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HomeMy WebLinkAboutWPO201900004 Agreements 2019-10-25RIGHT OF ENTRY AGREEMENT THIS RIGHT OF ENTRY AGREEMENT ("Agreement'), made as of the J ' i day of o- , 77?, A e 2019, between CA SENIOR LIVING HOLDINGS, LLC, a Delaware limited liability company ("CA Senior"), and BROOKHILL APARTMENTS, LLC, a Virginia limited liability company (`Brookhill"). WITNESSETH: WHEREAS, Brookhill owns certain real property in Albemarle County, Virginia near the intersection of U.S. Route 29 and Polo Grounds Road, as more particularly identified in Exhibit A attached hereto and incorporated herein (the "Brookhill Property"); WHEREAS, CA Senior is the contract purchaser of certain real property located adjacent to the Brookhill Property, as more particularly identified in Exhibit B attached hereto and incorporated herein, on which CA Senior desires to develop certain improvements including a senior living facility (the "CA Senior Property"); WHEREAS, Brookhill has the authority to grant the access permitted by this Agreement, to the Brookhill Property, to allow CA Senior to complete certain grading work on or near the boundary between the Brookhill Property and the CA Senior Property necessary to support the development of the improvements on the CA Senior Property, as more particularly shown on Exhibit C attached hereto and incorporated herein (the "Grading Site"); WHEREAS, as an accommodation to CA Senior, Brookhill is willing to grant permission to CA Senior, its employees, agents or contractors, to enter onto the Grading Site in order to complete the grading work, under the terms and conditions stated herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: Brookhill grants to CA Senior a right of entry and license to enter upon the Grading Site as identified on Exhibit C attached hereto and incorporated herein to conduct and perform certain grading work, including, without limitation, earthmoving and creating or changing swales (the "Permitted Activities"). CA Senior's entry rights are specifically limited to the Permitted Activities and to the Grading Site and shall not include any other activities or any other portion of the Brookhill Property surrounding the Grading Site. CA Senior shall be responsible for any and all costs related to the Permitted Activities, including operation and removal of equipment on the Grading Site. 2. CA Senior agrees to comply with all local, state and federal laws, rules and ordinances applicable to the Permitted Activities. CA Senior further agrees to exercise due care in the performance of all Permitted Activities on the Grading Site, to complete the Permitted Activities in a good and workmanlike manner, and not to unreasonably interfere with Brookhill or any other party's activities on the Brookhill Property. Subject to reasonable ?(i �.3 8321.4 delays due to force majeure, CA Senior shall complete the Permitted Activities at its sole cost and expense and shall have completed all grading work and stabilized the Grading Site on or before March 1, 2020 (the "Outside Completion Date"). CA Senior shall provide written notice to Brookhill of any claim of force majeure within five (5) business days after such occurrence. 3. CA Senior agrees to indemnify and save Brookhill, its employees, agents or contractors, harmless from and against any and all liability, damage, expense, claims, liens or judgments, resulting from injury to person or damage to property to the extent caused by the activities of CA Senior, its agents, employees, contractors, or invitees, upon the Grading Site or the Brookhill Property, including without limitation, the Permitted Activities, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of Brookhill, or its employees, contractors or agents. This indemnification obligation shall survive the expiration or termination of this Agreement for a period of one (1) year. Brookhill agrees to (i) provide prompt written notice of any claim; (ii) reasonably cooperate with CA Senior in the management and defense of covered claims; and (iii) allow CA Senior to defend and manage any claim with employees, consultants, contractors and attorneys of its choosing, provided that such consultants, contractors and attorneys shall be reasonably acceptable to Brookhill. 4. Subject to CA Senior's rights in Section 5 below and CA Senior's right to cure in this Section, the term of this Agreement shall be from the date on which this Agreement has been executed by both Brookhill and CA Senior to the earlier of (i) completion of the grading work and stabilization of the Grading Site (the "Grading Work°'), or (ii) the Outside Completion Date ("Termination Date'). In the event that the Grading Work is not completed on or before the Outside Completion Date, subject to reasonable delays due to force majeure (provided that CA Senior has given written notice of such force majeure event as provided in Section 2 above), then, upon at least fifteen (15) days prior written notice to CA Senior, and provided the Grading Work is not completed by CA Senior within such 15-day period, Brookhill may elect to complete the Grading Work, at the expense of CA Senior, which shall include the actual, out-of-pocket cost to complete the Grading Work plus a ten percent (10%) administrative charge to defray the cost to Brookhill of the delay caused by CA Senior's failure to timely complete the Grading Work. 5. Within thirty (30) days of the Termination Date, CA Senior will promptly remove any and all of its equipment and any debris from the Grading Site and leave the Grading Site and the Brookhill Property in a similar stabilized condition (with the exception of the improvements made by the Grading Work) as existed prior to commencement of the Grading Work, which condition shall include straw matting and permanent seed. 6. Brookhill will ensure that CA Senior, its agents, employees, and contractors, are granted access to the Grading Site at the scheduled time(s) that the Permitted Activities will be performed and Brookhill agrees not to unreasonably interfere with CA Senior's (or its agents') activities on the Grading Site. CA Senior shall use commercially reasonable efforts to cause the Permitted Activities to be performed during normal business hours for 2 7A 321.4 construction. CA Senior hereby agrees to use commercially reasonable efforts to minimize any interference with the construction on the Brookhill Property. CA Senior shall maintain general liability insurance with commercially reasonable limits and shall name Brookhill as an additional insured and cause its contractor to do the same. 7. CA Senior shall not take any actions that unreasonably interrupt the normal operations of Brookhill on the Brookhill Property. CA Senior agrees that its Permitted Activities shall not cause material interference to the use or enjoyment of the Brookhill Property, including, specifically, the leasing activities on the Brookhill Property. In the event that the Permitted Activities cause material interference with the leasing activities on the Brookhill Property, and such material interference is not cured within five (5) business days of CA Senior's receipt of written notice from Brookhill, CA Senior agrees to promptly cease operations until the Permitted Activities can be continued without interference with the leasing activities. This Agreement constitutes the entire understanding between the parties with respect to the activities contemplated by this Agreement. All prior agreements or understandings, whether oral or written, are superseded. This Agreement may be amended only by a witnessed document executed by the parties. This Agreement shall be governed by the laws of the State wherein the Grading Site is located. 10. CA Senior shall have the right to assign this Agreement to any affiliate entity controlled by or under common control with CA Senior, without the consent of Brookhill. CA Senior shall have no right to assign this Agreement to any third party without the prior written consent of Brookhill, which may be withheld in its sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. [SIGNATURE PAGE IMMEDIATELY FOLLOWING] 3 07)S )1.4 IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written. CA SENIOR LIVING HOLDING , LLC 4 By: Name: Ben Burke Title: Authorized Signatory BROOKHILL APARTMENTS, LLC By: CDG Holdings, LLC, its Manager By: Haystack Corporation, its Manager By: i— Andr�y/I/McGinty, President Signature Page — Right of Entry Agreement 70736021.4 EXHIBIT A BROOKHILL PROPERTY That certain lot, piece or parcel of land, lying and being in Albemarle County, Virginia, known and designated as "TMP 46-19B1 Revised (Parcel 4A Revised)" containing 19.049 acres, more or less, as shown on that certain plat entitled "Plat Showing Brookhill Block 4 Boundary Line Adjustment of TMP's 46-19B1, 46-19B3 & TMP 46-19A, Rivanna District, Albemarle County, Virginia," dated April 27, 2018, last revised October 1, 2018, made by Roudabush, Gale & Associates, Inc. and duly recorded in the Clerk's Office of the Circuit Court for the County of Albemarle, Virginia, in Deed Book 5107, page 148. Exhibit A 7Q7 9K21A EXHIBIT B CA SENIOR PROPERTY That certain Idt, piece ar parrerl of land, lying and being in Alma Cownty, Virg". known and designated as `TRAP 46.1gA1 (Revised) {Parcel aA Revised -Stella Lana RIW)', corrtalrHng 5.521 acres mom or less, as shown on 019 certain plat entitled 'Plat Showing Boundary Line Adjustment of Tax Map Parcels 46-19A1 & 466-19A2, Rivanna Distract, Aitretr de County, VA', dated April 16, 21319, last revised May 16, 2019, made by Roudabush, Gale 5 Associates, Inc., recorded In the Clerk's Office of the Cinarii Court for the County of Abemade, Virginia, in Deed Book 5169, page 242 246. TOGETHER WITH Declaration of Access Easement byBrookhlllApartments, LLC dated January 31, 2019, recorded senLary 30, 2019 In head Book 5133, page 451. TOGETHER WITH Ingress/Egress and Utilfies EasementAgaement by and between Crockett Corporation, Charles R Hough and Douglas B. Oglesby, Trustees Co-Trustess of the Ernest J. Oglesby That ula dated October 21, 1970, and the Testamentary Trustof Lucy Elizabeth Berger Oglesby, auk 8 Elizabeth B. Oglesby, Charles R. Haugh and Elizabeth Ann Oglesby Haugh, husband and wife, Brookhlll Apartments, LL'-, and Broakhlli Town Center LLG dated January 31, 2019, recorded January A 2019 In Deed Book 5133, pegs 459. TOGETHER WITH Master Declaration of Protective Covenants Restrictions and Easements for Brookhill, Albemarle Ca ft Vbginia dated . 2019, receded h the Clerk's Offioe of the Circuit Cart for the County of Albemarle, Virginia In Deed Book . page BEING a portion of the some real estate c wayed to Crockett Corporation, a Vkglnla corporation by deed from Charles R. Haugh and E. J. Oglesby, Jr., Trustees of the E.J. Oglesby Trust, end Trustees of the Estate of Lucy Elizabeth Berger Oglesby (Eltzabeth B. Oglesby), dated December 1, 1981 and recorded December 31, 1981 In the Clerk's Office, CIFOAll Court, Albemarle Curdy, Virginia, in Deed Book 731, page 890. BEING a portion of the some real setate conveyed to Charles R Haugh & Douglas B. Oglesby, as C10-Trustess of the Emed J. Ogleaby Trust tda dated October 21, 1970, and the Testamentary Trust of Lucy Elizabeth Barger Oglesby, arkla Elizabeth B. Oglesby In the Deed of Subdivision and Boundary LineAryustment by and among Crockett Corporation, a Virginia corporation, Chadee R. Haugh & Douglas B. Oglesby, as Co-TkAstess of the Ernest J. Oglesby Trust u/s dated October 21, 1970, and the TestamerdaryTiust of Lucy Elizabeth Berger Oglesby, allele Elizabeth B. Oglesby, and Charter R. & Elizabeth Am Oglesby Haugh, darted January 24, 2018, and recorded February 5, 2D18, In the Clerk's Offlm Circuit Court, Albemarle Courtly, Virgirtiis, in Dead Book 5011, page 170. BEING a portion of the same real estate coniveyed to Charles R. Haugh end Douglas B. Ogleetry, Co-Truelass of the Emmet J. Oglesby Bust u la dated October 21, 1970, and the Testamentary That of Lucy Elizabeth Berger Oglesby, alkia Elizabeth B. Oglesby by Deed of Boundary UneA4ustment from Crockett Corporation, a VIrgINe corporation dated November 29, 2018. recorded November 29. 2018 In the Clerk's Office. Circtdt Court, AIt>amade Canty, Virginia In Deed Book 9117, page 115. BEING the same real estate conveyed to Crookett Corporation, a Virginis oorporation by Deed of 0A and Boundary Line Adjustment from Crockett Corporation, a %Wrds corporation and Charles R Haugh and Douglas B. Oglesby, Co-Thistem of the Ernest J. O Iseby Tnal ula dated October 21, 1970, and the Testamentary Turd of Luny Elizabeth Berger Oglesby, alkfa Elizabeth B. Oglesby dated May 21, 2019, recorded May 23, 2019 In the Clerk% Office, Ckouit Court Albemarle County, Virginia in Dead Book 5169, page 23& Exhibit B 707�,I.4 EXHIBIT C GRADING SITE See attached. Exhibit C 70738321.4 1 11 7.32z IS.a15 12.700C 2.419C• \� 6.502C I3.I1I I5.024G, 7.957C .1 07.1C, .7.k42C. 1.2.955Cti-14.597C 5-657C' 0 OiC', 4 2 9.311C6-755C 1.681C r.0.075F Q.379G--4.47_ 7C�' 1,477C 0.062F2.192C 0.227C* i �r 0.77TC� 2.112C 0 QO77� � �C .