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HomeMy WebLinkAboutZMA202000005 Agreement 2020-12-07AGREEMENT This AGREEMENT (this "Agreement") is made as of this 22 S day of June 2015,by and between SHEEFLEE, LLC, a Virginia limited liability company ("Sheeflee"), and MARTIN SCHIJLMAN (Schulman) RECITALS R-1. Sheeflee is the owner of that certain parcel of land located in Albemarle County, Virginia, and shown on the current Albemarle County tax maps as parcel 05600-00-00-067A0, which parcel contains approximately 6.155 acres, and is shown as "Revised Tax Parcel 56-67A Area = 6.155 AC. (within heavy lines)" on a plat entitled "Plat of Boundary Line Adjustment of Tax Parcel No. 56-67A and Tax Parcel No. 56-67B, Prepared for Crozet Cohousing, LLC, along Parkview Drive, Whitehall Magisterial District, Albemarle County, Virginia," which plat is dated March 19, 2008, and is of record in the Clerk's Office of the Circuit Court of Albemarle County, Virginia at Deed Book 3626, page 619 (the "Sheeflee Property"). Sheeflee acquired the Sheeflee property by deed from Crozet Cohousing, LLC, dated as of April 19, 2013, which deed is of record in the aforesaid Clerk's office at Deed Book 4341, page 683. R-2. Schulman is the owner of that certain parcel of land located in Albemarle County, Virginia and shown on the current Albemarle County tax maps as parcel 56-67B, containing approximately 9.42 acres, (the "Schulman Property"). R-3. Sheeflee is pursuing development of the Sheeflee Property, which requires the installation of certain improvements as required by Albemarle County. These improvements include grading, landscaping, road improvements and a walking trail along Parkview Drive. Schulman agrees to convey certain easements to Sheeflee and enter into a road maintenance agreement for such purposes, on the terms and conditions contained herein. AGREEMENT NOW THEREFORE, for and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows: 1. WATER — Schulman agrees to execute and deliver a deed of easement to Sheeflee and the Albemarle County Service Authority ("ACSA") for the installation and maintenance of public water line on the Schulman Property in the locations shown on the draft easement plats attached hereto and incorporated herein as Exhibit A (collectively, the " Easement Plat") and titled "ACSA water easement". This is a minor easement area that is for a new fire hydrant to be located to the right side of Parkview Drive (when entering). These public water line easements are to be conveyed on the terms and conditions contained in ACSA's standard deed of easement (the "ACSA Easement"), which Sheeflee has prepared at its expense and will record with ACSA easement plat once ACSA approves both deed and plat. Page 1 of 6 2. Temporary Construction Easement & Landscaping Easement - Schulman agrees to convey a Temporary Grading Easement (entitled "remporary Grading Easement') necessary to construct the site improvement based upon the Site Plan to be approved by Albemarle County. The Temporary Grading easement will expire once the work has been completed to the satisfaction of Albemarle County but the Landscaping Easement will be permanent. Schulman agrees to convey a permanent Landscaping Easement (entitled "Landscaping Easement') within this area to allow for landscaping to be installed per the site plan. Sheeflee will thereafter be responsible for maintaining the landscaping. This easement is to allow access to maintain the landscaping. Sheeflee agrees to provide the easement plat and deed of easement for Schulman to review and execute prior to Sheeflee having the documents recorded. This deed will also include language to vacate the drainage easement areas as shown on the plat as "hereby vacated". 3. Pump Station Privilege - Sheeflee will have a legal entity formed to manage the operations and maintenance of the pump station ("PS") located on Sheeflee parcel. This legal entity, at its own expense, will provide its Operations & Maintenance Agreement (O&M) with provisions as follows: i. This legal entity will be formed with initial constituent members including Beaver Creek Hill Corporation (BCHC) and Sheeflee. The Emerson Commons Condominium Association (ECCA), after it is formed, will replace Sheeflee. Schulman will be allowed to join in this legal entity should Schulman become a user of the PS. ii. If the PS requires upgrade for Schulman use, Schulman will be responsible for the cost and logistics to upgrade. Schulman will also be responsible for the costs to connect to the PS and for returning Sheeflee and BCHC land to its prior condition after this work. iii. Sheeflee does not guarantee that upgrade of the PS capacity will be approved by Albemarle County or Albemarle County Service Authority so it is the responsibility of Schulman to secure any necessary approvals and design changes necessary to participate in the PS facility. iv. The responsibility for cost of operation & maintenance of the PS will be apportioned to the users of the PS based upon water usage which is a metered/measurable flow or other fair & equitable apportionment, and provisions for expansion or modification for future upgrade of capacity. v. Initially, ECCA will be deemed the managing member. vi. The managing member will be responsible to maintain and operate the pump station and force main and have access to reserve funds setup for this purpose. vii. If reserve funds are inadequate, the managing member must pay for repairs with its own funds and seek reimbursement from other members as outlined in the O & M Agreement. Page 2 of 6 viii. Other members may also access the reserve funds to accomplish repairs under certain conditions, for example if the managing member fails at its responsibilities in a timely manner. ix. Backup mechanisms for reimbursement, for example legal liens, will be provided in the O & M Agreement. x. Before each user comes online with the private PS and force main, it will contribute to maintenance reserve. The initial contribution will be in proportion to the anticipated flow of each user. xi. After initial completion of the PS and force main, and before the first users come online, there will be sufficient money in the O & M reserve fund to keep the system in working order and to fix failures of any part of the PS. xii. The legal entity may request that the Albemarle County Service Authority accept the PS and force main into the public system and dedicate the sewer facilities should this ever become an option. This will be addressed in the O & M Agreement. 4. Sheeflee shall be responsible for the initial construction of the PS which includes the forcemain to the public sewer system. Sheeflee agrees to convey to Schulman any easements as necessary to connect to the pump station provided the facilities are implemented in a manner that minimizes the impact to Sheeflee property, doesn't prevent Sheeflee from carrying out its development plans, and returns disturbed parts of the property to their previous working condition (asphalt restored, trees replanted etc). At that time, Schulman will be responsible for the design, obtaining approval from Albemarle County, and providing the appropriate easement plat and deed for this purpose. 5. Parkview Drive: Sheeflee hereby agrees to be solely responsible for the construction of such improvements (the "Road Improvements") to Parkview Drive as may be required by Albemarle County as a condition of approval of the final site plan for the Sheeflee Property (the "Site Plan"). The pedestrian walking trail is part of the required improvements. Schulman agrees to execute and deliver the following: a. a temporary construction easement (the "Temporary Construction Easement") for the construction of the Road Improvements in the location shown on the draft easement plat attached hereto and incorporated herein as Exhibit B (the " Easement Plat"). Any necessary drainage easement(s) will also be shown on the Easement Plat and conveyed as necessary. All deeds will be prepared by Sheeflee at its expense. Schulman agrees to review and advise of any edits if necessary and then execute the deed and sign the plat (as required for recording) b. an agreement (the "Road Maintenance Agreement") regarding maintenance of Parkview Drive which will be in the form of an amendment or supplement to the existing agreement regarding maintenance of Parkview Drive containing the following provisions, as applicable: i. Sheeflee's responsibility for constructing the Road Improvements and posting any related bond, language regarding private maintenance and other matters required by Albemarle County in connection with approval of the Site Plan, a description of the standard for maintenance of Parkview Drive, the assignment of maintenance Page 3 of 6 responsibility to any Association that succeeds to a parry's interest, and such other provisions as shall be acceptable to the parties. ii. Road Maintenance cost to be apportioned based on the percentage of traffic for each user as it relates to the total design traffic for the portion of the road that it uses. Traffic assumptions are to be based upon Virginia Department of Transportation (VDOT) Manual average daily trip for each use. The Schulman portion will initially extend from Rt. 240 up to the vehicular entrance on Parkview to Schulman's property. If a future development on Schulman's property uses more of the road or uses the bike trail, then Schulman will share in maintenance of the portions its property uses. iii. Initially maintenance will include the Vet Clinic traffic until such time as the property is developed for a future use. C. To mitigate the impacts to the other property owners served by Parkview Drive (such as those living on Halcyon Drive), the Road Maintenance Agreement will define the South Segment of Parkview Drive as the segment from Three Notch'd Road (Route 240) to the North side of any entrance to either BCHC Property and Sheeflee Property. This portion will be 100% maintained by the users of the South Segment. 6. Sheeflee shall provide at its expense the following documents copies of which are attached to this agreement (currently in final review stage with Albemarle County) : I. Easement Plat (copy attached — currently under review by Albemarle County) II. Deed - ACSA water line easement III. Deed — Temporary Construction easement, Temporary Grading Easement, Permanent Trail Easement, and Permanent Landscaping Easement IV. Legal Entity — Private sewer pump station and force main Operating Agreement V. Road Maintenance Agreement (deed of amendment) These documents, (collectively, the "Instruments"), shall be in a form reasonably acceptable to Schulman to secure approvals from Albemarle County and ACSA, as applicable. Sheeflee shall be responsible for the cost of preparing and (as applicable) recording the Instruments and any other documents contemplated by this Agreement, and for posting any bonds and paying any Albemarle County submittal fees and recording costs associated with the foregoing. Schulman agrees to review and advise on whether Instruments are acceptable or provide comment as appropriate within two weeks of receipt of each Instrument. 7. The parties hereto agree to work diligently to complete review, approval, and execution of the Instruments listed above with a goal to have I, II, and III completed within the next 30 days and N and V within the next 90 days for all to be completed by August 15, 2015 or as soon thereafter as the Albemarle County approval is obtained. Nothing in this Agreement shall require either party to take any action, pay any money or execute any document in the event that the Site Plan is withdrawn or disapproved and not resubmitted (or submitted anew in substantially the same form) within six months after receipt of written notice thereof from Albemarle County. This Agreement shall terminate as of the earlier of (a) the date all of the Instruments have been recorded, or (b) the fifth anniversary of the date of this Agreement, upon which termination the parties shall have no further rights or obligations to each other hereunder. Page 4 of 6 8. Miscellaneous provisions: a. Goventing Law. This Agreement shall be governed by and be construed in accordance with the laws of the Commonwealth of Virginia. b. Notices. Notices shall be in writing and shall be deemed given if hand delivered, sent by overnight delivery service or sent by electronic mail, when delivered to and received or refused by the respective parties at the below addresses (or at such other address as a party may hereafter designate for itself by notice to the other party as required hereby): To Sheeflee: Sheeflee, LLC Attn: Peter Lazar 1730 Sage Lane Blacksburg, VA 24060 Email: peter@a ebroselow.com ii. To Schulman: Dr. Martin Schulman 1263 Parkview Drive Crozet, VA 22932 Email: trove l.com C. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective representatives, successors and assigns. Either party may assign this agreement to a successor who acquires all of the assignor's right, title and interest in the assignor's property and expressly assumes the obligations set forth in this Agreement in writing. Except as provided herein, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto, whether by operation of law or otherwise, without the prior written consent of the other party. d. Captions and Headings. The captions and headings contained in this Agreement are included herein for the convenience of reference only and shall not be construed to limit or enlarge the terms hereof or otherwise affect the meaning or interpretation of this Agreement. e. No Joint Venture. Nothing contained herein shall be deemed or construed to create any partnership, agency, joint venture, association or relationship whatsoever between Sheeflee and Schulman. f Entire Agreement, Modification. This Agreement sets forth the parties' entire agreement with respect to the Sheeflee Property and the Schulman Property, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as contained herein. This Agreement shall not be amended or modified unless in a writing executed by the Parties hereto. Page 5 of 6 g. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Any party may execute this Agreement electronically using an electronic signature service. This Agreement may be delivered by facsimile, email or any other form of electronic transmission. Copies of this Agreement are admissible as originals for all purposes. h. Further Assurances. The parties hereby agree to execute and deliver such documents and instruments of further confirmation and assurance, in recordable form, as may be reasonably requested by the other party to perfect, complete and confirm the rights, conditions, covenants, obligations and easements created under or contained in this Agreement, as may otherwise be necessary, required or appropriate for the purpose of fully effectuating the provisions of this Agreement. Neither party shall be entitled to record this Agreement or any memorandum or notice thereof without the other parry's consent, which shall not be unreasonably withheld provided that the requesting party pays for the preparation and recording thereof. i. Severability. If any provision of this Agreement is deemed by a court, or becomes invalid, illegal, or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken and the remainder of this Agreement shall remain in full force and effect. j. Approvals. Wherever this Agreement requires a parry's consent or approval, such consent or approval shall not be unreasonably withheld, conditioned or denied, and shall be deemed given if the party from whom the consent or approval is required fails to notify the other party of its disapproval or denial within 15 business days after delivery of notice reasonably describing the requested action and including such information as may be necessary to take the requested action. As used herein, "business days" shall mean days that are not Saturdays, Sundays or days when the U.S. Postal Service is not scheduled to deliver mail. WITNESS the following duly authorized signatures and seals as of the date first written above: SHEEFLEE, LLC, a Virginia limited liability company By: Z. Peter Lazar, Manager Mai By: Martin Schulman, DVM Page 6 of 6