall notify
Purchaser in writing that Seller is unable or unwilling to do so. In
the event Seller fails to give either notice required by the preceding sentence,
Seller shall be deemed to have agreed to cure such objections. If
Seller timely notifies Purchaser that it is unable or unwilling to cure the
survey objections, Purchaser may terminate this Agreement within five Business
Days thereafter by giving notice of termination to Seller, in which case this
Agreement shall terminate on the date of Purchaser’s notice, the Escrow Agent
shall return the Deposit to Purchaser pursuant to Section
2(c)(1) and neither party shall have any further liability or obligation
to the other party under this Agreement except for the Purchaser’s Surviving
Obligations. If Purchaser does not terminate this Agreement pursuant
to the preceding sentence, Purchaser shall be conclusively deemed to have waived
the survey objections, such survey objections shall be deemed to be Permitted
Exceptions and Purchaser shall be obligated to purchase the Property in
accordance with the terms of this Agreement without a reduction in the Purchase
Price. If Seller timely notifies Purchaser that it will cure the
survey objections or Seller is deemed to have agreed to cure such survey
objections, such survey objections shall not be Permitted Exceptions and Seller
shall be obligated to cure such survey objections on or before the Closing
Date.
(d) Purchaser’s Failure to
Obtain Title Commitment or Survey. If Purchaser fails to
deliver a copy of the Title Commitment to Seller on or before the Title Delivery
Date, Purchaser shall be conclusively deemed to have approved all exceptions to
title to the Property (other than exceptions for mortgages, mechanics’ liens and
other liens which may be removed by the payment of money) which would have been
disclosed by a title examination of the Property. If Purchaser elects
not to prepare the Survey or fails to deliver a copy of the Survey to
Seller on or before the Survey Delivery Date, Purchaser shall be conclusively
deemed to have approved all matters that would be disclosed by a survey of the
Property prepared in accordance with the “Minimum Standard Detail Requirements
for ALTA/ACSM Land Title Surveys,” jointly adopted by ALTA, ACSM
13
and the National Society of
Professional Engineers in 2005 with the accuracy of an Urban
Survey.
(e) Permitted
Exceptions. For purposes of this Agreement, the term “Permitted
Exceptions” shall mean (i) the lien of current real estate taxes not yet
due and payable, (ii) all other exceptions to title that are approved, or deemed
approved, by Purchaser pursuant to Section
4(b), (iii) all matters disclosed by a survey of the Property which are
approved, or deemed approved, by Purchaser pursuant to Section
4(c), (iv) if Purchaser does not deliver the Title Commitment to Seller
on or before the Title Delivery Date, all exceptions to title to the Property
(other than exceptions for mortgages, mechanics’ liens and other liens which may
be removed by the payment of money) that would have been disclosed by a title
examination of the Property if the Title Commitment had been obtained, (v) if
Purchaser elects not to prepare the Survey or does not deliver the Survey to
Seller on or before the Survey Delivery Date, all matters that would have been
disclosed by the Survey if it had been obtained, (vi) all matters, whether or
not of record, that arise out of the actions of Purchaser or its agents,
employees or contractors, and (vii) the Property Owners Association
Covenants.
(f) Release of
Liens. On the Closing Date, Seller shall release all
mortgages, deeds of trust and other liens securing obligations for the payment
of fixed and determinable amounts of money that encumber the Property (it being
agreed that the Purchase Price shall be applied at settlement for such
purpose). Purchaser acknowledges that the Overall Property is subject
to the lien of the assessment associated with the Dulles Town Center Community
Development Authority ("CDA"). Within
thirty (30) days after the Effective Date, Seller shall deliver to Purchaser a
written statement from the administrator for the CDA setting forth the portion
of the lien applicable to the Overall Property that would be allocable to each
of the Option 1 Parcel and the Option 2 Parcel, together with the annual
installment payable with respect to such liens and the amount required to prepay
and obtain a release of the assessment lien applicable to each of the Option 1
Parcel and the Option 2 Parcel. Seller and Purchaser acknowledge that
the assessment lien applicable to the Overall Property is based on the potential
for the CDA to issue bonds up to the aggregate principal amount of FIFTY MILLION
AND NO/100 DOLLARS ($50,000,000.00), while the annual installment is based on
the aggregate principal amount of bonds issued and outstanding on the Effective
Date, which is THIRTY-SIX MILLION FIVE HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS
($36,560,000.00) (the “Existing
Bonds”). It is anticipated that during the Due Diligence
Period, the Seller and Purchaser will agree on how the assessment lien will be
applied to the Option 1 Parcel and the Option 2 Parcel. However, to
the extent the assessment lien is not prepaid by Purchaser at the Closing,
Seller agrees that Purchaser's maximum liability for the assessment lien and/or
annual installments shall always be based on aggregate principal amount of the
Existing Bonds and the payment schedule associated with the Existing
Bonds. If there is an increase in the principal amount of or a
refinancing or refunding of the Existing Bonds, Purchaser’s obligations shall be
based on the aggregate principal amount of the Existing Bonds and Seller shall
be responsible for any increase in either the assessment lien and/or the annual
installment associated with any increase in the aggregate principal amount of,
or any refunding or/refinancing of, the Existing Bonds. If there is a
refunding or refinance of the Existing Bonds (without any
14
increase
in the term of the Existing Bonds) that reduces the annual installment,
Purchaser shall be entitled to the benefit of such lesser annual installment
unless Purchaser has previously prepaid the assessment lien applicable to the
Land included in the Property. The foregoing provisions shall be
included in the Proffer Allocation and Infrastructure
Agreement.
5. Representations and Warranties of
Seller. Seller makes the following representations and
warranties to Purchaser for the purpose of inducing Purchaser to execute and
deliver this Agreement and to consummate the transactions contemplated by this
Agreement:
(a) Organization and
Authorization. Seller is a limited liability company duly
formed and validly existing under the laws of the Commonwealth of
Virginia. Seller has the legal power and authority to own, sell,
convey and transfer the Property. The individual who signs this
Agreement on behalf of Seller has been duly authorized to do so by
Seller.
(b) No Conflicting
Agreements. The execution and delivery by Seller of, and the
performance of and compliance by Seller with, the terms and provisions of this
Agreement, do not (i) conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, Seller’s
Organizational Documents (defined below), or any other agreement or instrument
to which Seller is a party or by which all or any part of the Property is bound,
(ii) violate any restriction, requirement, covenant or condition to which all or
any part of the Property is bound, (iii) to the knowledge of Seller, constitute
a violation of any applicable code, resolution, law, statute, regulation,
ordinance or rule applicable to Seller or the Property, (iv) constitute a
violation of any judgment, decree or order applicable to Seller or specifically
applicable to the Property, or (v) require the consent, waiver or approval of
any third party. As used in this Agreement, the term “Seller’s
Organizational Documents” means the Articles of
Organization and Operating Agreement pursuant to which Seller is
organized.
(c) Litigation. There
are no investigations, proceedings, actions, suits or claims pending against or,
to Seller’s actual knowledge, threatened, against Seller or the Property or any
part thereof. Seller is not operating under or subject to, and Seller
is not in default with respect to, any order, writ, injunction or decree that
relates to the Property or any part thereof.
(d) Condemnation
Proceedings. No condemnation or eminent domain proceedings
affecting the Property, or any part thereof, are pending or, to Seller’s actual
knowledge, threatened.
(e) Compliance with
Laws. Seller has not received any written notice of any
violations of law, statutes, rules, governmental ordinances, orders or
requirements noted or issued by any governmental authority having jurisdiction
over or affecting the Property which have not been resolved to the satisfaction
of the issuer of the notice, nor does Seller have actual knowledge of any such
violations, other than an unresolved issue involving the location of a park and
ride facility that has been appealed by Seller to the Loudoun County Board of
Supervisors.
15
(f) Environmental
Conditions. To Seller’s actual knowledge the Property does not
contain, and there is not located on, in or under any part of the Property, any
of the following: “toxic substances,” “toxic materials,” “hazardous waste,”
“hazardous substances,” “pollutants,” or “contaminants” (as those terms are
defined in the Resource, Conservation and Recovery Act of 1976, as amended (42
X.X.X. §0000 et. seq.), the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended (42 X.X.X. §0000 et. seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. §5101 et. seq.), the Toxic
Substances Control Act of 1976, as amended (15 X.X.X. §0000 et. seq.), the Clean Air
Act, as amended (42 U.S.C. §1251 et. seq.) and any other
federal, state or local law, statute, ordinance, rule, regulation, code, order,
approval, policy and authorization relating to health, safety or the environment
(said laws being hereafter referred to collectively as “Environmental
Laws”); asbestos
or asbestos-containing materials; lead or lead-containing materials; oils;
petroleum-derived compounds; pesticides; or polychlorinated biphenyls (all of
which are hereafter collectively referred to as “Hazardous
Materials”). No part of the Property has been previously used
by Seller, or to Seller’s actual knowledge, by any other Person, for the
storage, manufacture or disposal of Hazardous Materials. Seller has
not received from any governmental body having authority any written complaint,
order, citation or notice with regard to air emissions, water discharges, noise
emissions and Hazardous Materials, if any, or any other environmental, health or
safety matters affecting the Property or any part thereof. To
Seller’s actual knowledge, there are no underground storage tanks of any nature
located on any of the Property.
(g) Bankruptcy. There
is no bankruptcy, insolvency, rearrangement or similar action or proceeding,
whether voluntary or involuntary, pending or, to Seller’s actual knowledge,
threatened against Seller.
(h) FIRPTA. Seller
is a “United States person” within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal
Revenue Code of 1986, as amended.
(i) No Binding
Agreements. Except for the Permitted Exceptions, Seller is not
a party to, and the Property is not subject to, any agreements that will be
binding on the Property or Purchaser on or after the Closing Date.
(j) Zoning. The
Property is zoned PD-OP under the 1972 Loudoun County Zoning Ordinance, subject
to the Approved Concept Plan and Proffers (including the existing Special
Exceptions (if any) approved concurrently with such Approved Concept Plan and
Proffers). To the best of Seller’s actual knowledge, the Property is
not subject to any other development conditions, proffers or restrictions except
for those contained in the Property Owners Association Covenants.
(k) Limitations on Seller’s
Liability for Representations and Warranties. Seller’s
liability for a misrepresentation or breach of warranty under this Agreement
shall be subject to the following limitations:
(1) Seller’s
representations and warranties are for the personal benefit of the Purchaser and
no such representation or warranty may be assigned to or
16
enforced
by any other Person, except any permitted assignee or any assignee consented to
by Seller.
(2) Whenever
a representation or warranty is made in this Agreement on the basis of the best
knowledge or the actual knowledge of Seller or words of similar import, or
whether Seller has received written notice, such representation or warranty is
made with the exclusion of any facts disclosed to or otherwise actually known by
Purchaser before the Due Diligence Termination Date, and is made solely on the
basis of the actual, as distinguished from implied, imputed or constructive,
knowledge on the date that such representation or warranty is made of Xxxxxx X.
Xxxxxxxx, whom Seller represents to be the representative of Seller having
responsibility for the management and sale of the Property and accordingly the
individual responsible for being informed of matters relevant to this Agreement,
without independent investigation or inquiry, and without attribution to Xxxxxx
X. Xxxxxxxx of facts and matters otherwise within the personal knowledge of any
other agent or employees of Seller or any other Person, and excluding, whether
or not actually known by Xxxxxx X. Xxxxxxxx, any matter actually known to
Purchaser or its agents or employees on the Due Diligence Termination
Date. For purposes of this Section
5(k)(2),
“actually known by Purchaser” shall mean any matter (i) disclosed by any written
document delivered to or made available to Purchaser for its review, (ii)
disclosed by any written report prepared for Purchaser by any employee, agent or
independent contractor of Purchaser in connection with Purchaser’s due diligence
or otherwise with respect to its acquisition of the Property, or (iii) disclosed
to any employee, agent or independent contractor of Purchaser in connection with
Purchaser’s due diligence or otherwise with respect to its acquisition of the
Property, provided that such matter is within the scope of the duties or
responsibilities of such employee, agent or independent contractor.
(3) If,
before the Closing Date, Purchaser obtains actual knowledge that any of the
Seller’s representations or warranties is inaccurate and Purchaser nonetheless
proceeds with the Closing, Seller shall not have any liability for any such
matter regarding which Purchaser had actual knowledge before the expiration of
the Closing Date.
(4) The
aggregate liability of Seller for all misrepresentations and breaches of
warranties discovered prior to Closing shall not exceed $250,000, and shall be
further limited to the direct, but not consequential or punitive, damages
resulting from any such misrepresentations or breaches. The preceding
sentence shall not apply to actual fraud or intentional
misrepresentation.
(5) All
representations and warranties contained in this Agreement shall survive the
Closing, except that each of the representations and warranties in this Section
5 shall terminate nine (9) months after the Closing Date unless, within
the nine-month period, Seller receives notice of a breach of such representation
or warranty.
17
6. Representations and Warranties of
Purchaser. As a material inducement to Seller to enter into
this Agreement and to sell the Property to Purchaser, Purchaser represents and
warrants to Seller as follows:
(a) Purchaser’s
purchase of the Property is for the development and construction by Purchaser of
certain improvements on the Property for its own use and use by its Affiliates
and not for speculation in landholding or for resale (except for sales to
Affiliates who will purchase for their own use and not for speculation in
landholding or for resale), except for the Future Building.
(b) Purchaser
is a sophisticated investor with substantial experience in purchasing unimproved
real property similar to the Property. Purchaser will have the right
to examine and inspect the physical nature and condition of the Property,
including environmental conditions, and agrees to purchase the Property in its
“as is” condition on the Effective Date, solely in reliance on its own tests,
investigations and studies and not in reliance on any representations or
warranties made by Seller with regard to those matters except as expressly set
forth in this Agreement, the Deed, and the Seller’s Closing
Certificate. Neither Seller nor any other agent, partner, employee,
or representative of Seller has made any representation or warranty regarding
the physical condition of the Property, or any part thereof, or anything
relating to the subject matter of this Agreement, except as expressly set forth
in this Agreement, the Deed and the Seller’s Closing Certificate, and Purchaser,
in signing and delivering this Agreement, has not and will not rely upon any
statement, information, or representation to whomsoever made or given, whether
to Purchaser or others, and whether directly or indirectly, verbally or in
writing, made by any Person, except as expressly set forth in this Agreement,
the Deed and Seller’s Closing Certificate.
7. Additional Obligations of
Seller. Seller covenants and agrees as follows:
(a) Possession. On
the Closing Date, Seller agrees to give full, complete and actual possession of
the Property to Purchaser, free and clear of all tenancies and other rights of
occupancy in favor of third parties.
(b) Affirmative
Covenants. Between the Effective Date and the Closing Date,
Seller agrees to:
(1) maintain
the Property in its present order and condition and deliver the Property on the
Closing Date in substantially the condition it is in on the Effective
Date;
(2) deliver
to Purchaser, promptly after receipt by Seller, copies of all notices of
violation issued by any board, bureau, commission, department or body of any
municipal, county, state or federal government unit, or any subdivision thereof,
with respect to the Property received by Seller after the Effective Date;
and
(3) in
the event Seller becomes aware that any representation or warranty of Seller set
forth in Section 5
will not be true and correct in all material
18
respects
on the Closing Date as if made at and as of the Closing Date, give prompt
written notice thereof to Purchaser, which notice shall include all appropriate
information related thereto that is in Seller’s possession or
control.
(c) Negative
Covenants. Between the Effective Date and the Closing Date,
Seller agrees that, without Purchaser’s written consent in each case, it will
not do any of the following:
(1) voluntarily
grant, create, assume or permit to be created any mortgage, lien, lease,
encumbrance, easement, covenant, condition, right-of-way or restriction upon the
Property or voluntarily take or permit any action adversely affecting the title
to the Property as it exists on the date of this Agreement; or
(2) permit
occupancy of, or enter into any lease for all or any part of the
Land.
(d) Zoning/Proffers. Seller
agrees that Seller shall be responsible, at its sole cost and expense, for the
performance of any and all of the Proffers included in the Approved Concept Plan
and Proffers, including, but not limited to, any Proffers that would impact the
Purchaser's ability to develop the Property or to obtain permits for Purchaser’s
Intended Use. Additionally, if the Pending Zoning is approved by the
Board of Supervisors of Loudoun County before the Closing Date, Seller shall, at
its sole cost and expense, be responsible for any proffers, development
conditions or similar requirements associated with the Pending Rezoning unless
otherwise agreed to in writing by Purchaser and set forth in the Proffer
Allocation and Infrastructure Agreement. Seller and Purchaser
acknowledge that the Pending Rezoning may require the construction of the
SWM/BMP Facility and that the Pending Rezoning and the XXX, as part of its
approval of Purchaser’s Wetlands Disturbance Request, may require the
preservation of the mature stand of quality trees generally in the area depicted
on Exhibit
A as "Potential
Tree Preservation Area". Seller shall not be obligated, and shall not
agree, to the designation of the “Potential Tree Preservation Area” as a tree
preservation area unless the Pending Rezoning, as finally approved by the Board
of Supervisors, permits the portion of Century Boulevard that Seller has the
right to and shall seek to eliminate (as described on Sheet 1 of 3 of Exhibit
A as "Century Boulevard To Be Eliminated.") is eliminated from the
Century Boulevard Extension. If the Pending Rezoning, as finally
approved by the Board of Supervisors, does not permit such portion of Century
Boulevard to be eliminated, and the Option 2 Parcel is conveyed, Seller
acknowledges that the Future Building may be located in the area designated as
“Potential Tree Preservation Area.” Seller's agreement with respect
to the performance of the Proffers and/or any proffers, development conditions
or similar requirements associated with the Pending Rezoning shall be set forth
in the Proffer Allocation and Infrastructure Agreement, which shall be a
covenant running with the land. As part of such Pending Zoning,
Purchaser agrees to commit that its first building will achieve a LEED
certification of silver or better.
7A. Purchaser’s Post-Closing
Obligations.
19
(a) Restriction on Resale of
Land.
(1) Except
as otherwise provided in the next sentence, Purchaser agrees that, during the
period beginning on the Closing Date and ending on the tenth (10th)
anniversary of the Closing Date, it shall not sell to any Person (other than an
Affiliate or Seller) any part of the Land. This restriction shall not
apply to (i) the sale of the Headquarters Building Parcel after the construction
of the Phase 1 Building has been completed (as evidenced by the issuance by the
applicable Governmental Authority of a certificate of occupancy), (ii) the sale
of the Ancillary Parcel in conjunction with the sale of the Headquarters
Building Parcel after the completion of construction of the Phase I Building, or
(iii) the sale of the Ancillary Parcel after the completion of construction of a
building thereon (as evidenced by the issuance by the applicable Governmental
Authority of a certificate of occupancy). Any Affiliate of the
Purchaser who purchases all or any part of the Land from the Purchaser shall be
subject to the same restrictions on sale as the Purchaser.
(2) After
the tenth (10th)
anniversary of the Closing Date, Purchaser’s or an Affiliate’s right to sell any
part of the Land upon which a building has not been constructed shall be subject
to Seller’s rights under the Pre-Emptive Option Agreement.
(3) The
restrictions described in this Section
7A(a) shall be included in the Pre-Emptive Option Agreement.
(b) Construction of Century
Boulevard Extension.
(1) Promptly
after the Closing Date, Purchaser shall commence construction of the Century
Boulevard Extension. Purchaser may elect to construct the Century
Boulevard Extension as a public road or a private road, but in either event the
Century Boulevard Extension shall be constructed in accordance with the Approved
Century Boulevard CPAP as a four lane median divided roadway to public road
standards and in accordance with the same standards of construction used by
Seller in constructing the portion of Century Boulevard completed before the
Effective Date.
Purchaser shall thereafter prosecute the construction of the Century Boulevard
Extension in good faith and with diligence and continuity.
(2) If
the Century Boulevard Extension is constructed as a private road, at the Closing
Seller and Purchaser shall enter into a reciprocal easement agreement (the
“Century
Boulevard Easement Agreement”), in a form to be agreed upon by Seller and
Purchaser, prior to the Due Diligence Termination Date, granting easements for
the use of the Century Boulevard Extension, establishing maintenance standards,
providing for sharing of the costs of maintaining the Century Boulevard
Extension and containing such other provisions as may be mutually agreed
upon. The formula for sharing maintenance costs shall be based on the
square footage of improvements utilizing
20
the
Century Boulevard Extension. Additionally, if Purchaser acquires the
Option 2 Parcel, the Century Boulevard Easement Agreement shall cover (i) that
portion of the private road that extends from the Century Boulevard Extension
and provides access to both the Option 2 Parcel and Seller’s Retained Property (
the “Private Road Joint Maintenance Area,” as shown of Sheet 3 of Exhibit
A), and shall include provisions establishing maintenance standards and
the sharing of maintenance costs, and (ii) that portion of the private road that
extends from the Private Road Joint Maintenance Area to Seller’s Retained
Property (the “Seller’s Private Road” as shown on Sheet 3 of Exhibit
A),
which Seller’s Private Road shall be constructed and maintained by Seller at its
expense.
(c) Restrictions on Rezoning of
Property. Purchaser agrees that, during the period beginning
on the Closing Date and ending on the twentieth (20th)
anniversary of the Closing Date, it will not cause or permit the Land to be
rezoned to permit a density of development greater than 450,000 square feet of
office space, unless the increased density of development is for the purpose of
constructing one or more additional office buildings on the Land that will be
occupied solely by Purchaser or one or more of its Affiliates. The
foregoing restriction shall be included in the Proffer Allocation and
Infrastructure Agreement.
(d) Survival. Purchaser’s
obligations under this Section
7A shall survive the Closing.
7B. Post-Closing Property
Exchange.
(a) If
(i) the Board of Supervisors does not approve the Pending Rezoning before the
Closing Date, and (ii) within five (5) years after the Closing Date, the
applicable Governmental Authority approves the Pending Zoning, or another
rezoning of the Overall Property, that permits the elimination of the extension
of Century Boulevard described in Section
3A(d), Purchaser shall have the right, by delivering notice to Seller
within sixty (60) days after such approval becomes final (with time being of the
essence), to require Seller to join with Purchaser in effecting the boundary
line adjustment and the exchange transactions described in Section
7B(b). Seller agrees to give Purchaser written notice of the
approval of such a rezoning and the commencement of such sixty (60) day
period. Purchaser’s right to deliver the notice referred to in this
subsection is personal to Purchaser and may not be transferred or assigned to
any other Person.
(b) If
Purchaser timely delivers to Seller the notice referred to in Section
7B(a), Purchaser, at its sole cost and expense, shall promptly cause its
civil engineers to prepare a boundary line adjustment plat that, when approved
by the applicable Governmental Authority, will permit Seller to convey the part
of the Option 1 Parcel not included in the Option 2 Parcel to Purchaser and will
permit Purchaser to convey a part of the Option 2 Parcel to Seller so that,
immediately after the exchange, Purchaser will be the sole owner of the Option 1
Parcel and Seller will be the Seller owner of the Option 2
Parcel. Seller shall have the right to approve the boundary line
adjustment plat, but agrees that its approval will not be unreasonably withheld,
delayed or conditioned. Promptly after the boundary line adjustment
plat (in the form approved by Seller) is
21
approved
by the applicable Governmental Authority, Seller and Purchaser shall complete
the exchange by the delivery of special warranty deeds. Each party shall
transfer and convey to the other party good and marketable title to the land to
be conveyed by it, free and clear of all liens, encumbrances, easements,
rights-of-way, conditions and other matters affecting title other than those
existing on the Closing Date or created on or after the Closing Date pursuant to
this Agreement. Each party shall pay the Virginia grantor’s tax with
respect to the deed in which it is the grantor and all other transfer taxes and
recording expenses with respect to the deed in which it is the
grantee. The parties shall not prorate or adjust current real estate
taxes with respect to the land being exchanged.
(c) This
Section
7B shall not apply unless, at the time Purchaser delivers the notice
referred to in Section 7B(a), the Option 2 Parcel is owned by Purchaser, by an
Affiliate of Purchaser or by Purchaser and one or more of its
Affiliates.
8. Site Plan Approval, Building Permits
and Related Matters. Seller agrees that Purchaser’s obligation
to purchase the Property pursuant to this Agreement shall be subject to the
approval by the applicable Governmental Authorities of the Century Boulevard
CPAP. Accordingly, Seller and Purchaser have agreed to the following
procedures, including timetable, for obtaining approval of the Century Boulevard
CPAP and certain other governmental approvals.
(a) Loudoun County and XXX
Approval of SWM/BMP Facility. If Purchaser elects to pursue
one of the Pond Concept Development Plans pursuant to Section
3A(f), Purchaser shall promptly prepare a written requested to be
submitted to the Department of Environmental Quality (“DEQ”) or
the XXX, or both, as appropriate, to permit Purchaser to disturb wetlands to the
extent necessary to permit the construction of the SWM/BMP Facility (the “Wetlands
Disturbance Request”). The Wetlands Disturbance Request and
the accompanying documentation shall be prepared by Wetlands Studies and
Solutions, Inc. and/or Xxxxxxxx and Xxxxx, LLC, or another firm of wetland
consultants and/or civil engineers selected by Purchaser and approved by Seller,
such approval not to be unreasonably withheld, delayed or
conditioned. The design and location of the SWM/BMP Facility shall be
in substantial conformity with the Approved Concept Development Plan showing
such Facility and shall comply with all applicable Legal
Requirements. Purchaser shall deliver a copy of its proposed Wetlands
Disturbance Request and accompanying documentation to Seller within ninety (90)
days after the end of the Due Diligence Period so that Seller may determine
whether the design and location of the proposed SWM/BMP Facility conforms to the
Approved Concept Development Plans. The provisions of Section
8(b)(1) relating to the review, revision and approval of Purchaser's
proposed Site Plan shall apply to the review, revision and approval of
Purchaser’s proposed Wetlands Disturbance Request. Within 10 Business
Days after approval (or deemed approval) by Seller, Purchaser shall submit the
Wetlands Disturbance Request in the form approved (or deemed approved) to DEQ or
XXX, or both, as applicable. If Purchaser constructs the SWM/BMP
Facility, the cost of designing the SWM/BMP Facility and obtaining the necessary
DEQ/XXX and Loudoun County approvals for such Facility shall be paid 50% by
Seller and 50% by Purchaser, including the costs associated with any required
wetlands mitigation (including purchase of off-site mitigation
credits). The cost of construction of such SWM/BMP Facility shall be
paid as
22
provided
in the Proffer Allocation and Infrastructure Agreement. This Section 8(a) shall not
apply if Purchaser elects to pursue one of the Non-Pond Concept
Plans.
(b) Preparation and Approval of
Site Plan and Century Boulevard CPAP.
(1) Purchaser
agrees, promptly after the end of the Due Diligence Period, (or promptly after
the approval by DEQ or XXX, or both if required, of Purchaser’s Wetlands
Disturbance Request, if later) to prepare (1) a site plan for the Option 2
Parcel (the “Site
Plan”), and (ii) the Century Boulevard CPAP. The Site Plan and
Century Boulevard CPAP shall be prepared by Xxxxxxxx & Xxxxx, LLC, or
another firm of civil engineers selected by Purchaser and approved by Seller,
such approval not to be unreasonably withheld, delayed or
conditioned. The Site Plan and Century Boulevard CPAP shall be
prepared in substantial conformity with the Approved Concept Development Plans
that Purchaser elects to pursue, provided such Site Plan may be limited to the
Phase 1 Building and shall comply with all applicable Legal
Requirements. Purchaser shall deliver a copy of its proposed Site
Plan and Century Boulevard CPAP to Seller on or before the later to occur of (i)
30 Business Days after the end of the Due Diligence Period, or (ii) 60 Business
Days after the approval by DEQ or XXX, or both, as applicable, of Purchaser’s
Wetlands Disturbance Request), so that Seller may determine whether the Site
Plan and Century Boulevard CPAP conform to the Approved Concept Development
Plan. If Seller determines that the proposed Site Plan and Century
Boulevard CPAP do not conform to the applicable Approved Concept Development
Plan, Seller shall so notify Purchaser, specifying in what respects the proposed
Site Plan and Century Boulevard CPAP do not so conform, and Purchaser shall
revise the Site Plan and Century Boulevard CPAP to so conform it and shall
resubmit the revised Site Plan and Century Boulevard CPAP to Seller for review
for that purpose. Purchaser and Seller shall act in good faith with
diligence and continuity in preparing, reviewing and, if necessary, revising the
Site Plan and Century Boulevard CPAP. The initial review by Seller of
the proposed Site Plan and Century Boulevard CPAP shall be completed within 10
Business Days after it is submitted by Purchaser and any subsequent review by
Seller of any revisions thereto shall be completed within 10 Business Days after
Purchaser’s submission of such revision. In case of resubmissions or
revisions, Seller may not disapprove any matter previously submitted and
approved by Seller, except to the extent that such resubmission or revision
affects any matter previously approved or deemed approved. If Seller
does not notify Purchaser of its determination with the 10-Business Day period,
Seller shall be deemed to have determined that the proposed Site Plan and
Century Boulevard CPAP or any revision thereof conforms to the Approved Concept
Development Plan.
(2) If
Purchaser elects to pursue an Approved Concept Development Plan that includes
the SWM/BMP Facility simultaneously with the construction of the Phase 1
Building and the DEQ/XXX and Loudoun County have agreed that the SWM/BMP
Facility can be installed in the area generally depicted on the applicable
Approved Concept Development Plan, then the construction of such Facility shall
be pursued simultaneously with the Site Plan either as a part of the
23
Site Plan
or as a separate construction plan and profile (the "SWM/BMP CPAP
Facility"), and the review, revision and approval process for the Site
Plan set forth in Section
8(b)(1) above shall apply equally to the SWM/BMP CPAP Facility if it is
pursued as a separate plan. Regardless of whether the SWM/BMP CPAP
Facility is pursued as a part of the Site Plan or as a separate CPAP, or if
later pursued by Purchaser within the Pond Construction Option Period, the
engineering and design costs of such plan and any wetlands mitigation costs
shall be shared between Seller and Purchaser with Seller paying 50% and
Purchaser paying 50%. The allocation of such costs if such Facility
is pursued as part of the Site Plan shall be determined by the civil engineer
preparing the Site Plan.
(c) Preparation and Approval of
Lot Creation Document. Concurrently with the preparation of
the proposed Century Boulevard CPAP, Purchaser shall cause its civil engineering
firm to prepare a boundary line adjustment plat, a subdivision waiver plat or a
plat of subdivision (a “Lot Creation
Document”) sufficient, in form and substance, to permit the Option 2
Parcel and the two future Seller parcels as shown on Exhibit
A as “Future
Seller Parcels” to be created as three (3) separate parcels of land that are
legally capable of being conveyed by deed and, if Purchaser has elected to
construct the Century Boulevard Extension as a public road pursuant to Section
7A(b), the dedication of the Century Boulevard Extension as a public
right-of-way in accordance with the all applicable Legal Requirements, including
the Loudoun County subdivision ordinances and also including any associated on
or off-site easements required for the approval of such plans and the
construction of the improvements shown thereon and on the Approved Concept
Development Plan. The Lot Creation Document shall be prepared in
conformity with the Approved Concept Development Plan selected by Purchaser and
the proposed Site Plan. Purchaser shall act in good faith with
diligence and continuity in preparing and, if necessary, revising the Lot
Creation Document. Purchaser shall deliver a copy of the proposed Lot
Creation Document to Seller at the same time it delivers a copy of the proposed
Site Plan and Century Boulevard CPAP pursuant to Section
8(b)(1) so that Seller may determine whether the proposed Lot Creation
Document conforms to the Approved Concept Development Plan and the proposed Site
Plan. The provisions of Section
8(b)(1) relating to the review, revision and approval of Purchaser’s
proposed Site Plan shall apply to the review, revision and approval of
Purchaser’s proposed Lot Creation Document.
(d) Governmental
Approvals. Within twenty (20) Business Days after Seller
approves the Purchaser’s proposed Site Plan, Century Boulevard CPAP, SWM/BMP
CPAP Facility, if applicable, and proposed Lot Creation Document, Purchaser
shall submit the Seller-approved Site Plan, Century Boulevard CPAP, SWM/BMP CPAP
Facility, if applicable, and the Seller-approved Lot Creation Document to the
applicable Governmental Authorities for their review and approval, and shall
thereafter proceed in good faith with diligence and continuity to obtain from
such Governmental Authorities their approval of the proposed Site Plan, Century
Boulevard CPAP, SWM/BMP CPAP Facility, if applicable, and the proposed Lot
Creation Document. If a public hearing is held in connection with the
proposed Site Plan, Purchaser shall notify Seller promptly after Purchaser
receives notice of the date of the hearing, and Seller’s representatives shall
have the right to attend, and to present evidence and argument at, the
hearing. If any
24
Governmental
Authority requires Purchaser to materially modify the Seller-approved Site Plan,
Century Boulevard CPAP, SWM/BMP CPAP Facility, if applicable, or the
Seller-approved Lot Creation Document, or any of them, Purchaser shall submit
the proposed modifications to Seller, identifying modifications from the
previously approved submissions. Purchaser may make material changes
only to the extent that such changes are required by the Governmental Authority
to comply with Legal Requirements. Each review by Seller pursuant to
this Section
8(d) shall be completed within 10 Business Days after the date of
submission of the proposed modifications of the Site Plan, Century Boulevard
CPAP, SWM/BMP CPAP Facility, if applicable, or the Lot Creation Document, as the
case may be. If Seller does not notify Purchaser of its determination
within the 10-Business Day period, Seller shall be deemed to have approved the
proposed modification.
(e) Seller’s Joinder in Site
Plan, Century Boulevard CPAP, SWM/BMP CPAP Facility and Lot Creation
Document. Seller shall join in any required land development
applications and similar applications necessary for Purchaser to process the
Site Plan, the Century Boulevard CPAP, the SWM/BMP CPAP Facility, if applicable,
and the Lot Creation Document. After the applicable
Governmental Authorities have approved the Site Plan, the Century Boulevard
CPAP, the SWM/BMP CPAP Facility, if applicable, and the Lot Creation Document,
or any of them, Seller shall, to the extent required by Legal Requirements, sign
the Site Plan, Century Boulevard CPAP, SWM/BMP CPAP Facility, if applicable, and
the Lot Creation Document, including any associated on or off-site easements
required for the approval of such plans and the construction of the improvements
shown thereon and on the Approved Concept Development Plan in its capacity as the
then-owner of the Property. Purchaser shall, at its cost and expense
and without reimbursement from Seller, cause the Lot Creation Document to be
delivered to the Escrow Agent at Closing for recording among the Land Records of
Loudoun County, Virginia, but the Lot Creation Document shall not be recorded
unless the Closing is consummated pursuant to the provisions of this
Agreement.
(f) Preparation of Plans and
Specifications. Within 20 Business Days after the applicable
Governmental Authorities have approved the Site Plan, the Century Boulevard
CPAP, the SWM/BMP CPAP Facility, if applicable, and the Lot Creation Document,
Purchaser shall prepare plans, specifications and working drawings
(collectively, the “Building
Plans”) for the Phase 1 Building. The Building Plans shall be
prepared by Xxxxxxxxx Xxxxxx or another firm of architects selected by Purchaser
and approved by Seller. The Building Plans are sometimes referred to
in this Agreement as the “Construction
Plans.” The Construction Plans shall be prepared in conformity
with the Approved Concept Development Plan and the approved Site Plan, shall
comply with all applicable Legal Requirements and shall be in sufficient detail
to qualify for submission to the applicable Governmental Authorities for a
building permit. Purchaser shall deliver a copy of its proposed
Construction Plans to Seller within 20 Business Days after the date on which the
Site Plan is approved by the applicable Governmental Authorities so that Seller
may determine whether the Construction Plans conform to the Approved Concept
Development Plan. Seller shall not unreasonably withhold, delay or
condition its approval of the Purchaser’s proposed Construction Plans, provided
they are
25
prepared
in conformity with the Approved Concept Development Plan and otherwise comply
with the requirements of this Section
8(f). If Seller determines that the proposed Construction
Plans do not conform to the Approved Concept Development Plan or the other
requirements of this Section
8(f), Seller shall so notify Purchaser, specifying in what respects the
proposed Construction Plans do not so conform, and Purchaser shall revise the
Construction Plans to so conform it and shall resubmit the revised Constructions
Plans to Seller for review for that purpose. Purchaser and Seller
shall act in good faith with diligence and continuity in preparing, reviewing
and, if necessary, revising the Construction Plans. The initial
review by Seller of the proposed Construction Plans shall be completed within 10
Business Days after they are submitted by Purchaser and any subsequent review by
Seller of any revisions thereto shall be completed within 10 Business Days after
Purchaser’s submission of such revision. In case of resubmissions or
revisions, Seller may not disapprove any matter previously submitted and
approved by Seller, except to the extent that such resubmission or revision
affects any matter previously approved or deemed approved. If Seller
does not notify Purchaser of its determination within 10-Business Day period, as
the case may be, Seller shall be deemed to have determined that the proposed
Construction Plans or any revision thereof conform to the Approved Concept
Development Plan.
(g) Compliance with Legal
Requirements. Purchaser is responsible for ensuring that the
Site Plan, the Century Boulevard CPAP, the SWM/BMP CPAP Facility, if applicable,
the Lot Creation Document and the Construction Plans comply with all applicable
Legal Requirements. Seller’s determination that the Site Plan, the
Lot Creation Document and the Construction Plans, or any of them, meet the
standards for conformity required by Section
8(a), Section
8(b), Section
8(c) and Section
8(f) shall not be, nor be construed as being, nor be relied upon as, a
determination that the Site Plan, the Century Boulevard CPAP, the SWM/BMP CPAP
Facility, if applicable, the Lot Creation Document or the Construction Plans
comply with Legal Requirements.
(h) Filing for Building
Permit. Within 10 Business Days after Seller approves the
Purchaser’s Construction Plans, Purchaser shall submit the Seller-approved
Construction Plans to the applicable Governmental Authorities for their review
and approval and shall apply for all permits required to permit Purchaser to
commence construction of the improvements described in the Seller-approved
Constructions Plans (collectively, the “Building
Permit”). Purchaser shall thereafter proceed in good faith
with diligence and continuity to obtain from such Governmental Authorities their
approval of the proposed Construction Plans and the issuance of the Building
Permit. Seller, as the record owner of the Land and the portion of
the Overall Property on which the Century Boulevard Extension is located shall
join with Purchaser in signing applications for the Building Permit to the
extent such joinder is required by law.
(i) Costs and
Expenses. Purchaser, at its own expense and without
reimbursement from Seller, will pay all fees and reimbursable expenses of its
architects and civil engineers and all other costs and expenses of preparing the
Site Plan, the Century Boulevard CPAP, the Lot Creation Document, the
Construction Plans and obtaining the applicable Governmental Authorities’
approval of those documents and the issuance of the Building
Permit. The cost of preparing the SWM/BMP CPAP Facility, if
26
applicable,
shall be shared between Seller and Purchaser as provided for in Section 8(a)
hereof, with Seller to reimburse to Purchaser its pro rata share of such costs
within thirty (30) days of its receipt of invoice therefor, including any
supporting invoices from the applicable civil engineer or other
consultant.
(j) Seller’s Termination
Rights. This Agreement may be terminated by Seller by giving
written notice to Purchaser and the Escrow Agent if:
(1) Purchaser
fails to comply with the time requirements set forth in Section
8 hereof, provided such failure continues for more than thirty (30) days
following Seller's notice to Purchaser of such failure, subject to force
majeure.
(2) Purchaser
does not consummate the purchase of the Property on or before the earlier to
occur of (i) September 30, 2009, or (ii) 540 days after the Due Diligence
Termination Date.
(k) Effect of Seller’s
Termination. If Seller terminates this Agreement pursuant to
Section
8(j), this Agreement shall become null and void, no party shall have any
further liability or obligation to any other party under this Agreement, except
for Purchaser’s Surviving Obligations and the Escrow Agent shall pay $250,000 of
the Deposit to Seller and the Escrow Agent shall pay the balance of the Deposit
to Purchaser. Seller’s sole and exclusive remedy for Purchaser’s
failure to perform its obligations under this Section
8 shall be to receive the $250,000 of the Deposit as liquidated
damages.
9. Conditions Precedent to Purchaser’s
Obligations. The obligations of Purchaser to purchase the
Property from Seller and to perform the other covenants and obligations to be
performed by it on the Closing Date shall be subject to the following conditions
(all or any of which may be waived in writing, in whole or in part, by
Purchaser):
(a) Representations and
Warranties True. The representations and warranties made by
Seller in Section
5 shall be true and correct in all material respects on and as of the
Closing Date with the same force and effect as if such representations had been
made on and as of the Closing Date. The Seller’s Closing Certificate
shall not disclose that any of Seller’s representations and warranties in Section
5 is untrue or incorrect in any material respect as of the date of such
certificate as if such representations and warranties were made on and as of the
date of such certificate.
(b) Seller’s
Performance. Seller shall have performed all covenants and
agreements required by this Agreement to be performed by it on or before the
Closing Date.
(c) Title to
Property. On the Closing Date, (i) Seller’s title to the
Property shall be marketable, good of record and in fact, and free and clear of
all mortgages, liens, encumbrances, easements, leases, conditions and other
matters affecting title other than only the Permitted Exceptions, and (ii) the
Title Company shall be unconditionally obligated and prepared, subject to the
payment of the applicable title insurance premium and other related charges, to
issue to Purchaser an ALTA extended coverage owner’s title insurance policy
(1992 form) for the Property in compliance with the Title Commitment
27
(including
such endorsements as Purchaser may reasonably require), together with such
reinsurance and direct access agreements as may be reasonably required by
Purchaser.
(d) Zoning. There
shall have been no change in the zoning classification or the zoning ordinances
or regulations affecting the Land from those existing as of the Due Diligence
Termination Date which would preclude or impair the continuing use of the
Property for purposes contemplated by the Approved Concept Development
Plan.
(e) No
Violations. All written notices of violations of governmental
orders or requirements noted or issued by any applicable Governmental Authority,
and any action by any Governmental Authority in court against or affecting the
Property, which would have an adverse impact on Seller's ability to convey the
Property to Purchaser or on Purchaser's ability to acquire the Property and
develop the same as contemplated by the Approved Concept Development Plan shall
have been complied with by Seller or the Property shall no longer be subject
thereto, except to the extent such matter results for the actions of Purchaser
on the Property.
(f) No Tenants or
Occupants. On the Closing Date, the Land shall be free of all
tenants and lessees and no Person (other than Purchaser) shall have any right or
option to purchase all or any portion of the Land from Seller.
(g) No Physical
Change. Between the Effective Date and the Closing Date there
shall not have occurred any material change in the physical condition of the
Property, except for changes, if any, caused by Purchaser's studies and
tests.
(h) Site Plan, Century Boulevard
CPAP, SWM/BMP CPAP Facility (if applicable), Lot Creation Documents,
Construction Plans and Building Permit. On or before the
Closing Date, the applicable Governmental Authorities shall have approved the
Site Plan, the Century Boulevard CPAP, the SWM/BMP CPAP Facility (if applicable)
and the Lot Creation Documents (including any dedication to public use of the
Century Boulevard Extension, if applicable), and all on and off-site easements
for the development of the Property provided for in or needed for the
development contemplated by the Approved Concept Development Plan shall have
been recorded.
(i) Seller’s Reserved Easement
for Future Construction of SWM/BMP Facility. If Purchaser
elects pursuant to Section
3A(f) to develop and construct improvements on the Land utilizing the
Non-Pond Concept Development Plans, on or before the Due Diligence Termination
Date Seller and Purchaser shall have agreed on the form and substance of an
easement agreement pursuant to which Seller will reserve, at the Closing, an
easement over and across the Land for purposes of its future construction of the
SWM/BMP Facility during the Pond Construction Option Period, including the
general parameters of and the physical appearance of any storm water pond to be
constructed at a later date, the spillway and surrounding landscaping,
Purchaser’s right, if any, to make aesthetic upgrades to such Facility and the
monetary contribution to be made by Purchaser to Seller for the cost of any such
upgrades requested by Purchaser (the “Pond Easement
Agreement”). If the Purchaser elects to develop and construct
improvements on the Land utilizing the Pond Concept Development Plans, the Pond
28
Easement
Agreement shall grant Seller the non exclusive right in common with Purchaser to
utilize the SWM/BMP Facility to satisfy Seller’s and Purchaser’s stormwater
management and BMP requirements for the Property, the Overall Property and
Dulles Town Center project generally including granting easements to the
applicable Government Authority and upgrading/retrofitting such facility,
provided Purchaser restores such facility and any associated landscaping to the
quality that existed prior to such disturbance.
(j) Contribution for Cost of
Construction of SWM/BMP Facility. On or before the Due
Diligence Termination Date, Seller and Purchaser shall have agreed, in writing,
on the amount and timing of a reasonable contribution to be made by Seller or
Purchaser, as applicable, toward the cost of the SWM/BMP Facility. If
Purchaser constructs the SWM/BMP Facility during the Pond Construction
Reimbursement Period, Seller shall make a contribution to the costs of designing
and constructing such Facility with the general parameters of Seller’s
contribution being the amount such Facility would have cost Seller to design and
construct if Seller were to construct such Facility solely to accommodate
Seller’s Retained Property or other property within the larger Dulles Town
Center project, whether or not owned by Seller, but excluding (i) the property
to be acquired by Purchaser, and (ii) any property of Seller that will not
utilize such Facility to satisfy its stormwater management or BMP
requirements. If Seller constructs the SWM/BMP Facility during the
Pond Construction Reimbursement Period, Purchaser shall make a contribution to
the costs of designing and constructing such Facility with the general
parameters of Purchaser’s contribution being the amount such Facility would have
cost Purchaser if Purchaser were to design and construct such Facility solely to
accommodate the undeveloped areas on the Property that is subject to future
development by Purchaser. For purposes of this pro ration, it shall
be a rebuttable presumption that any development by Purchaser prior to Seller’s
construction of the SWM/BMP Facility would have provided its own stormwater
management and BMP facilities. It is anticipated that the timing of
the payment to be made by Seller or Purchaser, as applicable would be when
Seller or Purchaser, as applicable would have otherwise been required to develop
the SWM/BMP Facility, but at a minimum on a site plan by site plan basis as
development occurs that will drain into such SWM/BMP Facility. Such
agreement shall also establish prorata contributions for the maintenance of such
facility. Seller’s and Purchaser’s agreement relating to the matters
referred to in Section
9(i) and Section
9(j) will be included in the Proffer Allocation and Infrastructure
Agreement.
(k) Proffer Allocation and
Infrastructure Agreement. On or before the Due Diligence
Termination Date, Seller and Purchaser shall have agreed on the form and
substance of the Proffer Allocation and Infrastructure Agreement.
(l) Architectural Review Board
Approval. On or before the Effective Date, the architectural
review board under the Property Owners Association Covenants shall have approved
the elevations for, and the exterior materials to be used in the construction
of, Purchaser’s Phase 1 Building as shown on the Approved Concept Development
Plan, Exhibit
A and Exhibit
G. The standard for such review and approval shall be that
such building and exterior materials shall be consistent in terms of quality
with the other office buildings developed by Seller (or its Affiliates) within
the Dulles Town Center Project
29
and is
otherwise compatible with development within the office portion Dulles Town
Center project. Compatible does not necessarily mean that such
building design will be similar in style to Seller's other buildings within the
project and both Seller and Purchaser understand that architectural design
should evolve over time. Seller’s execution hereof confirms that the
ARB has given the approval contemplated above. Seller hereby
represents that the architectural review board under the Property Owner’s
Association Covenants has approved the elevations for, and the exterior
materials to be used in the construction of, Purchaser’s Phase 1 Building as
shown on the Approved Concept Development Plan, Exhibit
A and Exhibit
G.
(m) Century Boulevard Easement
Agreement. On or before the Due Diligence Termination Date,
Seller and Purchaser shall have agreed on the form and substance of the Century
Boulevard Easement Agreement.
10. Conditions Precedent to Seller’s
Obligations. The obligations of Seller to sell the Property to
Purchaser and to perform the other covenants and obligations to be performed by
it on the Closing Date shall be subject to the condition (which may be waived in
writing, in whole or in part, by Seller):
(a) Purchaser’s
Performance. The Purchaser shall have performed all covenants
and agreements required by this Agreement to be performed by it on or before the
Closing Date.
(b) Notice to
Proceed. On the Closing Date, Purchaser shall deliver to
Seller a copy of a Notice to Proceed issued by Purchaser to its general
contractor authorizing such general contractor to commence construction of the
Century Boulevard Extension, immediately after the Closing, and Purchaser shall
issue and deliver to Seller a Notice to Proceed for the construction of an
office building containing at least 000,000 xxxxxx xxxx xx xxxxx xxxxx xxxx
ninety (90) days following building permit.
(c) Pond Easement
Agreement. On or before the expiration of the Due Diligence
Termination Date, Seller and Purchaser shall have agreed on the form and
substance of the Pond Easement Agreement.
(d) Proffer Allocation and
Infrastructure Agreement. On
or before the Due Diligence Termination Date, Seller and Purchaser shall have
agreed on the form and substance of the Proffer Allocation and Infrastructure
Agreement.
(e) Century Boulevard Easement
Agreement. On or before the Due Diligence Termination Date,
Seller and Purchaser shall have agreed on the form and substance of the Century
Boulevard Easement Agreement.
(f) Contribution for Cost of
Construction of SWM/BMP Facility. On or before the Due
Diligence Termination Date, Seller and Purchaser shall have agreed, in writing,
on the amount and timing of a reasonable contribution to be made by Seller to
Purchaser, or by Purchaser to Seller, toward the cost of the SWM/BMP
Facility. The requirements for, and the general parameters of, the
Seller’s or the Purchaser’s contribution is described in Section
9(j).
30
11. Closing.
(a) Closing Date and
Escrow. The closing of the purchase and sale of the Property
(the “Closing”) shall occur on the latest
to occur of (i) the 20th day
after the date on which the applicable Governmental Authorities approve the
Century Boulevard CPAP (or, if the 20th day is
not a Business Day, on the first Business Day thereafter), (ii) the 20th day
after the date on which the applicable Governmental Authorities approve the Lot
Creation Document (or, if the 20th day is
not a Business Day, on the first Business Day thereafter), or (iii) January 9,
2009, with time being of the essence,. Seller and Purchaser may, by
mutual agreement, agree to hold the Closing at an earlier date. The
Closing shall be held at the office of the Escrow Agent, or at any other
location in Fairfax or Loudoun County, Virginia, approved by Seller and
Purchaser. The date on which the Closing occurs is referred to in
this Agreement as the “Closing
Date.” On or before Noon, local time, on the Closing Date,
Purchaser shall cause to be deposited with the Escrow Agent immediately
available funds in an amount equal to the sum of the Purchase Price and the
costs, expenses, prorations and adjustments payable by Purchaser under this
Agreement, reduced by (x) the amount of the Deposit, and (y) the net amount of
the prorations and adjustments for which Purchaser receives credit, if any, on
the Closing Statement (defined in Section
11(d)). If (1) Seller and Purchaser have each notified the
Escrow Agent that all conditions precedent to the other party’s performance have
been satisfied or waived (other than the respective covenants and obligations of
Seller and Purchaser to be performed on the Closing Date), (2) the Escrow Agent
has received the funds from Purchaser in accordance with the preceding sentence,
(3) the Escrow Agent has received the documents and instruments to be delivered
by Seller pursuant to Section
11(b), and (4) the Escrow Agent has received the documents and
instruments to be delivered by Purchaser pursuant to Section
11(c), then the Escrow Agent shall, not later than 3:00 p.m., local time,
on the Closing Date, (i) record the Lot Creation Document, the Deed, the
Repurchase Option Agreement, the Pond Easement Agreement, the Century Boulevard
Easement Agreement (if applicable), the Proffer Allocation and Infrastructure
Agreement and the Pre-Emptive Option Agreement, in that order, in the applicable
land records, (ii) disburse to Seller an amount equal to the Purchase Price,
reduced by the Deposit and the costs, expenses, prorations and adjustments
payable by Seller under this Agreement and increased by the amount of the
prorations and adjustments for which Seller receives credit on the Closing
Statement, (iii) deliver to Purchaser the documents and instruments referred to
in Section
11(b) and all other documents and instruments received by it which, in
accordance with the terms of this Agreement, are to be delivered by Seller to
Purchaser on the Closing Date, (iv) deliver to Seller the documents and
instruments referred to in Section
11(c) and all other documents and instruments received by it which, in
accordance with the terms of this Agreement, are to be delivered by Purchaser to
Seller on the Closing Date, and (v) make the other disbursements and deliveries
required by the Closing Statement. On the Closing Date, immediately
after receiving confirmation that the Deed has been recorded, the Escrow Agent
shall disburse the Deposit to Seller.
31
(b) Seller’s
Deliveries. On the Closing Date, Seller shall deliver to
Purchaser the following documents with respect to the Property:
(1) the
Lot Creation Document in the form approved by the applicable Governmental
Authorities, signed by Seller, in recordable form (if not previously
recorded);
(2) the
Deed signed by Seller, in recordable form, vesting fee simple title to the
Property in Purchaser;
(3) a
certificate signed by Seller, dated as of the Closing Date (the “Seller’s Closing
Certificate”), certifying to Purchaser that all of Seller’s
representations and warranties in Section
5 are true and correct as of the date of such certificate as if such
representations and warranties were made on and as of the date of such
certificate or, if and to the extent any of such representations and warranties
is not so true and correct, identifying with reasonable particularity the nature
and extent to which any such representation or warranty is not so true and
correct;
(4) a
certification of Seller’s non-foreign status which complies with the provisions
of Section 1445(b)(2) of
the Internal Revenue Code of 1986, as amended, any regulations promulgated
thereunder, and any revenue procedures or other officially published
announcements of the Internal Revenue Service or the U.S. Department of the
Treasury in connection therewith, signed by Seller;
(5) the
Closing Statement, signed by Seller;
(6) an
Owner’s Affidavit signed by Seller, addressed to the Title Company, with respect
to the absence of claims which would give rise to mechanics’ liens, the absence
of parties in possession of the Property and the absence of unrecorded easements
granted by Seller, in the form required by the Title Company to eliminate the
exceptions for those matters from Purchaser’s title insurance
policy;
(7) affidavits
and other instruments, including Seller’s Organizational Documents, and good
standing certificates reasonably requested by Purchaser and the Title Company,
evidencing the power and authority of Seller to enter into this Agreement and to
consummate the transactions contemplated by this Agreement;
(8) one
counterpart of each of the Repurchase Option Agreement, the Pond Easement
Agreement, the Century Boulevard Easement Agreement, (if applicable) the Proffer
Allocation and Infrastructure Agreement and the Pre-Emptive Option Agreement
signed by the Seller in recordable form; and
(9) such
other documents as may be required by this Agreement or as may reasonably be
required to carry out the terms and intent of this Agreement.
32
(c) Purchaser’s
Deliveries. On the Closing Date, Purchaser shall pay the
Purchase Price pursuant to Section
11(a), and shall deliver to Seller the following documents with respect
to the Property:
(1) one
counterpart of each of the Repurchase Option Agreement, the Pond Easement
Agreement, the Century Boulevard Easement Agreement (if applicable), the Proffer
Allocation and Infrastructure Agreement and the Pre-Emptive Option Agreement
signed by the Purchaser in recordable form; and
(2) the
Closing Statement.
(d) Apportionments. All
real estate taxes (including assessments made by reason of the fact that the
Property is located in any special taxing district or within a community
development authority) relating to the Property shall be paid or shall be
prorated between Seller and Purchaser as of the Closing Date. For
purposes of this proration, Purchaser shall be deemed to own the Property and
therefore be responsible for the real estate taxes and assessments for the
entire Closing Date. If the Closing Date shall occur before the tax
rate or assessment is fixed for the tax year in which the Closing Date occurs,
the apportionment of taxes shall be upon the basis of the tax rate or assessment
for the immediately preceding tax year applied to the latest assessed valuation
and Seller and Purchaser shall readjust real estate taxes promptly after the
determination of the tax rate or assessment for the tax year in which the
Closing Date occurs (with such obligation to survive the
Closing). Any apportionments and prorations which are not expressly
provided for in this Section shall be made in
accordance with the customary practice in Loudoun County,
Virginia. On or before the Closing Date, Seller and Purchaser shall
jointly prepare a schedule showing the Purchase Price, the Deposit, the
adjustments and prorations and the expenses to be paid by Seller and Purchaser
pursuant to this Agreement (the “Closing
Statement”). Any net adjustment in favor of Purchaser shall be
credited against the Purchase Price on the Closing Date. Any net
adjustment in favor of Seller shall be paid in cash or cash equivalent on the
Closing Date by Purchaser to Seller. A copy of the Closing Statement
agreed upon by Seller and Purchaser shall be signed by Seller and Purchaser and
delivered to the Escrow Agent on the Closing Date.
(e) Delivery in
Escrow. The delivery to the Escrow Agent of the Purchase
Price, the executed Deed and all other documents, instruments and other payments
required to be delivered or paid by either party to the other by the terms of
this Agreement shall be deemed to be a good and sufficient tender of performance
of the terms hereof. The Escrow Agent shall have the right, at the
Closing, to apply the Purchase Price to pay off and discharge encumbrances or
other obligations affecting the Property which are not Permitted Exceptions, so
that title to the Property shall be insurable as required by Section
9(c).
12. Expenses. Purchaser
shall pay all costs and expenses associated with its due diligence, inspection
and feasibility review, survey, owner’s title insurance policy and its own
counsel fees. Seller shall pay the Virginia grantor’s tax imposed in
connection with the recording of the Deed, the Clerk’s fee for recording the
Deed and its own counsel fees. Purchaser shall pay all State and
County transfer taxes imposed in connection with the recording
33
of the
Deed and the Repurchase Option Agreement. Purchaser and Seller shall
each pay one-half (1/2) of the Escrow Agent’s fee and all other charges and
expenses which arise in connection with the Closing.
13. Termination.
(a) Reasons for
Termination. This Agreement may be terminated upon written
notice given to the Escrow Agent and the other party hereto by:
(1) Purchaser
pursuant to Section
13(b), if any one or more of the conditions set forth in subsections (a)
through (h) of Section
9 is not satisfied on the Closing Date; or
(2) Seller
pursuant to Section
13(c), if any one or more of the conditions set forth in subsections (a)
or (b) of Section
10 is not satisfied on the Closing Date.
Seller’s
right to terminate this Agreement pursuant to this Section is in addition to
Seller’s right to terminate this Agreement pursuant to Section
8(j). If Seller terminates this Agreement pursuant to Section
8(j), the provisions of that Section, and not the
provisions of Section
13(c) shall control the disposition of the Deposit.
(b) Termination by
Purchaser. If Purchaser terminates this Agreement pursuant to
Section
13(a)(1), then this Agreement shall be null and void, Escrow Agent shall
return the Deposit to Purchaser and no party shall have any further liability or
obligation to any other party under this Agreement, except for Purchaser’s
Surviving Obligations, and except that if Purchaser terminates this Agreement
pursuant to Section
13(a)(1) because of a breach by Seller of the representations and
warranties made by Seller in Section
5 or the willful failure of Seller to perform any of the covenants or
agreements to be performed by it under this Agreement, or the failure of Seller
to make full settlement when obligated to do so under this Agreement, Purchaser
may xxx to recover its damages arising out of such breach or nonperformance, but
Seller’s liability for damages for a misrepresentation or warranty discovered
prior to Closing shall be subject to the limitation contained in Section
5(k)(4).
(c) Termination by
Seller. If Seller terminates this Agreement pursuant to Section
13(a)(2), this Agreement shall become null and void, no party shall have
any further liability or obligation to any other party under this Agreement,
except for Purchaser’s Surviving Obligations, and the Escrow Agent shall pay the
Deposit to Seller. Seller’s sole and exclusive remedy for Purchaser’s
default shall be to receive the Deposit as liquidated damages, and in no event
and under no circumstances shall Seller be entitled to receive more than the
Deposit as damages for Purchaser’s default. THE PARTIES AGREE THAT IT
WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT AT THE TIME OF MAKING THIS
AGREEMENT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER BY REASON OF ANY
DEFAULT BY PURCHASER IN THE TIMELY PERFORMANCE OF ITS OBLIGATION TO PURCHASE THE
PROPERTY AS PROVIDED FOR HEREIN, INCLUDING THE
34
PERFORMANCE
OF ITS OBLIGATIONS UNDER SECTION
8. THE PARTIES HERETO FURTHER AGREE THAT THEIR BEST ESTIMATE,
BASED ON ALL RELEVANT FACTS, OF THE TOTAL DAMAGE AND EXPENSES THAT SELLER WOULD
SUFFER IN THE EVENT OF ANY DEFAULT IN THE TIMELY PERFORMANCE OF PURCHASER’S
OBLIGATION TO PURCHASE THE PROPERTY, IS AND SHALL BE IN AN AMOUNT EQUAL TO THE
DEPOSIT AND ALL INTEREST ACCRUED THEREON. ACCORDINGLY, SUBJECT TO THE CONDITIONS
FOR PURCHASER’S BENEFIT SET FORTH IN THIS AGREEMENT, IN THE EVENT PURCHASER
DEFAULTS IN THE TIMELY PURCHASE OF THE PROPERTY IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, UNLESS SELLER IS THEN IN DEFAULT HEREUNDER, SELLER SHALL BE
RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO PURCHASER AND SELLER SHALL
BE ENTITLED AS ITS SOLE AND EXCLUSIVE REMEDY TO RETAIN THE DEPOSIT AND ALL
INTEREST ACCRUED THEREON. SELLER AND PURCHASER HAVE EACH PLACED THEIR
INITIALS IN THE SPACES BELOW TO INDICATE THAT THEY HAVE READ, UNDERSTAND AND
AGREE TO THIS LIQUIDATED DAMAGES PROVISION.
SELLER
PURCHASER
/s/ XXXXXX X. XXXXXXXXX /s/ XXXX X. XXXXX
(d) Purchaser’s Right to Seek
Specific Performance. If Seller defaults in performing any
covenants or agreements to be performed by Seller under this Agreement,
Purchaser shall have the right, instead of terminating this Agreement pursuant
to Section
13(a), to elect to permit this Agreement to remain in effect and, in
addition to the remedies set forth in Section
13(b), to seek specific performance of Seller’s obligation to sell the
Property to Purchaser, subject to the limitation that no suit for specific
performance may be filed or commenced by Purchaser more than 180 days after the
otherwise required Closing Date.
(e) Special Termination
Provisions.
(1) If
any one or more of the conditions set forth in Section
9(i), Section
9(j), Section
9(k) or Section
9(m) is not satisfied on or before the Due Diligence Termination Date,
the Purchaser shall have the right to terminate this Agreement by giving written
notice of termination to the Seller and the Escrow Agent at any time after the
Due Diligence Termination Date and before the date on which all of the
conditions set forth in Section
9(i), Section
9(j), Section
9(k) and Section
9(m) are satisfied.
(2) If
any one or more of the conditions set forth in Section
10(c), Section
10(d), Section
10(e) or Section
10(f) is not satisfied on or before the Due Diligence Termination Date,
the Seller shall have the right to terminate this Agreement by giving written
notice of termination to the Purchaser and the Escrow Agent at any time after
the Due Diligence Termination Date and before
35
the date
on which all of the conditions set forth in Section
10(c), Section
10(d), Section
10(e) and Section
10(f) are satisfied.
(3) If
Purchaser or Seller terminates this Agreement pursuant to Section
13(e)(1) or Section
13(e)(2), then this Agreement shall be null and void, Escrow Agent shall
return the Deposit to Purchaser and no party shall have any further liability or
obligation to any other party under this Agreement, except for Purchaser’s
Surviving Obligations, provided before a party can terminate this Agreement
pursuant to Section 13(e), the party desiring to terminate the Agreement shall
first deliver to the other party a form of agreement satisfactory to the
delivering party to satisfy the conditions set forth in sections 9(i), 9(j),
9(k), 9(m), 10(c), 10(d), 10(e) or 10(f) (or for any of such conditions that
remain unsatisfied), including delivering a certificate that such agreement(s)
have been prepared in good faith based on the terms of this
Agreement. If within ten (10) business days of the receiving party’s
receipt of such agreement(s), it agrees in writing to the form of such
agreement(s), then neither party shall have the ability to terminate this
Agreement based on the condition precedent applicable to such
agreement.
14. [Intentionally
Omitted]
15. Brokers. Seller and
Purchaser mutually represent and warrant to the other that no agent, broker, or
other Person acting pursuant to express or implied authority of Seller or
Purchaser is entitled to a commission or finder’s fee in connection with the
transactions contemplated by this Agreement or will be entitled to make any
claim against Seller or Purchaser for a commission or finder’s
fee. Seller and Purchaser shall each indemnify and defend the other
against any loss, liability, damage, costs, claims or expenses, including
attorneys’ fees, arising out of the breach by the indemnifying party of any
representations, warranties or agreements made by it in this Section. The
representations and obligations under this Section shall survive the
Closing or, if the Closing does not occur, the termination of this
Agreement.
16. Notices. Each
notice, request, demand, consent, approval or other communication (hereafter in
this Section referred to
collectively as “notices” and referred to singly as a “notice”) which Seller or
Purchaser is required or permitted to give to the other party pursuant to this
Agreement shall be in writing and shall be delivered personally, by facsimile
transmission or by recognized overnight national courier service (such as
Federal Express) (i) if to Seller, to the attention of Xxxxxx X. Xxxxxxxx,
Xxxxxx Enterprises, LLC, 00000 Xxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000-0000,
Fax: (000) 000-0000, with a copy to Xxxx X. Xxxxx, Esq., Special
Counsel, Xxxxxx Enterprises, LLC, 00000 Xxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx
00000-0000 (FAX: (000)000-0000, or (ii) if to Purchaser, Xxxxxx Xxxxxxxxxx, c/o
National Rural Utilities Cooperative Finance Corporation, 0000 Xxxxxxxxxxx Xxx,
Xxxxxxx, Xxxxxxxx 00000] with copies to Xxxxx Xxxxxx, Attorney at
law, c/o National Rural Utilities Cooperative Finance Corporation, 0000
Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000 and to Xxxxxxxx X. Xxxxxxxx,
Esquire, c/o Xxxx Xxxxx, LLP, 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx
Xxxxxx, Xxxxxxxx 00000] or at any other address designated by either
party by notice to the other party pursuant to this Section. Any notice
delivered to a party’s designated address by (a) personal delivery, (b)
36
facsimile
or (c) recognized overnight national courier service shall be deemed to
have been received by such party at the time the notice is delivered to such
party’s designated address.
17. Waiver of Jury
Trial. The parties hereto waive trial by jury in any action,
proceeding or counterclaim brought by any party against any other party on any
matter arising out of or in any way connected with this Agreement.
18. Benefit and
Burden. Subject to the provisions of Section
23, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, devisees, personal representatives,
successors and assigns.
19. Applicable
Law. This Agreement shall be governed by, and construed in
accordance with the laws of the Commonwealth of Virginia (the “Property
Jurisdiction”)
without application of principles of conflict of laws. Seller and
Purchaser hereby irrevocably submit to the jurisdiction of any state or federal
court sitting in the Property Jurisdiction, in any action or proceeding arising
out of or relating to this Agreement and hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and determined in
a state or federal court sitting in the Property Jurisdiction.
20. Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the purchase and sale of the Property and is
intended by the parties to be an integration of all prior agreements by the
parties regarding the purchase and sale of the Property. The parties
hereto shall not be bound by any agreements, conditions, representations or
warranties relating to this transaction, oral or written, not set forth in this
Agreement.
21. Time of the
Essence. All times, wherever specified herein for the
performance by Seller or Purchaser of their respective obligations hereunder,
are of the essence of this Agreement.
22. Counterparts. This
Agreement may be executed in any number of counterparts, all of which together
shall constitute a single agreement binding on the parties hereto.
23. Assignment. Except
as otherwise provided in the next sentence, Purchaser may not assign its rights
under this Agreement without Seller’s prior written consent, which may be given
or withheld by Seller in its sole and absolute discretion. Purchaser
shall have the right to assign its rights under this Agreement, without the
prior written consent of Seller, to an Affiliate of Purchaser, but only if the
assignee assumes all liability and obligations of Purchaser under this Agreement
and Purchaser gives notice of the assignment to Seller at least ten (10)
Business Days before the Closing Date. Any such assignment shall not
release Purchaser from its obligations under this Agreement.
24. Risk of Loss. Until
Closing and the recordation of the Deed, risk of loss shall remain with Seller
with respect to any casualty, condemnation or similar matter.
25. Legal Fees. If
either Seller or Purchaser resorts to litigation or any similar adversarial
proceeding to enforce any provision of this Agreement or by reason of the breach
of this Agreement, the prevailing party in any such action shall be entitled to
receive reasonable attorneys' fees and costs.
37
26. Cooperation in Future
Development. Both prior to and subsequent to Closing, both
Seller and Purchaser shall cooperate with each other in connection with the
development of the Property, as well as the development of the Overall Property
and the balance of the Dulles Town Center Project and agree to, among other
things, grant to each other any necessary easements and make any required
dedications and to join in any applications, including rezoning applications,
that the other party desires in connection with the development of its parcel,
provided any such cooperation does not have a material adverse impact to the
development permitted on the cooperating parties parcel or increase the cost
thereof, unless the party seeking such cooperation agrees to incur such
additional costs. The provisions of this cooperation agreement shall
be set forth in the Proffer Allocation and Infrastructure
Agreement.
27. Condemnation. In
the event of the institution of any proceedings by any Governmental Authority
which shall relate to the taking or proposed taking of any portion of the
Property (or of any off site improvements that benefit the Property, including
with respect to access or utilities by eminent domain prior to Closing, Seller
shall promptly notify Purchaser and Purchaser shall thereafter have the right
and option to terminate this Contract by giving Seller written notice of
Purchaser’s election to terminate within ten (10) Business Days after receipt by
Purchaser of the notice from Seller. Seller hereby agrees to furnish
Purchaser with written notice of a proposed condemnation within five (5)
Business Days after Seller’s receipt of such notification. Should
Purchaser terminate this Contract, the Deposit held by the Escrow Agent shall
immediately be returned to Purchaser and thereafter the parties hereto shall be
released from their respective obligations and liabilities hereunder, except for
the surviving obligations. Should Purchaser elect not to terminate,
the parties hereto shall proceed to Closing and Seller shall assign all of its
right, title and interest in all awards in connection with such taking of the
Property, to Purchaser and/or provide Purchaser a credit for proceeds received
by Seller. If Purchaser fails to notify Seller of its election within
the ten (10) business day period, Purchaser will be deemed to have elected to
terminate the Agreement.
FRXLIB-535778.1-BFTOMPKI
38
IN WITNESS WHEREOF, the
undersigned parties have executed this Agreement as of the day and year first
above stated.
SELLER
DTC
PARTNERS, LLC
By Xxxxxx
Enterprises, LLC, its
Authorized
Member
By: /s/ XXXXXX X. XXXXXXXXX
Name:
Xxxxxx X. Xxxxxxxxx
Title: Manager
Date of
Signing: May 2,
2008
PURCHASER
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
By: /s/ XXXX X. XXXXX
Name:
Xxxx X. Xxxxx
Title:
Senior Vice
President
Date of
Signing: March 31,
2008
FRXLIB-535778.1-BFTOMPKI
39
CONSENT BY ESCROW
AGENT
The
undersigned hereby agrees to serve as the Escrow Agent under the foregoing and
annexed Purchase Agreement and to perform all duties and obligations of the
Escrow Agent under the provisions of the Purchase Agreement.
Dated
this 2nd day of May, 2008.
LOUDOUN COMMERCIAL TITLE,
LLC.
By: /s/ XXXXXX
X.XXXXXX
Name:
Xxxxxx X.
Xxxxxx
Title:
President
FRXLIB-535778.1-BFTOMPKI
40
EXHIBIT
B
AFTER
RECORDING,
PLEASE
RETURN TO:
Xxxx
Xxxxx LLP
0000
Xxxxxxxx Xxxx Xxxxx
Xxxxx
0000
Xxxxx
Xxxxxx,
XX 00000 Tax Parcels
#
Attn: Xxxxxxxx
X. Xxxxxxxx, Esquire
Consideration: $________________
SPECIAL WARRANTY
DEED
THIS SPECIAL WARRANTY DEED is made as
of ____________, 2008, by and between DTC PARTNERS, LLC, a
Virginia limited liability limited partnership (known of record as Loudoun-LSJJ
Partnership, a Maryland general partnership) having its principal office
at 00000 Xxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000-0000 ("Grantor"),
and NATIONAL RURAL
UTILITIES COOPERATIVE FINANCE CORPORATION, a District of Columbia
cooperative association, having its principal office
at 0000
Xxxxxxxxxxx Xxx, Xxxxxxx, XX 00000 ("Grantee").
WITNESSETH: For Ten Dollars
($10) and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor does hereby GRANT, BARGAIN, SELL and
CONVEY, with Special Warranty of Title, unto Grantee, its successors and
assigns, in fee simple, the parcel of land located in Loudoun County, Virginia,
described in Exhibit A
attached hereto and made a part hereof;
TOGETHER with all buildings, fixtures
and improvements located in and on such parcel of land; and
TOGETHER with all easements,
rights-of-way, appurtenances, licenses and privileges belonging or appurtenant
to such land; and
TOGETHER with all mineral, gas, oil and
water rights, sewer rights, other utility rights and development rights now or
hereafter allocated or allocable to such land; and
TOGETHER with all right, title and
interest of Grantor in and to any land lying in the bed of any street, road,
avenue or alley, open or closed, adjacent to such land to the center line
thereof.
TO HAVE AND TO HOLD all of the
aforesaid property (the “Property”)
unto the use and benefit of Grantee, its successors and assigns, in fee simple,
forever, and Grantor does hereby covenant to warrant specially the Property and
to execute such further assurances of the Property as may be
requisite.
B-1
The Property is a part of the same
property acquired by the Grantor by deed recorded among the Land Records of
Loudoun County, Virginia, in Deed Book _____, at page ___.
The Property is conveyed subject only
to the conditions, easements, covenants, conditions, restrictions and agreements
set forth on Exhibit
B attached hereto and made a part hereof, to the extent, but only to the
extent, that the same are valid and subsisting and apply to the Property or any
part thereof.
IN WITNESS WHEREOF, the Grantor has
caused this Deed to be executed on its behalf by its duly authorized General
Partner as of the date first above written.
Grantor
DTC PARTNERS, LLC
(known of record as Loudoun-LSJJ
Partnership).
By Xxxxxx
Enterprises, LLC, a Maryland
limited
liability company, its Authorized
Member
By:
_______________________
______________,
Manager
COUNTY
OF )
) ss:
STATE
OF )
The foregoing instrument was
acknowledged before me this _______ day of __________, 200___, by ____________,
a Manager of Xxxxxx Enterprises, LLC, a Member of DTC Partners, LLC (known of
record as Loudoun-LSJJ Partnership).
WITNESS my hand and Notarial
Seal.
______________________________
Notary Public
My Commission
expires:
FRXLIB-535778.1-BFTOMPKI
B-2
Exhibit A to Deed
[Legal
Description]
FRXLIB-535778.1-BFTOMPKI
B-3
Exhibit B to Deed
Permitted
Exceptions
FRXLIB-535778.1-BFTOMPKI
B-4
EXHIBIT
C
[Form of
Property Owners Association Covenants]
C-1
DECLARATION
FOR
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|
Number
|
1 GENERAL
PROVISIONS
|
4
|
1.1. Definitions
|
4
|
1.2. Construction of
Association Documents
|
8
|
2 THE
ASSOCIATION
|
9
|
2.1. Creation
|
9
|
2.2. Membership
|
9
|
2.3. Classes
of Members; Voting Rights
|
9
|
2.4. Board
of Directors
|
10
|
3 EASEMENTS
|
10
|
3.1. Utility and
Development Easements.
|
10
|
3.2.
Release of Public Improvement Bonds
|
10
|
3.3. Proffered
Community Facilities
|
10
|
3.4. Community
Facilities Easements
|
11
|
3.5. Relocation.
|
11
|
3.6. Terms of Rights
and Easements.
|
11
|
3.7. Easement for Use
of Common Area
|
12
|
3.8. Reserved Common
Area and Limited Common Xxxx
|
00
|
3.9. Land Submitted by
Owners Other Than the Declarant and Enforcement of
|
|
Easements
|
14
|
4 EXPANSION/CONTRACTION
OF THE PROPERTY
|
15
|
4.1. Expansion by the
Declarant
|
15
|
4.2. Expansion by the
Association
|
15
|
4.3. Procedure for
Expansion
|
15
|
4.4. Withdrawal/Contraction
|
15
|
5 SPECIAL
DECLARANT RIGHTS; TRANSFER
|
16
|
5.1. Special Declarant
Rights
|
16
|
5.2. Transfer of
Special Declarant Rights
|
16
|
6 COMMON
EXPENSES AND ASSESSMENTS
|
17
|
6.1. Determination of
Common Expenses and Budget
|
17
|
6.2. Purpose and Rate
of Assessment
|
18
|
6.4. Individual
Assessment
|
19
|
6.5. Liability for
Assessments
|
19
|
6.6. Statement of
Common Expenses
|
19
|
6.7. Reserves.
|
20
|
6.8. Late
Fee
|
20
|
7 OPERATION
OF PROPERTY
|
21
|
7.1. Maintenance
Responsibilities
|
21
|
7.2. Lots
|
22
|
7.3. Maintenance
Standards.
|
23
|
- i
-
7.4. Disclaimer of
Liability.
|
23
|
7.5. Services to
Owners
|
24
|
8 USE,
REZONING AND OPERATION RESTRICTIONS
|
24
|
8.1. Use
Restrictions.
|
24
|
8.2. Rezonings and
Proffer Amendments
|
24
|
8.3. Operational
Restrictions.
|
24
|
8.4. Restriction on
Further Subdivision
|
25
|
8.5. Leasing
|
26
|
8.6. Rules and
Regulations
|
26
|
8.7. Exclusion for the
Declarant and Designees of the Declarant
|
26
|
9 ARCHITECTURAL
REVIEW
|
26
|
9.1. Architectural
Review Committee.
|
26
|
9.2. Initial
Construction
|
28
|
9.3. Compensation of
the Architectural Review Committee
|
29
|
9.4. Additions,
Alterations or Improvements by the Owners
|
29
|
10 INSURANCE
|
30
|
11 RECONSTRUCTION
AND REPAIR
|
31
|
11.1. Casualty Damage
on Common Area
|
31
|
11.2. Casualty Damage
on Xxxx
|
00
|
00 XXXXXXXXXX
XXX XXXXXXX
|
31
|
12.1. Enforcement
Provisions
|
31
|
12.2. Notice and
Hearing
|
32
|
12.3. Lien
|
33
|
12.4. Subordination
and Mortgagee Protection.
|
33
|
13 MORTGAGEES
|
34
|
13.1. Notice to Board
of Directors
|
34
|
13.2. Notices to
Mortgagees
|
34
|
13.3. Other Rights of
Mortgagees
|
34
|
14 AMENDMENT;
EXTRAORDINARY ACTIONS
|
35
|
14.1. Amendment by the
Declarant
|
35
|
14.2. Amendment by the
Association.
|
35
|
14.3. Prerequisites to
Amendment
|
35
|
15 TERMINATION
|
36
|
15.1. Duration;
Termination by the Association
|
36
|
15.2. Prerequisites
|
36
|
SUBMITTED LAND | EXHIBIT A |
DESCRIPTION OF DULLES TOWN CENTER COMMUNITY | EXHIBIT B |
DESCRIPTION OF INITIAL COMMUNITY FACILITIES EASEMENT | EXHIBIT C |
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DECLARATION
FOR
DULLES
TOWN CENTER
THIS
DECLARATION is made as of ____________ , 2008 by DTC PARTNERS,
L.L.C., a Virginia limited liability company, formerly Loudoun-LSJJ Partnership,
a Maryland general partnership ("Declarant") ("Landowner/Developer") DTC XXXXX,
L.L.C., a Virginia limited liability company, DTC HOTEL ONE, L.L.C., a Virginia
limited liability company, DTC APARTMENTS WEST, L.L.C., a Virginia limited
liability company, 1 DULLES TOWN CENTER, L.L.C., a Virginia limited liability
company; DTC APARTMENTS SOUTH, L.L.C., a Virginia limited liability company, and
DULLES TOWN CENTER OWNERS ASSOCIATION, a Virginia nonstock corporation
(“Association”)(“Community Association”).
R E C I T
A L S:
R-1. The
Declarant and DTC XXXXX, L.L.C., DTC HOTEL ONE, L.L.C., DTC APARTMENTS WEST,
L.L.C., 1 DULLES TOWN CENTER, L.L.C., DTC APARTMENTS SOUTH, L.L.C. ,
and DTC PARTNERS, L.L.C. (in its capacity as an owner) (collectively, the
"Owners") own the land designated as Submitted Land in the legal descriptions
attached hereto as Exhibit A, and desire to subject such land to the covenants,
restrictions, reservations, easements, servitudes, liens and charges, all
as more particularly hereinafter set forth.
R-2. The
Declarant and the Owners deem it desirable and in the best interests of all the
owners of land subject to this Declaration to protect the value and the
desirability of such land by providing for the development of such land in
accordance with a common plan and the maintenance of certain shared
facilities.
R-3. To
provide a means for meeting the purposes and intents set forth in the Proffers
(as defined herein) and herein, the Declarant has caused Dulles Town Center
Owners Association to be incorporated under the laws of the Commonwealth of
Virginia.
NOW,
THEREFORE, the Declarant the Owners and the Association hereby covenant and
declare, on behalf of themselves and their respective successors and assigns,
that from the date this Declaration is recorded, the land designated as
Submitted Land in Exhibit A hereto shall be held, conveyed, acquired and
encumbered subject to the terms and provisions hereof, all of which
shall run with the land (including all improvements thereon) and bind and inure
to the benefit of all Persons who may now or hereafter own or acquire any right,
title, estate or interest in or to any of such land, or who may now or hereafter
occupy or enter upon any portion thereof, subject to the right of the Declarant,
the Owners or the Association to amend this Declaration from time to time in
accordance with the provisions for amendment set forth herein.
P A R
T O N E
ARTICLE
1
GENERAL
PROVISIONS
Section
1.1. Definitions. Terms used herein without
definition shall have the meanings specified for such terms in Section
13.1-803 of the Act. Capitalized terms used herein shall have the
meanings specified for such terms below.
(1) "Act"
means the Virginia Nonstock Corporation Act, Chapter 10 of Title 13.1 of
the Code of Virginia (1950), as amended, supplemented or replaced from time to
time.
(2) "Architectural
Guidelines" means the guidelines established by the Declarant during the
Development Period, or adopted by the Board of Directors pursuant to Article
9.
(3) "Architectural
Review Committee" means the Committee established pursuant to Section
9.1.
(4) "Articles
of Incorporation" means the Articles of Incorporation for the Association filed
with the Virginia State Corporation Commission, as amended from time
to time.
(5) "Assessments"
means the sums levied against the Lots as provided in Article 6.
(6) "Association"
or “Community Association” means Dulles Town Center Owners Association and, with
respect to the rights and obligations of the Association set forth in this
Declaration, its successors and assigns. "Subassociation" means any
owners association or condominium unit owners association subject to this
Declaration and governing some but less than all of the Property pursuant to
covenants recorded among the Land Records.
(7) "Association
Documents" means collectively, the Articles of Incorporation, this Declaration,
any applicable supplementary declaration, and the Bylaws, all as amended from
time to time. Any exhibit, schedule, certification or amendment
to an Association Document is an integral part of that document.
(8) "Board
of Directors" or "Board" means the executive and administrative entity
established by Article 5 of the Articles of Incorporation as the governing body
of the Association.
(9) "Bylaws"
means the Bylaws of the Association, as amended from time to time.
(10) "Common
Area" means, at any given time, all of the Property (excluding Lots) then owned
by the Association. Land within the Property is not Common Area
solely because it is burdened by an easement for utilities, landscaping, storm
water management, signage or trails or dedicated as a public street or roadway
even though the Association may maintain such areas. Common Area may
include, without limitation, property upon which Community Facilities serving
the Property or the Dulles Town Center Community are located if such property is
owned by the Association.
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(a)
"Limited Common Area" means a portion of the Common Area which has been
designated pursuant to Section 3.8 for the primary or exclusive (if specifically
so designated) use of Owners of one or more but less than all the
Lots.
(b)
"Reserved Common Area" means a portion of the Common Area for which the Board of
Directors has granted a revocable license for exclusive use pursuant to Section
3.8.
(13) "Common
Expenses" or “Community Common Expenses” means all expenditures made by or on
behalf of the Association, together with all funds determined by the Board of
Directors to be reasonably necessary for the creation and maintenance of
reserves pursuant to the provisions of the Association
Documents. Except when the context clearly requires otherwise
any reference to Common Expenses includes Limited Common
Expenses. "Limited Common Expenses" means all expenditures made by or
on behalf of the Association and benefiting one or more but fewer than all of
the Owners and assessed against the Lots owned by the Owners benefited pursuant
to Section 6.2(c).
(14) "Community"
or "Dulles Town Center Community" means the Property subject to this Declaration
as well as any other land being (or previously) developed by the Declarant
adjacent to such Property, including without limitation, the Colonnade at Dulles
Town Center residential community and the Dulles Town Center Mall and
surrounding retail property.
(15) "Community
Facilities Easements" means, at any given time, the areas within each Lot
located within twenty-five feet of any lot boundary-line adjacent to a public
right-of-way or within fifteen feet of any lot boundary-line located adjacent to
another Lot or a private street subject to a Community Facilities Easement
pursuant to Section 3.4. and all other easements granted for the benefit, use
and enjoyment of the Owners within the Dulles Town Center Community for
landscaping, street lights, signage, entry features, pedestrian ingress and
egress and storm water drainage management or use of amenities or facilities
(including Community Facilities). "Community Facilities" means
facilities serving the Dulles Town Center Community including, without
limitation the storm water management facilities, ponds and easements areas,
landscaping (including associated irrigation systems, if any), signage,
(including entrance features), paths, trails and sidewalks (including associated
lighting or street furniture), fencing, street lights and private
streets. Community Facilities shall also include, without limitation,
the community pool, pool house, tennis courts, multi-purpose courts, play areas,
trails and associated facilities and amenities located adjacent to the Colonnade
at Dulles Town Center residential community. Subject to the
provisions of Section 3.3 hereof, Community Facilities shall also include the
clubhouse facility located within the Remington Apartment
community.
(16) "County"
means Loudoun, Virginia. All references to approval by the County shall mean
approval by the appropriate agency of the County, as determined by the Office of
the County Attorney at that time.
(17) "Declarant"
or “Landowner/Developer” means DTC Partners, L.L.C. a Virginia limited liability
company, successor in interest to Loudoun-LSJJ Partnership, a Maryland general
partnership. Following recordation of an instrument assigning to
another Person some or all of the rights reserved to the Declarant under the
Association Documents pursuant to Section 5.2, the term "Declarant" shall mean
or include that assignee.
(18) "Declaration",
means this Declaration for Dulles Town Center made by the Declarant and recorded
among the Land Records, and all amendments thereto, except when the context
clearly requires otherwise, all "Supplementary
Declarations."
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"Supplementary
Declaration" means any declaration: (i) submitting land to the
terms of the Declaration and subjecting such land to the jurisdiction of the
Association, whether or not such Supplementary Declaration contains additional
provisions reflecting the unique characteristics of the land being
submitted; or (ii) submitting a portion of the Property to such supplementary
covenants in accordance with the provisions of Article 4. A
Supplementary Declaration may be part of a deed of subdivision.
(19) “Developer
Control Period” means the period ending on the earliest of: (i) the date the
Declarant or related entities no longer own at least ten percent of the total
square footage of the land described in Exhibit A attached hereto; or (ii) the
date that the Declarant notifies the Association that the Developer Control
Period has ended.
(20) "Development
Period" means the period of time when the Declarant is engaged in development or
sales or activities related thereto, anywhere on the Property and the Declarant
is entitled to exercise certain "Special Declarant Rights" under the Association
Documents. Special Declarant Rights are described in Article
5. The Development Period shall end on the earlier of: (i)
the date when all improvements for the Submitted Land shown on the Development
Plan are substantially completed and all bonds filed by the Declarant and held
by a governmental agency with respect to the Submitted Land have been released;
or (ii) the date the Declarant provides the Association written notice that the
Development Period shall end.
(21) "Development
Plan" means the general development plan or site plan or plans for the Dulles
Town Center Community as approved by resolutions of the Board of Supervisors of
Loudoun County, Virginia and as amended from time to time, including but not
limited to ZMAP 86-53 and ZMAP 1990-0014. Although the
Declarant may develop the Submitted Land substantially in accordance with the
Development Plan and the Proffers, the Declarant reserves the right to modify
the Development Plan and the Proffers, subject only to the requirements and
procedures of the County.
(22) "Land
Records" means the land records of Loudoun County, Virginia, the jurisdiction in
which the Property is located.
(23) "Lot"
means a portion of the Property which is a separate subdivided lot of record or
any other parcel of Submitted Land held in separate ownership (but not including
the land designated as Common Area and owned by the Association in fee simple,
or land dedicated for public street purposes), together with any improvements
now or hereafter appurtenant thereto. Lot shall also mean any
condominium unit created in accordance with Chapter 4.2 of Title 55 of the Code
of Virginia (1950), as amended. The common elements of any condominium or
cooperative are appurtenances to the units and are part of the Lot.
(a) “Civic
Lot” means a Lot upon which the improvements or planned improvements
are intended for use and occupancy for primarily a public purpose and owned by a
governmental or nonprofit entity, including without limitation, churches,
schools, fire and rescue stations, police stations, libraries and
parks. If a Civic Lot is no longer used and occupied for a public
purpose, is no longer owned by a governmental or nonprofit entity or is used for
residential or commercial purposes, then such Lot shall no longer be a Civic Lot
and shall be treated as a Multifamily Residential Lot or a Single Family
Residential Lot, Retail Lot or Commercial Lot, as may be
appropriate.
(b) “Commercial
Lot” means a Lot upon which the improvements or planned improvements
are intended for use and occupancy for primarily nonresidential purposes (other
than retail) and, unless otherwise specified, includes without
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-
limitation
Lots containing daycare facilities, offices, industrial uses, commercial
condominium units, restaurants, hotels, golf courses (if any) or similar
uses
(c) “Multifamily
Residential Lot” means a Lot upon which the improvements or planned improvements
are intended for use and occupancy primarily as a residence containing more than
one dwelling and, unless otherwise specified includes without limitation Lots
containing rental apartments or elderly congregate care facilities.
(d) “Retail
Lot” means a Lot upon which the improvements or planned improvements are
intended for use and occupancy for primarily retail uses such as free-standing
stores and shopping centers.
(e) “Single
Family Residential Lot” means a Lot upon which the improvements or planned
improvements are intended for use and occupancy as a residence containing only
one dwelling and, unless otherwise specified, includes without limitation Lots
containing residential condominium units, residential cooperative units or
semi-detached homes.
(f) "Undeveloped
Lot" means a Lot owned by the Declarant which does not contain a building for
which a certificate of occupancy or similar permit has been issued.
(24) "Majority
Vote" means a simple majority (more than fifty percent) of the votes entitled to
be cast by Owners present in person or by proxy at a duly held meeting of the
Owners at which a quorum is present. Any vote of a specified
percentage of Owners means that percentage with respect to the total number of
votes actually cast by Owners present in person or by proxy at a duly held
meeting of the Owners at which a quorum is present. Any vote by a
specified percentage of the Board of Directors (or committee) means that
percentage with respect to votes entitled to be cast by directors (or committee
members) present at a duly held meeting of the Board (or committee) at which a
quorum is present. Any vote of or approval by a specified percentage
of the Mortgagees means a vote of or approval (whether actual or presumed) by
the Mortgagees calculated based on the number of votes appertaining to each Lot
(or the Owner of such Lot) on which a Mortgage is held by a
Mortgagee.
(25) “Member”
means an Owner or the Subassociation representing such Owner.
(26) "Mortgagee"
means a lender holding a first mortgage or first deed of trust ("Mortgage")
encumbering a Lot which has notified the Board of Directors of its status in
writing pursuant to Section 13.2 and has requested in writing all rights of a
Mortgagee under the Association Documents. Where the approval of
Mortgagees is required, such approval means: (i) written approval;
(ii) any written waiver of approval rights; or (iii) a letter stating no
objection.
(27) "Officer"
means any person holding office pursuant to Article 6 of the
Bylaws.
(28) "Owner"
means one or more Persons who own a Lot in fee simple, but does not mean Person
having an interest in a Lot solely by virtue of a contract or as security for an
obligation. With respect to Lots consisting of residential or
commercial condominiums, the Owner of such Lot shall be deemed to be the
condominium unit owners association for the purposes of voting and
approvals.
(29) "Person"
means a natural person, corporation, limited liability company, partnership,
association, trust or other entity capable of holding title or any combination
thereof.
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(30) “Proffers"
means the proffers submitted with any zoning or rezoning application applicable
to the Dulles Town Center Community as approved by the Board of Supervisors of
Loudoun County, Virginia, as amended from time to time. Although the Declarant
may to develop the Community substantially in accordance with the Development
Plan and the Proffers, the Declarant reserves the right to modify the
Development Plan and the Proffers, subject only to the requirements and
procedures of the County.
(31) "Property"
means, at any given time, the Submitted Land subject to this Declaration,
together with all improvements and appurtenances thereto now or hereafter
existing.
(32) "Reserved
Easement Areas" means areas within each Lot located within twenty-five feet of
any lot boundary-line adjacent to a public right-of-way or within fifteen feet
of any lot boundary-line located adjacent to another Lot or a private street for
which the Declarant has reserved the right to use and grant easements for
development purposes.
(33) "Rules
and Regulations" means the rules and regulations governing the use,
occupancy, operation, Upkeep and physical appearance of the Common Area and
appearance of the Lots adopted from time to time by the Board of
Directors.
(34) "Submitted
Land" means the land designated as such in Exhibit A and all land which is from
time to time submitted to this Declaration, (including Lots and Common
Area).
(35) "Upkeep"
means care, inspection, maintenance, snow and ice removal, operation,
repair, repainting, remodeling, restoration, improvement, renovation,
alteration, replacement and reconstruction, landscaping, lighting and
signage.
Section
1.2. Construction of Association Documents.
(a) Captions
and Cross-References. The captions are inserted only for reference,
and in no way define, limit or otherwise affect the scope, meaning or effect of
any provision. All cross-references are to the Declaration unless
otherwise indicated.
(b) Pronouns. The
use of the masculine gender shall be deemed to include the feminine and neuter
genders, and the use of the singular shall be deemed to include the plural and
vice versa, whenever the context so requires.
(c) Severability. Each
provision of an Association Document is severable from every other provision,
and the invalidity of any one or more provisions shall not change the
meaning of or otherwise affect any other provision. To the extent
that any provision of the Association Documents is found to be overly broad or
unenforceable and a narrower or partially enforceable construction may be given
to such provision, then the narrower or partially enforceable construction shall
be applied and, to the extent lawful, the provision shall be
enforced.
(d) Interpretation. If
there is any conflict among the Association Documents, this Declaration, and
thereafter the applicable Supplementary Declaration, shall control, except as to
matters of compliance with the Act, in which case the Articles of
Incorporation shall control. Particular provisions shall control
general provisions, except that a construction consistent with the Act
shall in all cases control over any construction inconsistent
therewith. The provisions of the Bylaws shall control over any
conflicting provision of any rule, regulation or other resolution adopted
pursuant to any of the Association Documents. The Association
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-
Documents
shall be construed together. Any requirements as to the content of
one shall be deemed satisfied if the deficiency can be cured by reference to any
of the others. The easements granted and reservations made herein or in any
supplementary declaration shall not terminate or merge and shall continue to run
with the land, notwithstanding the common law doctrine of merger and the common
ownership of the Property at this time by the Declarant
(e) Governing
Law. This Declaration shall be construed under Virginia law;
excluding its conflicts of law provisions.
(f) Conditions
on Approvals. Whenever the Declarant, the Association or any Owner
needs the approval of another Person under this Declaration, such approval
cannot be conditioned on the payment of money, either directly or as processing
or professional fee. A Person granting such an approval is entitled,
however, to reimbursement or payment of all costs actually
incurred.
ARTICLE
2
THE
ASSOCIATION
Section
2.1. Creation. The
Association is a nonstock corporation organized and existing under the laws
of the Commonwealth of Virginia, charged with the duties and vested with the
powers prescribed by law and set forth in the Association
Documents.
Section
2.2. Membership. Members
of the Association shall at all times be, and be limited to, the Declarant
(during the Development Period) and Persons who constitute Owners of the
Lots. If more than one Person owns a Lot, then all of the Persons who
own such Lot shall collectively constitute one Owner. Each Person is
entitled to attend all meetings of the Association. Membership in the
Association is mandatory and automatic with ownership of a Lot.
Section
2.3. Classes
of Members; Voting Rights. The Association shall have the Classes of
Members with the voting rights set forth in Article 4 of the Articles of
Incorporation and as follows.
The Class
A Members shall be all Owners of Single Family Residential Lots or the
Subassociations representing such Owners. A Class A Member shall have
one vote for each square foot of land either owned by or governed by such
Member.
The Class
B Members shall be the Owners of Multifamily Residential Lots or the
Subassociations representing such Owners. A Class B Member shall have
one vote for each square foot of land either owned or governed by such
Member.
The Class
C Members shall be the Owners of Commercial Lots or the Subassociations
representing such Owners. A Class C Member shall have one vote for
each square foot of land either owned by or governed by such
Member.
The Class
D Members shall be the Owners of Retail Lots or the Subassociations representing
such Owners. A Class D Member shall have one vote for each square
foot of land either owned by or governed by such Member.
The Class
E Members shall be the Owners of Civic Lots and shall have no vote.
The Class
F Member shall be the Declarant. During the Developer Control Period,
the Class F Member shall have twice as many votes as the number of votes held by
all other Classes of Members when a vote is taken. Thereafter, for so
long as the Declarant or its related entities
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owns any
portion of the land described on Exhibit A attached hereto, the Declarant shall
have one vote.
Section
2.4. Board
of Directors. Unless otherwise specifically provided in the Act or
the Association Documents, all rights, powers, easements, obligations and duties
of the Association may be performed by the Board of Directors on behalf of the
Association.
ARTICLE
3
EASEMENTS
Section
3.1. Utility and Development Easements.
(a) Utility
Easements. The right to use, grant and reserve easements and licenses
in the Common Area and the Reserved Easement Areas is hereby reserved and/or
granted to the Declarant, and the right to use, grant and reserve easements and
licenses in the Reserved Easement Areas is hereby granted to the Association,
for the purposes of: (i) installation, construction and Upkeep of
equipment used to provide any utilities, including without limitation water,
sewer, drainage, gas, electricity, telephone and television service, whether
public or private; (ii) ingress and egress to do such installation, construction
and Upkeep; or (iii) storm water management. Any easement or license
rights granted under this section are subject to the limitations of Section
3.6.
(b) Development
Easements. Subject to Section 3.6, the Declarant reserves an easement
of ingress and egress over and use of any of the Common Area or the Reserved
Easement Areas for: (i) movement and storage of building materials and
equipment; (ii) temporary slope and construction easements for making
improvements (e.g., streets and utilities) in the Community.
Section
3.2.
Release of Public Improvement Bonds. The Declarant and the
Association are hereby granted a right to grant, vacate or terminate easements
on the Common Area or the Lots as may be commonly required by any governmental
agency or authority in connection with the release of bonds held by the County
in connection with the acceptance of streets for public maintenance with respect
to the Community. Any rights granted hereunder this Section are
subject to the limitations in Section 3.6.
Section
3.3. Proffered
Community Facilities. Pursuant to Proffer XIII.33.A of the
Proffers, as clarified by letter dated August 13, 2004 from the Loudoun County
Zoning Administrator, the Declarant has provided (i) a swimming pool, pool house
and tennis courts adjacent to the Colonnade at Dulles Town Center residential
project (shown as Land Bay P on the Development Plan), but specifically
excluding any facility, building or improvement owned by the Colonnade
Homeowners Association; and (ii) a clubhouse/community building within the
Remington Apartment project (shown as Land Bay M on the Development
Plan). The foregoing amenities (collectively, the "Proffered
Community Facilities") shall be treated as Community Facilities for all purposes
hereunder and as required by the Proffers, will be available for use by all
Owners as well as residents of the Colonnade at Dulles Town Center
project. The Association may charge a membership fee or similar user
fee to residents or Owners who wish to use the Proffered Community
Facilities. The Association shall be responsible for Upkeep of the
Proffered Community Facilities referenced in (i) above and the Owner of the
Remington Apartment project shall be responsible for the Upkeep of the Proffered
Community Facilities referenced in (ii) above unless such responsibility has
been assigned to and assumed by the Association in a subsequent written
instrument. The Declarant reserves the right to reimburse the Owner
of the Remington Apartment project for the reasonable cost of Upkeep of the
Proffered Community Facilities referenced in (ii) above that is attributable to
the use of such
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facilities
by individuals other than residents of the Remington Apartment project and any
such reimbursement shall be a Common Expense. The Declarant reserves
the right, in its sole discretion, to designate one or more facilities in any
other portion of the Dulles Town Center project (each an “Alternate Proffered
Facility”) to satisfy the requirements of Proffer XIII.33.A or any other Proffer
or governmental requirement, and upon such designation, the Alternate Proffered
Facility shall automatically become a Proffered Community Facility as defined
above and shall be treated as a Community Facility for all purposes under this
Declaration. Further, upon designation of an Alternate Proffered
Facility, the facility or amenity previously designated as a Proffered Community
Facility shall automatically cease to be a Community Facility for all purposes
hereunder.
Section
3.4. Community
Facilities Easements. The Owners hereby grant to the Declarant and
the Declarant hereby reserves to itself and its successors and assigns easements
over, beneath and through the Common Area and any Lot: (i) within
twenty-five feet of any lot line adjacent to a public right-of-way; (ii) within
fifteen feet of any lot line adjacent to another Lot or a private street; or
(iii) where specifically designated as an easement on any plat (including that
plat attached as Exhibit C) for Community Facilities, including without
limitation for landscaping, signage, entry features, street lights, paths,
recreational facilities, streets, trails or sidewalks or other facilities
benefiting the Dulles Town Center Community. The Community Facilities
Easements may be used for the purpose of construction, installation,
irrigation and Upkeep of landscaping features, including without limitation
plants, trees and earth berms and other earth contouring and shall include
access as necessary to perform such tasks. Such easement area shall
also be available for installation, construction and Upkeep of entrance
features, project signage, xxxxxx xxxxxx, xxxxxx furniture, trails, paths,
recreational facilities, streets, sidewalks, fencing, associated lighting and
irrigation systems and utilities. The Association shall have the right to
maintain the Community Facilities. The Owner of a Lot burdened by such easement
shall not construct any improvements within the easement without the
permission of the Association. The Owner of the Lot and the
Association, each acting through their boards of directors without further
approvals, may together record an instrument relocating the general Community
Facilities Easement area with respect to such Lot, without the approval of the
Owner of any other Lot. Upkeep of the Community Facilities Easement
Areas and the Community Facilities located therein shall be provided by the
Owner of the Lot upon which such Community Facilities and Community Facilities
Easements are located, unless the responsibility for such Upkeep has been
specifically assigned to or assumed by the Association or as provided in a
separate deed of easement. The Association may assume responsibility
for Upkeep of Community Facilities or Community Facilities Easement Areas
without the consent of the Owner of any Lot, including the Owner of a Lot upon
which the Community Facilities or Community Facilities Easements are
located. The maintenance of storm water management facilities is
governed by Section 7.1 (b) hereof. A Community Facilities
Easement, or any portion thereof as applicable, shall automatically cease and
terminate and become null and void upon the dedication for public street
purposes (or other conveyance for public purposes) of the applicable portion of
the easement area.
Section
3.5. Relocation. If
an easement is relocated, the cost of such relocation shall be paid by the party
requesting the relocation.
Section
3.6. Terms
of Rights and Easements.
(a) Notice. The
Declarant (when exercising the easements granted by Section 3.1 and 3.4), or the
Association (when exercising any easements granted by Sections 3.1,
3.2 or 3.4), or the Declarant or Association's grantee, and its successors and
assigns (when exercising easement rights granted to it by the Declarant or the
Association under Section 3.1), shall give reasonable prior notice to all
affected Owners, unless an emergency exists which precludes such prior notice
(in which event prompt subsequent notice shall be given).
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(b) Limitations
on Disturbance. The Declarant (when exercising the easements granted
to it by Sections 3.1, 3.2, 3.4, 3.7 or 3.8), or the Association, or the
Declarant's or Association's grantee, and its successors and assigns (when
exercising easement rights granted to it by the Declarant or the Association
under Section 3.1), shall:
(i) minimize
any economic or aesthetic injury to the affected Lots or the Common
Area;
(ii) do any
work promptly and expeditiously as possible;
(iii) not
unreasonably interfere with any affected Owner's use of its Lot or with the
Association's use of the Common Area;
(iv) not
materially interfere with vehicular or pedestrian access to or on a Lot during
business hours without prior approval of the Owner.
(v) to
the extent practicable, limit any Upkeep within an easement area to non-business
hours with respect to the affected Lot and not block access to the parking lots
or buildings located on the Lot;
(vi) not
change the elevation of any of the Lot without the prior written approval of the
Owner of the Lot, nor change the grade of any of the Lots so as to interfere
with drainage on the Lot or affect the improvements on the Lot;
(vii) fully
restore any affected sidewalks, pavement, landscaping and similar improvements,
and the surface of the land and the surrounding vegetation, to their original
condition (to the extent practical) as soon as possible; and
(viii)
not install any utility facility or equipment above ground (except for temporary
utility facilities and equipment connected with acts under the development
easement in Section 3.1), and except for utility facilities and equipment
typically required to be installed above ground.
Notwithstanding
the above, if the grantee of an easement is a governmental quasi governmental or
major utility provider, the limitations on the exercise of the easement shall
only be subject to the terms of such grantee's standard form.
(c) Non-exclusive
and Perpetual. All rights and easements created by this Section 3 are
non-exclusive and perpetual, except for those rights and easements of Declarant
under Section 3.1 which expire at the end of the Development
Period.
Section
3.7. Easement for Use of Common Area.
(a) Use
and Enjoyment. The Declarant, during the Development Period, and each Owner are
hereby granted a non-exclusive right and easement of use and enjoyment in common
with others of the Common Area except as limited by the assignment of Reserved
Common Area or designated as Limited Common Area for the exclusive use of one or
more Owners pursuant to Section 3.8. Each Owner is also hereby
granted a non-exclusive easement for egress and ingress and utility services
over the Common Area serving such Owner's Lot to the extent necessary to provide
vehicular and pedestrian access and utility service to such Owner's Lot such
easement to include driveways, lead sidewalks and sanitary laterals as
necessary. Such easements for ingress and egress and utility service
may be relocated by the Association, acting through its Board of Directors
without Owner or Mortgagee approval, but
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shall not
be extinguished by termination of the Declaration or conveyance of the
Common Area unless alternative access is provided, if necessary, and the Owner
of the Lot consents in writing to the termination of the
easement. The foregoing rights and easements of use and enjoyment and
access, ingress and egress and utility services shall be appurtenant to each
Lot, whether or not mentioned in the deed thereto. Any purported
conveyance or other transfer of such rights and easements apart from the Lot to
which such rights and easements are appurtenant shall be
void. Subject to the Rules and Regulations and such other
restrictions as may be adopted by the Association, any Person having the right
to use and enjoy certain Limited Common Area or Reserved Common Area may
delegate such rights to such Person's customers, tenants, guests, employees,
agents and invitees and to such other Persons as may be permitted by the
Association.
(b) Adjacent
Land. During the Development Period, the Declarant also reserves to
itself, its successors and assigns, the right to grant to each Person lawfully
occupying a portion of the land located immediately adjacent to the Property a
non-exclusive easement over all streets, walks and paths on the Common Area, as
may be necessary for vehicular and/or pedestrian ingress and egress across such
Common Area from a public right-of-way to any portion of the adjacent land that
would not otherwise have access to a public right-of-way; provided, however,
that the Persons benefiting from such easement may be required to pay a portion
of the expense of Upkeep for such streets, walks and paths as determined by the
Declarant.
(c) Limitations. The
rights and easements of enjoyment created by this section shall be subject (in
addition to any easements granted or reserved in this Declaration or
pursuant to the other Association Documents) to all rights and powers of
the Declarant and the Association when exercised in accordance with the
other applicable provisions of the Association Documents, including without
limitation the Association's right (acting through its Board of Directors) to
regulate the use of the Common Area, to grant easements across the Common Area,
to dedicate portions of the Common Area owned in fee simple by the
Association and to convey or mortgage the Common Area owned in fee
simple by the Association.
(d) Common
Area Conveyances. The Association, acting through its Board of
Directors without Owner or Mortgagee approval, has the power at any time or
times, consistent with the then existing zoning or subdivision ordinances of the
applicable governmental authority, to (i) transfer part of the Common Area
subject to this Declaration, if any, to or at the direction of the Declarant or
other Person requesting the adjustment, for the purpose of adjusting Lot lines
or otherwise in connection with the orderly subdivision and development of the
Property; (ii) grant easements across the Common Area; (iii) to make dedication
of the Common Area; and (iv) to convey the Common Area to a governmental agency
or entity formed for purposes similar to the purposes for which the Association
was formed.
Section
3.8. Reserved Common Area and Limited Common Area.
(a)
Reserved Common Area. The Board of Directors shall have the power in
its discretion from time to time to grant revocable licenses in the Common
Area owned in fee simple by the Association by designating portions of the
Common Area as Reserved Common Area. Such Reserved Common Area shall
be subject to such restrictions, reasonable charges and conditions on the use
thereof as the Board may deem appropriate. Such Reserved Common
Area shall be maintained by the Association or, at the Board's determination, by
the Persons having the exclusive right to use the Reserved Common
Area.
(b) Limited
Common Area. The Declarant shall have the right, for as long as the
Declarant has the right to add additional land under Section 4.1 to restrict
portions of the Common Area owned in fee simple by the Association in the nature
of an easement for the
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primary
or exclusive (if specifically assigned) use of the Owners of one or more
specific Lots by designating such portions of the Common Area as Limited Common
Area in a Supplementary Declaration. The Declarant may
either: (i) indicate the locations of the Limited Common Area
appertaining to one or more Lots by depicting such Limited Common Area and the
Lots to which it is appurtenant on the plat attached as an exhibit to a
Supplementary Declaration; (ii) label a portion of the Common Area shown on a
plat attached as an exhibit to a Supplementary Declaration as "Common Area that
may be assigned as Limited Common Area", and thereafter assign such Limited
Common Area to one or more specific Lots by unilaterally amending the
Supplementary Declaration to indicate the assignment, depicting the Limited
Common Area being assigned and the Lots to which it is appurtenant; or (iii)
describe the Limited Common Area or Common Area that is or may be assigned as
Limited Common Area in a Supplementary Declaration. Common Area may not be
designated as Limited Common Area or Common Area that may be assigned as Limited
Common Area for the exclusive use of an Owner after conveyance of such Common
Area to the Association, unless the Owners of all lots abutting such Common Area
consent the assignment as Limited Common Area.
Section
3.9. Land Submitted by Owners Other Than the Declarant and
Enforcement of Easements. Any Person submitting land to this
Declaration hereby grants to the Declarant, the Association and to each other
Owner all rights, easements and other interests with respect to such land
granted or reserved and shall provide such further assurances as may be
required. The easements and rights granted by this Declaration shall
not be enforceable by Persons to whom such easements and rights may be delegated
by Owners. This section does not affect, however, the rights of
Mortgagees in possession or court-appointed officers in possession and control
of a Lot acting in the name, place and stead of Owners, or any Person's right to
enforce any easements or rights granted in any lease or agreement by an
Owner.
Section
3.10. No Dedication. This Declaration does not dedicate the easements
herein declared for the benefit of any Person not herein expressly made a
beneficiary thereof. Declarant expressly disclaims the creation of
any right in or for the benefit of the general public.
ARTICLE
4
EXPANSION/CONTRACTION
OF THE PROPERTY
Section
4.1. Expansion by the Declarant. The Declarant hereby
reserves a right during the Development Period to expand the Property from time
to time without the approval of the Association or any Owner (except the owner
of such land) or Mortgagee by unilaterally submitting additional land to
the provisions of this Declaration and the jurisdiction of the Association
whether or not such land is owned by the Declarant. The right to
expand may be terminated only upon the recordation by the Declarant of an
instrument relinquishing such right. The Declarant reserves the
unilateral right without the approval of the Association or any Owner (except
the owner of such land) or Mortgagee to sign and record a Supplementary
Declaration, subjecting any portion of the Property to such additional or
different covenants and restrictions as may be necessary to reflect the
different characteristics of such portion of the Property as are not
inconsistent with the overall scheme of the Declaration; provided, however,
that the Declarant shall not have such right after the conveyance of a Lot to an
Owner other than the Declarant without the written consent of such
Owner. The Declarant shall add additional land in accordance with the
procedures set forth in Section 4.3. There are no limitations on the
right to expand except as set forth in this Article.
Section
4.2. Expansion by the Association. With the written
consent of the fee simple owner of such land, at least a Sixty-seven Percent
Vote of the Owners or the written consent of Owners entitled to cast at least
sixty-seven percent of the total number of votes and the written consent of the
Declarant during the Development Period, the Association may submit any
land to
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the
provisions of this Declaration and the jurisdiction of the Association, in
accordance with the procedures set forth in Section 4.3.
Section
4.3. Procedure for Expansion. The Declarant or the
Association, as appropriate, may record one or more Supplementary Declaration
submitting the land described therein to this Declaration and to the
jurisdiction of the Association. Each Supplementary Declaration shall
include a legally sufficient description of the land added. Any Supplementary
Declaration may contain such additions or modifications to the provisions in
this Declaration as may be necessary to reflect the different character of
the land described therein and as are not inconsistent with the overall scheme
of this Declaration; provided, however, that such additions or
modifications shall not apply to any Lot previously submitted to this
Declaration without the written consent of the Owner of the Lot subject to the
additional provisions.
Section
4.4. Withdrawal/Contraction
(a)
Contraction by the Declarant. During the Development Period, the
Declarant has the unilateral right from time to time without the approval of the
Association or any Owner or Mortgagee to sign and record an amendment to the
Declaration and the applicable Supplementary Declaration withdrawing any portion
of the Submitted Land, if (i) such land is dedicated or is to be dedicated to
public use or conveyed to a public agency; (ii) such land is zoned or to be used
for residential purposes whether or not owned by the Declarant; (iii) such land
is to be used for Civic Purposes whether or not owned by the Declarant or (iv)
required in order to comply with the Proffers or any other governmental
regulation or directive. To withdraw a Lot not owned by the Declarant, the
consent of the Owner is required. Any land dedicated for public street purposes
is automatically withdrawn and the Declarant may unilaterally, without the
approval of the Association or any Owner or Mortgagee, record an instrument
confirming such withdrawal. The Declarant hereby also reserves the
unilateral right to withdraw any portion of the Property until such time as such
Lot is owned by an Owner other than the Declarant or an affiliate of the
Declarant.
The
Declarant may exercise the rights reserved hereunder without the
approval of the Association or any Owner or Mortgagee, and such right may be
terminated only upon the recordation by the Declarant of an instrument
relinquishing such right. There are no limitations on the Declarant's
rights to contract except as set forth in this Section. The Declarant
may record one or more amendments to this Declaration and the applicable
Supplementary Declaration and Exhibits thereto removing the Property
described therein from the jurisdiction of the Association, and upon the
recordation of any such amendment, this Declaration shall thereupon cease to
bind, run with or otherwise affect the real estate within that Property so
described.
(b)
Contraction by the Association. In addition, any portion of the
Property to be dedicated to the public may be withdrawn by the Association upon:
(i) the approval of the Board of Directors; (ii) the approval of the Declarant,
during the Development Period; (iii) the approval of Owners by a at least
Sixty-seven Percent Vote of the Owners or the written approval of Owners
entitled to cast at least sixty-seven percent of the total number of votes; and
(iv) the approval of the owner of the land being withdrawn. Any land
dedicated for public street purposes or other public purposes shall be deemed to
be automatically withdrawn.
ARTICLE
5
SPECIAL
DECLARANT RIGHTS; TRANSFER
Section
5.1. Special Declarant Rights. Special Declarant Rights
are those rights reserved for the benefit of the Declarant as provided for in
the Association Documents, and shall include
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without
limitation the following rights: (i) to have, use, grant, reserve and
terminate easements over and through the Property for the purpose of making
improvements within the Property as provided in Article 3; (ii) to exercise
the rights and votes of the Declarant and the Class F Owner; (iii) to remove and
replace any director elected by the Class F Owner; (iv) to make unilateral
amendments to the Association Documents as provided in Sections 3.8, 4.1, 4.4
and 14.1; (v) to add additional land pursuant to Section 4.1; (vi) to withdraw
Submitted Land pursuant to Section 4.4 and (vii) to exercise any other rights
reserved or given to the Declarant by the Association Documents.
Section
5.2. Transfer of Special Declarant Rights.
The
Declarant may unilaterally transfer (without the approval or joinder of the
Association or any Owner or Mortgagee) Special Declarant rights created or
reserved under the Association Documents to (i) any Person acquiring Lots or
Property owned by the Declarant at the time of transfer or (ii) any lender
holding a Mortgage on Lots or Property owned by the Declarant at the time of
transfer. Such transfer shall be evidenced by an instrument
recorded in the Land Records. The instrument is not effective
unless signed by the transferor and transferee; provided, however, that a
Person may unilaterally sign and record an instrument to acquire some or
all of the Special Declarant Rights with respect to the land acquired if such
Person acquires all the Lots and/or Property owned by a declarant at the time of
transfer pursuant to a mortgage or deed of trust by foreclosure or deed in lieu
of foreclosure. Such instrument must be recorded within a reasonable
time after acquisition of the land.
A
successor to Special Declarant Rights held by a transferor who succeeded to
those rights pursuant to a Mortgage or a foreclosure or a deed in lieu of
foreclosure may declare the intention in an instrument recorded in the Land
Records to hold those rights solely for transfer to another
Person. Thereafter, until transferring the Special Declarant
Rights to a Person acquiring title to any Lots or Property owned by such
successor, or until such successor records an instrument assuming the right to
exercise the Special Declarant Rights, that successor may not exercise any
of the Special Declarant Rights other than (i) any right held to vote as
Declarant and the Class F Owner or (ii) to approve or disapprove: (A) amendments
to the Association Documents, (B) dissolution of the Association, or (C)
termination of the Declaration. So long as a successor does not
exercise Special Declarant Rights (except the rights described above) under this
subsection, such successor is not subject to any liability or obligation as a
declarant.
A partial
transfer of Special Declarant Rights does not prevent the transferor declarant
from continuing to exercise Special Declarant Rights with respect to land
retained by such declarant. The instrument providing for a partial
transfer of Special Declarant Rights shall allocate voting rights between the
transferor and the transferee as such Persons shall agree among themselves or
based on the relative square footages of the land owned by each declarant if not
otherwise provided. Each Person having declarant rights under the
Association Documents has the right to transfer such rights unilaterally with
respect to land owned by such Person except to the extent provided otherwise in
an instrument assigning the Special Declarant Rights to such
Person. If at any time the Declarant ceases to exist and has not made
an assignment of the Special Declarant Rights, a successor may be appointed by
an amendment to the Declaration made pursuant to Section 14.2.
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P A R
T T W O
ARTICLE
6
COMMON
EXPENSES AND ASSESSMENTS
Section
6.1. Determination of Common Expenses and Budget.
(a) Fiscal
Year. The first fiscal year of the Association shall be as determined
in accordance with Section 9.4 of the Bylaws.
(b) Budget. The
Board of Directors shall develop and adopt a budget and make available copies to
the Owners at least thirty days prior to the beginning of each fiscal year
except as may be otherwise provided in any written agreement with an Owner or an
Association representing such Owner. Such budget shall include Common
Expenses and Limited Common Expenses and shall serve as the basis of Assessment
of the Lots.
(c) Effect
of Failure to Prepare or Adopt Budget. The failure or delay of the
Board of Directors to prepare or adopt a budget for any fiscal year shall not
constitute a waiver or release in any manner of an Owner's obligation to
pay the allocable share of the Common Expenses as herein provided whenever
the same shall be determined and, in the absence of any annual budget or
adjusted budget, each Owner shall continue to pay Assessments at the rate
established for the previous fiscal year until notified of the new payment which
is due on the first day of the next payment period which begins more than thirty
days after such new annual or adjusted budget is adopted and the Owner receives
notice.
(d) Installment
Payments and Due Dates. On or before the first day of each fiscal
year, and the first day of each succeeding payment period in such fiscal year,
each Owner shall pay to such Person at such place as the Board of Directors may
direct that installment of the Annual Assessment which is due during such
period. The Board of Directors shall establish one or more payment
periods and the due dates for each such payment in each fiscal year; provided,
however, that payments shall be due not less than semi-annually or more
frequently than monthly unless specifically provided otherwise
herein.
(e) Initial
Assessment. The first installment of the Annual Assessment for Common
Expenses shall be prorated based upon the number of days remaining in the
payment period and shall be due on the date the Lot is first subject to
assessment pursuant to Section 6.2 hereof. Any additional
amounts due shall be divided by the number of full payment periods (if any)
remaining in that fiscal year and paid in equal installments on the first day of
each payment period remaining in that fiscal year.
Section
6.2. Purpose and Rate of Assessment.
(a) Purpose. Common
Expenses of the Association may include such amounts as may be necessary
for: (i) Upkeep and management of the Common Area, Community
Facilities Easements or Community Facilities; (ii) administration costs of the
Association; (iii) maintenance of adequate reserve funds, including without
limitation a working capital reserve fund (available cash for day-to-day
expenses), a general operating reserve fund (including an amount to cover
operating losses due to insurance deductibles), reserve funds for contingencies
(potential costs which have not been incurred but should be planned for) and
replacement reserve funds; (iv) services to Lots, Owners and Subassociations (if
any); (v) insurance; (vi) any other purpose contemplated by the Declaration; and
(vii) any other purpose agreed to by a Majority Vote of the Owners.
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(b) Rate. The
Assessment Per Square Foot of Land, shall be determined by first establishing
the total amount to be assessed for Common Expenses, excluding Limited Common
Expenses less any sums actually received from the Colonnade Homeowners
Association (or its members) under Section 18.5 of Declaration for Colonnade at
Dulles Town Center recorded in Deed Book 1403, at page 534, among the land
records, as the same may be amended including by Memorandum of Understanding
(the “Total Assessment Amount”) and dividing such sum by the “Total Assessable
Square Footage”. Total Assessable Square Footage shall be the sum of
(i) the total land square footage in a Lot for which a certificate of occupancy
has been issued multiplied by six; and (ii) the total land square footage in an
Undeveloped Lot. The Assessment against each Lot for which a
certificate of occupancy has been issued shall then equal the land area in such
Lot in square feet multiplied by the Assessment Per Square Foot of Land
multiplied by six. The Assessment against each Undeveloped Lot shall
then be equal to the land area in such Lot in square feet multiplied by the
Assessment Per Square Foot of Land.
Notwithstanding the forgoing, the
Declarant may determine to provide in a Supplementary Declaration that a Civic
Lot is not subject to the full Assessment at the rate provided hereunder, in
which case the Assessment against such Civic Lot shall be deducted from the
total budget for Common Expenses (excluding Limited Common Expenses) and the
remainder shall be allocated among the Lots subject to Assessment hereunder as
provided herein. In addition, the Association may determine that
Upkeep of Community Facilities performed by the Owner of the Lot upon which the
Community Facilities are located reduces the financial burden on the Association
to perform such Upkeep. Such Upkeep by the Owner may be recognized by
the Association as in-kind payment of a portion of the Common Expenses charged
to such Lot.
(c) Limited
Common Expenses. The Association may also assess Owners as a Limited
Common Expense for the maintenance of, reserves for and insurance for Common
Area or other facilities or services as agreed to by the Owner in a
Supplementary Declaration based on the square footage of land area or on such
other basis as such Owners may agree to in such Supplementary Declaration or
otherwise. If no other basis is indicated, the basis of assessment for Limited
Common Expenses shall be the square footage of land area of the Lots subject to
such Supplementary Declaration. Notwithstanding the foregoing, to the
extent the Association provides maintenance or services that vary based on the
nature of the Lot or the amount of use, the Association may vary the basis of
assessment of Limited Common Expenses to more accurately reflect the benefit
received by the Owner of the Lot assessed.
(d) Intentionally
Omitted.
Section
6.3. Intentionally
Omitted.
Section
6.4. Individual
Assessment. An Individual Assessment consists of: (i) any
costs incurred by the Association under Section 12.1 to cure any violation or
breach by any Owner; and (ii) contractual charges under any agreement by which
the Association agrees to provide services to an Owner in addition to the
services it is obligated to provide under this Declaration. Each
Owner shall pay any Individual Assessment due from it within thirty days after
notice thereof is sent to the Owner, unless the notice specifies a later
date.
Section
6.5. Liability for Assessments.
(a) Owner
Liability. Each Owner shall pay to the Association all Assessments
and other charges assessed by the Association pursuant to the provisions of this
Declaration. Each Owner shall be personally liable for all
Assessments made against such Owner's Lot at the time such Owner owned such
Lot. No Owner shall be exempted from liability for Assessment by
reason of waiver of the use or enjoyment of any of the Common Area, if
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any, or
by abandonment of the Lot or by temporary unavailability of the Common
Area, if any. No Owner shall be liable for the payment of any part of
the Common Expenses assessed against the Lot subsequent to the date of
recordation of a conveyance by such Owner in fee of such Lot. Prior
to or at the time of any such conveyance, all liens, unpaid charges and
Assessments shall be paid in full and discharged and, unless so discharged,
shall remain a charge on the land and a continuing lien against the
Lot.
(b) Lien. All
Assessments and other charges due under the provisions of the Declaration shall
be a lien against each Owner's Lot as provided in Section
12.3. However, if any Owner fails to pay any such amounts, the
Association may bring a suit against such Owner for non-payment without
foreclosing or waiving the lien herein created to secure the same.
(c) Mortgagee
Liability. Each holder of a Mortgage who comes into possession of a
Lot by virtue of foreclosure or by deed or assignment in lieu of foreclosure, or
any purchaser at a foreclosure sale, shall take the Lot free of any claims
for unpaid Assessments or charges against such Lot which accrue prior to the
time such Person comes into possession thereof, except as provided below and for
claims for a pro rata share of such Assessments or charges resulting from a pro
rata reallocation of such Assessments or charges to all Lots including the
mortgaged Lot assessed after the holder of the Mortgage or purchaser takes
possession. The lien created by Section 12.3 shall cease to exist
with respect to Assessments and charges levied prior to the time title is
transferred by foreclosure or by deed or assignment in lieu thereof; provided,
however, that if the proceeds of a foreclosure exceed the total amount due to
the holder of the Mortgage, the excess shall first be paid to the
Association and applied to the satisfaction of the Association's
lien.
Section
6.6. Statement of Common Expenses. The Association shall
provide any contract purchaser or Mortgagee of a Lot, within fourteen days after
a written request therefor, with a written statement of any Assessments and
other amounts due and unpaid with respect to the Lot as of the date of the
request ("Statement of Common Expenses"). Any Person to whom such a
Statement of Common Expenses has been given by the Association shall not be
liable for, nor shall the Lot conveyed to such Person relying on such statement
be subject to a lien for, any Assessments or other amounts due prior to the date
of such statement and not disclosed on the statement; provided, however, that
this section shall not be interpreted to release any Person from liability for
Assessments levied while such Person owned the Lot. The Board
of Directors may impose a reasonable charge for the preparation of
such Statement of Common Expenses to cover the cost of preparation.
Section 6.7. Reserves.
The Association may establish reserves for the replacement of improvements on
the Common Area, the reserves to be a Limited Common Expense funded by
assessment against all of the Lots or, if applicable, the Lots served by such
Common Area as set forth in the applicable Supplementary Declaration for such
Lots and Common Area. The amount of reserves may not exceed the
amount reasonably required by the Board of Directors to meet the
Association's ongoing obligations and to replace such Common Area maintained by
the Association.
Section
6.8. Late
Fee. Any Assessment (including an installment of the Annual
Assessment) not paid within ten days after the due date shall be delinquent and
shall accrue a late charge in the amount of one and one-half percent of such
Assessment (or such other amount as may be established from time to time by
the Association) for each full or partial thirty day period payment is
late. However, such late charge may not exceed the maximum rate
permitted by law. The Association may take prompt action to
collect any Assessments due from any Owner which remains unpaid for more than
thirty days after the due date for payment thereof.
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ARTICLE
7
OPERATION
OF PROPERTY
Section
7.1. Maintenance Responsibilities.
(a) Common
Area. Common Area subject to this Declaration may be conveyed
to the Association and the Association shall accept such conveyance from the
Declarant. Thereafter, such Common Area shall be maintained by the
Association, including without limitation: (i) Upkeep of all open areas,
including grass cutting, garbage collection, landscaping and lawn
maintenance; (ii) Upkeep of the xxxxxxx xxxxxxx xxx xxxxxxxx, xxxxxx lights,
sidewalks and parking areas, including snow removal and repair and
replacement; and (iii) Upkeep of all other improvements located
thereon. The cost of such maintenance and all other costs associated
with such Common Area will be assessed as a Common Expense against all Lots or,
if applicable, as a Limited Common Expense against the Lots subject to the
applicable Supplementary Declaration in accordance with Section
6.2(c). The Association shall not have any responsibility for the
Upkeep of any Lot except for those responsibilities and duties specifically
enumerated within the Association Documents, the subdivision documents or
separate easement agreements. Notwithstanding the general provisions
for Upkeep of Common Area set forth in this section, specific responsibilities
for Upkeep and allocations of the costs of Upkeep shall be determined by any
provisions therefor included in a Supplementary Declaration or as part of a deed
of subdivision or deed of easement for a portion of the Property. If
the Board of Directors determines that certain Upkeep was necessitated by the
negligence, misuse or misconduct of an Owner or for which an Owner is
responsible pursuant to Section 12.1, the cost of such Upkeep shall be assessed
against such Owner's Lot pursuant to Sections 6.4 and
12.1(c). Further, the Board may determine that all or a part of the
Upkeep of any portion of the Common Area designated as Reserved Common Area or
Limited Common Area shall be performed by the Person having the exclusive right
to use the same. The Board of Directors shall establish the standards
for Upkeep of the Common Area in its sole discretion.
In
addition, the Association shall also have the power to provide Upkeep for: (i)
landscaping along public streets serving the Community or which is part of the
Community-wide landscaping program required by the Proffers or otherwise; (ii)
signage serving the Community; (iii) trails serving the Community; (iv)
stormwater management easements and facilities serving the Community; (v)
Community Facilities; (vi) recreational facilities serving the Community,
including without limitation, the community pool, pool house, tennis courts, and
play areas; (vii) private streets and public rights-of-way, including street
pavement, curbs and gutters (to the extent not maintained by the appropriate
governmental authorities) or (viii) any other areas, amenities or improvements
within the Community Facilities Easement Areas within the Property or similar
easement areas throughout the Community determined by the Board of Directors to
serve all or more than one portion of the Community and to be appropriate for
Upkeep by the Association. In addition, the Association may adopt, administer or
contribute to a transportation systems management plan. The board of directors
of the Association may perform such acts as are reasonably necessary in its
discretion to administer or facilitate or as may be otherwise determined by the
board of directors of the Association to be desirable to enhance the flow of
traffic through the Community, including, without limitation, hiring additional
staff, appointing-special committees, acquiring vans for van pooling, or
encouraging flexible working hour schedules from all Owners regulating parking
on Lots, building and maintaining bus stop shelters and entering into agreements
with other property owners associations, governmental agencies or similar
entities. The cost of such administration and the cost of any performance by the
Association under the transportation management plan may be a Common Expense if
so determined by the board of directors of the Association. Also the Association
may assess for expenses incurred in operating a recycling program.
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(b) Storm
Water Management. The Declarant may construct improvements and
facilities for storm water management control. The Upkeep of the
storm water management facilities located on the a Lot shall be performed by the
Owner of such Lot including the maintenance of any facilities located within an
easement granted to Loudoun County notwithstanding any obligation of the
Association to maintain such areas set forth in such easement. The
Upkeep of the storm water management facilities located on the Common Area shall
be performed by the Association; provided, however, that the Upkeep obligations
identified in this subsection shall cease and terminate at such time as the
County, through a department of public works or some similar agency, elects to
maintain the storm drainage and management facilities contained within the
easements, or elects to maintain all such easements within the watershed where
the easement is located, as evidenced by a document recorded among the Land
Records. The Owner of any Lot on which there is located an easement
for storm water drainage management or control shall be also responsible for the
following items of maintenance, where applicable: grass mowing with
reasonable frequency and the removal of debris and other matter where such
debris or matter has impeded or threatens to impede the free flow of storm water
through drainage structures. If a storm water management facility or
easement on a Lot or the Common Area is not maintained by the Owner of such Lot
and ceases to provide storm water management to serve the Property in a manner
required by applicable County ordinances, then the Association shall notify the
Owner, in writing of such failure and allow a reasonable time period under the
circumstances to cure such failure, unless an emergency situation
threatening damage to persons or property exists. If the Owner fails
to restore the storm water management facility or easement to a functional
condition in compliance with applicable County ordinances, then the
Association shall take such steps as are reasonably necessary to restore the
storm water management facility or easement to a functional state in compliance
with ordinances (but not for aesthetic purposes) and shall have an easement
across the Lot or Common Area solely for such purposes. The cost incurred by the
Association to restore the storm water management facility or easement to a
functional state as required by County ordinances shall be at the expense of
Owner. All actual out-of-pocket costs reasonably incurred by
Association in performing such maintenance shall be promptly reimbursed to the
Association by the responsible Owner upon written notification accompanied by
supporting documentation.
(c) Community
Facilities. Except to the extent performed by the Owners pursuant to
Section 7.2, the Association shall perform the Upkeep of the Community
Facilities, whether or not located within a "Community Facilities
Easement." The Community Facilities may include without limitation
storm water management or drainage easements and facilities, landscaping,
including associated lighting and irrigation system, entrance features, signage,
trails, paths and sidewalks, street furniture, street lights and areas along
streets and roadways and within center islands (including within public
rights-of-way to the extent not maintained by the appropriate governmental
authorities, including street pavement, curbs and gutters within public
rights-of-way).
(d) Other
Services. To the extent determined to be necessary or desirable by
the Board of Directors, the Association may provide trash collection or cable
television or similar services to the Owners as a Common Expense or a Limited
Common Expense, as appropriate.
Section
7.2.
Lots. Each Owner shall keep its Lot and all improvements located on
the Lot in good order, condition and repair and in a clean and sanitary
condition, as required by Section 7.3 and any applicable laws and regulations,
excluding utility facilities on the Lot, except as otherwise agreed between the
Owner and the utility provider. Each Owner shall be responsible for
Upkeep of the Community Facilities within any Community Facilities Easement
located on such Owner's Lot (including without limitation, irrigation lines)
unless the responsibility for such Upkeep has been specifically assigned to and
assumed by the Association.
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Section
7.3. Maintenance
Standards. With respect to the items for which each Owner (or the
Association) must manage and provide Upkeep under this Declaration (or a
Supplementary Declaration), the following standards apply:
(a) Private
Streets and Sidewalks. The private streets and sidewalks shall be
maintained in good repair and in a safe sound condition, sightly in appearance,
reasonably free of trash and debris and in conformity with applicable
governmental regulations. Such maintenance shall include curb and
gutters, repaving and snow removal from streets, and snow removal on,
maintenance and replacement of, sidewalks. Private streets shall be
maintained to the level required by the Loudoun County Facilities Standards
Manual, as amended from time to time ("Facilities Manual"). All
cracks and potholes in paved or concrete surfaces shall be promptly
repaired. The streets and sidewalks shall be swept regularly as
determined by the Board of Directors and as necessary to keep the streets free
and clear of debris. Snow in excess of two inches or ice shall not be
allowed to remain on any private street. No obstruction shall be
allowed to remain within the private streets or sidewalks.
(b) Street
Lights. Unless otherwise determined by resolution of the Board of
Directors, street lights shall be operated from dusk to xxxx each day of the
year and shall be kept in good working order. Burned out bulbs shall
be replaced with bulbs of comparable power and quality as originally
installed.
(c) Street
Furniture. Street furniture shall be maintained in good working order
and sightly in appearance. Trash cans shall be emptied as necessary
to prevent odors or overflow.
(d) Landscaping. All
lawn areas, flowers, shrubs and trees shall be mowed (where applicable), watered
and fertilized as necessary to maintain the level of landscaping installed in
accordance with the Development Plan or any subsequent landscape plan or
guidelines adopted by the Board of Directors. Lawn areas must be
mowed regularly as necessary to keep at a height of 2-1/2 inches to 3-1/2
inches. Mowing should include trimming around obstacles, raking
excessive grass clippings and removing debris created by mowing from walks,
curbs and parking areas. Water, fertilizer and herbicides must be
applied as necessary to keep lawn areas green, and bare areas shall be
reseeded. Shrubs and trees must be pruned as necessary to prevent the
blockage of pedestrian and vehicular passageways, and diseased or damaged shrubs
and trees shall be treated or removed and replaced. Seasonal
plantings shall be maintained in all flower beds located as shown on the
Development Plan or any subsequent landscape plan or guidelines adopted by the
Board of Directors.
(e) Signage. Signs
shall be maintained in good repair. All graffiti and any dirt which
reduces the readability of any signage shall be promptly removed or the sign
shall be replaced, as necessary. All lighting associated with any
signage shall be maintained in working order and all burned out bulbs shall be
promptly replaced.
Section
7.4. Disclaimer of
Liability. The Association shall not be liable for any failure of
water supply or other services to be obtained by the Association or paid for as
a Common Expense, or for personal injury or property damage caused by the
elements or by any Lot Owner, or any other Person, or resulting from
electricity, water, snow or ice which may leak or flow from or over any of the
Property or from any pipe, drain, conduit, appliance or equipment, or any
secondary or consequential damages of any type. No diminution, offset
or abatement of any Assessment shall be claimed or allowed for inconvenience or
discomfort arising from the making of repairs or improvements to the Property by
the Association or from any action taken by the Association to comply with any
law, ordinance or with the order or directive of any governmental
authority.
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Section
7.5. Services to
Owners. The Association may, in the sole discretion of the Board of
Directors, provide additional services to Owners (including the Declarant) on a
contractual basis at the request of such Persons. The charges for
such services shall be assessed against the Lot of the Owner.
ARTICLE
8
USE,
REZONING, AND OPERATION RESTRICTIONS
Section
8.1. Use
Restrictions. The Property shall not be used for any purposes
inconsistent with the Development Plan without the Declarant's approval during
the Development Period or the Board of Directors thereafter.
Section
8.2. Rezonings and Proffer
Amendments. No Owner shall seek to rezone or amend the Proffers
affecting such Owner's Lot without the prior written approval of the Declarant
during the Development Period and thereafter without the prior approval of the
Board of Directors. The Dulles Town Center Community is planned to
include a significant amount of commercial and retail development, which could
include without limitation hotels, shopping malls, office multi-family rental or
light industrial. The Declarant reserves the right to seek to rezone or amend
the zoning, the Development Plan or Proffers applicable to any portion of the
Property, or any portion of the land within the Dulles Town Center Community
during the Development Period for any reason whatsoever, including to respond to
market needs, without the approval of any Owner, except the Owner of the land
described in the application and directly affected by the
amendment. To the extent the approval and consent of any other Owner
is required under State or local law to apply for or obtain any rezoning or
proffer condition amendment or to make any subdivision submission, then each
Owner agrees to sign the application or other documents required for such
action; provided, however, that such joinder shall be without liability or cost
to such Owner unless such liability or cost is expressly accepted by such Owner;
and provided, further, that this covenant does not apply to any amendment which
would materially, adversely affect an Owner's ability to use such Owner's Lot
for its intended purposes or significantly increase such Owner's development
costs.
Section
8.3. Operational
Restrictions.
(a) No
Waste. No waste will be committed on the Property.
(b) Compliance
with Laws. No improper, offensive or unlawful use shall take place
within the Property, and all valid laws, zoning ordinances and regulations of
all governmental agencies having jurisdiction thereof shall be
observed. All laws, orders, rules, regulations or requirements or any
governmental agency having jurisdiction thereof relating to any portion of the
Property shall be complied with, as among the Owners, the Declarant, and the
Association, by the Person obligated for the Upkeep of such portion of the
Property.
(c) Harmful
Discharges. There shall be no emissions of dust, sweepings, dirt,
cinders, gases or other substances into the atmosphere, no production, storage
or discharge of hazardous wastes on the Property or discharges of liquid, solid
wastes or other harmful matter into the ground or any body of water, if such
emission, production, storage or discharge may adversely affect the use or
intended use of any portion of the Property or may adversely affect the health,
safety or comfort of the occupants of the Property. No waste nor any
substance or materials of any kind shall be discharged into any public sewer
serving the Property or any part thereof in violation of any regulation of any
public body having jurisdiction over such public sewer. No Person
shall allow the escape or discharge of any fumes, gases, vapors, steam, acids or
other substances into the atmosphere which discharge, in the opinion of the
Board of Directors, may be detrimental to the health, safety or welfare of the
occupants of the Property or
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vegetation
located in the Property. The foregoing shall not be interpreted to
prevent normal restaurant or food preparation activities.
(d) Noise. No
Person shall cause any unreasonably loud noise (except for security devices)
anywhere in the Property, nor shall any Person permit or engage in any activity,
practice or behavior resulting in significant and unjustified annoyance,
discomfort or disturbance to any Person lawfully present on any portion of the
Property
(e) Association
Employees. No Person shall engage or direct any employee of the
Association on any private business of the owner or otherwise direct, supervise
or in any manner attempt to assert control over such employee during the hours
such employee is employed by the Association.
(f) Trash. No
burning of any trash and no accumulation or storage of litter, refuse, bulk
materials, building materials or trash of any other kind shall be permitted on
any Lot. Trash or recycling containers must be screened or enclosed
and shall not be permitted to remain visible from adjacent land.
(g) Landscaping. No
tree, hedge or other landscape feature shall be planted or maintained in a
location which obstructs sight-lines for vehicular traffic on public or private
streets in violation of applicable governmental regulations.
(h) Lighting. No
exterior lighting shall be directed outside the boundaries of a
Lot.
(i) Utility
Lines. Except for hoses and the like which are reasonably necessary
in connection with construction activities or normal landscape maintenance, and
except for equipment used to provide or meter utilities or services that are
temporarily installed above ground during periods of construction, and except in
connection with promotional or seasonal activities, no water pipe, sewer pipe,
gas pipe, drainage pipe, television or telephone cable, electric line or other
similar transmission line shall be installed or maintained upon any Lot above
the surface of the ground without the approval of the Declarant during the
Development Period or the Board of Directors thereafter.
(j) Antenna. Outside
antenna, satellite dishes, or amateur radio equipment or similar equipment may
be maintained on a Lot only if screened from street level view or if otherwise
approved by the Declarant during the Development Period, or the Board of
Directors thereafter. The Declarant or Board shall not restrict such
equipment so as to unreasonably interfere with the conduct of business on a Lot
or in violation of telecommunications laws.
(k) Construction
Activities. This Section 8.3 shall not be construed to prohibit any
construction or Upkeep of any portion of the Property so long as such work is
done: (i) with the minimum practical disturbance to Persons occupying
other portions of the Property; (ii) with the minimum practical disturbance of
the rights and easements of other Persons under this Declaration; and (iii) in
accordance with all applicable provisions of this Declaration.
Section
8.4. Restriction on Further Subdivision. During the
Development Period, a Lot may be consolidated, subdivided or altered so as to
relocate the boundaries between such Lot and any adjoining Lot only with the
prior written approval of the Declarant. This section is not intended
to require the approval of the Declarant to leases, deeds of corrections, deeds
to resolve boundary line disputes or similar corrective
documents. This section does not apply to the relocation of unit
boundaries of a condominium unit if the total number of units in the condominium
is not increased.
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Section
8.5. Leasing. No Owner
shall lease a Lot other than on a written form of lease: (i)
requiring the lessee to comply with the Association Documents; and (ii)
providing that failure to comply constitutes a default under the
lease.
Section
8.6. Rules and Regulations. The Board of Directors shall
have the power to adopt, amend and repeal Rules and Regulations restricting and
regulating the use and enjoyment of the Common Area and the appearance of the
Lots and the actions of the Owners and occupants of any portion thereof which
affect the appearance of the Property. Such Rules and Regulations may
supplement, but may not be inconsistent with the provisions of the Association
Documents. For the purposes of interpretation and enforcement of the
Rules and Regulations, the term Property shall be deemed to include the land
immediately adjacent to the Property within the public rights-of-ways or
otherwise to the extent an Owner or occupant's actions affect the appearance of
the Property. Rules and Regulations governing the actions of Owners
or occupants on land adjacent to the Property shall be consistent with and
reasonably necessary to the maintenance of a uniform high quality of appearance
for the Property. The Property shall be occupied and used in
compliance with the Rules and Regulations. Copies of the Rules and
Regulations shall be furnished by the Board of Directors to each
Owner. Changes to the Rules and Regulations shall be published prior
to the time when the same shall become effective and copies thereof shall be
provided to each Owner. The Rules and Regulations shall not
unreasonably interfere with the use or enjoyment of the Lots or Common Area or
the reasonable conduct of business on the Lots. Also, the Board of
Directors may issue temporary exceptions to any prohibitions expressed or
implied by this Article, for good cause shown.
Section
8.7. Exclusion for
the Declarant and Designees of the Declarant. Notwithstanding any
other provision of the Association Documents, neither the restrictions in this
Article nor the Rules and Regulations of the Association shall apply to any
otherwise lawful acts or omissions of the Declarant or its designees during the
Development Period.
ARTICLE
9
ARCHITECTURAL
REVIEW
Section
9.1. Architectural
Review Committee.
(a) Purpose. The
Board of Directors may establish an Architectural Review Committee, consisting
of at least three persons appointed by the Board. Each person appointed to the
Committee shall serve for a term of from one to three years as may be determined
by the Board of Directors. The purpose of the Architectural Review
Committee shall be to assure that the Property shall always be developed and
maintained in a manner: (i) implementing high quality design and
materials (ii) providing for visual harmony and soundness of repair; (iii)
avoiding activities deleterious to the aesthetic or property values of the
Property; and (iv) promoting the general welfare and safety of the Owners, such
Owners' tenants and such Owners' (or tenants') households or guests, employees,
agents and invitees. If the Board of Directors does not appoint an
Architectural Review Committee, then the Board of Directors shall perform the
duties of the Architectural Review Committee.
(b) Powers.
(1) The
Architectural Review Committee shall regulate the external design, signage,
appearance and Upkeep of the Property; provided, however, that neither
the Architectural Review Committee nor the Board of Directors shall have the
power to regulate the activities of the Declarant on the Common Area or any Lot
owned by the Declarant or construction on any Lot which has been approved
by the Declarant during the Development Period.
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(2) The
Architectural Review Committee may from time to time establish requirements
regarding the form and content of plans and specifications to be submitted
for approval. The Architectural Review Committee shall have the power
to impose reasonable application fees as well as the costs of reports, analyses
or consultations required in connection with improvements or changes proposed by
an Owner. Such fees shall be assessed against the Lots owned by the
Owner making application; provided, however, that the Committee shall inform the
applicant Owner of the potential fees before incurring or assessing such fees
and the Owner shall have the option to withdraw such Owner's
application.
(3) Subject
to the review of the Board of Directors, the Architectural Review Committee
shall from time to time provide interpretations of the Association
Documents pursuant to the intents, provisions and qualifications thereof when
requested to do so by an Owner or the Board of Directors. The
Committee may publish and record such interpretations in order to establish
precedents for application of the Association Documents or the Architectural
Guidelines or other matters relative to architectural control and
protection of the aesthetic or property values of the Property.
(4) The
Architectural Review Committee shall propose Architectural Guidelines for
approval by the Board of Directors. Such Architectural Guidelines
shall include standards for landscaping techniques and plant material to provide
complimentary landscaping plans and designs within the Property. Such
Architectural Guidelines approved by the Board of Directors and as amended by
the Board of Directors from time to time (subject to the limitations in Section
9.2.) are hereby incorporated by this reference and shall be enforceable as if
set forth herein in full. The Architectural Review Committee shall
also review the architectural guidelines proposed by the board of
directors, covenants committee or similar committee of any Subassociation and
shall determine whether such guidelines are in keeping with the overall
architectural character of the Property. Any such guidelines which are submitted
to the Architectural Review Committee shall be deemed approved if not
disapproved within forty-five days; provided, however that the guidelines or
rules established by any Subassociation are subordinate to the Association
Documents and the Architectural Guidelines and are void to the extent they are
inconsistent with the Association Documents or Architectural
Guidelines.
(5) A
Majority Vote of the Architectural Review Committee shall be required in order
to take any action. The Architectural Review Committee shall keep
written records of all its actions. Any action, ruling or decision of
the Architectural Review Committee may be appealed to the Board of Directors by
any party who appeared at a hearing with respect to such action, ruling or
decision or who submitted a written protest prior to the action, decision or
ruling or as otherwise determined by the Board and the Board may modify or
reverse any such action, decision or ruling.
(c) Authority. The
Architectural Review Committee shall have such additional duties, powers and
authority as the Board of Directors may from time to time provide by
resolution. The Board of Directors may relieve the Architectural
Review Committee of any of its duties, powers and authority either generally or
on a case-by-case basis. The Architectural Review Committee
shall carry out its duties and exercise its powers and authority in accordance
with Section 12.2 and in the manner provided for in the Rules and Regulations
adopted by the Board of Directors or by resolution of the Board of
Directors. The Architectural Review Committee and the Board of
Directors shall have no authority to regulate construction by the Declarant or
approved by the Declarant during the Development Period.
(d) Time
for Response; Variances. The Architectural Review Committee shall act
on all matters properly before it within forty-five days after submission of a
complete application in the form prescribed by the Committee; failure to do so
within the stipulated time
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shall
constitute an automatic referral to the Board of
Directors. Except when a request is being handled by the
Architectural Review Committee, the Board of Directors shall be obligated
to answer any properly submitted written application for approval of a proposed
structural addition, alteration or improvement within fifteen days after the
first Board of Directors meeting held following such referral to the Board,
and failure to do so within the stipulated time shall constitute an approval by
the Board of Directors of the proposed structure, addition, alteration or
improvement; provided, however, that neither the Board of Directors nor
Architectural Review Committee has the right or power, either by action or
failure to act, to waive enforcement or grant variances from written
Architectural Guidelines without a specific finding stating the variance in a
written instrument which shall be part of the records of the
Association. Upon such written approval of any specific variance or
exception from the requirements of the Architectural Guidelines, all development
conforming to such variance or exception shall be deemed to comply.
Section
9.2. Initial Construction.
(a) Authority. The
Declarant shall have the right to review and approve or disapprove the plans for
the initial construction of any structure or improvement to be located on the
Property, including without limitation the site development plan, architectural
design, architectural materials, landscaping plans, square footage,
non-structural improvements and general appearance, in order to ensure the
quality and compatibility of style of all the improvements to be located on the
Property. The Declarant may establish Architectural Guidelines for initial
construction and during the Development Period all Architectural Guidelines
proposed by the Association must be submitted to the Declarant for review and
approval. Such Architectural Guidelines for initial construction as
adopted or amended by the Declarant from time to time are hereby incorporated
herein by this reference and shall be enforceable as if set forth herein in
full. The Declarant may establish a committee or board appointed by
the Declarant to review initial construction or the Declarant may delegate such
responsibility to the Architectural Review Committee at the Declarant's sole
discretion. The Declarant's right to review the initial construction
shall cease to exist when the Development Period ends. If new
construction on the Property occurs thereafter, such construction will be
reviewed by the Architectural Review Committee.
(b) Time
for Response; Variances. The Declarant shall act on all matters
within sixty days after submission of a complete application in the form
prescribed by the Declarant; failure to do so within the stipulated time shall
constitute an approval by the Declarant of the proposed structure, addition,
alteration or improvement; provided, however, that the Declarant may only grant
waivers or variances from written Architectural Guidelines (whether by action or
failure to act) in writing stating the waiver or variance and the reasons
therefor. Upon such written approval of any specific variance or
exception from the requirements of the Architectural Guidelines, all development
conforming to such variance or exception shall be deemed to comply.
(c) Application
Fees. The Declarant shall have the right to impose reasonable
application fees as well as the costs of reports, analyses or consultations
required in connection with improvements or changes proposed by an
Owner. Such fees shall be paid by the Owner making application;
provided, however, that the Declarant shall inform the applicant Owner of the
potential fees before incurring or assessing such fees and the Owner shall have
the option to withdraw such Owner's application.
Section
9.3. Compensation of the Architectural Review
Committee. One or more members of the Architectural Review Committee
may be compensated by the Association for their service on the Architectural
Review Committee as may be determined by the Board of Directors.
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Section
9.4. Additions, Alterations or Improvements by the
Owners.
(a) Approval.
(1) No
Person shall make any addition, alteration, improvement or change of grade in or
to any Lot or any common area owned by a Subassociation or the common elements
of any condominium or cooperative located within the Property,
(other
than for normal Upkeep or natural landscaping as permitted by the
Architectural Guidelines and not including areas within a building not visible
from the exterior or visible from the exterior only because of the transparency
of glass doors, walls or windows), or attach anything to the exterior of any
improvement without the prior written approval of the Architectural
Review Committee or the Declarant. No Person shall paint, affix a
sign not permitted by the Rules and Regulations to or alter the exterior of any
improvement located on the Property, including the doors and windows, without
the prior written approval of the Architectural Review Committee or the
Declarant. Approval by the Board of Directors, the Architectural
Review Committee or the Declarant shall not relieve an Owner from any obligation
to obtain required governmental permits. Upon request, the Owner
shall deliver all approvals and permits required by law to the Architectural
Review Committee or the Declarant, as appropriate, prior to the commencement of
the construction requiring such approval or permit. If any
application to any governmental authority for a permit to make any such
structural addition, alteration or improvement to any Lot or improvement located
on any Lot requires signature by the Association, and provided approval has
been given by the Board of Directors or the Architectural Review Committee, as
appropriate, then the application shall be signed on behalf of the Association
by an Officer only, without incurring any liability on the part of the Officer,
Board of Directors, the Association, the Architectural Review Committee or any
of them to any contractor, subcontractor or materialman on account of such
addition, alteration or improvement, or to any Person having a claim for
personal injury or property damage arising therefrom. Any addition,
alteration or improvement upon any Lot in violation of the Association
Documents shall be removed or altered to conform to the Association Documents
and the Architectural Guidelines within thirty days after notice of the
violation.
(2) The
provisions of this section shall not apply to Lots owned by the Declarant
or to improvements on any Lot if such improvements have been approved by the
Declarant during the Development Period. The Declarant or an Owner,
if approved by the Declarant during the Development Period, shall have the right
to construct improvements or make alterations without the approval of the
Board of Directors or the Architectural Review Committee and an authorized
Officer shall sign any application required.
(b) Limitations.
(1) Any
Person obtaining approval of the Architectural Review Committee or Declarant
shall commence construction within twelve months after the date of approval and
shall substantially complete any construction or alteration within six
months after the date of the building permit, or within such other period as
specified in the approval. Notwithstanding the foregoing, the
approval may provide for a different period during which to commence or complete
construction. If any such Person does not complete the work within
the time periods required hereunder, the approval shall lapse.
(2) Any
Person obtaining approval of the Architectural Review Committee shall not
deviate materially from the plans and specifications approved without the prior
written approval of the Committee. Such Person shall notify the
Committee when the alterations or improvements are complete. Approval
of any particular plans and specifications or design does not waive the right of
the Committee to disapprove such plans and specifications, or
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any
elements or features thereof, if such plans and specifications are
subsequently submitted for use in any other instance or by any other
Person.
(c) Certificate
of Compliance. Upon the completion of any construction or alteration
in accordance with plans and specifications approved by the Architectural Review
Committee, the Committee, at the request of the Owner thereof, shall issue a
certificate of compliance which shall be prima facie evidence that such
construction or alteration referenced in such certificate has been approved
by the Committee and constructed or installed in full compliance with the
provisions of this Article and with such other provisions and requirements of
the Association Documents as may be applicable. The certificate
shall not be used and may not be relied upon for any other purpose, and
shall not constitute a representation either as to the accuracy or sufficiency
of the plans and specifications reviewed by the Committee or the quality, safety
or soundness of the construction, alterations or
improvements. The Committee may impose a reasonable charge to cover
the costs of inspection and preparation of such a certificate.
(d) Initial
Construction. Notwithstanding anything to the contrary in the
Association Documents, the Declarant has the right to review all initial
construction during the Development Period, and with respect to such initial
construction, all references in this section to the Architectural Review
Committee shall be deemed to mean the Declarant.
ARTICLE
10
INSURANCE
The
Association shall obtain insurance for all insurable improvements in the Common
Area (if any) to cover loss or damage by fire or other hazards, including
extended coverage, vandalism and malicious mischief, and in amounts sufficient
to cover the full replacement cost of any repair or reconstruction in the event
of damage or destruction from any such hazard. The cost of such
insurance for Common Area shall be a Common Expense or, if applicable, a Limited
Common Expense assessed against such Lots as provided in the Supplementary
Declaration for such Common Area. The Association shall obtain a
public liability policy covering the Association for all damage or injury caused
by the negligence of the Association as a Common Expense. The public
liability policy shall have a combined single limit per event of at least
$3,000,000.00.
The
Association shall obtain fidelity insurance coverage as a Common Expense, in
reasonable amounts as determined by the Board to be adequate to protect against
dishonest acts on the part of directors, Officers, trustees and employees
of the Association and all others who handle or are responsible for handling
funds of the Association, including the managing agent and
volunteers. If the Association has delegated some or all of the
responsibility for handling funds to a managing agent, such managing agent shall
be covered by its own fidelity insurance; however the Board may determine
to purchase additional fidelity coverage for the managing agent as well. Such
fidelity coverage shall contain waivers of any defense based upon the exclusion
of Persons who serve without compensation from any definition of "employee" or
similar expression.
Exclusive
authority to adjust losses under policies obtained by the Association shall be
vested in the Board of Directors. In no event shall the insurance
coverage obtained and maintained by the Association hereunder be brought into
contribution with insurance purchased by individual Owners, occupants of Lots or
their Mortgagees, and the insurance carried by the Association shall be
primary. The Board may purchase such other insurance as it determines
is necessary or advisable as a Common Expense or as a Limited Common Expense, as
appropriate.
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ARTICLE
11
RECONSTRUCTION
AND REPAIR
Section
11.1. Casualty Damage on Common Area. If any improvement
on the Common Area is damaged or destroyed by fire or other casualty, the
Association shall promptly repair and restore such
improvement. However, if the damage is insubstantial, the Association
may remove all remnants of the damaged improvements and restore the site thereof
to an acceptable condition compatible with the remainder of the
Property. The Association shall not use the proceeds of casualty
insurance received as a result of damage or destruction of such improvements for
other than the repair or restoration of such improvements, except that proceeds
for insubstantial damage that is not repaired shall be placed in the appropriate
reserve account. The cost of such repairs is a Common Expense or, if
applicable, a Limited Common Expense assessed against the Lots obligated to pay
for the maintenance of such Common Area.
Section
11.2. Casualty Damage on Lots. If a building or other major
improvement located upon a Lot is damaged or destroyed by fire or other
casualty, the Owner of the Lot on which the building or improvement is located
shall restore the site either by: (i) repairing or restoring such
building or improvement; or (ii) clearing away the debris and restoring the site
to an acceptable condition compatible with the remainder of the
Community. Nothing contained in this Section 11.2 shall require any
Mortgagee to make available any insurance proceeds under the control of such
Mortgagee for the purposes set forth in this Section 11.2 and it is the intent
that the obligations are an independent covenant of an Owner and not a
Mortgagee. Unless the Board of Directors permits a longer time
period, such work must be commenced within six months after the casualty and
substantially completed within twelve months after the casualty.
ARTICLE
12
COMPLIANCE
AND DEFAULT
Section
12.1. Enforcement Provisions.
(a) Compliance. Each
Owner shall be governed by, and shall comply with, all of the terms of the
Association Documents and the Rules and Regulations, as amended from time to
time. A default by an Owner in complying with the Association
Documents or the Rules and Regulations, shall entitle the Association, acting
through its Board of Directors or through the managing agent, to the following
relief.
(b) Additional
Liability. Each Owner shall be liable to the Association or to any
affected Owner for any costs incurred by the Association and the expense of all
Upkeep rendered necessary by such Owner's act or omission regardless of neglect
or culpability, but only to the extent that such expense is not covered by the
proceeds of insurance carried by the Association. Such liability
shall include any increase in casualty insurance rates occasioned by use,
misuse, occupancy or abandonment of any Lot or its appurtenances. Any
costs, including without limitation legal fees, incurred as a result of a
failure to comply with the Association Documents by any Owner may be assessed
against such Owner's Lot.
(c) Cure
Right for Lot Maintenance. If any Owner shall fail to keep the
improvements on such Owner's Lot not regularly maintained by the Association in
as good repair and condition as required by Sections 7.2 and 7.3, then the Board
of Directors may give notice to that Owner of the condition complained of,
specifying generally the action to be taken to rectify that
condition. The Board shall follow the procedures set forth in Section
12.2. If the Owner fails to take the actions specified or to
otherwise rectify the condition within a reasonable period after the date the
notice is given not to exceed 30 days, the Board may take the actions specified
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in its
notice to the Owner, at the Owner's cost, and the Owner shall reimburse the
Association within thirty days after receipt of the Association's
xxxx.
(d) Lien
Enforcement. If an Owner fails to pay an Annual Assessment (or any
installment), any Individual Assessment, and any other sum due from such Owner
under this Declaration, the Association may enforce and foreclose the lien
granted under Section 12.3 in any manner permitted by the laws of Virginia or by
an action in the name of the Association. The Association may
foreclose notwithstanding the pendency of any suit to recover a money
judgment. The Association may bid on the Lot at foreclosure or other
legal sale and may acquire, hold, lease, mortgage, convey or otherwise deal with
such Lot.
(e) Cost
of Legal Proceedings. If the Association prevails in any legal action
against an Owner for a violation or breach of this Declaration, the defaulting
Owner shall pay the costs of such proceeding and the Association's reasonable
attorneys' fees. In any suit brought by an Owner against the
Association or any director or officer of the Association, if the defendant
prevails, the Association shall be entitled to recover the costs of such
proceeding and reasonable attorneys' fees from such Owner. Such sums
shall be paid to the Association within thirty days after receipt of the
Association's xxxx.
(f) Interest. If
any amount due the Association under this Declaration is not paid when due, the
Association may also charge interest on the amount due, from the date due until
the date paid, at eighteen percent (18%) a year or the maximum interest rate
permitted by law, whichever is lower. Interest may be imposed in
addition to the rate change pursuant to Section 6.8.
(g) No
Waiver of Rights. The failure of the Association, the Declarant or an
Owner to enforce any right, provision, covenant or condition which may be
granted by this Declaration shall not constitute a waiver of the right of such
Person to enforce such right, provision, covenant or condition in the
future.
(h) Cumulative
Rights. All rights, remedies and privileges granted to the
Association, the Declarant or any Owner pursuant to any term, provision,
covenant or condition of this Declaration shall be deemed to be cumulative and
the exercise of any one or more thereof shall not be deemed to constitute an
election of remedies, nor shall it preclude the Person exercising the same from
exercising such other privileges as may be granted to such Person by the
Declaration or at law or in equity.
Section
12.2. Notice and Hearing. Before exercising any remedy
authorized by this Article, the Association shall afford the defaulting Owner
the following rights:
(a) Notice. The
defaulting Owner and its Mortgagee shall be afforded prior written notice of any
action (except when an emergency requires immediate action) and, if notice is of
default or violation, an opportunity to cure which is reasonable under the
circumstances, prior to the Association taking any action. The notice
shall also state that the defaulting Owner is entitled to a
hearing. Notice of any violation or any hearing shall be sent by
certified United States mail, postage prepaid, return receipt requested, to the
defaulting party and its Mortgagee at its last known address. Notice
of any hearing shall be sent at least fourteen days prior to such
hearing.
(b) Hearing. If
the defaulting Owner requests in writing a hearing before any action is taken,
then the taking of the action shall be suspended until the defaulting Owner has
an opportunity to be heard at a hearing. Each defaulting Owner so
appearing shall have the right to be represented by such Owner's counsel, at
such Owner's own expense.
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Section
12.3. Lien.
(a) Effective
Date. Each Owner grants to the Association a lien against its Lot to
secure the payment of the Annual Assessment for Common Expenses, including
Limited Common Expenses, any Individual Assessment, and any other sum due from
the Owner under this Declaration. With respect to the Annual
Assessments, the lien is effective the first day of each fiscal
year. With respect to Individual Assessments or other charges or sums
due, the lien is effective thirty days after the date of notice to the Owner of
such Individual Assessment. With respect to other sums due from the
Owner under this Declaration, the lien is effective thirty days after the date
such sum is due.
(b) Property
Affected. The liens granted under this Section 12.3 encumber, as of
the date when payment was due, the Lot, or Lots owned by the Owner from whom
payment was due, and also encumbers any other interest in the Property
thereafter acquired by such Owner, from the time such Person acquires such other
interest.
(c) Lien
Filing. The Association may file or record such other or further
notice of any such lien, or such other or further document, as may be required
to confirm the establishment and priority of such lien.
(d) Acceleration. If
an Owner fails to pay an installment of the Annual Assessment for
Common Expenses, including Limited Common Expenses or any other payment
hereunder made in installments, the Board of Directors may accelerate the
maturity of the remaining installments so that the entire balance is due and
payable in full within thirty days after notice of acceleration to the
defaulting Owner. In addition, if an Owner fails to pay two
installments of an Annual Assessment, the Board of Directors may collect such
Assessments in advance for the next fiscal year, based on the current budgeted
Assessment against such Lot. If such an advance payment results in an
overpayment of the next fiscal year's Assessment, then the Association shall
reimburse the Owner without interest within the first quarter of the next fiscal
year. If the next fiscal year's Assessment is actually greater than
what was paid in advance, the Owner shall pay the shortage to the Association
with the first installment of Assessments to be paid in the second fiscal
year.
Section
12.4. Subordination and Mortgagee Protection. The liens
created under Section 12.3 shall be prior to all liens and encumbrances recorded
after the date of this Declaration, except that the lien created by Section 12.3
shall be subordinate to the real estate taxes, community development authority
assessments, and other charges levied by governmental or quasi governmental
authority and made superior by law, and any Mortgages recorded before or after
the date of this Declaration. However, such subordination shall apply
only to Assessments and other secured amounts which have become due and payable
prior to a transfer of such Lot pursuant to foreclosure or a transfer in lieu of
foreclosure. Such a transfer shall not relieve the holder of a
Mortgage or the transferee of the Lot at such sale or transfer in lieu of
foreclosure from liability for any Assessments or other amounts thereafter
becoming due, nor from the lien of any such subsequent Assessment or amount
due.
ARTICLE
13
MORTGAGEES
Section
13.1. Notice to Board of Directors. Upon request, an Owner
who mortgages such Owner's Lot shall notify the Board of Directors of the name
and address of the mortgagee. Notwithstanding the foregoing, no
mortgagee shall be entitled to any Mortgagee rights under the Association
Documents unless such mortgagee has notified the Board of its address as
required by Section 13.2.
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Section
13.2. Notices to Mortgagees. Any mortgagee who desires
notice from the Association shall notify the Secretary of the Association to
that effect by certified or registered United States mail, postage
prepaid. Any such notice shall contain the name and address,
including post office address of such mortgagee and the name of the person or
office to whom notices from the Association should be directed. The
mortgagee shall keep such information up-to-date. The Board of
Directors shall notify Mortgagees of the following:
(1) Any
default by an Owner of a Lot, upon which the Mortgagee has a Mortgage, in paying
Assessments (which remains uncured for sixty days) or any other default,
simultaneously with the notice sent to the defaulting Owner (failure to notify
Mortgagee does not affect validity of Association's Lien);
(2) Any
event giving rise to a claim under the Association's physical damage insurance
policy arising from damage to improvements located on the Lot upon which the
Mortgagee holds a Mortgage or on the Common Area in excess of twenty percent of
the then current replacement cost of such improvements;
(3) Any
termination, lapse or material modification in an insurance policy held by the
Association within fourteen days of such event;
(4) Any
taking in condemnation or by eminent domain of the Common Area and the actions
of the Association in connection therewith;
(5) Any
proposal to terminate this Declaration, at least thirty days before any action
is taken to terminate in accordance with Article 15; and
(6) Any
proposal to amend the Association Documents.
Section
13.3. Other Rights of Mortgagees. Upon request, all
Mortgagees or their representatives shall have the right to receive notice of
and to attend and to speak at meetings of the Association. All
Mortgagees shall have the right to examine the Association Documents, Rules
and Regulations and books and records of the Association and to require the
submission of existing annual financial reports and other budgetary information
and meeting minutes.
ARTICLE
14
AMENDMENT
Section
14.1. Amendment by the Declarant. During the Development
Period and not withstanding any other provision of this Declaration or any
Supplementary Declaration, the Declarant may unilaterally, without the approval
of the Association, the Owners or the Mortgagees, amend any portion of this
Declaration or any Supplementary Declaration to: (i) make clarifying
or corrective changes not materially, adversely affecting any Owner's or
Mortgagee’s rights or obligations hereunder; (ii) add any land as permitted by
Section 4.1; (iii) withdraw any portion of the Submitted Land as permitted by
Section 4.4; (iv) assign Limited Common Area as provided in Section
3.8; (v) comply with any governmental requirements with respect to the Property
or the Association Documents and not materially, adversely affecting an Owner in
a discriminatory manner.
Section
14.2. Amendment by the Association.
(a) Owner
Approval. Subject to Sections 3.8, 4.1, 4.4, 14.1, 14.3 and
14.4, this Declaration (excluding any Supplementary Declaration) may
be amended by the Association
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only with
a Sixty-seven Percent Vote of the Owners or with the prior written approval of
Owners entitled to cast at least sixty-seven percent of the total number of
votes in the Association.
(b) Certification. An
amendment by the Association shall be certified by the President as to
compliance with the procedures set forth in this Article, signed and
acknowledged by the President and Secretary of the Association, and
recorded among the Land Records. Any challenge to an amendment must
be made within one year after recordation.
(c) Supplementary
Declarations. Amendment of a Supplementary Declaration is governed by
the provisions for amendment contained therein. With respect to amendments to a
Supplementary Declaration, the approval of the Owners or Mortgagees required
shall be deemed to refer to the Owners owning Lots or Mortgagees holding
mortgages on Lots subject to such Supplementary Declaration.
Section 14.3. Prerequisites
to Amendment. Written notice of any proposed amendment to this
Declaration by the Association shall be sent to every Owner at least fifteen
days before any action is taken. No amendment shall increase the
financial obligations of an Owner in a discriminatory manner or further restrict
development on existing Lots in a discriminatory manner. No amendment
to the Declaration shall diminish or impair the rights of the Declarant during
the Development Period under the Declaration without the prior written consent
of the Declarant. No amendment to the Declaration shall diminish or
impair the express rights of the Mortgagees under the Declaration without the
prior written approval of at least Fifty-one Percent of the
Mortgagees. Except as specifically provided in the Declaration, no
provision of the Declaration shall be construed to grant to any Owner or to any
other Person any priority over any rights of Mortgagees. Any Mortgagee who is
notified of proposed amendments or actions of the Association in writing by
certified or registered United States mail, return receipt requested, and who
does not deliver a negative response to the Secretary of the Association within
thirty days shall be deemed to have approved such amendment or
action.
Section
14.4. County Approval. A number of provisions are contained within
this Declaration to comply with the conditions of subdivision or Proffers
applicable to the Property. No amendment shall modify or delete any
such provision of this Declaration required by such subdivision approval
conditions and Proffers, nor shall any amendment impair the right and authority
of the County to require compliance with the subdivision approval conditions and
Proffers applicable to the Property without the prior written approval of the
County.
ARTICLE
15
TERMINATION
Section
15.1. Duration; Termination by the Association. The
covenants and restrictions of this Declaration shall run with the land and bind
the Property subject to this Declaration, and be in full force and effect in
perpetuity unless amended as provided above or terminated as hereinafter
provided. Subject to Section 14.4, this Declaration may be
terminated only with the written approval of Owners entitled to cast at least
seventy-five percent of the total number of votes in the
Association. A termination shall be certified by the President
as to compliance with the procedures set forth in this Article, signed and
acknowledged by the President and Secretary of the Association and recorded
among the Land Records. The Declaration may not be terminated during
the Development Period without the prior written consent of the
Declarant.
Section
15.2. Prerequisites. Written notice of the proposed
termination shall be sent to every Owner and Mortgagee at least thirty days
before any action is taken. Such termination shall not affect any
permanent easements or other permanent rights or interests relating to the
Common Area created by or pursuant to the Association Documents. To
the extent necessary,
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the
termination agreement shall provide for the transfer or assignment of
the easements, rights or interests granted to the Association herein to a
successor entity which is assuming the Association's Upkeep and regulatory
responsibilities. Any lien which has arisen pursuant to the
provisions of the Declaration shall remain in full force and effect despite
termination of the Declaration until the amounts secured thereby are paid in
full.
IN
WITNESS WHEREOF, the undersigned have caused this Declaration to be signed
pursuant to due and proper authority as of the date first set forth
above.
DTC
PARTNERS, L.L.C.
a Virginia limited liability
company
By: Xxxxxx Enterprises,
LLC
Its Manager
By:
______________________________
Name: Xxxx
X. Xxxxxx
Title: Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or satisfactorily proven
to be the person whose name is subscribed to the foregoing document, personally
appeared before me in the jurisdiction set forth above and acknowledged himself
to be the Manager of Xxxxxx Enterprises, LLC, the Manager of DTC PARTNERS,
L.L.C., a Virginia limited liability company, and that he, in such capacity,
being authorized to do so, executed the foregoing document for the purposes
therein contained, by signing his name on behalf of the limited liability
company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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DTC XXXXX, L.L.C.,
a
Virginia limited liability company
By: TLC Office Group,
L.L.C.
Its
Managing Member
By: Xxxxxx Enterprises,
LLC
Its Manager
By:
_____________________________
Name: Xxxx
X. Xxxxxx
Title: Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or satisfactorily proven
to be the person whose name is subscribed to the foregoing document, personally
appeared before me in the jurisdiction set forth above and acknowledged himself
to be the Manager of Xxxxxx Enterprises, LLC, the Manager of TLC Office Group,
L.L.C., the Managing Member of DTC XXXXX, L.L.C., a Virginia limited liability
company, and that he, in such capacity, being authorized to do so, executed the
foregoing document for the purposes therein contained, by signing his name on
behalf of the limited liability company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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DTC HOTEL ONE, L.L.C.,
a Virginia limited liability
company
By: Majestic Hotel Group,
L.L.C.
Its
Manager
By: TLC Hotel Group,
L.L.C.
Its sole
Member
By: ________________________________
Name: Xxxx X. Xxxxxx
Title: Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or
satisfactorily proven to be the person whose name is subscribed to the foregoing
document, personally appeared before me in the jurisdiction set forth above and
acknowledged himself to be the Manager of TLC Hotel Group, L.L.C., the sole
Member of Majestic Hotel Group, L.L.C., the Manager of DTC HOTEL ONE, L.L.C., a
Virginia limited liability company, and that he, in such capacity, being
authorized to do so, executed the foregoing document for the purposes therein
contained, by signing his name on behalf of the limited liability
company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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DTC APARTMENTS WEST,
L.L.C.,
a
Virginia limited liability company,
By: __________________________
Name:
Xxxx X. Xxxxxx
Title:
Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or
satisfactorily proven to be the person whose name is subscribed to the foregoing
document, personally appeared before me in the jurisdiction set forth above and
acknowledged himself to be the Manager of DTC APARTMENTS WEST, L.L.C., a
Virginia limited liability company, and that he, in such capacity, being
authorized to do so, executed the foregoing document for the purposes therein
contained, by signing his name on behalf of the limited liability
company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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-
1 DULLES TOWN CENTER,
L.L.C.,
a
Virginia limited liability company
By: Xxxxxx Enterprises,
LLC
Its Manager
By: _________________________
Name:
Xxxx X. Xxxxxx
Title:
Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or
satisfactorily proven to be the person whose name is subscribed to the foregoing
document, personally appeared before me in the jurisdiction set forth above and
acknowledged himself to be the Manager of Xxxxxx Enterprises, LLC, the Manager
of 1 DULLES TOWN CENTER, L.L.C., a Virginia limited liability company, and that
he, in such capacity, being authorized to do so, executed the foregoing document
for the purposes therein contained, by signing his name on behalf of the limited
liability company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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-
DTC APARTMENTS SOUTH,
L.L.C.,
a
Virginia limited liability company
By: Xxxxxx Enterprises,
LLC,
Its
Manager
By: __________________________
Name:
Xxxx X. Xxxxxx
Title:
Manager
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, a Notary Public in and for the state and county aforesaid, do
hereby certify that Xxxx X. Xxxxxx, known to me to be, or satisfactorily proven
to be the person whose name is subscribed to the foregoing document, personally
appeared before me in the jurisdiction set forth above and acknowledged himself
to be the Manager of Xxxxxx Enterprises, LLC, the Manager of DTC APARTMENTS
SOUTH, L.L.C., a Virginia limited liability company, and that he, in such
capacity, being authorized to do so, executed the foregoing document for the
purposes therein contained, by signing his name on behalf of the limited
liability company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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-
DULLES TOWN CENTER OWNERS
ASSOCIATION
a
Virginia nonstock corporation
By: __________________________________
Name:
Xxxx X. Xxxxxx
Title:
President
____________________
OF ________________________)
) ss:
____________________
OF ________________________)
I, the
undersigned, Notary Public in and for the state and county aforesaid, do hereby
certify that Xxxx X. Xxxxxx , known to me to be, or satisfactorily
proven to be the person whose name is subscribed to the foregoing document,
personally appeared before me in the jurisdiction set forth above and
acknowledged himself to be the President of DULLES TOWN CENTER OWNERS
ASSOCIATION, a Virginia nonstock corporation, and that he, in such capacity,
being authorized to do so, executed the foregoing document for the purposes
therein contained, by signing his name on behalf of the company.
GIVEN
under my hand and seal this ___ day of ______________, 2008.
_____________________________[SEAL]
Notary
Public
My notary
registration number is: ________________
My
commission expires: ________________________
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EXHIBIT
A
DESCRIPTION
OF SUBMITTED LAND
- 42
-
EXHIBIT
B
DESCRIPTION
OF OVERALL DULLES TOWN CENTER COMMUNITY
- 43
-
EXHIBIT
C
COMMUNITIES
FACILITIES EASEMENT PLAT
-
EXHIBIT D
REPURCHASE
OPTION AGREEMENT
THIS AGREEMENT is made and entered into
as of _____________, 200___ (the “Effective
Date”) between (i) NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (“CFC”), a
District of Columbia cooperative association, and (ii) DTC PARTNERS, LLC (“DTC”), a
Virginia limited liability company.
R
E C I T A L S
A. Contemporaneously
herewith CFC has purchased from DTC that certain parcel of land (the “CFC
Tract”) described in Exhibit
A attached hereto, pursuant to a Purchase Agreement dated as of
___________, 2008, between DTC, as Seller, and CFC, as Purchaser (the “Purchase
Agreement”). All capitalized terms used in this Agreement that
are not specifically defined in this Agreement have the meanings assigned to
those terms in the Purchase Agreement.
B. CFC
has agreed to grant to DTC an option to purchase the CFC Tract and all
improvements and appurtenances thereon but exclusive of movable equipment and
fixtures, inventory, signs and other personal property (the “Property”)
upon certain conditions.
NOW THEREFORE, in consideration of the
premises, and good and valuable consideration given and the receipt of which is
hereby acknowledged, the parties agree as follows:
1. OPTION
EVENT
DTC shall have the option (the “Option”)
to purchase the Property for the purchase price provided in Section
2 during the time period provided in Section 3 and
otherwise on the terms of this Agreement, if, on or before November 30, 2009,
CFC has not commenced the construction of an office building on the CFC Tract
that will contain at least 120,000 square feet of gross floor area, as evidenced
by (i) the issuance by CFC to its general contractor of a notice to proceed
authorizing such general contractor to commence construction of such office
building, (ii) the delivery by CFC to DTC of a copy of the notice to proceed
referred to in clause (i), and (iii) the general contractor’s good faith
commencement of the work of grading and excavation for the construction of such
office building (the “Option
Event”).
2. PURCHASE
PRICE
The
purchase price of the Property pursuant to the Option shall be an amount equal
to the sum of the Purchase Price of the Property paid by CFC to DTC pursuant to
the Purchase Agreement, reduced by (i) the Virginia grantor’s tax paid by DTC,
as Seller, in connection with the original sale of the Property to CFC pursuant
to the Purchase Agreement, and (ii) $1,000,000.00.
D-1
3. EXERCISE
OF THE OPTION
(a) DTC
may exercise the Option by delivering written notice of the exercise of the
Option (the “Exercise
Notice”) to CFC at any during the period beginning on December 1, 2009
and ending on December 15, 2009. The Exercise Notice must include an
xxxxxxx money deposit of $250,000 in cash or a certified check made payable to
CFC. CFC’s receipt of the Exercise Notice and the xxxxxxx money
deposit shall immediately create an effective and binding contract by CFC to
sell to DTC, and by DTC to purchase from CFC, the Property on the terms and
conditions set forth herein. If DTC does not exercise the Option
within the time or in the manner specified in this Section
3(a), the Option shall lapse and shall be of no further force or
effect. If, after delivery of an Exercise Notice, DTC does not close
the transaction in accordance with the terms hereof, the $250,000 xxxxxxx money
deposit shall be retained by CFC, as consideration for the grant of the option
and for withholding the Property from the marketplace, and the Option shall
terminate.
(b) If
DTC timely delivers the Exercise Notice, CFC shall have the right, within five
(5) Business Days after receipt of the Exercise Notice, to extend the period of
time in which it is required to satisfy the conditions set forth in clauses (i)
through (iii), inclusive, of Section 1, for a period of twenty-four (24) months
by paying to DTC, within the period of five (5) Business Days, an amount equal
to the sum of (i) the state and federal income tax that the members of DTC will
be required to pay as a result of the sale of the Property, and (ii) a “gross
up” amount equal to the state and federal taxes that the members of DTC will be
required to pay as a result of the receipt of the payment referred to in clause
(i) and any payments pursuant to this clause (ii), subject to the limitation
that the maximum amount that CFC will be required to pay pursuant to clauses (i)
and (ii) shall not exceed $2,500,000.00) (the “Extension
Payment”). For purposes of determining the amount of the Extension
Payment, (x) it shall be conclusively presumed that each member of DTC is
subject to federal and state income tax at the highest marginal rate applicable
to income received during the year in which the Extension Payment is made, (y)
all references to the “members of DTC” means the Persons who bear the ultimate
liability for payment of federal and state income taxes with respect to the
taxable income of DTC, including all Persons who are members of DTC and all
Persons who own indirect interests in DTC through ownership of interests in one
or more partnerships or limited liability companies, and (z) the intention of
the parties is that, subject to the $2,500,000 limitation on the maximum amount
of the Extension Payment, the purpose of the Extension Payment is to reimburse
the members of DTC for all federal and state income taxes payable in connection
with taxable income arising from the sale of the Property and taxable income
arising from receipt of the Extension Payment.
(c) If
CFC timely makes the Extension Payment, (i) DTC’s delivery of the Exercise
Notice shall be deemed to have been rescinded, (ii) the November 30, 2009
deadline referred to in Section
1 shall be extended to November 30, 2011, (iii) the time period in which
DTC may give another Exercise Notice shall be extended to the period beginning
on December 1, 2011 and ending on December 15, 2011, and (iv) CFC shall return
to DTC, concurrently with the payment of the Extension Payment, the $250,000
D-2
xxxxxxx
money deposit paid by DTC in connection with its delivery of the rescinded
Exercise Notice.
4. CLOSING
If DTC timely delivers the Exercise
Notice and the deposit to CFC pursuant to Section
3, DTC’s purchase of the Property shall be consummated on or before
December 31, 2009 (or December 31, 2011, if applicable), with time being of the
essence. The closing shall be conducted through an escrow established
at Loudoun Commercial Title, LLC, 000 Xxxxx Xxxxxx XX, Xxxxx X, Xxxxxxxx, XX
00000-0000 (the “Escrow
Agent”). The purchase price shall be payable in immediately
available funds at the closing. The Property shall be conveyed in its
"as is" condition. Title to the Property shall be conveyed by CFC to
DTC by special warranty deed, subject only to (i) the lien of current real
estate taxes not yet due and payable, (ii) the Permitted Exceptions (as defined
in the Purchase Agreement (including those items
created by the Lot Creation Documents and those items created in connection with
the closing of the purchase and sale of the Property pursuant to the Purchase
Agreement), and (iii) the matters shown by the survey, if any, of the Property
obtained by CFC in connection with its original purchase of the
Property. Any mortgage or liens securing obligations for the payment
of money encumbering the Property shall be discharged from the purchase price
proceeds payable by DTC hereunder. Current real property taxes and
installments of special assessments shall be prorated as of the date of
closing. CFC shall bear the cost of the Virginia grantor’s tax on the
deed and all other State and County transfer and recordation taxes, and all
other closing costs, including escrow fees.
5. NOTICES.
Each
notice, request, demand, consent, approval or other communication (hereafter in
this Section referred to
collectively as “notices” and referred to singly as a “notice”) which DTC or CFC
is required or permitted to give to the other party pursuant to this Agreement
shall be in writing and shall be delivered personally, by facsimile transmission
or by recognized overnight national courier service (such as Federal Express)
(i) if to DTC to the attention of Xxxxxx X. Xxxxxxxx, Xxxxxx Enterprises,
LLC, 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Fax: (000)
000-0000, with a copy to Xxxx X. Xxxxxx, Xxxxxx Enterprises, LLC, 000 Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (FAX: (000)000-0000, or (ii) if to
CFC, at Xxxxxx Xxxxxxxxxx, c/o National Rural Utilities Cooperative Finance
Corporation, 0000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000 with
copies to Xxxxx Xxxxxx, Attorney at law, c/o National Rural Utilities
Cooperative Finance Corporation, 0000 Xxxxxxxxxxx Xxx, Xxxxxxx,
Xxxxxxxx 00000 and to Xxxxxxxx X. Xxxxxxxx, Esquire, c/o Xxxx Xxxxx,
LLP, 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxxxx,
Xxxxxxxx 00000, or at any other address designated by either party by
notice to the other party pursuant to this Section. Any notice
delivered to a party’s designated address by (a) personal delivery, (b)
facsimile or (c) recognized overnight national courier service shall be
deemed to have been received by such party at the time the notice is delivered
to such party’s designated address.
6. MISCELLANEOUS
(a) Assignment. The
rights arising under this Agreement are personal to DTC only and may not be
assigned, whether collaterally or otherwise, in any manner.
D-3
(b) Termination. This
Agreement and the Option granted under this Agreement shall automatically
terminate upon the earliest to occur of (i) the commencement of construction of
an office building on the CFC Tract that will contain at least 120,000 square
feet of gross floor area, as evidenced by the events referred to in clauses (i),
(ii) and (iii) of Section
1, (ii) the lapse of the Option accordance with Section
3, or (iii) the termination of the Option pursuant to Section
3. Upon termination of this Agreement, DTC agrees to execute
and deliver to CFC, without cost to CFC, a termination (properly executed,
acknowledged and in recordable form) of all option rights contained in this
Agreement and a release of any interest of DTC in the Property arising out of
this Agreement; provided however, that the absence of such an instrument shall
not affect the termination of such right.
(c) Binding
Effect. Subject to the provisions hereof regarding assignment,
this Agreement shall run with the land, shall bind the real estate described
herein and shall be binding upon and inure to the benefit of CFC and
DTC.
(d) Amendment
and/or Modification. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged, amended or modified orally, or in any
manner other than by an instrument in writing signed by all of the parties
hereto.
(e) Costs
and Attorneys’ Fees. If any party hereto shall bring any suit or
other action against another for relief, declaratory or otherwise, arising out
of this Agreement, the losing party shall pay the prevailing party’s reasonable
costs and expenses, including such sum as the Court may determine to be a
reasonable attorney’s fee.
(f) Governing
Law. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the state in which the Property is located, without
giving effect to principles and provisions thereof relating to conflict or
choice of laws.
(g) Documents. Each
party to this Agreement shall perform any and all acts and execute and deliver
any and all documents as may be necessary and proper under the circumstances in
order to accomplish the intents and purposes of this Agreement and to carry out
its provisions.
(h) Entire Agreement; No Strict
Construction. This Agreement (and any attached exhibits)
contains the entire agreement and understanding of the parties with respect to
the entire subject matter hereof, and there are no representations, inducements,
promises or agreements, oral or otherwise, not embodied herein. Any
and all prior discussions, negotiations, commitments and understandings relating
thereto are merged herein. There are no conditions precedent to the
effectiveness of this Agreement other than as stated herein, and there are no
related collateral agreements existing between the parties that are not
referenced herein. This Agreement shall not be construed strictly for
or against either the DTC or CFC.
D-4
(i) Counterparts. This
Agreement may be signed in counterparts, any one of which shall be deemed to be
an original and all of which, when taken together, shall constitute one
instrument.
IN WITNESS WHEREOF, CFC and DTC have
caused this Agreement to be executed effective as of the day and year above
referenced.
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
By:
Name:
Title:
COMMONWEALTH
OF
VIRGINIA )
) ss.
COUNTY
OF )
On this ______ day of ______________,
200__, before me, a Notary Public within and for said County, personally
appeared ______________________________ to me personally known, being first by
me duly sworn, did say that (s)he is the __________________of NATIONAL RURAL
UTILITIES COOPERATIVE FINANCE CORPORATION, and that said instrument was signed
on behalf of said corporation by authority of its Board of Directors and
________________________ acknowledged said instrument to be the free act and
deed of said corporation.
__________________________________
Notary Public
My
commission expires: ______________
FRXLIB-535778.1-BFTOMPKI
D-5
DTC
PARTNERS, LLC
By Xxxxxx
Enterprises, LLC, its
Authorized Manager
By:
Name:
Title: Manager
STATE OF
MARYLAND )
)
ss.
COUNTY OF
XXXXXXXXXX )
On this ______ day of ______________,
200__, before me, a Notary Public within and for said County, personally
appeared ______________________________ to me personally known, being first by
me duly sworn, did say that (s)he is the Manager of Xxxxxx Enterprises, LLC, the
Authorized Manager of DTC PARTNERS, LLC, and that said instrument was signed on
behalf of said DTC PARTNERS, LLC, and ________________________ acknowledged said
instrument to be the free act and deed of said limited liability
company.
____________________________________
Notary Public
My
commission expires: ______________
FRXLIB-535778.1-BFTOMPKI
D-6
EXHIBIT
A
Legal
Description of CFC Tract
FRXLIB-535778.1-BFTOMPKI
EXHIBIT
F
Proffers
[
|
|
Loudoun
County, Virginia
Development
and Regulatory Agencies ■ 000 Xxxxxx Xxxxx. X X , Xxxxx 000 ■ Xxxxxxxx, XX
00X00 ■ Metro 478-8414
Department
of Building &. Development ■ Xxxxxxxx X Xxxxxxx, Director
Administration 000-0000
■ Fax 000-0000
Inspections
Information Only 000-0000 ■
Fax 000-0000
|
January
3, 0000
Xx. Xxxxxx X. Xxxxxxxx,
Xxxxxxx
Xxxxxx
Corporation
00000
Xxxx Xxxxx
Xxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Dear
Xx. Xxxxxxxx:
The
Loudoun County Board of Supervisors approved ZMAP 1990-0014/DulIes Town Center
Conveniences Uses, and Special Exception 1991-0045/Dulles Town Center Hotel Uses
on December 17, 1991.
Please
find attached a copy of the Board of Supervisors action with regard to the
aforementioned applications.
If I may
be of further assistance to you or your firm with regard to this property,
please contact me at the Department of Building and
Development.
It was a
pleasure working with you and your team, and I look forward to future
applications for development of the Dulles Town Center.
Sincerely,
/s/
Xxxxxx X. Xxxxx
Planner
\bh
cc:
|
Project File
|
Packie
Crown, Xxxxx and Xxxxxx, P.C.
Xxxxx Xxxxx,
Principal Planner, Department of Planning
Xxxxxxxx
|
LOUDOUN
COUNTY, VIRGINIA
Office
of the County Administrator
00
Xxxxx Xxxx Xxxxxx. Xxxxxxxx. Xxxxxxxx 00000-0000
Metro
478-1850 or (000) 000-0000
|
At a
meeting of the Board of Supervisors of Loudoun County, Virginia, held in the
County Administration Building, Board of Supervisors' Meeting Room, 00
Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, xx Tuesday, December 17, 1991 at 12:00
noon.
PRESENT:
|
Xxxxx X. Xxxxx,
Chairman
|
Xxxxxxx X. Xxx,
Vice Chairman
Betsey J. X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
H.
Xxxxx Xxxx
IN
RE:
|
ZONING MAP 90-0014/DULLES TOWN
CENTER
|
|
SPECIAL\ EXCEPTION
1991-0043/DULLES TOWN
CENTER
|
CONVENIENCE
USES
SPECIAL EXCEPTION
1991-0045/DULLES TOWN CENTER HOTEL USES
Xx.
Xxxxxxxx moved approval of Zoning Map 90-0014, Dulles Town Center and the
accompanying modifications to the Zoning Ordinance, Land Subdivision %and
Development Ordinance and the Facilities Standards Manual (as identified in
exhibits C and D of the Dulles Town Center proffer statement dated December 9,
1991); subject to the proposed development plan for Dulles Town Center (which includes FAR averaging
on the PD-OP portion of the site) dated July 5, 1990, revised December 6,
1991 (as identified in exhibit B of the Dulles Town Center proffer statement
dated December 9, 1991), the Dulles Town Center proffer statement (inclusive of
all exhibits) dated December 9, 1991 and the letter of clarification dated
December 16, 1991 from Xxxxxx Enterprises.
Xx. Xxxxxxxx
further moved approval of Special Exception 1991-0043, Dulles Town Center
Convenience Uses; subject to the Special Exception Plat dated June 17, 1991
revised to November 14, 1991, the Neighborhood Retail Center plan
dated June 27, 1991 revised to November 14, 1991 and the attached
findings.
FINDINGS
FOR SPEX 1991-0043
DULLES
TOWN CENTER CONVENIENCE USES
|
FINDINGS:
1.
|
The
proposed landuse is in harmony with the general purpose and intent of the
applicable zoning distnct regulations in which the uses are
located.
|
2.
|
The
applicant has demonstrated the proposed use will facilitate orderly
highway development and not adversely impact the transportation
network.
|
ATTACHMENT
3
CONDITIONS
AND FINDINGS FOR SPEX 1991-0045
DULLES
TOWN CENTER HOTEL USES
|
FINDINGS:
1.
|
The
proposed landuse is in harmony with the general purpose and intent of the
applicable zoning district regulations in which the uses are
located.
|
2.
|
The
applicant has demonstrated the proposed use will facilitate orderly
highway development and not adversely impact the transportation
network.
|
CONDITIONS:
1
|
The
applicant shall provide for the safe, efficient, convenient, and
harmonious grouping or hotel structures and facilities, which
appropriately relate to the surrounding office
uses.
|
2.
|
The
proposed hotel uses shall be limited to two of the three landbays A, B, or
D as identified on the Concept Development Plan for
Dulles Town Center dated July 5, 1990, revised December 6,
1991.
|
Any site
plan filed for ail or a portion of landbays A, B, or D shall address the
conceptual development of the remaining portion of the landbay.
ATTACHMENT
4
DULLES TOWN CENTER
(ZMAP
1990-0014; SPEX 1991-0043;
AND SPEX
1991-0045)
MOTIONS
OF APPROVAL
|
At the
regular business meeting held on December 17, 1991, Supervisor Xxxxx Xxxxxxxx
made the following motion to approve ZMAP 1990-0014, SPEX 1991-0043 and SPEX
1991-0045. The motion was seconded by Supervisor Xxxxx
Xxxx.
MOTION:
|
I
move approval of ZMAP 90-0014, Dulles Town Center, and the accompanying
modifications to the Zoning Ordinance, Land Subdivision and Development
Ordinance, and the Facilities Standards Manual (as identified in
Exhibits "C" and "D"
of the Dulles Town
Center proffer statement dated December
9, 1991) subject to the proposed
development plan for Dulles Town Center (which includes FAR averaging
on the PD-OP portion of the site) dated
July 5, 1990, revised December 6, 1991 (as identified in
exhibit "B" of the Dulles Town Center
proffer statement dated December
9, 1991) and the Dulles Town
Center proffer statement (inclusive of all
exhibits) dated December 9, 1991, and letter of
clarification dated December 16, 1991, from Xxxxxx
Enterprises.
|
I further
move approval of SPEX 1991-0043, Dulles Town Center Convenience Uses, subject to
the Special Exception plat dated June 17, 1991, revised to November 14, 1991 and
the Neighborhood Retail Center plan dated June 27, 1991 revised to
November 14, 1991 and the findings attached hereto as Attachment 3. (See
Attached)
I further
move approval of SPEX 1991-0045, Dulles Town Center Hotel Uses, subject to the
Special Exception Plat dated June 17, 1991 and the finding and conditions
identified in the December 9, 1991 staff report and attached hereto as
Attachment 4. (See Attached)
VOTE;
|
Supervisors
Xxxxx, Bos, Brownell, Dodson, Stockman, and Xxxx voted in favor of the
motion.
|
Supervisors
Xxxxxxxx and Xxxxx voted against the motion.
DULLES TOWN CENTER
REZONING
APPLICATION ZMAP 1990-0014
WITH
MODIFICATIONS
LETTER
OF CLARIFICATION
DATED
DECEMBER 16, 1991
AND
EXECUTED
PROFFER STATEMENT
DATED
DECEMBER 9, 1991
|
By
XXXXXX
ENTERPRISES
Prepared
By
XXXXX
& XXXXXX, P.C.
XXXXXX ENTERPRISES
December
16, 1991
The
Xxxxxxxxx Xxxxx X. Xxxxx
Chairman
Loudoun
County Board of Supervisors
00
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Xxxxxxxx
X. Xxxxx, Esquire
Assistant
County Attorney
County
of Loudoun
000
Xxxxxxxx Xxx, X.X.
Xxxxx
0 00
Xxxxxxxx,
Xxxxxxxx 00000
|
|
|
RE:
|
Xxxxxx Xxxx Xxxxxx - XXXX
0000-0000;
|
SPEX 1991-0043; and SPEX
1991-0045
Dear
Madam Chairman and Xx. Xxxxx:
On
Monday, December 9, 1991, the Board of Supervisors held a public hearing on the
above-referenced land development applications. During the public
hearing, a request was made by Xx. Xxxxx Xxxxxxxx, a resident of Countryside,
that (1) the capacity of the proffered park and ride lot be increased from 75
vehicles to 100 vehicles and (2) the building heights in Land Bay E (between
City Center Boulevard to the east and the cul-de-sac located to the west in Land
Bay E) and Land Bay N be limited to a maximum height of seven (7) stories at the
150' foot building setback from Route 7, provided that building heights may
increase incrementally south of the Route 7 150' foot building setback toward
the Town Center Core area not to exceed the height limitations permitted in
Paragraph 12A of the December 9, 1991 Proffer Statement.
By this
letter, the party signature to the Proffers dated December 9, 1991, hereby
clarifies the Proffers as follows:
|
1.
|
Paragraph
12A of the Proffers is hereby clarified and confirmed by the following
language:
|
|
12.
|
Development
in the Town Center will conform with the following design
guidelines:
|
00000
Xxxx Xxxxx. Xxxxx Xxxxxxxx. Xxxxxxxx 00000-0000 000/984-1500 FAX
301/000-0000
The
Honorable Xxx. Xxxxx Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
December
16, 1991
Page
Two
|
A.
|
If
approved by the Board, Building Heights within
the Town Center will be massed with taller buildings concentrated in
the core framing the Town Center Common Area (i.e., Land Bays F and K).
Building Heights are planned to range in height up to the greater of
100 feet or to the tallest height permitted by the LCZO at the time of
development. One signature building may be located in each of
the Land Bays designated "E","H" and "I". With the exception of
these planned signature buildings, building heights in the
Town Center will transition to lower building heights east and west
of the Town Center Common Area.
|
With the
exception of the one planned signature building mentioned above, Building
heights in land Bay E (between City Center Boulevard to the east and the
cul-de-sac located to the west in Land Bay E) and in Land Bay N shall be limited
to a maximum height of seven (7) stories at the 150’ foot building setback from
Route 7. Provided that building heights may increase incrementally south of the
Route 7 150’ foot building setback toward the Town Center Core area not to
exceed the height limitations and provisions set forth in the above
paragraph
|
2.
|
Paragraph
27 of the Proffers is hereby clarified and confirmed by the following
language:
|
27.
|
Parking and Ride
Lot
|
The
Applicant shall provide the County upon request, as its contribution toward the
operation of a regional park and ride facility, a nonexclusive designated
parking area for up to 75 100 passenger
vehicles. This park and ride lot may either be located on site or off
site of the Property.
In
response to concerns raised by the County Attorney and Planning Staff, the
Applicant further clarifies and confirms the following proffer
language:
The
Honorable Xxx. Xxxxx Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
December
16, 1991
Page
Three
1.
|
Paragraph
23 of the Proffers is hereby clarified and confirmed by the following
language:
|
|
00.X.Xxxx Center
Boulevard/Loudoun Tech
Access
|
Upon
request by the County and/or VDOT, but not sooner than submission of the record
plat for the PDH-3 0 portion of the Property adjacent to such roadway, the
Applicant shall dedicate a sufficient amount of on-site right-of-way to provide
for the construction of a four lane undivided roadway commencing at the property
line of Loudoun Tech Center and terminating at City Center Boulevard as shown on
the Concept Plan. The Applicant shall construct a half section of a four lane
undivided roadway commencing at City Center Boulevard to the west and
terminating at Ridgetop circle to the east in the Loudoun Tech Office
Park. Said road is to be constructed within the right-of-way to be
dedicated on site and within the dedicated right-of-way located on the adjacent
Loudoun Tech Office Park site. Said road (on-site and off-site) shall
be constructed concurrent with the development of the PDH-30 portion of the
Property which it serves.
|
2.
|
Paragraph
37 of the Proffers is hereby clarified and confirmed by the following
language:
|
|
XV.
|
ROUTE
28 HIGHWAY IMPROVEMENT DISTRICT PDH-30
PROPERTY
|
|
37.
|
In
the event the Board zones a portion of the Property to the PDH-30 zoning
district, the Applicant shall, pursuant to all
laws governing the Route 28 Highway Improvement District, continue paying taxes
to the
Xxxxx 00 Xxxxxxx Xxxxxxxxxxx Xxxxxxxx "Route 28 District”).
Such taxes shall be paid in a timely manner in accordance with the
Route
28 District and shall be contribute to the County either for
payment to the Route 28 Highway Improvement District or to used otherwise
in the County’s sole discretion an amount of cash to be computed by
multiplying the total acreage contained in the PDH-30 area, less dedicated
right of way, by the per acre
Route
|
The
Honorable Xxx. Xxxxx Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
December
16, 1991
Page
Four
00
Xxxxxxx Xxxxxxxxxxx Xxxxxxxx Tax assessed against the adjoining vacant property
to the south zoned PD-IP. property. Such
vacant PD-IP property was the subject of Special Exception 90-0071. The
Applicant shall make such payments in a timely manner consistant in time with
the collection of taxes on properties subject to the Xxxxx 00 Xxxxxxx
Xxxxxxxxxxx Xxxxxxxx assessment. The Applicant shall continue paying the
amount determined above by the preceding
sentence to the Route 28 District County until such time as
there is constructed on the PD-OP or PD-CH portion of the Property an
improvement(s) yielding in taxes an amount equal to or greater than the
contribution as required above. Provided, however that as improvement(s)
are made, the contribution shall be reduced by an amount equivalent to the
increase in taxes provided by such improvement(s). an equal amount of
taxable income to the Route 28 District.
|
3.
|
Paragraph
41 of the Proffer is hereby clarified and confirmed by the following
language:
|
41.
|
Interpretation
|
The
Applicant acknowledges that there have been discussions with the County with
regard to the relationship of these proffers to the proffers contained in ZMAP
86-53. The County and Applicant have reviewed the concept plans
contained in both sets of proffers and agree it appears
that the concept plan attached to ZMAP 86-53 and the Concept Plan contained
herein substantially conform. Moreover, as it pertains to the development of the
Property, the Applicant will be required to adhere to the transportation phasing
program set forth herein in Exhibit E. The Applicant acknowledges
that in the event there is a conflict between the proffers contained in ZMAP
86-53 and the proffers contained in this ZMAP 90-14, the Zoning Administrator
shall be requested to determine which proffer paragraph(s) control in his or her
opinion. The Zoning Administrator's decision, when rendered, shall be
dispositive of
The
Honorable Xxx. Xxxxx Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
December
16, 1991
Page
Five
the issue subject to
such appeal rights or amendment procedures at Applicants
disposal.
The above
described clarifications to the Proffers are acceptable to Loudoun-LSJJ
Partnership, the Applicant for ZMAP 1990-0014, SPEX 1991-0043 and SPEX
1991-0045.
We very
much appreciate your cooperation and consideration of the clarifications to the
Proffers dated December 9, 1991. We look forward to working with the
County in future to implement this unique and visionary project.
LOUDOUN-LSJJ
PARTNERSHIP
|
||
By:
|
Xxxxxx
Enterprises Limited Partnership
|
|
General
Partner, by its General Partner
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx
|
|
Xxxxxxxx
X. Xxxxxx, General Partner
|
By:
|
/s/ XXXXX X. XXXXXXX | |
Xxxxx
x. Xxxxxxx, General Partner
|
The
Honorable Xxx. Xxxxx Xxxxx
Xxxxxxxx
X. Xxxxx, Esq.
December
16, 1991
Page
Six
XXXX OF
MARYLAND
COUNTY OF
XXXXXXXXXX, to wit:
I, the
undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that Xxxxxxxx
X.
Xxxxxx, General Partner of Xxxxxx Enterprises Limited Partnership, a
Maryland Limited Partnership, which is a General Partner of LOUDOUN-LSJJ
PARTNERSHIP, whose name is signed to the foregoing, appeared before me and
personally signed and acknowledged the same on behalf of LOUDOUN-LSJJ
PARTNERSHIP, this 14th day of
December, 1991.
/s/
|
|
Notary
Public
|
My
Commission Expiers:
|
|
/s/
|
STATE OF
MARYLAND
COUNTY OF
XXXXXXXXXX, to-wit:
I, the
undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that Xxxxx X. Xxxxxxx. a General Partner
of LOUDOUN-LSJJ PARTNERSHIP, whose name is signed to the foregoing, appeared
before me and personally signed and acknowledged the same on behalf of
LOUDOUN-LSJJ PARTNERSHIP, this 14th day
of December, 1991.
/s/
|
|
Notary
Public
|
My
Commission Expiers:
|
|
/s/
|
DULLES TOWN CENTER
Rezoning
Application ZMAP 1990-0014
Executed
Proffer Statement
December
9,1991
|
DULLES TOWN CENTER
ZMAP
1990-0014
Proffer
Statement
|
TABLE OF CONTENTS
PREAMBLE
|
1
|
|
I.
|
LAND
USE CONCEPT PLAN
|
2
|
II.
|
AUXILIARY/ACCESSORY
USES
|
4
|
III.
|
WATER
AND SEWER
|
5
|
IV.
|
STREET
LIGHTING
|
5
|
V.
|
PEDESTRIAN
TRAILS
|
5
|
VI.
|
TOWN
CENTER DESIGN
|
7
|
VII.
|
HOMEOWNERS/PROPERTY
OWNERS ASSOCIATION
|
8
|
VIII.
|
FIRE AND
RESCUE SERVICES/SPRINKLERS
|
9
|
Initial
Contribution Non-Residential Floor Area
|
9
|
|
Annual
Contribution Non-Residential Floor Area
|
9
|
|
Sprinkler
and Fire Alarm Systems for Non-Residential Uses
|
10
|
|
Initial
Contribution Residential Units
|
10
|
|
Annual
Contribution Residential Units
|
10
|
|
Cessation
of Contribution
|
11
|
|
Sprinkler
Systems
|
11
|
|
IX.
|
TRANSPORTATION
|
12
|
Right-of-way
Dedication and Road Xxxxxxxxxxxx
|
00
|
|
Xxxxxxxx
Xxxxxxxxx
|
00
|
|
Xxxxx
000
|
00
|
|
Xxxx
Xxxxxx Xxxxxxxxx
|
00
|
|
Xxxxx
00/Xxxxxx Xxxxxx Xxxxxxxxx Temporary Access
|
14
|
|
City
Center Boulevard/Loudoun Tech Access
|
00
|
|
Xxxxxxx
Xxxxxxxxx
|
16
|
|
Residential
Road Systems
|
00
|
|
Xxxxxxxx
Xxxxxxxxx/Xxxxxxxxx Xxxxxxx and Virginia Xxxxx 0
Xxxxxxxxxxx
|
00
|
|
Xxxxx
0
|
00
|
Xxxxxx Xxxx Center
Table
of Contents
Page
0
Xxxxx
0/Xxxxxxxxxxx Xxxxxxxxx Diamond Interchange Reservation
|
19
|
|
Emergency
Vehicle Access
|
19
|
|
Construction
by Others
|
19
|
|
Transportation
Phasing
|
20
|
|
Park
and Ride Xxx
|
00
|
|
Xxxxxxxxxxxxx:
On-site and Off-site
|
21
|
|
X.
|
DESIGN
REQUIREMENTS
|
22
|
XI.
|
RECYCLING
PROGRAM
|
23
|
XII.
|
LANDSCAPING
BUFFERING
|
23
|
XIII.
|
RECREATION
AREAS AND OPEN SPACE
|
00
|
XXX-00
|
00
|
|
XX-XX
and PD-CH
|
25
|
|
XIV.
|
CAPITAL
FACILITIES CONTRIBUTION AND OPEN SPACE EASEMENTS
|
26
|
Capital
Facilities Contribution For Units Above 1.6 Dwelling Units Per
Acre
|
26
|
|
Open
Space Easement Contribution for Units between 3.4 and 4.0 Dwelling Units
Per Acre
|
27
|
|
Open
Space Easement Contribution for Units Over 4.0 Dwelling Units Per
Acre
|
28
|
|
XV.
|
ROUTE
28 HIGHWAY IMPROVEMENT DISTRICT PDH-30 PROPERTY
|
29
|
XVI.
|
SURVEY
|
30
|
XVII.
|
MISCELLANEOUS
|
31
|
Design
Speed and Signage for Private Streets
|
31
|
|
Substantial
Improvements
|
31
|
DULLES TOWN CENTER
ZMAP
1990-0014
Proffer
Statement
December
9, 1991
|
List
of Exhibits
Exhibit "A"
-
|
Certified
Plat, dated July 5, 1990, revised May 9,
1991.
|
Exhibit "B"
-
|
Proposed
Development Plan for Dulles Town Center, dated July 5, 1990,
revised December 6, 1991.
|
Exhibit "C"
-
|
Modifications
to Zoning Ordinance
|
Exhibit "D"
-
|
Modifications
to Land Subdivision and Development Ordinance and Facilities standards
Manual
|
Exhibit "E"
-
|
Dulles Town Center,
ZMAP 90-0014 Transportation Phasing Plan, November 12, 1991, revised
December 7, 1991
|
Exhibit "P"
-
|
Typical
Street Sections
|
Exhibit "G"
-
|
Section
Through Town Center Common
Area
|
DULLES TOWN CENTER
REZONING
APPLICATION ZMAP 1990-0014
Proffer
Statement
December
9, 1991
|
PREAMBLE
LOUDOUN-LSJJ
PARTNERSHIP (the "Applicant")
, a Maryland general partnership by its general partners, Xxxxxx
Enterprises Limited Partnership and Xxxxx X. Xxxxxxx, is the Owner of
approximately 559 acres of land, which is more particularly described as Parcels
1A, IF and 1G on Loudoun County Tax Map Number 80-((l)) and Parcels 97, 99, 101
and 102 on Loudoun County Tax Map Number 80 (collectively
the "Tax Map Parcels") . Approximately 3 32 acres of the
Tax Map Parcels is the subject of the ZMAP 90-0014 and is shown on the Certified
Plat, dated July 5, 1990, revised May 9, 1991, prepared by Xxxxxxxx and Xxxxx
(the "Plat), submitted
with the rezoning application and incorporated herein by reference as Exhibit
"A" (the "Property").
The 227 acre remainder of the Tax Map Parcels, which is not a part of
this application, but portions of which have been approved for various land uses
pursuant to SE 82-26, ZMAP 86-53, ZCPA 90-0004, SE 90-0071, and SPBL 89-02,
shall not be affected or impacted by this rezoning application. The
Applicant hereby reaffirms proffer obligations set forth in ZMAP
86-53. It is the intent of the Applicant that the Concept Plan set
forth herein shall govern the development of the area which is the subject of
this rezoning.
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
2 of 34
|
On behalf
of itself and its successors in interest, the Applicant hereby voluntarily
proffers pursuant to Section 54 0.5 of the Loudoun County Zoning Ordinance (the "LCZO"), that
in the event the portions of the Property described and illustrated as Land Bays
on the Plat are rezoned by the Board of Supervisors ("the Boar”) of Loudoun County ("the
County") to Planned Development-Office Park ("PD-OP") Planned
Development-Commercial Highway ("PD-CH"), and
Planned Development Housing-30 ("PDH-30") , in general
conformance with the uses and densities set forth in Rezoning Application
1990-0014 and in the Concept Plan as hereinafter defined, and permitting
averaging of the permitted overall floor area ratio ("FAR") for the PD-OP
portion of the Property pursuant to Section 711.9.1 of the LCZO in substantial
conformance with the Concept Plan, the development of the Property shall be in
substantial conformity with the following conditions.
I.
|
LAND
USE CONCEPT PLAN
|
1. The
Property shall be developed in substantial conformity with the Proposed Development Plan
Dulles Town Center (the "Concept
Plan") dated July 5, 1990, revised December 6, 1991,
prepared by Xxxxxxxx and Xxxxx, which is attached hereto and incorporated herein
by reference as Exhibit "B". The Concept
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
3 of 34
|
Plan
shall control the general development, general layout, general acreage and
configuration of the Property with reasonable allowances consistent with the
LCZO, the County Land Subdivision and Development Ordinance ("LSDO") and
the County Facilities Standards Manual (nFSM") to
accommodate engineering constraints and to provide site design flexibility at
the time of subdivision and/or site plan approval.
2. The
PD-OP portion of the Property shown on the Plat shall be developed at a maximum
average overall Floor Area Ratio ("FAR") of 0.40 in substantial conformance with
the Concept Plan. In accordance with LCZO Section 711.9.1, parcels and/or
subdivided lots of the PD-OP Property may be developed at a density that is less
than or more than 0.4 0 FAR so long as the overall FAR for development of the
PD-OP portion of the Property does not exceed an average 0.40 FAR
density.
3. If
approved by the Board, the Property may be developed in conformance with the
modifications of the LCZO, and the LSDO and FSM attached hereto and herein by
reference as Exhibits "C" and "D" respectively.
4. The—PDH-30
portion of the Property shall be developed with up to l,068 single family
attached and multi-family residential-units.
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
4 of 34
|
II.
|
AUXILIARY/ACCESSORY
USES
|
5. The
Applicant may provide auxiliary/accessory service retail uses in the same
building with the permitted principal use throughout the PD-OP portion of the
Property. Such auxiliary/accessory service retail use shall not
exceed twenty percent of the floor area of the same building as the permitted
principal uses primarily served. The Applicant agrees that none of
the auxiliary/accessory service retail uses will be developed as the principal
uses of a freestanding building. The permitted auxiliary/accessory
service retail uses shall include, but shall not be limited to the
following:
■
|
air
express courier
|
|
■
|
data/copy
services
|
|
■
|
messenger/delivery
service
|
|
■
|
bakery/donut
|
|
■
|
dry
cleaners
|
|
■
|
drug
stores in buildings with medical uses
|
|
■
|
computer
hardware and software
|
|
■
|
shoe
repairs
|
|
■
|
book/card/stationery
stores
|
|
■
|
engineering/drafting
supplies
|
|
■
|
gourmet/specialty
shops
|
|
■
|
restaurants
|
|
■
|
delicatessens
|
|
■
|
photographic
processing/services
|
|
■
|
postal
service
|
|
■
|
travel
agent
|
|
■
|
beauty/xxxxxx
shops
|
|
■
|
florists
in connection with book/card/stationery
|
|
■
|
stores
|
|
■
|
clothing
rental
|
DULLES
TOWN CENTER; ZMAP 1990-OO14
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
5 of 34
|
■
|
health
and fitness studios
|
|
■
|
banks
and financial institutions
|
|
■
|
central
reproduction and mailing services, and the like
|
|
■
|
and
in buildings containing medical, dental or optical offices or clinics,
related ethical pharmacies, laboratories, and establishments for the
production, fitting or sale of optical or prosthetic
devices.
|
III.
|
WATER
AND SEWER
|
6. The
Property shall be served by public water and sewer systems. All water
and sewer extensions and connections to the Property shall be provided at no
expense to Loudoun County or the Loudoun County Sanitation
Authority.
IV.
|
STREET
LIGHTING
|
7. Street
lighting for the Property will be provided in accordance with VDOT
standards.
V.
|
PEDESTRIAN
TRAILS
|
8. The
Applicant shall install pedestrian trails in the residential and non-residential
areas of the Property in the locations generally as shown on the Concept
Plan.
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
6 of 34
|
9. Each
section of the pedestrian trail shall be bonded for construction prior to
approval of the record plat for each subdivision containing such portion of the
pedestrian trail.
10. Lighting
will be installed along the pedestrian trails referenced in paragraph 9
above. Trail lighting in the residential area of the Property will be
installed concurrently with the installation of the pedestrian trail for each
section constructed. Until such time as the Homeowners' Association
governing the PDH-30 area in which a pedestrian trail is located establishes a
different lighting schedule, the Applicant will provide dusk to 12:00 a.m.
(midnight) trail lighting upon occupancy of the first residential unit in the
PDH-30 Area. Trail lighting in the non-residential areas will be installed
concurrently with the installation of the pedestrian trail for each section
constructed. Until such time as the Property Owners' Association
governing the PD-OP and PD-CH areas in which a pedestrian trail is located
establishes a different lighting schedule, the Applicant will provide dusk to
12:00 a.m. (midnight) trail lighting after construction and occupancy of the
first non-residential building in the Town Center or 250 residential units,
whichever occurs first in time.
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
7 of 34
|
VI.
|
TOWN
CENTER DESIGN
|
11. The
Land Bays designated on the attached Concept Plan as "E", "F", "G", "H", "I",
"J", "K", "L", and "M" shall be generally referred to as the
"Town Center" and will generally be developed as a mix of commercial
office, retail and multi-family residential uses as approved by this rezoning
application.
12. Development
in the Town Center will conform with the following design
guidelines:
A. If
approved by the Board, Building Heights
within the Town Center will be massed with taller buildings concentrated in the
core framing the Town Center Common Area (i.e. Land Bays F and
K). Building heights are planned to range in height up to the greater
of 100 feet or to the tallest height permitted by the LCZO at the time of
development. One signature building may be located in each of the
Land Bays designated "E", "H" and "I". With the exception of these planned
signature buildings, building heights in the Town Center will transition to
lower building heights east and west of the Town Center Common
Area.
B. Building Setbacks in
the Town Center will be 2 0 feet from a 60 foot right-of-way (if the reduction
of right-of- way is approved by VDOT) or 15 feet from a 70 foot
right-of-way.
DULLES
TOWN CENTER; ZMAP 1990-OO14
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
8 of 34
|
C. Lot
Coverage: For the purposes of lot coverage calculations, Land Bays F,
G, H, I, J, and K will be treated as a single lot.
VII.
|
HOMEOWNERS/PROPERTY
OWNERS ASSOCIATION
|
13. The
Applicant shall prepare and process the documents necessary to create and
establish a Homeowners Association(s) ("HOA") for the PDH-3 0
portions of the Property and a Property Owners Association(s)
("POA") in the PD-OP and PD-CH portions of the
Property. The documents for the HOA and POA shall be prepared in
accord with all applicable federal and state standards at the time of submission
of record subdivision or site plan for the respective portions of the
Property. These documents will be submitted to the County and
appropriate agencies for their review and approval prior to approval of the
first record plat (other than for roadways or intersections) or first final site
plan, whichever is first in time.
14. The
Association(s) will have the authority and funding necessary to maintain all
private streets, pedestrian trails and stormwater management facilities
associated with the respective sections of the Property.
15. The
Association(s) shall have the authority, responsibility, and funding necessary
to maintain and provide for
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
9 of 34
|
grass
cutting and lawn maintenance for all common areas and open space including lawn
maintenance and snow removal on all private streets, garbage collection and to
assess, collect and pay the annual fire and rescue
contribution.
VIII.
|
FIRE
AND RESCUE
SERVICES/SPRINKLERS
|
16. Initial
Contribution Non-Residential Floor Area
Concurrently
with the issuance of each zoning permit for the development of any
non-residential uses on the Property, the Applicant shall make a one time
contribution to the County of five cents ($0.05) per FAR square foot of approved
building area on the Property which is the subject of said permit for the
servicing fire and rescues companies. Said contribution shall be
divided equally between the primary servicing Fire and Rescue
companies.
17. Annual
Contribution Non-Residential Floor Area
The
Applicant shall also make an annual contribution of two cents ($0.02) per net
FAR square foot of approved non-residential building area constructed on the
Property, to be divided equally between the Fire and Rescue Companies servicing
the Property. The annual contributions shall be made directly to the servicing
Fire and Rescue Companies. The Property Owners'
Association
DULLES
TOWN CENTER; ZMAP 1990-OO14
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
10 of 34
|
shall be
responsible for collecting and distributing the annual Fire and Rescue
contributions as set out above.
18. Sprinkler
and Fire Alarm Systems for Non-Residential Uses
Each
non-residential habitable building constructed on the PD-OP, PD-CH, and PDH-3 0
portions of the Property will be provided with a fire protection sprinkler
system. Each building shall also be equipped with a fire alarm system
consisting of a automatic fire alarm system which contains at least a manual
alarm device and device(s) which automatically detects heat, smoke or other
products of combustion.
19. Initial
Contribution Residential Units
Concurrently
with the issuance of each zoning permit for the development of residential units
in the PDH-3 0 District, the Applicant shall make a one-time contribution to the
County for distribution to the servicing fire and rescue companies pursuant to
the adopted fire and rescue guidelines of the Board of $60.00 for each
residential unit developed on the Property. Said sums shall be
divided equally between the servicing Fire and Rescue
companies.
20. Annual
Contribution Residential Units
The
Applicant shall also require the owner of each residential unit to remit the sum
of $60.00 per residential unit,
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
11 of 34
|
per annum
to be divided equally between Fire and Rescue services serving the
Property. Such annual contributions shall be made a portion of the
annual Homeowner's Association dues and shall be collected by the Homeowners
Association and paid directly to the Fire and Rescue units so
specified.
21. Cessation
of Contribution.
The
obligations set forth in Paragraphs 16, 17, 19, and 20 above shall continue so
long as the Fire and Rescue services serving the subject Property are
predominantly volunteer (i.e., less than 75 percent of the
annual operational budget is funded by the County) . In
the event a volunteer fire and rescue system, as defined above, shall cease to
serve the Property, then the obligations to make all such donations shall
terminate.
22. Sprinkler
Systems
The
Applicant shall provide, as an option to purchasers of single family attached
residential units built on the PDH-3 0 portion of the Property, the opportunity
to purchase and have installed, residential sprinkler systems for each such
residence. This proffer shall not require the Applicant to install such systems
in single family attached residences on the Property. The purchasers of such
residences may choose to exercise such option and to pay reasonable costs in
association with such purchase and installation. The Applicant shall
install
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
12 of 34
|
residential
sprinkler systems in demonstration models for single family attached units
constructed on the Property.
IX.
|
TRANSPORTATION
|
23. Right-of-way
Dedication and Road Construction
Public
roads shall be designed to conform with the Virginia Department of
Transportation (VDOT) standards and shall be dedicated to the County for
acceptance into the State highway system. Except as hereinafter
provided, at the time of final subdivision plan approval and recordation of a
record plat, the Applicant shall dedicate the necessary right-of-way and
construct or bond for construction the portion of such roads within said record
plat. The Applicant shall construct its internal roads in general
conformity with the Concept Plan attached hereto. Roadways may change based on
further engineering and environmental analysis. If the County
approves the Applicant's request for zoning ordinance modifications to allow for
private street development as set forth in Exhibit C, the Applicant shall
construct all private streets located in the Town Center and in the PDH-30
portion of the Property in accordance with the guidelines set forth in Section
4.380. The maintenance of all such private streets shall be the
responsibility of the POA and the HOA.
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
13 of 34
|
Provided
the entity desirous of constructing such roadways has secured approval of
construction plans and profiles from the County and VDOT, and further provided
the alignment of said roadways is in substantial conformance with the
Applicant's Concept Plan as may be amended and approved by the Board, and
further provided that subject to the obtaining of all right-of-way, a notice to
proceed as to construction has been issued, then in that event the Applicant
shall dedicate the right-of-way on site necessary to provide for the
construction of the roadways set forth in Paragraphs 2 3A and
23X-
00X. Xxxxxxxx
Xxxxxxxxx
The
Applicant shall dedicate a sufficient amount of right-of-way on site to
construct Atlantic Boulevard as a six lane divided facility.
The
Applicant shall construct a four lane divided roadway at its own expense within
the dedicated right-of-way, from Virginia Route 638 relocated across the Tax Map
Parcels to connect to the southern ramps on to and off of the eaxxxxxxx xxxx xx
Xxxxxxxx Xxxxx 0.
23.B. Route
638
The
Applicant shall dedicate a sufficient amount of on-site right-of-way to
construct relocated Route 638 as a six lane divided facility. The
Applicant shall construct a four xxxx
XXXXXX
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
14 of 34
|
divided
roadway at its own expense within the dedicated right-of-way, from Virginia
Route 2 8 across the Tax Map Parcels to the eastern property boundary line of
such Property.
23.C. City
center Boulevard
The
Applicant shall dedicate a sufficient amount of on-site right-of-way to
construct City Center Boulevard as a four lane divided facility consistent with
VDOT standards as shown on the Concept Plan and in Exhibit E.
The
Applicant shall construct a four lane divided roadway with intersection
geometrics as shown on "Construction Plans for Roxxx 0/Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx", prepared by Xxxxxxxx and Xxxxx, dated November 1989, and approved
by Loudoun County on September 18, 1990, as may be amended with approval of the
County and VDOT, at its own expense within the dedicated right-of-way from the
intersection of Countryside Boulevard and Virginia Route 7, across the Tax Map
Parcels to connect to relocated Virginia Route 638.
23.D. Route
28/Dulles Center Boulevard Temporary Access
Temporary
right-in/right-out access from Virginia Route 28 to the Property will be
provided via Dulles Center Boulevard. The temporary right-in/right-out access
will be provided at the existing limited access break located between the Routes
28/7 grade separated interchange to the north and future
Route
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
|
Page
15 of 34
|
638/Route
28 grade separated interchange to the south. The Applicant shall
dedicate a sufficient amount of on-site right-of-way to provide for the
construction of Dulles Center Boulevard as a four lane divided roadway
commencing at-grade at the existing limited access break on Virginia Route 28
and terminating at City Center Boulevard as shown on the Concept Plan and in
Exhibit E.
The
Applicant shall construct a four lane divided roadway at its own expense within
the right-of-way dedicated from the Virginia Route 28 existing limited access
break to City Center Boulevard. The Applicant agrees that at such
time as the Route 28/Route 638 grade-separated interchange is available for use
by the general public, its temporary access on and off of Virginia Route 28 from
its site via the roadway set forth in this Paragraph shall
terminate. The Applicant reserves the right to discuss alternate
means of providing right in access from Route 28 to Dulles Town Center at its
own cost, provided the same meets with VDOT and County
approval.
23.E. City
Center Boulevard/Loudoun Tech Access
Upon
request by the County and/or VDOT, but not sooner than submission of the record
plat for the PDH-30 portion of the Property adjacent to such roadway, the
Applicant shall dedicate a sufficient amount of on-site right-of-way to provide
for the construction of a four lane undivided roadway commencing at
the
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
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6, 1991
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property
line of Loudoun Tech Center and terminating at City Center Boulevard as shown on
the Concept Plan.
The
Applicant shall construct a half section of a four lane undivided roadway
commencing at City Center Boulevard to the west and terminating at Ridgetop
Circle to the east in the Loudoun Tech Office Park. Said road to be
constructed within the right-of-way to be dedicated on site and within the
dedicated right-of-way located on the adjacent Loudoun Tech Office Park
site.
23.F. Century
Boulevard
The
Applicant shall dedicate a sufficient amount of on-site right-of-way to provide
for the construction of a four lane divided roadway commencing at Atlantic
Boulevard and terminating within the Town Center as shown in Exhibit E and the
Concept Plan.
The
Applicant shall construct a four lane divided roadway at its own expense within
the right-of-way dedicated from Atlantic Boulevard and terminating within the
Town Center.
23.G. Residential
Road Systems
The
Applicant shall dedicate a sufficient amount of right-of-way on site to provide
for the construction of those sections of City Center Boulevard, Dulles Center
Boulevard and Century Boulevard which are located within the PDH-3 0 portions of
the Property. Cixx Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx xnd
Dulles
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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Page 17
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Xxxxxx
Xxxxxxxxx xhall be constructed as four lane divided roadways as set forth in
Exhibit E and on the Concept Plan except (i) that the portion of Dulles Center
Boulevard located east of City Center Boulevard and (ii) the portion of Century
Boulevard located east of Dulles Center Boulevard shall be constructed as four
lane undivided roadways.
The
Applicant shall construct the roadways at its own expense within the
right-of-way dedicated within the PDH-3 0 district.
23.H. Atlantic
Boulevard/Algonkian Parkway and Virginia Route 7
Interchange
In
conjunction with the approval of any subdivision containing land necessary for
the Atlantic Boulevard/Algonkian Parkway and Virginia Route 7 Interchange, the
Applicant shall reserve sufficient land on site for an interchange at the
intersection of the Algonkian Parkway/Atlantic Boulevard and Virginia Route
7.
Upon the
request of the County and subject to the following, the Applicant shall dedicate
sufficient right-of-way to provide for the construction of all roadways and ramp
improvements necessary to construct the Atlantic Boulevard/Algonkian Parkway and
Virginia Route 7 Interchange (collectively the "Ramp
Improvements"), as set forth in the Xxxxxxxx & Xxxxx
plan
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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entitled
"Construction Plans for Algonkian Parkway/Route 7 Interchange dated June 1990,
(CPAP-91-0043-02)", and subject to the following: the entity desirous
of constructing such roadway has secured approval of construction plans and
profiles from the County and VDOT, and further provided that the alignment is in
substantial conformance with the Applicants Concept Plan, as may be amended, and
approved by the County Board of Supervisors, and further provided that subject
to the obtaining of all right-of-way, a notice to proceed as to construction has
been issued, then in that event, the Applicant shall dedicate the right-of-way
on the Property necessary to construct the Ramp Improvements. Otherwise,
dedication of the land area for the Ramp Improvements by the Applicant shall
occur prior to bonding or construction of said Ramp Improvements in conformance
with Exhibit E.
23.I. Route
7
The
Applicant shall construct the third eastbound lane along the frontage of its
Property on Virginia Route 7, from the terminus of the Algonkian/Route 7
interchange project and continuing to Loudoun Tech. Such improvements
will be provided concurrently with the initial improvements to the
Countryside/Route 7 intersection. The Applicant shall dedicate a
sufficient amount of on-site right-of-way upon request of
the
DULLES
TOWN CENTER; ZMAP 1990-OO14
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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County to
provide for the construction of a third eastbound lane along the frontage of its
Property on Virginia Route 7.
23.J. Route
7/Countryside Boulevard Diamond Interchange Reservation
The
Applicant shall reserve for dedication a sufficient amount of right-of-way
on-site to allow the construction of a diamond interchange at Virginia Route 7
and Countryside Boulevard. Unless otherwise earlier determined by
VDOT and Loudoun County as not necessary in which case such reservation shall
cease upon written notice from the County, VDOT shall commence construction
within thirty-five (35) years of this zoning approval otherwise this reservation
of land shall cease. Such dedication shall be made as soon as reasonably
practicable after request of Loudoun County.
24. Emergency
Vehicle Access
The
Applicant will provide temporary emergency vehicle access to the Property during
construction. Such temporary emergency vehicle access provided will
be satisfactory to the Loudoun County Fire Marshal's Office.
25. Construction
by Others
In the
event that any one or more of the individual intersection improvements proffered
by Applicant herein is constructed by others prior to bonding for such
construction by
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991.
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the
Applicant, the actual paid and reasonable construction costs of such individual
improvements by others shall be contributed by the Applicant to the County in
lieu of Applicant's construction obligation. Such contributions in
lieu of actual construction shall occur at the time specified in the applicable
proffer for construction or bonding of a specific intersection improvement and
shall be used for regional roadway improvements in the vicinity of and for the
benefit of the Property. In the event that actual cost information
cannot be obtained, or is disputed by the Applicant or the County, the Applicant
shall submit the cost estimates for such improvements for review and approval of
the County Director of the Department of Building and Development. In
the event of any disagreement between the Applicant and the Director of the
Department of Building and Development regarding the cost estimates of such
improvements, the Board shall make a final decision.
26. Transportation
Phasing
The
Applicant's proffered road improvements specified herein shall be constructed or
bonded for construction in sections in accordance with County
Ordinances.
Exhibit
E, "DTC ZMAP 90-0014, Transportation Phasing Plan", December 7, 1991, as it may
be revised, constitutes the Applicant's Transportation Phasing
Program. The Applicant shall
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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provide
the proffered transportation improvements in phases as generally set forth in
attached Exhibit E.
Exhibit E
is a phasing plan designed to distribute internally generated trips to
intersections set forth therein and to demonstrate roadway improvements which
will be constructed concurrent with the opening of each internal roadway
intersection with off-site roads. Development of Dulles Town Center
may begin and proceed with any section(s)/phase(s).
27. Park and
Ride Lot
The
Applicant shall provide the County upon request, as its contribution toward the
operation of a regional park and ride facility, a non-exclusive designated
parking area for up to 75 passenger vehicles. This park and ride lot
may either be located on site or off site of the Property.
28. Signalization:
On-site and Off-site
The
Applicant will provide all on-site signalization and such off-site
signalization, as needed, at the Route 638 and Route 28 intersections as and
when initially warranted by the County and VDOT. The Applicant will
further provide for the upgrade of the existing signalization at Countryside
Boulevard together with the Countryside and Route 7 intersection
improvements.
DULLES
TOWN CEHTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
Oecember
9, 1991
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X. DESIGN
REQUIREMENTS
29. As
a part of the document establishing the Property Owner's Association and the
Homeowner's Association, the Applicant shall provide the
following:
A. Overall,
the land development techniques and elements of the landscape architecture for
those portions of the individual parcels of the Property adjacent to the public
rights- of-way and property lines shall be compatible and complimentary of one
another. The goal shall be to achieve compatibility among the PD-OP,
PD-CH and PDH-30 areas through land development techniques and landscape
treatments.
B. Complimentary
plant materials and landscaping techniques shall be utilized throughout the
pedestrian trail system and streetscape of the Property. A list of
specific plant materials and planting requirements for use on the Property shall
be provided to developers of the individual parcels. Amendment of the
list of plant materials may be made only after review and approval of the site
plan review board as established by the POA and the HOA, as the case may
be.
30. To
the extent practicable, existing stands of trees will be preserved along primary
public rights-of-way. Where street trees are installed along primary
public rights-of-way, uniform and complimentary landscape designs will be
implemented
DULLES
TOWN CENTER; ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
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4, 1991
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6, 1991
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which
will provide appropriate transition of landscaping treatments between the PD-OP,
PD-CH and PDH-3 0 areas of the Property.
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XI.
|
RECYCLING
PROGRAM
|
31. To
promote recycling on the Property, the Applicant, together with a qualified
solid waste management/recycling contractor, shall work closely with the
County's Department of Building and Development to develop a recycling plan for
the Property. If established by the County and the Applicant, the
recycling plan shall be implemented in phases as building
occurs.
The
Applicant will incorporate into the respective guidelines a policy statement
which requires the owners of individual buildings to design their buildings and
implement tenant and employee programs which facilitate recycling
efforts.
|
XII.
|
LANDSCAPING
BUFFERING
|
32. At
the time of preliminary subdivision application for those areas of the Property
which front on Route 7 and Route 28, the Applicant shall submit for review and
approval by the County an illustrated landscape plan depicting the extent and
the nature of the proposed buffering along Roxxx 0 xxx Xxxxx
00.
XXXXXX XXXX XXXXXX;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December 9, 1991
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Page 24 of
34
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At the
time of record plat approval, the Applicant shall, consistent with the approved
landscape plan, provide (a) a one hundred foot (100') minimum average landscaped
buffer measured from the six lane right-of-way which shall be maintained along
the entire length of the Property fronting Route 7 and adjacent to the south
side of Virginia Route 7, and (b) a one hundred fifty foot (150') building
setback from Route 7 together with a building setback one hundred fifty feet
(150') from the east side of Route 28, provided, however, that building setbacks
may be reduced to no less than one hundred feet (100') from Virginia Routes 7
and 28 when it is demonstrated that the natural topography and the use of
landscaping treatments and creative site design will accomplish the same purpose
as greater building setbacks. Parking shall be permitted within the
one hundred fifty foot (150') setback from both Routes 7 and 28, but not closer
than 100 feet, provided however that the one hundred foot (100') minimum average
landscaped buffer is maintained pursuant to (a) and (b) above. The
Applicant retains the right to grant easements for utilities and to erect signs
within these areas.
XIII. RECREATION
AREAS AND OPEN SPACE
33. The
Applicant shall construct community and neighborhood recreation areas on the
Property in the locations
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
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6, 1991
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generally
shown on the Concept Plan consistent with the following:
A.
|
PDH-3
0
|
|
1
|
The
Applicant shall construct a central
Community Recreation Center ("Recreation Center") in
the location generally shown on the Concept Plan in the PDH-3 0 portion of
the Property. The Recreation Center will include a
community building, swimming pool, and an active recreation area and tot
lot. The swimming pool will be a minimum of 2 5 meters in length and at
least 6 standard lanes in width. Additional bathing areas for
young children, shallow bathing and/or a diving area may also be
provided.
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|
2.
|
Construction
of the Recreation Center will begin before such time as the zoning
permit for the 500th residential unit is issued and shall be substantially
completed within twenty-four (24) months thereafter.
|
|
3.
|
The
HOA documents will provide availability of membership in the
Recreation Center to residents within the PDH-30 portion of the
Property, as well as the tenants of the overall
Dulles Town Center project (i.e. tenants of the PD-OP, PD-CH,
PD-SC and PD-IP districts).
|
|
B.
|
PD-OP and
PD-CH
|
|
1.
|
The
Applicant shall provide open space and recreational areas generally as
shown on the
|
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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Concept
Plan. These recreation areas shall provide those recreational
amenities which are generally described on the Concept Plan including a
pedestrian trail and Town Center Common Area.
XIV.
|
CAPITAL
FACILITIES CONTRIBUTION AND OPEN SPACE
EASEMENTS
|
|
34. Capital Facilities
Contribution For Units Above 1.6 Dwelling Units Per Acre
|
At the
time of issuance of the zoning permit for each residential unit constructed
on the PDH-3 0 portion of the Property above the first 141 residential
units, a one time cash contribution per residential unit shall be
contributed to the County in accordance with the following
formula:
|
■
Single
Family Attached Residential Units = $3,587.00 per SFA Unit X
0.25
|
|
■
Multi-Family
Residential Units = $2,528.00 per MF Unit X
0.25
|
Said
contribution shall be used at the County's discretion for Capital Facilities
Improvements including for use in a County Affordable Housing
Program. Such sum shall be in 1991 dollars, which shall escalate
annually thereafter on the anniversary date of this rezoning in accordance with
the Consumer Price Index published by the Bureau of Labor Statistics, U.S.
Department of Labor (hereinafter identified as All Urban Consumers Index-US City
Average 1982/1984 = 100).
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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In lieu
thereof and in accordance with adopted County policies, the Applicant on its own
initiative may request to the County that it be permitted to construct regional
capital facility improvements on-site, which improvements may include, but not
be limited to the following:
|
■
Regional
Recreation
Improvements
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|
■
Cultural
Arts Facilities
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|
■
Multi-Purpose Senior Center
|
At the
County's option, the Applicant shall either dedicate said improvements for
public use or enter into an agreement with the County or its designee to provide
for the use of said improvements by the general public with the continued
private maintenance of said improvements to be provided by the
Applicant.
The cost
of providing on-site regional capital facilities shall be credited dollar
for dollar against the per-unit capital facilities cash
contribution.
35.
|
Open Space Easement
Contribution for Units between 3.4 and 4.0 Dwelling Units Per Acre
|
The
Applicant shall make a one time cash donation on a per unit basis toward
the purchase by the County of up to thirty-five (35) open space easements
in the amount of $7,000 per open space easement; provided, however, that
the Applicant on its own initiative may procure such open space easements
at whatever price available. In the event the Applicant or the
County
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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purchases
such open space easements as set forth above, the Applicant shall receive
the right to build one additional residential unit above the initial 299 units
for each open space easement purchased. The above-referenced donation or
open space easement procurement shall be required after construction of the
first 299 residential units in the PDH-30 area of Dulles Town
Center. The aforesaid cash donation of $7,000 per easement shall not be
required where the Applicant has, on its own, provided such open space
easements. The aforesaid cash payment, or evidence satisfactory in form to
the County of such open space easement, shall be presented to the County for
approval prior to record plat or final site plan approval for development of any
units above the first 299 units.
|
36.
Open Space Easement
Contribution for Units Over 4.0 Dwelling Units Per Acre
|
The
Applicant shall make a cash donation toward the purchase by the County of
up to thirty six (36) open space easements in the amount of $7,000 per open
space easement; provided, however, that the Applicant on its own initiative
may procure such open space easements at whatever price
available. In the event the Applicant or the County purchases
such open space easements as set forth above, the Applicant shall receive
the right to build twenty additional residential unit(s) for each open
space
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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easement
purchased, above the initial 3 52 units developed. Either the donation for or
procurement of one additional open space easement as described in this paragraph
shall be provided prior to issuance of zoning permits for each group of twenty
(20) additional residential units constructed on the PDH-3 0 Property after the
first 352 residential units are constructed. The aforesaid cash
donation of $7,000 per easement shall not be required where the Applicant has,
on its own, provided such open space easements. The aforesaid cash
payment, or evidence satisfactory in form to the County of such open space
easement, shall be presented to the County for approval prior to record plat or
final site plan approval, for those groups of twenty units requiring the open
space easements above the first 3 52 residential units constructed on the PDH-3
0 Property.
XV.
|
ROUTE
28 HIGHWAY IMPROVEMENT DISTRICT PDH-30
PROPERTY
|
37. In
the event the Board zones a portion of the Property to the PDH-30 zoning
district, the Applicant shall, pursuant to all laws governing the Route 28
Highway Improvement District, continue paying taxes to the Roxxx 00 Xxxxxxx
Xxxxxxxxxxx Xxxxxxxx (the "Route
28
District"). Such taxes
shall be paid in a timely manner in accordance with the Route 28 District and
shall be computed by multiplying the total acreage contained
in
DULLES TOWN CENTER;
ZMAP 1990-OO14
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December 9, 1991
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Page 30 of
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the
PDH-30 area, less dedicated right-of-way, by the per acre Roxxx 00 Xxxxxxx
Xxxxxxxxxxx Xxxxxxxx Xax assessed against the adjoining property to the south
zoned PD-IP property. Such PD-IP property was the subject of Special Exception
90-0071. The Applicant shall continue paying the amount determined by
the preceding sentence to the Route 28 District until such time as there is
constructed on the PD-OP or PD-CH portion of the Property an improvement
yielding an equal amount of taxable income to the Route 2 8
District.
XVI.
|
SURVEY
|
38. The
Applicant shall establish a permanent horizontal geodetic controls station (monument) with azimuth in
accordance with second (2nd) order, class one standards, as defined in
"Classification, Standards of Accuracy and General Specifications of Geodetic
Control Surveys," 1974, N.O.A.A.--N.O.S., in the format required by NGS for
inclusion in the National Geodetic Control System.
The
Applicant shall establish all future subdivisions and the property boundary
survey to the Virginia State Planar Coordinate Grid System, in accordance with
third order, class one standards, as defined in "Classification, . .
.. Standards of
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
a, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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Page
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Accuracy
and General Specifications of Geodetic Control Surveys," 1974, N.O.A.A.--N.O.S.,
U.S. Department of Commerce, Rockville, Maryland.
XVII.
|
MISCELLANEOUS
|
|
39. Design
Speed
and Signage for Private
streets
|
Concurrent with the submission of the construction plans and profiles for private streets constructed on each section of the Property, documentation shall be submitted to the County indicating the design speed for the respective private streets.
The
Applicant shall provide for the posting of traffic control signs on all private
streets in the PD-OP, PD-CH and PDH-30 areas of the Property, which signs shall
be of the same size and configuration as those posted by
VDOT.
|
40. Substantial
Improvements
|
These
proffers contemplate that the Applicant shall dedicate real property of
substantial value (including, but not limited to the donation of right-of-way
for the Algonkian Parkway Interchange), make substantial cash payments or
construct substantial public improvements the need for which is not generated
solely by the rezoning of ZMAP 1990-0014. In the event Applicant
fails within five years from the date of this rezoning to substantially
implement these dedications, payments, or
DULLES TOWN CENTER;
ZMAP 1990-0014
PROFFER
STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December
9, 1991
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Page
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construction
of improvements, then the rights stated in Section 15.1-491(al) of the Code of
Virginia 1950, as amended, shall not apply to this Property, provided, however,
that any rights acquired independently of Section 15.1-491(al) of the Code of
Virginia (1950), as amended, shall not be waived by this
proffer.
|
41. Interpretation
|
The
Applicant acknowledges that there has been discussions with the County with
regard to the relationship of these proffers to the proffers contained in ZMAP
86-53. The County and Applicant have reviewed the concept plans
contained in both sets of proffers and agree that the concept plan attached to
ZMAP 8 6-53 and the Concept Plan contained herein substantially conform.
Moreover, as it pertains to the development of the Property, the Applicant will
be required to adhere to the transportation phasing program set forth herein in
Exhibit E. The Applicant acknowledges that in the event there is a
conflict between the proffers contained in ZMAP 86-53 and the proffers contained
in this ZMAP 90-14, the Zoning Administrator shall be requested to determine
which proffer paragraph(s) control in his or her opinion. The Zoning
Administrator's decision, when rendered, shall be dispositive of the issue,
subject to such appeal rights or amendment procedures at Applicants
disposal.
DULLES TOWN CENTER;
ZMAP 1990-0014
|
DRAFT
NO. 5
|
DRAFT
PROFFER STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November
25, 1991
December 9, 1991
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Page 33 of
7
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DULLES TOWN CENTER
|
ZMAP
89-38
|
Proffer
Statement
|
These
Proffers shall be binding upon the assigns and successors in interest of the
Applicant.
The
undersigned hereby warrant that all owners of a legal interest of the Subject
Property have signed this Proffer Statement, that he/she has full authority to
bind the Property to these conditions either individually or jointly with the
other Owners affixing their signatures hereto, and that the Proffers are entered
into voluntarily.
LOUDOUN-LSJJ
PARTNERSHIP
|
|||
By:
|
Xxxxxx
Enterprises Limited
|
||
Partnership,
its General
|
|||
Partner
|
|||
By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
||
Xxxxxxxx X. Xxxxxx,
|
|||
General
Partner
|
|||
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
Xxxxx
X. Xxxxxxx,
|
|||
General
Partner
|
DULLES TOWN CENTER;
ZMAP 1990-0014
|
DRAFT
NO. 5
|
DRAFT
PROFFER STATEMENT
August
8, 1991
September
30, 1991
October
4, 1991
November
6, 1991
November.
25,1991
December
9, 1991
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Page
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STATE OF
MARYLAND
COUNTY OF
XXXXXXXXXX, to-wit:
I, the
undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that Xxxxx X. Xxxxxxx, a General
Partner of LOUDOUN-LSJJ PARTNERSHIP, whose name is signed to the foregoing,
appeared before me and personally signed and acknowledged the same on behalf of
LOUDOUN-LSJJ PARTNERSHIP, this 9th day of December,
1991.
/s/
|
|
Notary
Public
|
My
Commission Expires:
|
|
November
1, 0000
|
XXXXX XX
XXXXXXXX
XXXXXX XX
XXXXXXXXXX, to-wit:
I, the
undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby
certify that Xxxxxxxx X. Xxxxxx. General
Partner of Xxxxxx Enterprises Limited Partnership, a Maryland Limited
Partnership, which is a General Partner of LOUDOUN-LSJJ PARTNERSHIP, whose name
is signed to the foregoing, appeared before me and personally signed and
acknowledged the same on behalf of LOUDOUN-LSJJ PARTNERSHIP, this 9th day
of December, 1991.
/s/
|
|
Notary
Public
|
My
Commission Expires:
|
|
November
1, 1993
|
EXHIBIT
C
|
Zoning Modification
Requests
|
Dulles Town Center
|
(ZMAP
1990-0014)
|
The
following zoning modifications are proposed as part of the
Dulles Town Center rezoning request.
A.
|
MODIFICATIONS
TO THE GENERAL REGULATIONS: ARTICLE
5
|
|
1.
Section 511 LOT ACCESS
REQUIREMENTS
|
■
|
Ordinance Provision: "No structure requiring a
building permit shall be erected upon any lot which does not have frontage
on a Class I, Class II, or Class III road as specified in the schedule of
district regulations, except as specifically provided in subdivision
regulations, or in multi-family dwelling and industrial park developments
regulated in Article 7".
|
|
Modification
Request:
|
It is requested that structures may be erected upon lots which front on private streets in the "Town Center" area of the proposed PD-OP zone district and in the single family attached and multi-family area of the PD-H30 zone district
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
2 of 12
|
|
2.
|
Section
525.3
|
OFF-STREET PARKING
AND LOADING SPACE
PROHIBITED IN REQUIRED YARDS ADJACENT TO
STREETS
|
■
|
Ordinance
Provision: "Except as otherwise
specifically provided herein, no off-street parking areas
for four (4) or more automobiles, and no loading space, shall be permitted
in any required yard adjacent to a street, nor shall any maneuvering
areas
serving such
spaces be so located."
|
|
Modification
Request:
|
It is
requested that this standard be modified to allow parking spaces/structures in
the required yard adjacent to a public or a private street within the "Town Center". The off-street parking
spaces/structures will be located as follows:
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
3 of 12
|
60'
RIGHT-OF-WAY*
|
70'
RIGHT-OF-WAY
|
|||
■
|
Minimum
20-foot building setback from the property line
|
■
|
Minimum
15-foot building setback from the property line
|
|
and
|
||||
and
|
||||
■
|
Minimum
28-foot building setback from the face of curb.
|
|||
■
|
Minimum
28-foot setback from the face of curb.
|
|||
*If
the right-of-way reduction is approved by
VDOT.
|
|
3.
|
Section
525.7
|
JOINT PARKING
FACILITIES
|
■
|
Ordinance
Provision: "Where there are multiple uses
on one lot, or where uses on adjoining lots
propose to combine parking areas and/or accessways, such joint parking
facilities shall be permitted, subject to the general requirements and
limitations applying to all parking areas. Such combinations shall be
permitted by the Zoning Administrator subject to the general requirements
and standards set forth, without special exception action by the Board of
Zoning Appeals...."
|
|
|
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
4 of 12
|
Modification
Request
It is
requested that the Zoning Administrator grant approval to provide joint parking
facilities for multiple uses on a lot.
B.
|
MODIFICATIONS
TO SPECIAL DISTRICT REGULATIONS: ARTICLE
7
|
|
1. Section
701.6.2 SERVICES AND COMMERCIAL
USES
|
■
|
Ordinance
Provision: "Services and commercial uses
restricted to occupy a total of not more than 3% of the
total land area of the district, including, as appropriate to the scale of
the development, convenience establishments, neighborhood shopping centers
or community shopping
centers."
|
|
Modification
Request:
|
It is
requested that this section of the Zoning Ordinance be modified to provide for
6% of the total land area of
the district (5.5
acres) to be developed as shown on Exhibit B with service and commercial
uses.
|
2.
|
Section
702.1.2.8
|
MINIMUM NUMBER OF
DWELLING UNITS FOR WHICH PERMITS MUST BE ISSUED BEFORE ISSUANCE OF
PERMIT FOR SHOPPING
CENTER.
|
■
|
Ordinance Provision:
"No building permit for
any such shopping center shall be issued prior to issuance of building
permits for 80% of the dwelling units for which said center is to
serve."
|
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
5 of 12
|
Modification
Requested:
It is
requested that the PDH-30 area to be developed with service and commercial uses
be developed concurrent with the residential area in which it is located (i.e. the residential land bay located east of City Center
Blvd.).
3.
|
Section
702.3.1 MAXIMUM HEIGHT
RESTRICTIONS
|
■
|
Ordinance
Provision; "Dwellings: 35
feet." Modification
Requested:
|
It is
requested that the residential units in the "Town Center" area of the project be
constructed to varying heights ranging from five stories, but not to exceed 100
feet, in the "Town Center" core area to three stories
in the area east of City Center Boulevard.
4.
|
Section
702.3.3.1 SPECIFICATIONS
|
■
|
Ordinance
Provision: "The
arrangement, character, extent, width, grade, and location of all streets
shall be designed
and constructed
in accordance with specifications acceptable to the Virginia Department of
Highways and Transportation for inclusion into the State Highway
System."
|
Modification
Requested:
It is
requested that streets which do not meet VDOT design criteria, i.e. private
streets, be permitted to be developed in Land Bays F, I, J, K, L, M, N, O, P, Q,
R, S, and T.
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
6 of 12
|
|
5.
|
Section
702.3.4.1
|
IF THE STREET OR
PORTION THEREOF SERVES 50 OR LESS DWELLING
UNITS
|
■
|
Ordinance
Provision: "If the street or portion
thereof serves 50 or less dwelling units, vehicular access from off-street
parking and service areas may be directly to the street from individual
dwelling units. Determination of number of dwelling units served shall be
based on normal routing of traffic anticipated in the
development."
|
Modification
Requested:
It is
requested that this standard be modified to permit up to 85 residential units to
access a public street at any one entrance point.
|
6.
|
Section
710.10.2
|
VEHICULAR AND PEDESTRIAN ENTRANCES
AND EXITS
|
■
|
Ordinance
Provision: "Principal vehicular access
for the general public shall be only from major arterials or secondary
arterials."
|
Modification
Requested:
This
section of the Ordinance requires that access to buildings located in the PD-CH
zoning district be directly from major arterials or secondary arterials. The
areas proposed to be zoned PD-CH are located adjacent to the Dulles Town Center
Mall site. It is requested that vehicular access to the PD-CH area be provided
from the private perimeter road located on the Mall site. In the event access is
provided from the perimeter road, construction plans and profiles for the
segment of the perimeter road serving the respective
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
7 of 12
|
PD-CH
parcels shall be submitted to the County for review and approval concurrent with
the site plan for the respective PD-CH area.
7.
|
Section
710.11.1.3 ADJOINING RESIDENTIAL
DISTRICTS
|
■
|
Ordinance
Provision: "When any PD-CH district
adjoins any residential district, a minimum yard requirement of 100 feet
shall be maintained along any side or rear lot line which adjoins a
residential district, provided that driveways and off-street parking areas
may be within 50 feet of a residential
district."
|
Modification
Requested:
It is
requested that the yard requirement be measured from the zoning district
boundary and not from the lot boundary.
8.
|
Section
711.7 MAXIMUM HEIGHT
RESTRICTIONS
|
■
|
Ordinance
Provision:
"Other
Buildings: 35 feet provided that a building may be erected to a maximum
height of one hundred feet if it is set back from public streets or from
lot tines that do not constitute boundaries of districts with lower
maximum height restrictions, in addition to each of the required minimum
yard dimensions, a distance of not less than two feet for each one foot of
height that it
exceeds the 35-foot
limit."
|
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
8 of 12
|
Modification
Requested:
This
provision of the Zoning Ordinance requires increased setbacks for buildings in
the PD-OP zone district if the height of the buildings exceed 35 feet. The
applicant requests modification of this Ordinance provision to permit a uniform
building setback line as follows:
·
|
If
the right-of-way reduction is approved by VDOT, 20 feet from a 60 foot
wide right-of-way
|
or
·
|
15
feet from a 70 foot wide
right-of-way
|
9.
|
Section
711.9.3 MINIMUM LANDSCAPED
OPEN SPACE
|
■
|
Ordinance
Provision: "Minimum landscaped open space
on any individual lot shall not be less than .20 times the land area of
the lot. Such open space shall not be generally open to vehicles, and
shall be landscaped and maintained in a manner appropriate to the
park-like character of the
district"
|
|
Modification
Requested:
|
The
applicant requests that modification of the landscaping provisions of the PD-OP
district be permitted to include sidewalks, courtyards, terraces, and other
paved open areas in the calculation of the minimum landscaped open space for any
individual lot.
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES TOWN CENTER
December
9, 1991
|
Page
9 of 12
|
10.
|
Section
711.10 SITE PLANNING -
EXTERNAL RELATIONSHIPS
|
■
|
Ordinance
Provision: "Within any PD-OP districts,
the site plan shall provide for safe, efficient,
convenient and harmonious groupings of structures, uses and
facilities, for appropriate relation to surrounding areas, and for smooth
and convenient traffic flow within the district and at points of entry and
exit. To promote park-like character within such districts, particular
care should be taken to organize the landscaping plan in such a way as to
maximize the visual effects of green spaces as seen from public ways.
Landscaping or other devices shall be used to screen surrounding
residential districts from undesirable views into the PD-OP districts and
to screen the PD-OP districts from undesirable external exposures. In
particular all service and loading areas shall be screened from view from
public streets and from first floor windows in adjacent residential
distncts. Parking areas for more than ten automobiles shall, insofar as
reasonably possible, be screened from similar view by landscaping fences,
walls or relation to
buildings."
|
Modification
Requested:
It is
requested that this standard be modified to allow off-street parking
spaces/structures in the required yard adjacent to a public or a private street
and to provide on-street parking in the "Town Center" area which
is buffered from the
view of the residential uses in the PDH zone district adjacent to the PD-OP zone
district The off-street parking spaces/structures will be located as
follows:
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
10 of 12
|
60'
RIGHT-OF-WAY*
|
70'
RIGHT-OF-WAY
|
■Minimum
20-foot building setback from the property line
and
■Minimum
28-foot building setback from the face of curb.
*If
the right-of-way reduction is
Approved
by VDOT.
|
■Minimum
15-foot building setback from the property line
and
■Minimum
28-foot setback from the face of
curb.
|
In the
"Town Center" area of
the PD-OP zone district, landscaping will be installed along the property line
as generally shown on the Typical Town Center Commercial
Street Sections Plan, Exhibit G.
12. Section
711.10.1.1 ADJACENT TO PUBLIC
STREETS
■
|
Ordinance
Provision: "No
portion of any building shall be erected closer than 35 feet to any public
street. No off-street parking shall be permitted within 25 feet of any
public street. At least two-thirds of the areas of yards thus provided
shall be in landscaped open
space."
|
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
11 of 12
|
Modification
Requested:
The
applicant requests that this section of the Zoning Ordinance be modified to
provide for a uniform building setback in the "Town Center" as
follows:
·
|
If
the right-of-way reduction is approved by VDOT, 20 feet from a 60 foot
wide right-of-way
|
or
·
|
15
feet from a 70 foot wide
right-of-way
|
13.
|
Section
711.11
|
SITE PLANNING -
INTERNAL RELATIONSHIPS -YARDS BETWEEN
BUILDINGS
|
■
|
Ordinance
Provision:
"Where individual
lots or building sites are provided for lease or sale, minimum distance
between buildings on adjacent lots or building sites shall be 25 feet.
Such yards may be used for driveways or parking, and covered entrances for
passengers from automobiles may extend into such yards, but not closer
than 5 feet to lot or building site lines. Covered walkways connecting
buildings, or connecting buildings with parking areas, shall be permitted
in such yards.
|
Where
there is more than one building on an individual lot or building site, spacing
between such buildings shall be as required for fire protection, but if space is
left between buildings, it shall be at least 25 feet in minimum dimension.
Covered walkways connecting buildings may traverse such
space."
Exhibit
C
Zoning
Ordinance Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
12 of 12
|
Modification
Requested:
The
applicant requests a modification of this Zoning Ordinance requirement to
eliminate setbacks between buildings, provided that location and design
standards conform to fire codes.
EXHIBIT
D
Land
Subdivision and Development Ordinance
and
Facilities
Standards Manual Modifications
Dulles
Town Center
(ZMAP
1990-0014)
|
The
following modifications to the Land Subdivision and Development Ordinance
("LSDO") and the Facilities Standards Manual ("FSM") are proposed as part of the
Dulles Town Center rezoning request.
1.
|
LSDO
Section 1245.01
|
LOTS AND BUILDING
AREAS
|
■
|
Ordinance
Provision:
|
"(1)
|
The
lot area, width, depth, shape, and orientation and the minimum building
setback lines shall be appropriate for the location of the subdivision and
for the type of development and use contemplated and in accordance with
the lot arrangement, design, and shape, and shall be such that all lots
provide sues for homes or buildings conforming to these
regulations.
|
(2)
|
All
lot sizes conform to the County Zoning Code. Lots shall not contain
peculiarly shaped elongations solely to provide necessary square footage
of area which would be unusable for normal
purposes.
|
(3)
|
Except where otherwise
specifically provided for in these regulations or in the Zoning Ordinance,
all lots shall front on an existing or recorded public
street dedicated by the subdivision
plat
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
2 of 9
|
and
maintained or designed and built to be maintained by the Virginia Department of
Highways and Transportation.
(4)
|
The
building setback lines shall conform to the requirements of the County
Zoning Ordinance.
|
(5)
|
Double
frontage or reversed frontage lots should be avoided except where
essential to provide separation of residential development from streets or
to overcome disadvantages of
topography.
|
(6)
|
All
remnants or outlots below the minimum size permitted remaining after
subdividing a tract must be added to adjacent lots or common open space
rather than remain as unbuildable or peculiarly shaped parcels not in
keeping with the intent of these
regulations."
|
Modifications
Requested:
In
accordance with the above-listed Zoning Ordinance modifications, it is requested
that the minimum setback, frontage and street requirements be modified to
provide for the development of the "Town Center" design (i.e., located in Land Bays E, F, G,
H, I, J, K, L, M, N, 0, P, Q, R, S, and T) for the Dulles Town
Center project
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
3 of 9
|
2. LSDO
Section
1245.05 STREET
IMPROVEMENTS
■
|
Ordinance
Provisions
|
"(1)
As to all street improvements:
(a)
|
The
subdivider/developer shall lay out, grade, construct, and otherwise
improve all streets designated on the approved plat or that directly serve
the subdivision in accordance with the specifications in the Facilities
Standards Manual and the standards of the Virginia Department of Highways
and Transportation. For the purpose of this section, a street improvement
shall be deemed to directly serve the subdivision or development when the
need for such improvement is substantially generated by the proposed
use.
|
(b)
|
The
arrangement, character, extent, width, grade, and location of all streets
and roads shall conform to the Comprehensive Plan of the County, shall be
coordinated with other constructed or platted streets in such a manner to
ensure coordination with other existing (constructed or platted) streets
within and contiguous to the subdivision as to location, width, grade and
drainage, and shall be designed and constructed in accordance with the
specifications of the Virginia Department of Highways and Transportation
and the specifications of these regulations and the Facilities Standards
Manual."
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
4 of 9
|
Modifications
Requested:
In
accordance with the above-listed Zoning Ordinance modifications, it is requested
that private streets be provided in the PD-OP and PDH-30 zone
districts.
|
3.
|
FSM
Section 4.200, 4.300
|
STREET FUNCTIONAL
CLASSIFICATIONS AND STREET DESIGN
STANDARDS
|
■
|
Ordinance
Provisions
|
"All
development projects shall recognize the functional street classifications as
provided by the Comprehensive Plan of Loudoun County and/or by the plans of the
Virginia Department of Transportation. The County recognizes a hierarchy of
roads based on functional classification and encourages the development of
routing options at each level. Broad categorization of this hierarchy includes:
limited access highways, arterial roads, collector roads, and local streets. The
main function of the higher category streets is the accommodation of through
traffic. Lower category streets function to provide local
access.
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page 5
of 9
|
GENERAL
CRITERIA:
1.
|
All
streets shall conform to the design requirements set forth in this
Chapter. Design shall be based upon projected traffic counts and
functional street
classification.
|
2.
|
For the purposes of this
Manual, public streets shall be defined as roadways intended for inclusion
in the Virginia Department of Transportation secondary road network.
Public streets are to be designed to the standards of the Virginia
Department of Transportation so that they
may be maintained by the Virginia Department of Transportation. Unless
specified by ordinance or the Board of Supervisors, all streets in Loudoun
County shall be constructed as public
streets.
|
3.
|
Only
when so specified by ordinance or authorized by the Board of Supervisors
may private streets be used in lieu of public streets. When private
streets are intended for use by a specific subdivision, such streets shall
be constructed and maintained within a legally recorded ingress/egress
easement. Private streets shall be subject to a private maintenance
agreement as specified in this section of the Facilities Standards Manual
Authorization for public enforcement or an enforcement agreement is
required to address policing
needs.
|
4.
|
The
methods and materials used for the construction of all streets, whether
public or private, shall conform to the current Virginia Department of
Transportation Road and Bridge
Specifications,
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page 6
of 9
|
except as contained in this manual or modified in writing by the Director and/or the Virginia Department of Transportation, as may be applicable.
5.
|
Standard roadway structures
and elements shall conform to the current Virginia Department of
Transportation Road and Bridge Standards, Volumes I and II, except as
contained in this manual or modified by the
Director.
|
0
|
Xxxx xxxxxx shall have a
continuity of design throughout. Therefore, multiple or "step
down" typical designs will not be
acceptable.
|
7.
|
All
construction plans shall be identified with a seal of a Professional
Engineer licensed to practice in the State of Virginia, or related
professional as may be licensed and approved by the
State.
|
8.
|
For
any new street construction which includes landscaping and is intended for
inclusion in the secondary road system, a landscaping plan must to be
approved by VDOT and the
County.
|
9.
|
New
public street construction must conform to the requirements of VDOT's
subdivision street
requirements."
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
7 of 9
|
Modifications
Requested:
In
accordance with the above-listed Zoning Ordinance modifications, it is requested
that private streets be provided in the PD-OP and PDH-30 zone
districts.
|
4.
|
FSM
Section 4.110.9
|
PRELIMINARY
TRANSPORTATION PLANNING: GENERAL
REQUIREMENTS
|
■
|
Ordinance
Provision:
|
"No more than 50 dwelling
units in a subdivision shall obtain their access from a single point of
access."
|
Modifications
Requested:
In
accordance with the above-listed Zoning Ordinance modifications, it is requested
that this FSM standard be modified to permit up to 85 residential units to
access a public street at any one entrance point.
|
5.
|
FSM
Section 7.100
|
STREET AND SECURITY
LIGHTING STANDARDS
|
■
|
Ordinance
Provision:
|
"General
Requirements
(1)
|
All
subdivisions within planned development and residential areas with the lot
frontage of 100 feet or less for single family dwellings and all
multi-family dwelling units, shall have street and
pedestrian
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
8 of 9
|
walkway lighting
installed in accordance with the standards of this chapter and those of the
Virginia Department of Transportation.
(2)
|
An
adequate lighting plan shall be submitted with all non-residential
development projects.
|
(3)
|
A
lighting plan shall be submitted as a part of the construction
plans.
|
(4)
|
Safety
lighting shall be provided by the applicant when deemed necessary by VDOT
or Loudoun County.
|
Lighting
Standards
(1)
|
Subdivision
lighting of streets and sidewalks or pathways within or immediately
adjacent to the dedicated right-of-way or private street easement shall be
installed so as to meet the requirements of Paragraph II, Security
Lighting Facilities, of the "Guide Policy for Roadway Lighting Facilities
and Security Lighting Facilities" of the Virginia Department of
Transportation.
|
(2)
|
Roadway
lighting shall be provided as required by the Virginia Department of
Transportation and/or Loudoun
County.
|
(3)
|
Where
pathway systems are away from the right-of-way or private street easement,
they shall be lighted separately to a lighting level of 0.2 minimum
average maintained horizontal footcandles value at any point on the
walkway surface where the illuminating
source
|
Exhibit
D
Land
Subdivision and Development Ordinance
and
Facilities Standards Manual Modifications
for
DULLES
TOWN CENTER
December
9, 1991
|
Page
9 of 9
|
is at its lowest
output and when the luminaire is in its dirtiest condition."
Modifications
Requested:
It is
requested that this section be modified such that all pathways which are away
from rights-of-way would not be required to be lit.
EXHIBIT
E
DULLES
TOWN CENTER
ZMAP
90-0014
Transportation
Phasing Plan
November
12, 1991
(Revised
12-7-91)
INTRODUCTION
The
applicant has previously submitted a transportation study prepared by Xxxxxx
Associates, Inc., indicating that the transportation system associated with ZMAP
90-0014 operates at an acceptable level of service upon buildout. Further
analyses have been submitted which stipulate that the Applicant's proposed
development may be accommodated within the proffered road system of ZMAP 90-0014
without the Algonkian Interchange.
This
amended transportation phasing plan has been prepared in response to
Staff's concern to develop a traffic distribution plan associated with the
Applicant's proposed development pursuant to ZMAP 90-0014. This plan is proposed
only to distribute trips pursuant to development permitted under ZMAP 90-0014,
and for no other purpose.
PHASING
PLAN
Submitted
with this plan is a November 6, 1991 memorandum prepared by Xxxxxx Associates,
Inc., which analyses all Dulles Town Center traffic with the exception of the
traffic generated by the mall. Even though it is outside of the ZMAP 90-0014
area, this study analyses the combination of the FLEX (90-0071) and the current
application pursuant to Staff's request. Attachment I to this plan presents an
ADT capacity of each access point proffered with ZMAP
90-0014.
Our plan
proposes a trip distribution program as indicated in Attachment I. This
attachment will serve as the base document to analyze the distribution of trips
generated by development permitted by ZMAP 90-0014. An ongoing tabulation
reflecting development trips will be maintained by the Applicant, and will be
available to the County upon request.
Initially,
trips will be calculated with each phase of development according with the
equations contained in the ITE Trip Generation Manual (5th Edition), as
follows:
TRIPS = (EXP(0.756*LN(A) + 3.765) +
(EXP(1.024*LN(B) +
1.710) +
|
(EXP(0.850*LN(C) +
2.565) + (EXP(0.625*LN(D) + 5.985)
+
(40.67*E) + (3.68*F+342.65);
where:
A = OFFICE SPACE (IN 1,000
GSF UNITS)
B = RESIDENTIAL
MULTIFAMILY UNITS (IN # OF UNITS)
C = XXXXXXXXXXX XXXXXXXXX
XXXXX (XX # XX XXXXX)
X = RETAIL IN PD-CH (IN
1,000 GLA UNITS)
E = RETAIL IN PDH-30 (IN
1,000 GLA UNITS)
F = WAREHOUSE SPACE (IN
1,000 GSF UNITS)
All
development will be placed into one of the above categories. ADT trips will be
calculated using one of the above equations. The trips would then be
redistributed to the "OPEN
ACCESS" points in proportion to the ultimate capacity of the access
points as previously determined in the Xxxxxx Associates memorandum of November
6, 1991. (Note: This distribution is for phasing purposes only and does not
imply that 100% of the ultimate trip distribution equals 100% of available
intersection or road capacity)
Proposed
development would be deemed acceptable if the "used" capacity of all access
points (or point) was less than 100%. If the analysis indicates that capacity to
any access point exceeds 100%, it is then the Applicant's choice to either (1)
open another access point, (2) temporarily suspend development, or (3) reduce
the proposed development to a level commensurate with the 100% access capacity.
When two or more access points are required to be opened by the phasing plan,
they will be joined together by all or parts of 1 or more of the following
roads: Atlantic Blvd., Xxxxx Blvd.(Route 638 Relocated), Dulles Center Blvd.,
City Center Blvd. or the Loudoun Tech Access Road, all as shown on Attachment
II.
If for
example, at a given phase of development, open access points are limited to the
intersections of Dulles Center/Rt. 28 and Rt. 638/Rt. 28, then 32/50th (64%) of
the traffic is distributed to the Rt. 638/Rt. 28 intersection and 18/50th (36%)
would be distributed to the Dulles Center/Rt. 28 intersection. Since the
calculated use of both intersections is less than 100%, the proposed development
passes the phasing test. Attachment III presents. a hypothetical tabulation of
this example.
The last
point to address, is the use (if any), of the collector road between City Center
and Loudoun Tech (Loudoun Tech
Access Road). The November 6, 1991 analysis did not use this access point
in arriving at operating capacities of the remaining access points. This
assumption was made to reflect the fact that part of that road (within Loudoun Tech)
remained unbuilt and unproffered at the time. However, Xxxx Xxxxxx has
allocated a 4% bonus capacity to that access if it is completed. The bonus
capacity is in addition to the 53,632 ADT trips otherwise
permitted.
This is illegible document, which would be maintained by the Applicant, and available to the County for verifications, upon request. |
DULLES
TOWN CENTER
TRANSPORTATION
PHASING PLAN (ZMAP 90-0014)
|
9/29/19
13 05
Rev
12/8/91 21 46
|
|||||||||
ZONE
|
LAND
USE
|
ITE
REFERENCE
|
D.U.'S
|
FLOOR
AREA (GROSS)
|
TRIP
GENERATION
(ITE
5th EDIT)
|
ULTIMATE
TRIPS
|
TRIPS
THIS PHASE
|
%
OF TOTAL TRIPS
|
|||
ZMAP
90-14
|
|||||||||||
PD-OP
|
OFFICE
|
710
|
EXP(0
756*LN(X)+3 765)
|
19,964
|
|||||||
PDCH
|
RETAIL-PDCH
|
820
|
EXP(0
625*LN(X)+5 985)
|
13,984
|
|||||||
PDH-30
|
RETAIL-PDH-30
|
814
|
40.67*X
|
2,928
|
|||||||
PDH-30
|
RESID
- MULTIFAMILY
|
220
|
EXP(1
024*LN(X) + 1 710)
|
5,919
|
|||||||
PDH-30
|
RESID
- TOWNHOUSE
|
230
|
EXP(0
850*LN(X) + 2 565)
|
966
|
|||||||
SPEX
90-71
|
|||||||||||
PDIP
|
WAREHOUSE
|
150
|
3
68*X+342 65
|
3,298
|
|||||||
PDIP
|
OFFICE
|
710
|
EXP(0
756*LN(X)+3 765)
|
6,573
|
|||||||
TOTAL
|
0
|
0
|
53,632
|
0
|
ACCESS
POINTS
|
capacity
|
MAXIMUM
TRIPS
|
PHASED
ALLOCATION
|
REMAINING
CAPACITY
|
%
OF CAPACITY
|
ULTIMATE
ACCESS POINTS (2010)
|
|||||
Intersection
of Rt 638/Rt 28
|
32%
|
17,162
|
0
|
||
Ramps
to/from Dulles Center/Rt 28
|
18%
|
9,654
|
|||
Ramps
to/from Atlantic Blvd/Rt. 7
|
16%
|
8,581
|
|||
Intersection
of City Center/Rt 7
|
19%
|
10,190
|
|||
Rt.
638 to Loudoun Tech
|
15%
|
8,045
|
0
|
||
Subtotal
|
100%
|
53,632
|
0
|
||
BONUS
ACCESS (if built, in addition to 53,632)
|
|||||
Spur
from City Center to Ridgetop Circle
|
4%
|
2,145
|
|||
(LOUDOUN
TECH ACCESS ROAD)
|
Attachment
I
Graphic
|
|
DULLES
TOWN CENTER
ROAD
NETWORK
|
12/7/91
|
This
illegible
document, which includes a hypothetical example of
development.
|
DULLES
TOWN CENTER
TRANSPORTATION
PHASING PLAN (ZMAP 90-0014)
|
9/29/19
13 05
Rev.
12/8/91 22 04
|
ZONE
|
LAND
USE
|
ITE
REFERENCE
|
D.U.'S
|
FLOOR
AREA (GROSS)
|
TRIP
GENERATION
(ITE
5th EDIT)
|
ULTIMATE
TRIPS
|
TRIPS
THIS PHASE
|
%
OF TOTAL TRIPS
|
ZMAP
90-14
|
||||||||
PD-OP
|
OFFICE
|
710
|
500,000
|
EXP(0.756*LN(X)+3.765)
|
19,964
|
4,737
|
23
7%
|
|
PDCH
|
RETAIL-PDCH
|
820
|
98,000
|
EXP(0.625*LN(X)+5.985)
|
13,984
|
6,979
|
49
9%
|
|
PDH-30
|
RETAIL-PDH-30
|
814
|
40
67*X
|
2,928
|
||||
PDH-30
|
RESID
- MULTIFAMILY
|
220
|
EXP(1
024*LN(X)+1.710)
|
5,919
|
||||
PDH-30
|
RESID-
TOWNHOUSE
|
230
|
EXP(0.850*LN(X)+2.565)
|
966
|
||||
SPEX
90-71
|
||||||||
PDIP
|
WAREHOUSE
|
150
|
100,000
|
3
68*X+342 65
|
3,298
|
711
|
21
5%
|
|
PDIP
|
OFFICE
|
710
|
EXP(0
756*LN(X)+3 765)
|
6.573
|
||||
TOTAL
|
0
|
698,000
|
53,632
|
12,427
|
23.2%
|
ACCESS
POINTS
|
CAPACITY
|
MAXIMUM
TRIPS
|
PHASED
ALLOCATION
|
REMAINING
CAPACITY
|
%
OF CAPACITY
|
ULTIMATE
ACCESS POINTS (2010)
|
|||||
Interaction
of Rt 638/Rt 28
|
32%
|
17,162
|
7,953
|
9.209
|
*46
3%
|
Ramps
to/from Dulles Center/Rt 28
|
18%
|
9,654
|
4,474
|
5,180
|
*46
3%
|
Ramps
to/from Atlantic Blvd/Rt. 7
|
16%
|
8,581
|
|||
Intersection
of City Center/Rt 7
|
19%
|
10,190
|
|||
Rt.
638 to Loudoun Tech
|
15%
|
8,045
|
|||
Subtotal
|
100%
|
53,632
|
12,427
|
23
2%
|
|
BONUS
ACCESS (if built, in addition to 53,632)
|
*
Since these capacities are less than 100%, development under this phase
would be permitted. The two Intersections would be connected by parts of
Dulles Center, Atlantic and Xxxxx Blvds.
|
||||
Spur
from City Center to Ridgetop Circle
|
4%
|
2,145
|
|||
(LOUDOUN
TECH ACCESS ROAD)
|
Attachment
III
GRAPHIC
TYPICAL
TOWN CENTER COMMERCIAL STREET
(PUBLIC
AND PRIVATE)
GRAPHIC
TYPICAL
RESIDENTIAL STREET
(PUBLIC
AND PRIVATE)
SECTIONS
|
Exhibit
F
|
DULLES
TOWN CENTER
GRAPHIC
DULLES
TOWN CENTER
LOUDOUN
• LSJJ PARTNERSHIP
SASAKI
ASSOCIATES, INC
OCTOBER
1, 1991
EXHIBIT
G. SECTION THROUGH TOWN CENTER COMMON AREA
FRXLIB-535778.1-BFTOMPKI
EXHIBIT
H
Form
of Pre-Emptive Option Agreement
FRXLIB-535778.1-BFTOMPKI
Xxxx
Xxxxx Draft 3/14/2008
AFTER
RECORDING,
PLEASE
RETURN TO:
PREEMPTIVE
OPTION AGREEMENT
THIS
PREEMPTIVE OPTION AGREEMENT (this “Agreement”)
is made and entered into as of __________, 200__ (the “Effective
Date”), by and between (i) NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION (“CFC”), a
District of Columbia cooperative association, and (ii) DTC
PARTNERS, LLC. (“DTC”), a
Virginia limited liability company.
RECITALS
A. Concurrently
with the signing and delivery of this Agreement, DTC is conveying the CFC Parcel
to CFC.
B. CFC
has agreed to grant to DTC certain preemptive options with respect the future
sale of the CFC Parcel.
NOW,
THEREFORE, in order to induce DTC to sell and convey the CFC Parcel to CFC, and
in consideration thereof, CFC and DTC hereby agree as follows
1. Defined
Terms. As used in this Agreement, the following terms have the
respective meanings set forth below:
Affiliate: When
used with reference to any Person, shall mean any Person that, directly or
indirectly, through one or more intermediaries controls, is controlled by, or is
under common control with, the specified Person (the term “control” for this
purpose, shall mean the ability, whether by the ownership of shares or other
equity interest, by contract or otherwise, to elect a majority of the directors
of a corporation, independently to select the managing partner of a partnership
or the managers of a limited liability company, or otherwise to have the power
independently to remove and then select a majority of those Persons exercising
governing authority over an entity, and control shall be conclusively presumed
in the case of the direct or indirect ownership of 50% or more of the equity
interests). In the case of CFC, Affiliate shall also mean any member
of CFC and any entity, the accounts of which will be or are consolidated with
those of CFC in its consolidated financial statements.
Ancillary
Parcel: The area of the CFC Parcel identified as such on Exhibit
A (Sheet 2 of 3 and Sheet 3 of 3).
Business
Day: Any day of the week other than a Saturday, a Sunday or a
day on which banking institutions in Washington, D.C. are obligated or
authorized by law to close.
CFC
Parcel: The parcel of real property located in Loudoun County,
Virginia, which is more particularly described in Exhibit
A (Sheet 3 of 3) to this Agreement, together the buildings, fixtures and
other improvements from time to time located thereon.
CFC Parcel
Owner: CFC and each successive owner of fee simple title in
and to the CFC Parcel during the period of CFC’s and such successive owner’s
ownership of the CFC Parcel.
Decision
Period: The period of 20 Business Days beginning on (but not
including) the Business Day on which DTC actually receives a Proposed Sale
Notice pursuant to Section 3(a) or the
period of 20 Business Days beginning on (but not including) the Business Day on
which DTC actually receives a Third Party Offer pursuant to Section 4(a), as the
case may be.
Economic Terms of
Sale: All material economic terms of the proposed purchase
transaction, including the purchase price of all or any part of the CFC Parcel
proposed to be sold, the downpayment and the terms of payment of the purchase
price and, if the entire purchase price is not to be paid in cash or current
funds at the closing, the terms of payment of the balance of the purchase price;
the interest on and security (if any) for any deferred purchase price; the
buyer’s feasibility or study period (if any); the date of closing of the
purchase and sale transaction; provisions for payment of the transfer and
recording taxes, revenue stamps and recording taxes payable in connection with
the recording of the deed; any other provisions for the payment of money by the
buyer to the CFC Parcel Owner; the type of deed to be delivered at the closing;
a general description of the representations and warranties to be given by the
CFC Parcel Owner; and a general description of the conditions of
closing.
Governmental
Authority: Any board, bureau, commission, department or body
of any municipal, county, state or federal governmental unit, or any subdivision
thereof, having or acquiring jurisdiction over the Property or the management,
operation, use or improvement thereof.
Headquarters
Building Parcel: The area of the CFC Parcel identified as such
on Exhibit
A (Sheet 1 of 3).
Institutional
Lender: A commercial or savings bank, savings and loan
association, pension fund, insurance company, endowment fund or trust, real
estate investment trust, government agency, or quasi-governmental agency, such
as a board, bureau, authority or commission of any federal, state or local
government, any corporation established by or for the benefit of any federal,
state or local governmental agency or authority, any asset manager or investment
advisor acting on behalf of any such entity, any entity composed of one or more
of the foregoing, or any other Person regularly engaged in the business of
making loans secured by first Mortgages on income-producing real
property.
Mortgage: A
mortgage, deed of trust or other type of security instrument of the
- 2
-
type
commonly given to secure loans or advances on, or the unpaid purchase price of,
real property in the jurisdiction in which such real property is
located.
Option
Period: The period beginning on the Effective Date and ending
on the twentieth (20th) anniversary of the date of this Agreement.
Person: An
individual, estate, trust, partnership, corporation, Governmental Authority or
other legal entity.
Phase 1
Building: The building identified as the "Phase 1 Building" on
Sheet 1 of 3 of Exhibit
A.
Pre-Emptive
Option Parcel. The area of the CFC Parcel identified as such
on Exhibit
A (Sheet 2 of 3) as to the Option Parcel and Sheet 3 of 3 as to the
Option 2 Parcel.
Preemptive
Purchase Option: DTC’s options to purchase the CFC
Parcel pursuant to Section 3 and Section
4.
Publicly-Held
Entity: A corporation or other business entity whose shares or
equity interests are registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended.
Third Party
Offer: A written offer to purchase the CFC Parcel which (i) is
for a specified price, (ii) made by a financially responsible Person, identified
therein by name and address, who reasonably appears capable of complying with
the terms of the Third Party Offer and who is unrelated, directly or indirectly,
to CFC Parcel Owner, (iii) contains all material terms and conditions of the
proposed purchase and sale, (iv) is in a form legally enforceable against the
Person who makes the Third Party Offer, and (v) does not contain terms or
conditions which DTC, for reasons other than its financial condition, is not
reasonably capable of performing, such as payment in a specific form of property
(such as corporate stock or a unique or specific item or class of property) not
readily available to DTC or for which no recognized or adequate public market
exists. The Third Party Purchaser shall be deemed to be "unrelated"
only if it is not an Affiliate of the CFC Parcel Owner and there is no
arrangement of any kind whereby the CFC Parcel Owner, directly or indirectly,
will be financially interested in the ownership of the CFC Parcel, or any
interest therein, after the sale of the CFC Parcel.
Third Party
Purchaser: The Person who makes a Third Party
Offer.
2. Restriction on
Sale.
(a) Except
as otherwise provided in the next sentence, CFC agrees that, during the period
beginning on the Effective Date and ending on the tenth (10th)
anniversary of the Effective Date, it shall not sell or convey to any Person
(other than an Affiliate of CFC or DTC) any part of the CFC
Parcel. This restriction shall not apply to (i) the sale of the
Headquarters Building Parcel after the construction of the Phase 1 Building has
been completed (as evidenced by the issuance by the applicable
- 3
-
Governmental
Authority of a certificate of occupancy), (ii) the sale of the Ancillary Parcel
in conjunction with the sale of the Headquarters Building Parcel after the
completion of construction of the Phase I Building, or (iii) the sale of the
Ancillary Parcel after the completion of construction of a building thereon (as
evidenced by the issuance by the applicable Governmental Authority of a
certificate of occupancy). Any Affiliate of the Purchaser who
purchases all or any part of the CFC Parcel from CFC shall be subject
to the same restrictions on sale as CFC.
(b) After
the tenth (10th)
anniversary of the Effective Date, CFC’s or an Affiliate’s right to sell any
part of the CFC Parcel shall be subject to Seller’s rights Section 3 and Section
4.
3. DTC’s Right of
First Offer on Sale.
(a) DTC’s First Right
to Purchase CFC Parcel. Except as otherwise provided in Section 5, if at any
time or from time to time during the Option Period, the CFC Parcel Owner intends
to sell all or any part of the CFC Parcel, the CFC Parcel owner shall promptly
deliver notice to DTC of its intention to sell (a “Proposed Sale
Notice”). The Proposed Sale Notice shall identify the part (or
all) of the CFC Parcel proposed to be sold (the “Proposed Sale
Parcel”) and shall include a statement setting forth the Economic Terms
of Sale on which the CFC Parcel Owner would be willing to sell the Proposed Sale
Parcel. DTC shall have the right during the Decision Period to notify
the CFC Parcel Owner of its desires to purchase the Proposed Sale Parcel in
accordance with the Economic Terms contained in the Proposed Sale
Notice. If DTC so notifies the CFC Parcel Owner within the Decision
Period, DTC and the CFC Parcel Owner shall, during the 30-day period beginning
on the last day of the Decision Period, use good faith commercially reasonable
efforts to negotiate and sign a definitive contract for purchase and sale of the
Proposed Sale Parcel on the Economic Terms contained in the Proposed Sale Notice
and such other terms and conditions as they may agree on, but if they are unable
to do so then Section
3(b) shall apply. The CFC Parcel Owner and DTC shall use
commercially reasonable efforts to close the purchase and sale transaction
within forty-five (45) days after the execution of the definitive contract for
purchase and sale of the CFC Parcel.
(b) CFC Parcel
Owner’s Right to Sell. If (i) DTC does not timely
notify the CFC Parcel Owner within the Decision Period of its desire to purchase
the Proposed Sale Parcel pursuant to Section 3(a), or (ii)
DTC timely notifies the CFC Parcel Owner within the Decision Period of DTC’s
desire to purchase the Proposed Sale Parcel pursuant to Section 3(a), but DTC
and the CFC Parcel Owner are thereafter unable to agree upon the full terms of,
and to sign, a definitive contract for the purchase and sale of the Proposed
Sale Parcel within the 30-day period referred to in Section 3(a), the CFC
Parcel Owner shall thereafter have the right to enter into a definitive contract
with any other Person (other than an Affiliate of the CFC Parcel Owner), as
purchaser, for the purchase and sale of the Proposed Sale Parcel, but the
contract with the other Person (i) may not provide for a purchase price that is
less than an amount equal to the quotient obtained by dividing (x) the purchase
price specified in the Proposed Sale Notice, by (y) ninety one-hundredths (.90),
(ii) may not contain any other Economic Terms of Sale that are more favorable to
- 4
-
the
other Person, in any material respect, than the Economic Terms of Sale included
in the Proposed Sale Notice, and (iii) shall provide that the purchase and sale
of the Proposed Sale Parcel must be consummated not later than the earlier to
occur of (x) one (1) year after the expiration of the Decision Period or (y) one
hundred eighty (180) days after the date of the contract with the other
Person. If the CFC Parcel Owner’s sale of the Proposed Sale Parcel is
not consummated within the period specified in the preceding sentence, the CFC
Parcel Owner may not thereafter sell the Proposed Sale Parcel to any Person
(including the Person who was the purchaser under the definitive contract)
without first complying with the provisions of this Section. Within
five Business Days after the CFC Parcel Owner enters into a definitive contract
with the other Person, the CFC Parcel Owner shall deliver a complete and correct
copy of such contract to DTC.
(c) Termination. If
(i) DTC does not timely notify the CFC Parcel Owner within the Decision Period
of its desire to purchase the Proposed Sale Parcel pursuant to Section 3(a), or (ii)
DTC timely notifies the CFC Parcel Owner within the Decision Period of DTC’s
desire to purchase the Proposed Sale Parcel pursuant to Section 3(a), but DTC
and the CFC Parcel Owner are thereafter unable to agree upon the full terms of,
and to sign, a definitive contract for the purchase and sale of the Proposed
Sale Parcel within the 30-day period referred to in Section 3(a), and if
the CFC Parcel Owner consummates the sale of the Proposed Sale Parcel pursuant
to Section
3(b), DTC’s right to purchase the Proposed Sale Parcel pursuant to this
Agreement shall terminate.
4. DTC’s Right of
First Refusal on Sale.
(a) DTC’s Right to
Purchase. Except as otherwise provided in Section 4(c) and
Section 5, if
at any time or from time to time during the Option Period, the CFC Parcel Owner
receives a Third Party Offer for the purchase of all or any part of the CFC
Parcel which the CFC Parcel Owner intends to accept (the “Proposed Sale
Parcel”), the CFC Parcel Owner shall promptly notify DTC of its receipt
of the Third Party Offer (a “Sale
Notice”). The Sale Notice shall be accompanied by a complete
copy of the Third Party Offer and, unless the Third Party Purchaser is a
Publicly-Held Entity, a certification signed by the Third Party Purchaser
identifying all Persons who own more than five percent (5%) of its voting stock,
in the case of a corporation, or more than five percent (5%) of the interests in
its capital or profits, or both, in the case of a partnership, limited liability
company or other business entity. The delivery of a Sale Notice shall
constitute a representation and warranty by the CFC Parcel Owner to DTC that the
Third Party Offer is bona fide in all respects. DTC shall have the
right during the Decision Period to notify the CFC Parcel Owner of its intention
to purchase the Proposed Sale Parcel in accordance with the terms and conditions
of the Third Party Offer. If DTC so notifies the CFC Parcel Owner
within the Decision Period, the CFC Parcel Owner and DTC shall, within 15
Business Days after the end of the Decision Period, enter into a definitive
contract for the purchase and sale of the Proposed Sale Parcel on the same terms
and conditions as those contained in the Third Party Purchase Offer; except that
the purchase price payable by DTC shall be equal to ninety percent (90%) of the
purchase price specified in the Third Party Offer.
- 5
-
(b) CFC Parcel
Owner’s Right to Sell to Third Party Purchaser. If DTC does
not notify the CFC Parcel Owner of its intention to purchase the Proposed Sale
Parcel within the Decision Period, the CFC Parcel Owner shall have the right to
sell the Proposed Sale Parcel to (or to an Affiliate of) the Third Party
Purchaser, but the sale must be consummated within the time specified in, and
otherwise strictly in accordance with the terms of, the Third Party
Offer. If the sale is not consummated within the time specified in
the Third Party Offer, any subsequent sale of the Proposed Sale Parcel to the
Third Party Purchaser or to any other Person on the same or other terms and
conditions must comply again with all the terms and provisions of Section 3 and this
Section
4.
(c) Special
Exception. Section 4(a) shall
not apply to the CFC Parcel, or any part thereof, with respect to which CFC has
previously delivered a Proposed Sale Notice to CFC and otherwise complied with
the provisions of Section
3(a).
(d) Termination. If
(i) DTC does not timely notify the CFC Parcel Owner within the Decision Period
of its desire to purchase the Proposed Sale Parcel in accordance with the terms
of the Third Party Offer pursuant to Section 4(a) or (ii)
DTC timely notifies the CFC Parcel Owner within the Decision Period of its
desire to purchase the Proposed Sale Parcel pursuant to Section 4(a), but fails
to enter into a contract or thereafter settle in accordance with the terms of
such Third Party Offer, DTC’s right to purchase the Proposed Sale Parcel
pursuant to this Agreement shall terminate.
5. Exceptions. Section 3(a) and
Section 4(a)
shall not apply to (i) a sale by CFC to an Affiliate of CFC, but shall apply to
any subsequent sale by such Affiliate unless one of the other exceptions in this
Section applies to such Affiliate’s sale, (ii) a sale of the CFC Parcel pursuant
to a foreclosure of a Mortgage by an Institutional Lender, (iii) a deed by the
CFC Parcel Owner to a Mortgagee who is an Institutional Lender (or its
Affiliate) in lieu of foreclosure of the Institutional Lender’s Mortgage, (iv)
the sale of the CFC Parcel made by the Mortgagee referred to in clause (ii) or
clause (iii) (or its Affiliate) after it acquires the CFC Parcel by foreclosure
or a deed in lieu of foreclosure, (v) any subsequent sale of the CFC Parcel by
any Person who purchases or acquires the CFC Parcel pursuant to a foreclosure
sale or a deed in lieu of foreclosure, (vi) the sale of the Headquarters
Building Parcel after the construction of the Phase 1 Building has been
completed (as evidenced by the issuance by the applicable Governmental Authority
of a certificate of occupancy), (vii) the sale of the Ancillary Parcel in
conjunction with the sale of the Headquarters Building Parcel after the
completion of construction of the Phase I Building, or (viii) the sale of the
Ancillary Parcel after the completion of construction of a building thereon (as
evidenced by the issuance by the applicable Governmental Authority of a
certificate of occupancy).
6. Entire
Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, all prior
negotiations between the parties are merged by this Agreement and there are no
promises, agreements, conditions, undertakings, warranties or representations,
oral or written, express or implied, between them other than as herein set
forth.
7. Benefit and
Burden. All terms of this Agreement shall be binding upon, and
inure to the benefit of and be enforceable by, the respective personal
representatives, heirs,
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successors
and assigns of the parties hereto. The Preemptive Purchase Option
shall be a covenant running with the land which shall be binding on CFC and each
successive CFC Parcel Owner and shall inure to the benefit of DTC and its
successors in interest and assigns.
8. Governing
Law. This Agreement is intended to be performed in the
Commonwealth of Virginia and shall be construed and enforced in accordance with
the laws of such jurisdiction.
9. Notices.
(a) Manner of Giving
Notice. Each notice, request, demand, consent, approval or
other communication (hereafter in this Section referred to collectively as
“Notices”
and referred to singly as a “Notice”)
which the CFC Parcel Owner or DTC is required or permitted to give to the other
party pursuant to this Agreement shall be in writing and shall be deemed to have
been duly and sufficiently given if
(1) personally
delivered with proof of delivery thereof (any Notice so delivered shall be
deemed to have been received at the time so delivered),
(2) sent
by Federal Express (or other similar overnight courier) designating early
morning delivery (any Notice so delivered shall be deemed to have been received
on the next Business Day following receipt by the courier), or
(3) sent
by United States registered or certified mail, return receipt requested, postage
prepaid, at a post office regularly maintained by the United States Postal
Service (any Notice so sent shall be deemed to have been received two days after
mailing in the United States).
(b) Addresses for
Notices. All Notices shall be addressed to the parties at the
following addresses:
(1) if
to the CFC Parcel Owner:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xx.
Xxxxxx Xxxxxxxxxx
FAX No.
(000) 000-0000
with a
copy to:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: General
Counsel
FAX No.
(000) 000-0000
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(2) if
to DTC:
DTC
Partners, LLC
c/o
Lerner Enterprises, LLC
Suite
______
0000
Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention: Xx.
Xxxxxx X. Xxxxxxxx
FAX No.
(000) 000-0000
with a
copy to:
DTC
Partners, LLC
c/o
Lerner Enterprises, LLC
0000
Xxxxx Xxxx Xxxxxxxxx
Xxxxx
_____
Xxxxxxxxx,
Xxxxxxxx 00000
Attention: Xx.
Xxxx X. Xxxxxx
FAX No.
(000) 000-0000
Either
party may, by Notice given pursuant to this Section, change the Person or
Persons and/or address or addresses, or designate an additional Person or
Persons or an additional address or addresses, for its Notices, but Notice of a
change of address shall only be effective upon actual receipt. The
CFC Parcel Owner and DTC each agrees that it will not refuse or reject delivery
of any Notice given hereunder, that it will acknowledge, in writing, receipt of
the same upon request by the other party and that any Notice rejected or refused
by it shall be deemed for all purposes of this Agreement to have been received
by the rejecting party on the date so refused or rejected, as conclusively
established by the records of the U.S. Postal Service or the courier
service.
(c) Notice Given by
Counsel. All Notices that are required or permitted to be
given under this Agreement may be given by the parties hereto or by their
respective counsel, who are hereby authorized to do so on the parties’
behalf.
(d) Special
Provisions Applicable to Sale Notice. Each Sale Notice
delivered by the CFC Parcel Owner to DTC shall, in addition to the other
requirements of this Agreement, contain the following legend in
bolded type, in a font at least 12 pica in size, at the top of the first
page:
“THE RECIPIENT OF THIS NOTICE HAS A
VALUABLE OPTION TO PURCHASE REAL PROPERTY WHICH MUST BE EXERCISED, IF AT ALL,
WITHIN 20 BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE”
10. Partial
Invalidity. If any term or provision of this Agreement or the
application thereof to any Persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to Persons or
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circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
11. Termination. Upon termination
of DTC’s rights pursuant to Section 3(c) or Section 4(d) with
respect to a particular Proposed Sale Parcel, DTC agrees to execute and deliver
to the CFC Parcel Owner , without cost to the CFC Parcel Owner, a statement
(properly executed, acknowledged and in recordable form) confirming the
termination of its rights with respect to the Proposed Sale Parcel and a release
of any right DTC may have to purchase the Proposed Sale Parcel pursuant to this
Agreement. The absence of such an instrument shall not affect the
termination of such DTC’s rights.
12. Estoppel
Certificate. Any Person
burdened and/or benefited by this Agreement (a “Requested
Party”) shall, from time to time, within fifteen (15) days after request
from any other Person burdened or benefited by this Agreement (a “Requesting
Party”), or from any mortgagee or beneficiary of any deed of trust of a
Requesting Party (a “mortgagee”)
or lessor of a Requesting Party, or Person who may be a prospective purchaser of
the property benefited or burdened by this Agreement, execute, acknowledge and
deliver an estoppel certificate provided by the Requesting Party certifying, to
the extent true, that this Agreement is in full force and effect and unmodified
(or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications); the status of DTC’s rights under
Section 3 and
Section 4,
including any termination of the same; whether or not there is any default
hereunder and such other matters as may be reasonably requested by the
Requesting Party or any mortgagee, lessor or prospective purchaser of the
Requesting Party. Any such certificate may be relied upon by the
Requesting Party, or any mortgagee, lessor or prospective purchaser of the
Requesting Party.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above stated.
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
By:
Name:
Title:
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COUNTY OF
_____________________)
) ss:
STATE OF
_________________ _____)
On this
day of ___________, 200__, before me, the subscriber, a Notary Public in and for
the jurisdiction aforesaid, personally came _________________, the ___________,
of National Rural Utilities Cooperative Finance Corporation., known to me to be
the individual who executed the foregoing and annexed Agreement on behalf of
said corporation, and being duly sworn acknowledged the same to be the act and
deed of said corporation.
WITNESS
my hand and Notarial Seal.
________________________________
Notary
Public
My
Commission expires:
DTC
PARTNERS, LLC
By Xxxxxx
Enterprises, LLC, its
Authorized Manager
By:
Name:
Title: Manager
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COUNTY OF
_____________________)
) ss:
STATE OF
_________________ _____)
On this
day of ___________, 200__, before me, the subscriber, a Notary Public in and for
the jurisdiction aforesaid, personally came _________________, the ___________,
of National Rural Utilities Cooperative Finance Corporation., known to me to be
the individual who executed the foregoing and annexed Agreement on behalf of
said corporation, and being duly sworn acknowledged the same to be the act and
deed of said corporation.
WITNESS
my hand and Notarial Seal.
________________________________
Notary
Public
My
Commission expires:
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