HomeMy WebLinkAboutSP201900006 Ownership Documents 2020-12-12 SHIMP ENGINEERING, P.C.
Design Focused Engineering
December 12,2019
Ms.Tori Kanellopoulos,Pla
County of Albemarle
Department of Community Development
401 McIntire Road,North Wing
Charlottesville,Virginia 22902
RE: SP2019-00006 Boyd Tavern Market Updated Ownership Documents
Ms.Kanellopoulos,
Please find updated ownership documents for TMP 94-39, a portion of which is the subject of SP2019-
00006,included with this transmittal letter.
If you have any questions,please do not hesitate to contact me at kelseyya,shimp-engineering.com or by
phone at 434-227-5140.You can also contact Justin Shimp at Justin( shimp-engineering.com.
Best regards,
Kelsey Schlein
Shimp Engineering,P.C.
pSCEIVED
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912 E High St Charlottesville,VA 229021 434 227 5140 1 shimp-engineering com
Application forAlum
Special Use Permit
IMPORTANT: Your application will be considered INCOMPLETE until all of the required attachments listed on page 2
have been submitted with the appropriate signature on page 3. Also,please see the list on page 4 for the appropriate fee(s)
related to your application.
PROJECT NAME: (how should we refer to this application?) Boyd Tavern Market
PROPOSAL/REQUEST: request for convenience store not served by public water or a central water system
ZONING ORDINANCE SECTION(S): Chapter 18 Sec. 22.2.2 16(a-c)
EXISTING COMP PLAN LAND USE/DENSITY: Rural Areas 4
LOCATION/ADDRESS OF PROPERTY FOR SPECIAL USE PERMIT:
immediately south of the 1-64 Exit 129 Eastbound exit ramp, at the intersection with Black Cat Road(SR 616)
TAX MAP PARCEL(s): 94-39
ZONING DISTRICT: Commercial (C-1)portion and Rural Areas(RA) portion
#OF ACRES TO BE COVERED BY SPECIAL USE PERMIT(if a portion,it must be delineated on a plat):
Is this an amendment to an existing Special Use Permit?If Yes provide that SP Number. SP- ❑YES NO
Are you submitting a preliminary site plan with this application? ❑YES ❑NO
Contact Person(Who should we call/write concerning this project?): Kelsey Schlein
Address 912E High St. _..._.___ __.. City Charlottesville State VA Zip 22902
Daytime Phone(434)227-5140 Fax#( ) E-mail kelsey@chimp-engineering.com
Owner of Record South Creek Investments, Inc
Address 1100 Harris Street City Charlottesville State VA Zip 22903
Daytime Phone( )_._....._-..__. Fax#( ).__----_ E-mail
Applicant(Who is the Contact person representing?):Tiger Fuel Company_
Address 200 Carlton Road ..,. City Charlottesville State VA Zip 22902
Daytime Phone( ) Fax#( )_ E-mail suttong@tigerfuel_com
Does the owner of this property own(or have any ownership interest in)any abutting property? if yes,please list those tax map and parcel numbers:
TMP 94-38
FOR OFFICE USE ONLY SP# SIGN#
Fee Amount$ Date Paid By who? Receipt# Ck# By
ZONING ORDINANCE SECTION
Concurrent review of Site Development Plan? YES_ _ NO
County of Albemarle
Department of Community Development
401 McIntire Road Charlottesville,VA 22902 Voice: (434)296-5832 Fax: (434)972-4126
Special Use Permit Application Revised 2/28/2019 Page I of 5
REQUIRED ATTACHMENTS ACHMENTS&OTHER INFORMATION TO BE PROVIDED for THE APPLICATION TO BE
OFFICIALLY SUBMITTED& DEEMED COMPLETE
m Application Signature Page
m One(I)completed &signed copy of the Checklist Puria Special Ike Pe►rr u
m One(1)copy of the Pre-application Comment Form received from county staff
m One(1)copy of any special studies or documentation as specified in the Pre-application Comment Form,
m Seventeen (17) folded copies of a Conceptual Plan.
0 Seventeen (17)copies of a written narrative
The narrative must be laid out to identify each of the bulleted TITLES as follows:
• PROJECT PROPOSAL
The project proposal, including
■ its public need or benefit;
• how the special use will not be a substantial detriment to adjacent lots,
• how the character of the zoning district will not be changed by the proposed special use,and
• how the special use will be in harmony with the following;
o the purpose and intent of the Zoning Ordinance,
o the uses permitted by right in the zoning district,
o the regulations provided in Section 5 of the Zoning Ordinance as applicable,and
o the public health,safety and general welfare.
(be as descriptive as possible, including details such as but not limited to the number of persons involved in
the use,operating hours,and any unique features of the use)
• CONSISTENCY WITH COMPREHENSIVE PLAN
The proposed project's consistency with the comprehensive plan, including the land use plan and the master
plan for the applicable development area;
• IMPACTS ON PUBLIC FACILITIES & PUBLIC INFRASTRUCTURE
The proposed project's impacts on public facilities and public infrastructure.
• IMPACTS ON ENVIRONMENTAL FEATURES
The proposed project's impacts on environmental features.
WI One(1)copy of the most recent recorded plat,that shows the Deed Book/Page Number, of the parcel(s)
composing the proposed project,or a boundary survey if a portion of one or more parcels compose the proposed
project, both of which shall include a metes and bounds description of the boundaries.
m Taxes,charges,fees, liens owed to the County of Albemarle
As the owner/agent I certify that any delinquent real estate taxes, nuisance charges,stormwater management utility
fees, and any other charges that constitute a lien on the subject property,which are owed to the County of Albemarle
and have been properly assessed against the subject property, have been paid,
PLEASE CONSULT THE LIST OF ITEMS WHICH WILL BE REVIEWED BY STAFF
LINKED HERE
Special Use Permit Application Revised 2/28/2019 Page 2 of 5
APPLICATION SIGNATURE PAGE
If the person signing the application is someone other than the owner of record, then a signed copy of the
"CERTIFICATION THAT NOTICE OF THE APPLICATION HAS BEEN PROVIDED TO THE
LANDOWNER" form must be provided in addition to the signing the application below. (page 5)
Owner/Applicant Must Read and Sign
By signing this application,I hereby certify that I own the subject property,or have the legal power to act on behalf of
the owner of the subject parcel(s)listed in County Records. I also certify that the information provided on this
application and accompanying information is accurate,true,and correct to the best of my knowledge. By signing this
application,I am consenting to written comments,letters and or notifications regarding this application being provided to me
or my designated contact via fax and or email. This consent does not preclude such written communication from also being
sent via first class mail.
-a/2)41 to, /T
Signature of Owner / Agent / Contract Purchaser Date
.6-0r n__ _.. -- 434- !!? - 2,6( 2_
Print Name Daytime phone number of Signatory
03V RO3H
'✓'s MOO
riA3M(4O._131/,1,..
Special Use Permit Application Revised 2/28/2019 Page 3 of 5
Required FEES to be paid once the application is deemed complete:
What type of Special Use Permit are you applying for?
Staff will contact you regarding the fee once the application is deemed complete
WI New Special Use Permit $2,150
❑ Additional lots under section 10.5.2.1 $1,075
❑ Public utilities $1,075
❑ Day care center $1,075
O Home Occupation Class B $1,075
❑ To amend existing special use permit $1,075
❑ To extend existing special use permit $1,075
❑ Farmer's markets without an existing commercial entrance approved by the VDOT or without existing and adequateparking $527
❑ Farmer's markets with an existing commercial entrance approved by the VDOT and with existing and adequate parking $1 18
ADDITIONAL FEES
❑ Initial notice fee provided in conjunction with an application, for preparing and mailing notices and published notice $435
❑ ALL SPECIAL USE PERMITS-FIRE RESCUE REVIEW FEE $50
❑ Signs under section 4 15 5 and 4.15.5A(filed for review by the Board of Zoning Appeals under the Varianct Schedule) ` $538
Other FEES that may apply:
Fees for re-advertisement and notification of public hearing
after advertisement of a public hearing and
a deferral is made at the applicant's request
➢ Preparing and mailing or delivering up to fifty(50)notices $215+actual cost of first-class postage
➢ Preparing and mailing or delivering each notice after fifty(50) $1.08 for each additional notice+actual
cost of first-class postage
Actual cost based on a cost quote from
➢ Published notice(published twice in the newspaper for each public hearing) the publisher
(averages between$150 and$250)
> Application for uses under sections 5.1.47 or 5.2A NO FEE
➢ Special Exception—provide written justification with application $457
Resubmittal fees for original Special Use Permit fee of$2,150
➢ First resubmission FREE
> Each additional resubmission (TO BE PAID WHEN TILE RESUBMISSION IS MADE TO INTAKE STAFF) $1,075
Resubmittal fees for original Special Use Permit fee of$1,075
> First resubmission FREE
> Each additional resubmission(TO BE PAID WI[EN THE RESUBMISSION IS MADE TO INTAKE STAFF) $538
The full list of fees can be found in Section 35 of the Albemarle County Zoning Ordinance.
Special Use Permit Application Revised 2/28/2019 Page 4 of 5
CERTIFICATION THAT NOTICE OF THE
APPLICATION HAS BEEN PROVIDED TO THE LANDOWNER
This form must accompany this zoning application if the application is not signed by the owner of the property.
I certify that notice of the application for, U92.0 O1 —0000 1p
[Name of the application type & if known the assigned application#]
was provided to /01A CALP,J it, \YMOVVAAtC
[Name(s)of the record owners of the parcel]
the owner of record of Tax Map and Parcel Number 4 -3 Qj
by delivering a copy of the application in the manner identified below:
Hand delivery of a copy of the application to fray w W ' th
[Name of the record owner if the record owner is a
person; if the owner of record is an entity, identify the
recipient of the record and the recipient's title or office
on
�20 1201 for that entity]
Date
Mailing a copy of the application to
[Name of the record owner if the record owner is a
person; if the owner of record is an entity, identify the
recipient of the record and the recipient's title or office
for that entity]
on to the following address
Date
[Address; written notice mailed to the owner at the last
known address of the owner as shown on the current
real estate tax assessment books or current real estate
tax assessment records satisfies this requirement].
- 1 • ►'►
Signature of Applicant
61)/ /A 6c/r/-0v
Print Applicant Name
Date
Special Use Permit Application Revised 2/28/2019 Page 5 of 5
FOR OFFICE USE ONLY SP#
Fee Amount$ Date Paid By who'' Receipt# Ck# By
Resubmittal of information for
Special Use Permit
PROJECT NUMBER THAT HAS BEEN ASSIGNED: SP2019-00006
Owner/Applicant Must Read and Sign
I hereby certify that the information provided with this resubmittal is what has been requested from staff
jibter_
' 2J l 12/10/2019
Signature of Owner, Contract Purchaser Date
Gordon Sutton t- - - 3('7 - (2..
Print Name Daytime phone number of Signatory
FEES to be paid after application
For original Special Use Permit fee of$1,075
LI First resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) Free
❑ Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $538
For original Special Use Permit fee of$2,000
m First resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) Free
❑ Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $1,075
4V1
County of Albemarle Department of Community Development
401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126
Revised 11/2/2015 Page 1 or 1
GROUND LEASE
THIS AGREEMENT, dated July 30, 2016 is between Southcreek Investments, LLC, a
Virginia limited liability company (herein "Landlord"); and Tiger Fuel Company, a Virginia
corporation(herein"Tenant").
Preliminary Statements
The following statements are a material part of this Agreement (hereinafter sometimes
referred to as "Lease"):
A. Landlord is the owner (and lessor) of the real property described on Exhibit A attached
("Premises")
B. Landlord is the owner of the off-premises Common Area described in Exhibit C attached
("Common Area").
C. Tenant wishes to lease the Premises from Landlord and to obtain access rights over the
Common Area on the terms, covenants and conditions contained in this Agreement for
the initial purpose of constructing and operating a convenience store, car wash, motor
fueling facility ("Facility") and thereafter for any other lawful use with the prior written
consent of Landlord which consent Landlord shall not unreasonably withhold, which
initial purpose and subsequent uses are hereby defined as "Permitted Uses".
D. Tenant is the "Constructing Party" as to all contemplated improvements to be constructed
on and under the Premises.
E. Landlord is the "Constructing Party" as to all contemplated improvements to be
constructed on and under the Common Area.
F. Landlord is also the owner of additional land which adjoin the Premises and which
aggregate approximately 10.67 acres excluding the approximate 3.0 acre Premises
("Adjoining Property").
G. Landlord and Tenant agree as follows:
Terms of the Agreement
Ground Lease
1. PREMISES: Landlord, for and in consideration of the covenants contained in the
Agreement and made on the part of Tenant, demises and leases to Tenant, and Tenant
leases from Landlord, the Premises, which is located in the County of Albemarle,
Virginia, containing 3.0 acres, more or less, and being more particularly described in
Exhibit A, together with non-exclusive rights to connect to sanitary sewer septic field,
storm sewer, well water, drainage, electricity, telephone, and other utility services over
1
Landlord's Adjoining Property and for a non-exclusive access to and from the Premises
and Route 616 over the Common Area.
2. TERM: This lease shall commence on the first day of the Commencement Month as
defined in paragraph 5.B. below and end on midnight of the day before the twentieth
anniversary thereof, with four(4) additional five (5) year terms, renewable at the option
of the Tenant, and commencing the first day of the Commencement Month in the
applicable year. This Lease will automatically renew at the end of each five (5) year term
unless Tenant gives at least 90 days prior written notice of termination to the Landlord.
3. RENT:
A. During the initial twenty (20) year term hereof Tenant shall pay rent for the Premises
in monthly installments commencing on the first day of the Commencement Month
and continuing on the first day of each month thereafter during the term hereof, as
follows:
Lease Years Scheduled Monthly Rent
01 —05 $5,000
06— 10 $5,500
11 - 15 $6,187
16 - 20 $6,960
The monthly installments of rent for the initial twenty year term shall total
$1,418,820.
B. The rent for any renewal term shall be paid in monthly installments commencing on
the first day of each month during the renewal term thereof as follows:
Renewal Term Scheduled Monthly Rent
First $7,830
Second $8,809
Third $9,910
Fourth $11,149
C. All insurance premiums, pro-rata contributions for Common Area maintenance and
taxes payable by Tenant under this Lease shall be deemed additional rent for purposes
of Landlord's rights and remedies under this Lease.
D. All payments due Landlord which are not paid within thirty(30) days from the date
such payments are due shall bear interest at a rate of 6% per annum or at a rate equal
to the maximum rate allowed by law, whichever is less.
2
E. All payments shall either be mailed to Landlord's address as hereinafter set forth or
electronically deposited in to an account specified by the Landlord.
F. After the first twenty lease years, every fifth anniversary of the Commencement
Month the rent for the next five year period ("New Period") shall be increased by
12.5% unless Tenant can demonstrate by a clear and convincing of evidence that the
value of the land portion of the Premises (the "Land") over the five year period then
ending ("Ending Period") increased in value by a certain percentage less than 12.5%
in which event the rent percentage increase shall be equal to the percentage increase
in the value of the Land. In no event, however, shall the rent for the New Period be
less than the rent for the Ending Period and in no event shall an increase in rent for
the New Period be more than 12.5% or less than 7.5% of the rent for the Ending
Period. Any bona fide disagreement concerning whether Tenant has met the burden
of a preponderance of the evidence shall be resolved in accordance with the
provisions of paragraph(b) of Exhibit E—F. The evaluation dates for determining
increases, if any, in the value of the Land shall be December 5th of the last year of the
Ending Period. For so long as the County of Albemarle purports to assess the Land
for real estate tax purposes at its full fair market value the parties agree the assessed
value in effect on December 5`h of the two evaluation dates shall conclusively
establish the increase in value of the Land for the limited purpose of this Paragraph
3.F.
G. In the event the Land is included as an undistinguished component of an assessment
of a larger tract of land, the assessment for the larger tract shall be pro-rated to fix the
assessed value for the Land.
4. USE AND OCCUPANCY: Tenant shall occupy the Premises promptly upon the
commencement of the term hereof and shall use and occupy the Premises for the
construction of improvements described in Paragraph 5 below. Tenant shall comply with
all law, regulations and ordinances applicable to the use and operation of the Premises.
Tenant shall not commit or suffer to be committed any waste upon the Premises or any
nuisance thereon. Tenant shall, at its sole expense, comply with all requirements
pertaining tq the Premises of any insurance organization or company necessary for
maintenance of insurance as herein provided covering the Premises and any
appurtenances thereto.
The Premises may be used by Tenant up to and including twenty-four (24) hours per day
for the retail sale, rental or provision of merchandise and services customarily sold,
rented or provided from time to time, at stores operated by Tenant or at supermarkets or
3
grocery stores of any type and character operated within the supermarket or grocery
industry as of the date of this Lease or in the future and including product lines, services
and special features or departments included in such grocery markets or supermarkets,
including but not limited to, groceries, produce, meat, dairy, delicatessen, ready-to-eat,
made to order, and take-out food products for on or off-premise consumption, beer, wine
and alcoholic beverages, financial services (including automated teller, ticketing, banking
wire transfer and check cashing services), cellular devices and related products, phone
cards, movies and video games, automotive products (including motor oils and
transmission fluids), donuts and other types of bakery products, cigarettes and other
tobacco products, magazines, movies, lottery, money orders, propane and related
equipment, and sundries, or any other lawful purpose. Tenant shall have the exclusive
right to maintain and operate for its own account pay telephones and car wash facility on
the Property.
During the term of this Lease, Tenant shall, in addition to any other obligation under this
Lease:
A. Conduct its operations in an orderly manner and so as not to annoy, disturb or be
offensive to customers, patrons or others on the Adjoining Property.
B. Equip the improvements located on the Premises with quality equipment and
furnishings and keep all mechanical equipment located on the Premises free from
vibration or noise which may be transmitted beyond the Premises.
C. Maintain in a constant good condition and repair the exterior and interior of all
improvements on the Premises.
D. Maintain in a constant good condition and repair the exterior of the Premises
including but not limited to, the parking areas, applicable utility easements on or
under the Premises, driveways, access ways, landscape areas, exterior lights, trash
corrals and sidewalks. Such maintenance and repair shall include by way of
illustration only:
1) Maintaining the surface in a level, smooth and evenly covered condition with the
type of surfacing material originally installed or of similar quality, use and
durability and resurfacing such areas as needed (After the initial construction of
the surface of the Premises, Tenant will not change the grade or level thereof
without the written consent of Landlord which consent Landlord shall not
unreasonably withhold; provided however that Landlord shall not be obligated to
grant consent to a change in grade or level if to do so would impair the use of the
4
Premises in a continuous and homogenous manner with the Adjoining Property or
Common Area);
2) Reasonable and appropriate removal of snow and ice;
3) Placing, keeping in repair and replacing any necessary or appropriate directional
signs, striping markers and lines, reserved parking designations, curbs and
bumpers;
4) Operating, maintaining, keeping in repair, and replacing, when necessary, all
exterior lights and fixtures, including the prompt replacement of all burned out
bulbs.
5) Maintaining all landscaped areas, making such replacement of shrubs and other
landscaping as is necessary to maintain all landscaping in a neat, clean and
attractive manner and keeping these areas, at all times, adequately weeded,
fertilized and watered;
6) Provide for the removal and disposal of all trash by Tenant, at Tenant's sole
expense, from the trash corral areas shown on Exhibit B, and maintaining the
trash corral and dumpsters in good condition and repair. All trash requiring
special handling shall be placed in separate disposal containers to be disposed of
by Tenant, at Tenant's sole expense; and
7) Maintaining Tenant's signage as shown on Exhibit B in good condition and
repair.
5. PREMISES: CONSTRUCTION ACTIVITIES, INITIAL PERMITS, LANDLORD'S
APPROVAL OF SITE PLAN REQUIRED: This Lease is subject to Tenant being able to
secure approvals and permits for Tenant's proposed use of the Premises upon terms
satisfactory to Tenant and at Tenant's sole expense, from all governmental and utility
authorities including but not limited to the County of Albemarle and State of Virginia.
Tenant hereby commits to diligently pursue such permits and approvals for the Premises.
In addition, the parties recognize that the expense of preparing site plans and securing
permits and approvals is expensive and the time required is, in part, dependant on the
action of entities over whom neither party has control. Tenant and Landlord have agreed
on and approved the conceptual site plan attached to this Lease as Exhibit K. This Lease
is further subject to Tenant submitting to Landlord certain information concerning the
improvements Tenant intends to construct on the Premises including but not limited to
the Facility, as provided below. ,
Accordingly, the parties agree as follows:
A. Tenant shall cause to be prepared a site plan (including a reasonable approximation of
the exterior of the proposed improvements and a reasonable approximation of the
landscaping and parking layout and design) of the Premises, including working
5
documents and plans if reasonably available (the site plan and such description are
referred to hereinafter as the "Plans") for submission to Landlord for Landlord's
approval within forty five (45) days from execution of this Agreement, which
approval Landlord shall not unreasonably withhold. Tenant agrees to use exterior
lighting fixtures and color of lights approved by Landlord. Tenant and Landlord have
agreed that Tenant may have space on any future monument sign at Tenant's election,
based upon Tenant paying an access fee which shall be based upon an equitable
proration of the total cost of the monument sign consistent with Tenant's space on the
monument sign. If Landlord does not approve any submission by Tenant of the Plans
then Landlord must state in writing and with particularity the reasons for the
disapproval and what changes Tenant must make on the Plans as a condition of
receiving Landlord's approval. If Landlord and Tenant have not reached an
agreement on the Plans within 45 days of submission then either party may at anytime
thereafter terminate this Lease upon fifteen(15) days written notice to the other, as
hereinafter provided:
In the event Landlord gives the Tenant the aforesaid fifteen (15) day notice of
termination, Tenant may elect to avoid termination by written notice to Landlord that
Tenant agrees to the changes which Landlord has stated in writing. In like manner, if
Tenant gives Landlord the aforesaid fifteen (15) days notice of termination, Landlord
may elect to avoid termination by written notice to Tenant that Landlord agrees to the
Plans as submitted by Tenant.
B. Tenant agrees to submit the Plans and to begin submitting any other required
documentation or material to the appropriate governmental authorities within fifteen
(15) days following receipt of Landlord's approval of the Plans and to thereafter
diligently pursue all governmental and utility approvals and permits. This Lease shall
commence the first day of the sixth month (herein "Commencement Month")
following final site plan approval by all appropriate governmental and utility
authorities ; however, tenant at its sole risk may initiate construction activities
prior to the Commencement Month.
In the event a governmental authority requires a change in the submitted Plans
acceptable to Tenant the same shall be submitted to Landlord for Landlord's prompt
approval which approval shall not be unreasonably withheld. If Landlord does not act
in writing within ten(10) days of Tenant's submission to Landlord of said changes
then Landlord shall be deemed to have approved same.
C. If, despite due diligence, Tenant has not obtained final approval within twelve (12)
months after initial submission thereof to governmental authorities either party may
6
•
terminate this Lease upon thirty (30) days written notice which provides that this
Lease will be terminated unless:
1) Final approval is obtained within said thirty(30) days; or
2) Prior to the expiration of said thirty (30) day period the Tenant waives final site
plan approval as a condition precedent of the Lease.
D. Tenant shall promptly begin and thereafter diligently pursue the preparation of final
construction plans on the Premises during the Commencement Month and thereafter
proceed with reasonable dispatch to complete the construction of all improvements
(hereinafter "Facilities") shown on the Plans. The Facilities shall be constructed
without major deviations to the exterior of the Facilities, or to the landscaping and
parking layout and design (and the Landlord and Tenant hereby agree that any change
in the lighting shall be deemed a major deviation for the purposes of this Agreement).
E. The Facilities and all other improvements on and under the Premises shall be
constructed at the sole risk and cost of the Tenant; and Tenant shall indemnify and
hold Landlord harmless from and against any loss, cost, damage, claim or other
liability that may arise from such Facilities or other construction, except that Tenant
shall not be obligated to indemnify and hold Landlord harmless for Landlord's own
actionable acts or for the actionable acts of Landlord's agents.
F. Within 45 days from the execution of this Agreement, Tenant shall cause a title
examination of the subject property to be performed, and shall notify Landlord in
writing if the status of title to the Premises and to the adjoining parcel subject to
Tenant's option to lease is not acceptable to Tenant and if so the reasons therefore, in
default of which Tenant shall be deemed as having accepted the status of title as it
existed at the expiration of said 45 day period. If Tenant notifies Landlord of an
objection to title, Landlord shall have 60 days to attempt in good faith to clear any
defect or satisfy any objections to title. If Landlord is unable to clear said defects or
satisfy any objections to title within said period, Landlord shall provide notice to
Tenant that Landlord is unable to clear title objections and thereafter Tenant shall
• have the option to terminate this•Agreement within ten(10) business days for failure •
of a contingency or Tenant shall be deemed to have waived any objections to title.
G. Tenant shall cause to be prepared a topographical survey and plat of the Premises to
lease at its sole cost and expense as a part of its site plan preparation and, in addition,
Tenant may as a part of the approval process, conduct or cause to be conducted such
feasibility inquiries, investigations, and tests as Tenant may deem necessary or
7
desirable, including but not limited to soil and ground water tests and environmental
assessments. Copies of the data and results produced as a result of any such inquiries,
investigations or tests shall promptly be furnished, without costs,to Landlord.
6. ADJOINING PROPERTY: CONSTRUCTION ACTIVITIES, INITIAL PERMITS,
TENANT'S APPROVAL OF COMMON AREA SITE PLAN AND OF SEWAGE
TREATMENT AND WATER WORKS AGREEMENT REQUIRED: Landlord has sole
and exclusive authority to secure approvals and permits for Landlord's proposed use of
the Adjoining Property satisfactory to Landlord and at Landlord's sole expense. In
addition, the parties recognized that the expense of preparing site plans and securing
permits and approvals is expensive and the time required is, in part, dependant upon the
action of entities over whom neither party has control. This Lease is independent of
Landlord's proposed use of the Adjoining Property with the following exceptions:
1) The proposed use shall not compete with the business of Tenant.
2) Any common access, ingress or egress shall be acceptable to Tenant however Tenant
shall not unreasonably withhold its approval of the common access.
3) The access to water and septic fields needed by Tenant shall not be materially and
adversely impaired or subject to additional expense to Tenant.
7. COMMON AREA:
A. The "Common Area" is hereby defined as the area shown on the Common Area
Plans, Exhibit C, provided however, that Landlord shall have the right to make future
expansions, relocations, improvements of modifications thereof(which shall be
deemed a part of the Common Area) reasonably necessary or desirable to
accommodate the development of the Adjoining Property now or in the future owned
by Landlord upon the condition that any future changes in the Common Area does not
materially affect in an adverse manner the flow of traffic to and from Route 616 and
the Premises and further provided that any such changes will not cause the Tenant to
modify its building or unreasonably modify any of its other improvements or cause
Tenant to make any expenditures due to such changes. Accordingly, expenditures
required by Tenant as the result of any such changes shall be paid by Landlord
B. The Common Area shall at all times be subject to the exclusive control and
management of the Landlord, and the Landlord shall have the right, from time to
time, to establish, modify and enforce reasonable rules and regulations which shall be
non-discriminatory with respect to the Common Area. Tenant agrees to comply, as
the same may from time to time by modified, with all rules and regulations which are
reasonable and non-discriminatory.
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C. Tenant and its business invitees, employees, and customers shall have the non-
exclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant rights, to use the Common Area subject to such
reasonable regulations as Landlord may from time to time impose. Tenant shall abide
by all reasonable regulations as Landlord may from time to time impose. Tenant shall
abide by all reasonable and non-discriminatory rules and regulations and cause its
concessionaries, officers, employees, agents, patients, customers and invitees to abide
thereby. Landlord may not voluntarily, in the absence of an emergency, temporarily
close-off or block access to and from the Premises and Route 616 over the Common
Area; and in the event said Common Area is involuntarily closed-off or blocked (or
voluntarily closed-off or blocked in the case of an emergency) then Landlord shall
take reasonable steps to mitigate matters of access to the Premises. Subject to the
aforesaid limitations, Landlord may with regard to the Common Area make repairs or
changes, prevent the acquisition of public rights therein, or discourage noncustomer
parking, provided, however, that Landlord's actions shall not unreasonably interfere
with Tenant's business. If such action completely interrupts Tenant's business for
more than three (3) consecutive days, Tenant's rent shall abate for a period equal to
the period exceeding three (3) days which Landlord's actions unreasonably disrupts
Tenant's business. Tenant shall not interfere with Landlord's or other tenant's rights
to use any part of the Common Area.
D. Landlord will operate, maintain and repair or cause to be operated, maintained or
repaired,the Common Area.
E. Landlord's cost of maintaining the Common Area(hereinafter "Common Area
Expenses") shall include but not be limited to all accrued reasonably necessary or
reasonably desirable expenses of: operating, maintaining, repairing, replacing,
repaving, lighting, cleaning, removal of snow, ice and debris, and repairing and
maintaining of machinery and equipment used in the operation of the Common Area
(prorated in an equitable manner for any machinery and equipment not used
exclusively in the operation of the Common Area), depreciation (amortized on a
straight line basis over the useful life of the equipment or capital expenditure) of
capital expenditures for such machinery and equipment, the expenses of Common
Area utilities, pro-rata real estate or other taxes related to the Common Area, and the
pro-rata cost of insurance premiums to secure appropriate insurance coverage for the
Common Area, the limits of which shall not be less than the limits required of Tenant
for like-coverage on the Premises. The initial capital costs of constructing the
Common Area shall not be considered "Common Area Expenses".
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"Total Leasable Land" shall mean the 13.67 acres that is available for leasing (and/or
occupied by Landlord as an operational facility) as shown on Exhibit C. "Total
Improved Areas" shall mean the total square footage of all space contained within the
outside perimeter of the exterior walls of buildings constructed upon the Total
Leasable Area.
Tenant's pro-rata share of the Common Area Expenses (herein "Tenant's Share of
Expenses") shall be the sum of$A+ $B computed as follows:
Tenant's Improved 50%o of Common = A
Areas x
Total Improved Areas Area Expenses
Tenant's Leased Land
Total Leasable Land and 50%of Common — B
the capital cost of storm X
water retention and the Area Expenses
septic field
F. Tenant will pay Landlord, as additional rent each calendar year, or applicable portion
thereof, in equal monthly installments due on the first day of each month in advance,
beginning with the Commencement Month, Tenant's share of Expenses. The amount
of the required monthly installments shall be estimated by Landlord, in Landlord's
sole discretion, which estimate shall be binding upon Tenant in the absence of an
abuse of discretion by Landlord.
Following the end of each calendar year Landlord shall determine and report in
writing the total actual Common Area Expenses and the Tenant's Share of Expenses.
If the sum of monthly installments paid by Tenant exceeded Tenant's share of
Expenses, then Landlord shall refund to Tenant the amount of the overpayment, and
any portion of a refund not made by March 31St for the preceding calendar year or not
made within thirty (30) days from the date of a determination that a refund was due,
whichever date first occurs, shall bear interest at the rate of 6% per annum until paid.
If the sum of monthly installments paid by Tenant did not fully discharge Tenant's
Share of Expenses then Tenant shall pay to Landlord within thirty(30) days of
billing, as additional rent, the amount of the shortfall as billed. Landlord's records of
Common Area Expenses for any given period shall be available for inspection by
Tenant at Landlord's Notice Address for three (3) years after Landlord notifies
Tenant of Tenant's Share of Expenses for such period.
If in any calendar year Tenant's Share of Expenses exceeds 20% of Tenant's rent for
that calendar year, then the amount in excess of 20% shall be deemed a part of
Tenant's Share of Expenses for the following calendar year.
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G. Notwithstanding anything to the contrary set forth herein, the following costs shall be
excluded from Tenant's share of Expenses:
1) Initial costs of constructing Common Area Improvements. (Until such time as any
particular component of a Common Area Improvement, or an applicable section
of a particular component, is fully constructed, then no expense associated with
maintaining that particular component, or the applicable section thereof, shall
begin to accrue.)
2) Leasing costs of any type, be it procuring tenants or re-leasing as well as retaining
existing tenants.
3) Costs incurred due to Landlord violations of any of the terms and conditions of
any Leases.
4) Overhead and profit paid to subsidiaries or affiliates of the Landlord for
management services or materials to the extent that the costs of those items would
not have been paid had the services and materials been provided by unaffiliated
parties on a competitive basis.
5) Costs attributable to enforcing leases against tenants such as attorney's fees, court
costs, adverse judgments and similar expenses.
6) Depreciation and amortization of debt, but excluding depreciation of capital
expenditures for machinery and equipment.
7) Interest on any mortgages of the Landlord and rental under any ground or
underlying lease.
8) Advertising and promotional expenditures which should be part of a specific
marketing plan agreed upon by the tenants.
9) Repairs and other work occasioned by fire, or other casualty to the extent the
Landlord is reimbursed by insurance.
10)Any costs, fines or penalties incurred due to violations by Landlord of any
governmental rule or authority and the defense of same.
11)Repairs and maintenance performed in a tenant's exclusive space and not in the
Common Area.
12)Legal expenses for disputes with tenants and legal, auditing and consulting fees
other than those legal, auditing and consulting fees necessarily incurred in
connection with the normal maintenance and operation of the Common Area.
13)Income, excess profits or franchise taxes or other such taxes imposed on or
measured by the income of Landlord from the operation of the Common Area.
14)Any costs representing an amount paid to an entity related to Landlord which is in
excess of the amount which would have been paid in the absence of such
relationship.
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15)Any costs incurred in connection with the removal or abatement of asbestos or
other Hazardous Materials or substances from, within, on or beneath the Common
Area.
H. Tenant reserves the right to a reasonable inspection of Landlord's records in order to
verify the accuracy of any charge imposed pursuant to this Lease. Such inspection
will be conducted only during regular business hours at Landlord's office and only
after Tenant gives Landlord two (2) business days prior written notice. Tenant shall
be entitled to inspect records it reasonably deems necessary to verify the
aforementioned charges. Landlord's records of charges imposed pursuant to this
Lease shall be available for inspection by Tenant at Landlord's notice address for
three (3) years after Landlord notifies Tenant of Tenant's Share of Expenses. If such
audit discloses that the charges actually incurred by Landlord are less than those used
by Landlord for calculating Tenant's Share of Expenses, then Landlord shall
reimburse Tenant for the amount paid in excess of Tenant's Share of Expenses. If any
audit discloses that the charges used by Landlord in calculating Tenant's Share of
Expenses exceeds the actual charges by three percent(3%) or more, then Landlord
shall pay the costs of such audit.
I. Landlord reserves the right to transfer and convey a good and unencumbered title to
all or any portion of the Common Area to a governmental authority, including but not
limited to the Virginia Department of Transportation and Highways, together with
such adjoining reasonable and necessary drainage and slope easements, upon the
condition that the maintenance thereof, or the applicable portion thereof, will be
maintained by or at the direction of a governmental authority; provided however that
any such transfer or conveyance shall be subject to existing, necessary utility
easements serving the Premises unless the same can be relocated without expense to
Tenant.
J. Landlord reserves the right to cause to be established or to otherwise transfer or
assign to a separate entity which shall assume Landlord's responsibilities with respect
to the Common Area or portions thereof, in which event the Landlord shall thereafter
be relieved from those responsibilities transferred to said entity, from time to time, by
Landlord c9ncerning the Common Area which accrue after the date,of any such
transfer. Any provision of such transfer or assignment which relieves Landlord of
responsibilities with respect to the Common Area or portions thereof shall not be
effective as to this Tenant unless Tenant consents to same in writing which consent
Tenant shall not unreasonably withhold
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8. CONDITION OF PREMISES: Landlord has only the following limited obligations for
maintenance or to make any repairs or improvements to the Premises:
1) Landlord and Tenant agree to equally share the cost of acquiring, transporting,
placing, compacting, and grading fill dirt to raise the grade elevation of the
Premises to the level shown on the site plan for the Premises. Landlord's shared
portion of this expense will not exceed twenty-five thousand dollars($25,000).
2) Landlord will provide to Tenant a water well with adequate water flow to supply
Tenant's needs at the Premises.
3) Landlord will provide to Tenant adequate land to locate a septic field and storm
water detention even if it requires land outside the boundary of the Premises.
Tenant shall be responsible for seeing that all improvements, personal property and
fixtures placed on the Premises are installed and maintained in compliance with applicable laws
and regulations and are free and clear of liens from all mechanics or materialmen. All materials,
equipment and inventory on the property of the Tenant located on the Premises shall be at
Tenant's sole risk.
9. QUIET ENJOYMENT: Landlord covenants that Tenant, so long as it is not in default
hereunder, shall peaceably and quietly have, hold and enjoy the Premises for the term of
this lease, without hindrance on the part of Landlord or any persons claiming by or under
the Landlord, and that fee simple to the Premises at the time of the first day of the
Commencement Month is held by the Landlord and that said title is good and marketable
and free and clear of any easements adversely affecting Tenant's intended use of the
Premises.
10. ENTRY BY LANDLORD: On reasonable notice from Landlord, Tenant shall permit
Landlord and the agents of Landlord, at the sole risk and expense of Landlord, to enter on
a non-interference basis, into and on the Premises at all reasonable times for purposes of
inspecting the same at Landlord's expense, and/or for the purpose of posting notices of
non-responsibility for alterations, additions, or repairs, without any rebate of rent.
Nothing herein shall obligate Landlord to inspect or cause to be inspected, the Premises.
11. REAL PROPERTY TAXES: ASSESSMENTS:
• A. Tenant shall pay real estate taxes, personal property taxes and assessments applicable
to the Premises and improvements and property thereon for the Term of the Lease and
any renewal term. Landlord shall promptly forward to Tenant all tax bills and any
notices of proposed changes in tax assessments received by Landlord with respect to
the Premises. In the event the Premises are taxed as a part of a larger Tax parcel,
Landlord and Tenant shall allocate the bill for such larger parcel between the
Premises and the remainder of the larger Parcel. Tenant shall pay all tax bills on or
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before the due date thereof. Tenant shall have the right in its own name to protest
before the proper authorities any assessment on the Premises and to prosecute any
appeal or other proceedings with respect thereto as fully as if Tenant were the record
owner of the Premises, provided however, Landlord shall not be precluded in any
manner from adopting a position contrary to Tenant's position, protest or prosecution
insofar as the same relates to the Premises or Adjoining Property. Nothing herein
shall relieve Tenant of its obligation to pay such taxes in a timely fashion. Tenant
shall bear all expenses, including but not limited to attorney's fees, involved in any
such proceedings instituted by it. Landlord shall be fully responsible for timely
forwarding to Tenant notices of proposed assessment changes to the Premises
received by Landlord. Tenant shall be fully responsible for timely forwarding to
Landlord notices of proposed assessment changes to the Premises received by Tenant.
B. On request of Landlord, Tenant shall obtain and deliver to Landlord duplicate receipts
or copies of all taxes, assessments and other items required to be paid hereunder by
Tenant.
12. UTILITIES: Tenant shall fully and promptly pay any charge for all public utility
provided water, sewerage, gas, heat, light, power or telephone service and other utilities
of every kind furnished to the Premises during the Lease, and all other expenses of every
kind whatsoever of or in connection with the use, operation and maintenance of the
Premises and all activities conduced thereon, and Landlord shall have no responsibility of
any kind for any of them, except as may be otherwise provided in this Lease or by
separate agreement.
13. INDEMNIFIACTION AND OTHER MATTERS:
A. In additions to the foregoing, Tenant shall fully indemnify and save Landlord
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including but not limited to reasonable attorneys' fees) in connection with
the loss of life, personal injury and/or injury to property arising out of the use or
occupancy of the Premises by Tenant or those claiming through Tenant, excluding
actionable acts of negligence occurring on the Premises by Landlord or by Landlord's
agents or invitees. .
B. Landlord shall not be liable to Tenant or any other person for any defect in the
Premises, latent or otherwise, or for any damage caused thereby, whether direct or
consequential, unless the damage, loss or injury is caused by the willful act or
omission of Landlord. Landlord shall provide Tenant, upon written request within
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thirty(30) days following execution of this Lease, an affidavit that Landlord has no
actual knowledge of any material defects in the Premises.
C. Landlord shall fully indemnify and save Tenant harmless from and against any and all
claims, actions, damages, liabilities and expenses (including, but not limited to
Attorney's fees) in connection with the loss of life, personal injury and/or injury to
property arising out of the use of the Common Area, excluding actionable acts of
negligence occurring on the Common Area by Tenant or by Tenant's agents or
invitees.
14. REPAIRS:
A. Without limiting any other obligations imposed by this Lease on Tenant, Tenant shall
throughout any term of this Lease at its own expense and without any expense to
Landlord, keep and maintain the Premises including all improvements thereon and
appurtenances thereto in good, sanitary, neat order and condition or repair. Provided,
however, in the event any improvements are destroyed or damaged in whole or in part
by fire, casualty or other cause, the Tenant may elect to restore the improvements or
remove the same from the Premises at the Tenant's option without the obligation to
rebuild; provided that at the event of the removal of improvements Tenant shall also
remove any debris or other material, grade the affected portions of the Premises to a
level site. Landlord shall not be obligated to make any repairs, replacements or
renewals of any kind, nature or description whatsoever to the Premises or any
buildings or improvements thereon.
B. The damage, destruction or partial destruction of any building or improvement which
is part of the Premises shall not release Tenant from any obligation hereunder and
Tenant may not terminate this Lease for reason of such damage or destruction.
15. LIENS:
A. Tenant shall keep the Premises free and clear from any and all mechanics' and
materialmen's Jiens and other liens for and arising out of or in connection with work
or labor done, services performed or materials or appliances used or furnished in
connection with any operations of Tenant, any alteration, improvement, repairs or
additions which Tenant may make or permit or caused to be made, or any work or
construction by, for or permitted by Tenant on or about the Premises, or any
obligations of any kind incurred by Tenant.
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B. If Tenant desires to contest any such lien, it shall notify Landlord of its intention to do
so thirty (30) days after receipt of actual notice of the filing of such lien. In such case
and provided that Tenant shall on demand (in the event a suit is filed to enforce such
lien) protect Landlord by good and sufficient surety bond against such lien and any
costs, liability, or damages arising out of such contest, Tenant shall not be in default
hereunder until ten (10) days after the final determination or validity thereof, within
which time Tenant shall satisfy and discharge such lien to the extent held valid. In the
event of any such contest, Tenant shall protect and indemnify Landlord against all
loss, reasonable expenses and damage resulting therefrom.
16. RELEASE OF USE FROM LIABILITY: Tenant agrees that, upon sale or transfer of the
Premises by Landlord, Tenant releases Landlord from all liability or obligations to the
extent the same accrues after the closing of such sale or transfer and to look solely to
Landlord's successor as to such obligations, provided however, that any such sale or
transfer shall otherwise be fully subject to this Lease.
17. SURRENDER OF LEASED PREMISES: At the expiration of the term of this Lease or
any renewals thereof, or in the event of a termination of this Lease pursuant to the default
provisions of Exhibit E—F, Tenant shall, in Tenant's sole discretion, within thirty (30)
days of said expiration or termination, elect to either remove or leave all improvements
on the Premises, which election shall be made by written notice to Landlord. If written
notice of an election is not given by Tenant within said thirty(30) day period then Tenant
shall be deemed to have, by default, elected to leave all improvements located on the
Premises. If Tenant, by either written notice or default, elects to leave all improvements
on the Premises, then Landlord, at Landlord's sole election may, but shall not be required
to, take possession and/or ownership of any and all improvements or Landlord may
require Tenant to remove, at Tenant's expense, any or all improvements of which
Landlord elects not to take possession and/or ownership. If written notice of an election is
not given by Landlord within sixty (60) days of said expiration or termination, then
Landlord shall be deemed to have, by default, elected to take possession and ownership
of all improvements located on the Premises.
If Tenant is to remove improvements from the Premises the same must be completed
within,ninety (90) days from said expiration or termination and in the event of a complete
removal of all improvements, Tenant shall grade and restore the Premises to a level state.
The term "improvements" as used in this paragraph 17 shall not be deemed to include
paving, curb and gutter, drop inlets or utilities located outside the perimeters of exterior
walls of buildings located on the Premises. If Tenant is obligated hereunder to remove
16
improvements and Tenant fails to timely do so then Landlord may cause the same to be
removed at the expense of Tenant.
18. MEMORANDUM OF AGREEMENTS: Upon the request of either party, Landlord and
Tenant agree to execute, acknowledge and record a short form memorandum of this
Agreement. Recording fees shall be shared equally by Landlord and Tenant.
19. ESTOPPEL CERTIFICATE: Tenant and Landlord each agree within thirty (30) days
following request from the other to furnish a certificate in the form reasonably requested
by the party making the request specifying whether this lease has been amended and, if so
the dates of such amendments, the term and rent payable hereunder, stating that the party
making the request is not in default hereunder or, alternatively specifying the defaults, if
any, alleged by the party receiving the request, that this lease is in full force and effect,
the date to which the rent has been paid, the amount of any security deposit hereunder,
and such other matters as either party may reasonably request of the other.
20. TRADE FIXTURES,MACHINERY AND EQUIPMENT: Except as otherwise provided
in this Agreement, Landlord agrees that all trade fixtures, trade machinery, trade
equipment, furniture or other similarly movable personal property kept on the Premises
by Tenant or by Tenant's subtenants or assignees shall not become the property of
Landlord or a part of the realty no matter how affixed to the Premises and may be
removed by Tenant or Tenant's subtenants or assignees, in their discretion, at any time
and from time to time during the entire term of this Agreement. Landlord waives, in favor
of such vendors, lessors, chattel mortgagees or any holders or owners, any lien, claim,
interest or other rights superior to that of such vendors, lessors, chattel mortgagees,
owners or holders. Upon the request of Tenant or Tenant's assignees or any subtenant,
Landlord shall execute and deliver any real estate consent or waiver forms submitted by
any vendors, lessors, chattel mortgagees or holders or owners of any trade, fixture,trade
machinery, trade equipment, furniture or other similarly movable personal property kept
on the Premises by any subtenant or assignee setting forth this waiver. Landlord shall
further acknowledge that property covered by such consent or waiver forms is personal
property and is not to become a part of the realty no matter how affixed to it, and that
such property may be removed from the Premises in a manner provided by law by the
vendors, lessors, chattel mortgagees, owners or holders at any time upon default by the
subtenant or assignee in the terms of such chattel mortgage or other similar documents,
free and clear of any claim or lien of Landlord. If any such personal property is removed
from the Premises, Tenant and/or the party or entity effecting the removal shall repair any
damage done by the removal of these items.
21. NON-DISTURBANCE AND SUBORDINATION AGREEMENTS:
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Landlord agrees to provide Tenant with any reasonable Non-Disturbance Agreements or
other enforceable agreement reasonably deemed necessary by Tenant, covering any
lenders or underlying fee owners. Such Non-disturbance Agreements will provide that so
long as Tenant is not in default under this Agreement, Tenant shall not be disturbed in its
peaceful enjoyment of the Premises pursuant to the terms of this Agreement. Tenant
agrees to subordinate its leasehold estate to future mortgages or encumbrances of
Landlord only on the condition that the instruments creating such mortgages or
encumbrances contain an appropriate provision recognizing the existence of this
Agreement and agreeing that this Agreement shall not be terminated or otherwise
affected in the event of a foreclosure, sale or default under such mortgages or
encumbrances.
22. CONSENT:
A. Except where noted otherwise, where Landlord's approval or consent is required
under this Agreement, such consent shall not be unreasonably withheld or delayed,
and a demand for additional rent constituting modification of the terms of this
Agreement shall be deemed unreasonable. In the event Landlord fails to respond to a
request for consent within 30 days after receipt of written demand and such consent
request notes the automatic approval provision of this Agreement, such request shall
be deemed granted. If, within such 30 day period, Landlord shall reasonably request
additional documentation or information, Landlord shall have an additional 30 days
after receipt thereof in which to respond.
B. Except where noted otherwise, when Tenant's approval or consent is required under
this Agreement, such consent shall not be unreasonably withheld or delayed, and a
demand for modification of the terms of this Agreement shall be deemed
unreasonable. In the event Tenant fails to respond to the request for consent within 30
days after receipt of written demand and such consent request notes the automatic
approval provision of this Agreement, such request shall be deemed granted. If,
within such 30 day period, Tenant shall reasonably request additional documentation
or information, Tenant shall have an additional 30 days after receipt thereof in which
to respond.
23. TAX MATTERS:
A. NO PARTNERSHIP: The parties expressly recognize and agree that for Federal,
State and local income tax purposes the relationship between Landlord and Tenant
shall be treated as the relationship between a lessor and lessee. Nothing contained
18
herein shall be construed as creating a partnership,joint venture or joint employer
relationship for Federal, State or local income tax purposes.
B. OWNERSHIP OF IMPROVEMENTS: For the term of this Lease, and any renewal
term, Tenant shall be treated for Federal, State and local income tax purposes as the
owner of all improvements on the Premises to the extent Tenant has paid for the
same, with said calculation to include without limitation (i) Tenant's payments for
site preparation, (ii) Tenant's payments for engineering and architectural services, and
(iii) Tenant's payments for permits and approvals. Tenant shall likewise be treated for
Federal, State and local income tax purposes as the owner of all alterations and
additions constructed by Tenant. Tenant shall likewise be treated for Federal, State
and local income tax purposes as the owner of all trade fixtures, machinery,
equipment, furniture and other personal property of whatever kind or nature kept or
installed in the Premises by Tenant. Landlord shall be treated for Federal, State and
local income tax purposes as the owner of all improvements which are not allocable
to Tenant pursuant to the aforesaid to the extent Landlord has paid for the same.
Landlord and Tenant agree that each party shall be entitled to all depreciation and
amortization deductions with respect to the portion of the improvements for which
such party is treated as the owner.
24. MICELLANEOUS PROVISIONS:
A. INVALIDITY: If any term or provision of this Agreement or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons
whose circumstances are other than those as to which it is held invalid or
unenforceable, shall not be affected.
B. SUCCESSORS: The terms, conditions and covenants of this Agreement shall be
binding upon and shall inure to the benefit of each of the parties to this Agreement,
their successors or assigns, and shall run with the land, except as herein otherwise
provided.
C. MODIFICATIONS: No waivers, alterations, amendments or modifications of this
Agreement or any agreements in connection with this Agreement shall be valid unless
in writing duly executed by both Tenant and Landlord.
D. CONSTRUCTION: The captions appearing in this Agreement are inserted only as a
matter of convenience and in no way define, limit, construe or describe the scope or
19
intent of such paragraphs of this Agreement or in any way affect this Agreement. Any
gender used shall be deemed to refer to any other gender more grammatically
applicable to the party to whom such use of gender relates. The use of the singular
shall be deemed to include the plural and, conversely, the plural shall be deemed to
include the singular. This Agreement is the product of mutual negotiations between
Tenant and Landlord, and its terms shall not be construed more harshly against one
party than the other solely as a matter of judicial construction.
E. NOTICE: If, at any time after the execution of this Agreement, it shall become
necessary or convenient for one of the parties to serve any notice, demand or
communication upon the other party, such notice, demand or communications shall
be in writing, signed by the party giving such notice, demand or communication
deposited in the certified United States mail, return receipt requested, postage prepaid
and (a) if intended for Tenant, shall be addressed to:
Mr. Gordon Sutton
Tiger Fuel Company
P.O. Box 1607
Charlottesville, VA 22902
ATTENTION: Gordon Sutton
and (b) if intended for Landlord, notices shall be addressed to:
Southcreek Investments, LLC
Mr. Frayser F. White, III
1100 Harris St.
Charlottesville, VA 22903
Or to such other address as either party may have furnished to the other in writing as
a place for the service of notice. Any notice so mailed shall be deemed to have been
given as of the time it is deposited in the United States mail.
F. FORCE MAJEURE: If there shall occur any strikes, lock-outs or labor disputes,
inability to obtain adequate sources of energy, products, supplies, labor, materials or
reasonable substitutes therefore, acts of God, governmental restrictions, regulations,
requests, orders, guidelines or programs, enemy or hostile governmental action, riot,
civil commotion, fire or other casualty or any other conditions, whether similar or
dissimilar to those enumerated above, which are beyond the reasonable control of any
party to this Agreement and not due to the fault or negligence of such party, such
20
conditions shall be deemed "Unavoidable Delays." In the event either party shall, as a
result of any Unavoidable Delays, fail to punctually perform any obligations (except
for the payment of monetary obligations) specified in this Agreement and give written
notice to the other party of such Unavoidable Delays within 10 days of their
occurrence, then such failure shall not be deemed a breach or default and the
applicable time periods in which to perform shall be extended, but only to the extent
and for the period occasioned by such Unavoidable Delays.
G. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision.
H. GOVERNING LAW: Interpretation of this Agreement shall be governed by the laws
of the Commonwealth of Virginia.
I. ENTIRE AGREEMENT: This Agreement sets forth the entire agreement and
understanding between the parties with regard to the Premises and supersedes all
prior oral or written agreements, commitments or understandings with respect thereto.
This Agreement is for the benefit of the parties to this Agreement and not for the
benefit of any other party.
J. REMEDIES CUMULATIVE: The remedies provided in this Agreement are
cumulative, and shall not affect, in any manner, any other remedies that any party
may have for any default or breach by the other party. The exercise of any right or
remedy shall not constitute a waiver of any other right or remedy under this
Agreement or provided by law or equity.
K. WAIVER: Any failure by either party to notify the other of a violation, default or
breach of this Agreement, or to terminate this Agreement as a result thereof, shall not
constitute a waiver of such violation, default or breach, or a consent, acquiescence or
waiver of any later violation, default or breach, whether of the same or of a different
character. In the event the default agreement set forth in the attached Exhibit E—F
gives Landlord the right to terminate as the result of a condition of default by Tenant,
then Landlord may at any time thereafter in a series of successive acts of acceleration,
which acts of acceleration shall not occur sooner than one year apart, accelerate up to
twelve (12) months unpaid rent; provided, however, that accelerations for unpaid rent
shall not extend to unpaid rent beyond the applicable term or renewal term. Nothing
herein shall relieve Landlord of its obligation to mitigate its damages.
L. HOLDING OVER: If Tenant continues to occupy the Premises after the last day of
the term or last applicable renewal term of this Agreement and Landlord elects to
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accept rent thereafter, a tenancy from month-to-month only shall be created, and for
any longer period and may be terminated by either party on 30 days written notice.
25. ADDENDA AND EXHIBITS: This Agreement includes the following Addenda and/or
Exhibits, which shall take precedence over conflicting provisions (if any) of this
Agreement, and are made an integral part of this Agreement and fully incorporated by
reference:
Exhibit A: Legal Description of the Premises
Exhibit B: Site Plan - - Tenant's Premises
Exhibit C: Site Plan—Common Area Plan
Exhibit D: intentionally left blank
Exhibit E —F: Default by Tenant and Landlord's Remedies and Default by Landlord and
Tenant's Remedies
Exhibit G: Eminent Domain
Exhibit H: Assignment of Lease by Landlord and Assignment and Subletting by Tenant
Exhibit I: Insurance
Exhibit J: intentionally left blank
Exhibit K: Conceptual Site Plan
26. First Right of Refusal: If Landlord receives a bona fide offer to buy, lease or trade all or
any part of the Premises which Landlord desires to accept, Landlord shall immediately
notify Tenant of the terms and provisions of the offer, giving Tenant a copy thereof.
Tenant shall have the prior exclusive option to buy or lease the premises at the same price
and on the same terms and conditions as contained in such offer. Tenant shall have 30
days from receipt of notice to notify landlord in writing if it elects to exercise this option.
If Tenant fails to notify landlord within said 30 day period, Tenant shall be deemed to
have elected not to exercise said option. If Tenant does exercise said option, Landlord
shall execute the contract of sale for the premises within 30 days thereafter, and the
transaction shall be closed as soon as reasonably practicable. Tenant's "first refusal"
option shall run with the land and continue in force until 30 days after the termination of
this agreement. This Right of First Refusal will not apply to any transfer of the land to an
entity controlled by the Landlord or the immediate family of Frayser F. White, III.
•
22
LANDLORD and TENANT, by their execution below, indicate their consent to the terms
of this Agreement:
Southcreek Investments, LLC.
Date: 8 ZG ►/ .. BY: (SEAL)
Frayser F. White, III, President
Landlord's Federal Tax I.D. #
Tiger Fuel Company
Date: ?.6 BY: ,/�� 6), // (SEAL)
t, .
David G. Sutton, President
Tenant's Federal Tax I.D. #
STATE OF VIRGINIA:
CITY/COUNTY OF Charlottes v,1 k ; to-wit:
The foregoing instrument was acknowledged before me this Z6t1I day of
Q ug+- , 2016, by Southcreek Investments, LLC., a Virginia LLC, Landlord, by
Frayser F. White, IV, its Vice-President.
My Commission expires: i�,siNAgy�•
Aug 31s 1 2ozo a,w ,,........, w
Notary Public �!r PueLIC G
REG.07380823
MY COMMI$SlOI4'
STATE OF VIRGINIA: E >rir
CITY/COUNTY OF (r(a f ,yi Il c ; to-wit: 4LT14 Of
The foregoing instrument was acknowledged before me this 2647 day of
auy st- , 2016, for Tiger Fuel Company, Tenant, by David SwF+ol •
My Commission expires:0o�NNA'S••••••ry
�'9 3 ..
1sf, 2ozo ,� P............ . ••.4
f' i
.' PUBLIC . '�4=�21 Notary Public
. c;
s ' REG.07360825
t •MY COMMISSION e i
o EXPIRES s
%"#„, .,.08/31/2020 d` r`
Exhibit E —F
Default by Tenant and Default by Landlord
and Remedies
(a) The following shall constitute events of default under this lease:
(i) Whenever Tenant shall, knowingly or unknowingly, do, or permit anything to be
done, whether by action or inaction, contrary to any of the covenants, agreements,
terms or provisions of this Lease, or shall fail in the keeping or performance of
any of the covenants, agreements, terms or provisions contained in this Lease
which on the part or on behalf of Tenant are to be kept or performed and Tenant
shall fail to remedy the same within thirty (30) days after Landlord shall have sent
to Tenant a written notice specifying same with respect to defaults under
Paragraphs 3 (Rent), 7F. (Tenant's Share of Common Area Expenses), 11. (Real
Estate Taxes), 12. (Utilities) or 13. (Indemnification) or defaults under Exhibit I
(Insurance) and for all other defaults, Tenant shall not have commenced and
continued to diligently pursue such cure within such thirty(30) days (hereafter
described as an uncured default).
(ii) Whenever any involuntary petition shall be filed against Tenant under any
bankruptcy or insolvency law or under the reorganization provisions of the United
States Bankruptcy Act or any law of like import, or a receiver or Trustee of
Tenant or of the assets of Tenant shall be appointed, and such action or
appointment(c) shall continue and shall not be dismissed within ninety (90) days
after the happening of such event; or
24
(iii) Whenever Tenant shall make an assignment of the property of Tenant for the
benefit of creditors or shall file a voluntary petition under any bankruptcy or
insolvency law or any law of like import, or whenever Tenant shall desert or
abandon or fail to occupy and operate the Premises. Tenant shall not be deemed to
have deserted, abandoned or failed to occupy and operate the Premises by its mere
failure to physically occupy the same or by its suspension of operations on the
Premises so long as Tenant continues to discharge Tenant's obligations under this
lease.
(b) In the event there is a good faith disagreement between Landlord and Tenant as to the
existence of a default or the cure thereof,either Landlord or Tenant may cause the
dispute to be submitted to arbitration pursuant to the rules of the American
Arbitration Association. Tenant shall not be deemed in default hereunder during the
thirty(30) day cure period specified in Section (a)(i) above nor during which such
arbitration is pending; provided that at any time after the initial thirty(30) day cure
period either party may give the other party written notice that if the disagreement is
not resolved within fifteen(15) days the matter will be submitted to Arbitration.
(c) In the event of default or breach under this Lease by Tenant, Tenant shall be
responsible for any reasonable expenses, including reasonable attorney's fees, losses
and damages incurred by Landlord be reason of such default. In the event of a default
. or breach of this Lease by Landlord, Landlord shall be responsible for any reasonable
33ti,
attorney's fees, losses and damages incurred by Tenant by reason of such default or
breach.
Y i tv•.;.
AiM(101:1"J
2
Exhibit G
Eminent Domain
Subject to paragraph(d) below, if title to the entire or any part of the Premises shall be
taken for any public or quasi-public use under a statute or by any right of eminent domain, or by
private purchase by a public or quasi-public entity in lieu thereof, the amount that may be
awarded for the take and/or as damages or otherwise received as a result of any such
condemnation proceedings, or the purchase price received, shall be apportioned between
Landlord and tenant in an equitable manner which recognizes that the Tenant is the beneficial
owner of the Facilities and the Landlord is the owner of the land constituting the Premises; and
in addition:
(a)(1) In the event any portion of the building located on the Premises shall be so taken,
this lease shall terminate on the earlier of the date that title shall vest in the condemnor or in the
purchaser in the case of a private purchase by a public or quasi-public entity, as the case may be,
or such later date as Landlord and tenant may agree.
(a)(2) In the event no portion of the building located on the Premises shall be so taken
but some other portion of the Premises shall be taken such that the remainder of the Premises is
not reasonably suitable for the Tenant's occupancy thereof, this lease shall terminate on the
earlier of the date that title shall vest in the condemnor or in the purchaser in the case of a private
purchase by a public or quasi-public entity, as the case may be, or such later date as Landlord
and Tenant may agree. The determination of whether the remainder of the Premises is not
reasonably suitable for Tenant's occupancy shall be reasonably made by Tenant and written
notice thereof shall be sent to Landlord within thirty (30) days of Tenant's receipt of notice of
1
the taking. Tenant agrees, however, to make reasonable adjustments and accommodations in
order to render the remainder of the Premises reasonable suitable for Tenant's occupancy.
(b) In the event that a part of the Premises shall be taken such that the remainder of the
Premises is reasonably suited for Tenant's continued occupancy, the monthly rent hereunder
shall thereafter be reduced form the date of such taking in an amount to be agreed upon in
writing by the Landlord and Tenant, or if such agreement is not reached within two (2) months
after the taking, then the amount of reduction shall be determined by arbitrators. Except as
otherwise provided, this lease and all payments required to be made by Tenant hereunder shall
remain in full force and effect.
(c) Nothing contained in subparagraphs (a) and (b) of this section shall be construed to
prevent Tenant from interposing or prosecuting in any condemnation proceedings claims for the
value of any fixtures or improvements installed in or made to the Premises by Tenant and from
receiving and retaining the proceeds of any such claim.
(d) If the whole or any part of the Premises or if Tenant's interest in this leas shall be
taken in condemnation proceedings or by any right of eminent domain for a temporary use or
occupancy, the term of this lease shall not be reduced or affected in any way and Tenant shall
continue to pay in full the rent, additional rent and other charges herein reserved, without
reduction or abatement, in the manner and at the times herein specified and, except only to the
extent that Tenant is prevented from so doing by the condemning authority, Tenant shall
continue to perform and observe all the other covenants, agreements, terms and provisions of this
lease as though such taking had not occurred. In the event of any such taking for temporary use
or occupancy, Tenant shall be entitled to receive the entire amount of any award made for such
2
taking whether such award is paid by way of damages, rent or otherwise, unless such period of
temporary use or occupancy shall extend beyond the expiration date of the term of this lease in
which case such award, after payment to Landlord therefrom of the estimated cost of restoration
of the Premises, to the extent that any such award is intended to compensate for damages to the
Premises, shall be apportioned between Landlord and Tenant as of such date of expiration in the
same ratios that the part of the entire period for which such compensation is made falling before
the date of expiration and that part falling after, bear to such entire period.
(e) Neither Landlord nor Tenant shall settle or compromise any eminent domain
proceeding or make a voluntary conveyance in lieu thereof, without written notice to and consent
from the other party.
3
Exhibit H
Assignments and Subletting
A. Tenant may not assign this lease nor sublet all or any part of the Premises without
Landlord's prior written consent which shall not be unreasonably withheld.
B. Except as limited in Paragraph 7.J. of the Agreement(concerning a transfer or
assignment by Landlord of Landlord's responsibility with respect to the Common Area)
Landlord may freely assign this Agreement without the consent of Tenant provided
however that Landlord at the time of the assignment is not in default under this
Agreement and provided that Landlord gives Tenant written notice of the assignment
within thirty(30) days of the effective date of same. Tenant agrees to attorn to Landlord's
assignee.
1
Exhibit I
INSURANCE
Tenant agrees to maintain, at its sole cost and expense, the following insurance:
FIRE AND EXTENDED COVERAGE: Tenant agrees to insure and keep insured, from
the date of actual possession, the Facility and its fixtures and contents, against loss or damage by
fire and other hazards normally covered by standard fire and extended coverage policies for not
less than 100% of their replacement value.
GENERAL LIABILITY: Tenant shall obtain and keep in force, at its own expense and
for the mutual benefit of Landlord and Tenant, General Liability Insurance against claims or
suits for bodily injuries, including death therefrom, and property damage, and including product
liability, if applicable, and related environmental hazards, if applicable, on the Premises in an
amount not less than a single limit of liability of$4,000,000.00 per occurrence, including
umbrella coverage. The required amount of insurance shall increase every five years by the
percentage increase in the Bureau of Labor Standards consumer price index—urban (CPI-U).
INSURANCE COMPANIES: Tenant shall maintain all insurance in responsible
insurance companies licensed in Virginia, with no less than"A" financial rating and size
category of"X" as set by Best's Key Rating Guide.
CERTIFICATES OF INSURANCE: Tenant shall deliver to Landlord a certificate of all
insurance prior to the commencement of operations by Tenant and as required by Landlord from
time to time during the term of the Agreement. Each policy shall contain a provision that it may
not be cancelled, terminated or modified without 30 days prior written notice to Landlord.
1
NO LIMITATION OF LIABILITY: In the event of the failure of Tenant either to effect
such insurance as provided herein, or to pay the premiums therefor when required, or to deliver
such policies or certificates to Landlord, Landlord shall be entitled, but shall have no obligation,
to effect such insurance and pay the premiums therefor, which shall be repayable to Landlord
with the next monthly installment of rent as additional rent.
OPTION TO SELF-INSURE WITH LANDLORD'S CONSENT: Tenant shall have the
option, at anytime during the initial term or during renewal terms, to self-insure in whole or in
part, upon the prior written consent of Landlord which consent shall not be unreasonably
withheld.
2
FOR OFFICE USE ONLY SP#
Fee Amount$ Date Paid By who° Receipt H Ck# By
-t+ry
Resubmittal of information fortv
y'
Special Use Permit
rrz pyt
PROJECT NUMBER THAT HAS BEEN ASSIGNED: SP2019-00006
Owner/Applicant Must Read and Sign
1 hereby certify that the information provided with this resubmittal is what has been requested from staff
Ir2,071_
.2#21 ` 12/10/2019 _
Signature of Owner, Contract Purchaser Date
Gordon Sutton t( q- 3(7 " C2-
Print Name Daytime phone number of Signatory
FEES to be paid after application
For original Special Use Permit fee of$1,075
❑ First resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) Free
❑ Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $538
For original Special Use Permit fee of$2,000
m First resubmission(TO BE PAID WHEN TIIE RESUBMISSION IS MADE TO INTAKE STAFF) Free
❑ Each additional resubmission(TO BE PAID WHEN THE RESUBMISSION IS MADE TO INTAKE STAFF) $1,075
e TifItJMMU
'3M9OJ3V3
County of Albemarle Department of Community Development
401 McIntire Road Charlottesville, VA 22902 Voice: (434) 296-5832 Fax: (434) 972-4126
Revised 11/2/2015 Page 1 of 1