HomeMy WebLinkAboutWPO202200027 Correspondence 2022-12-20 (2)Instrument Control Number
15262
Commonwealth of Virginia
Land Record Instruments
Cover Sheet - Form A
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[ILS VLR Cover Sheet Agent 1.0.66]
Recorded: 312%22%2oo82 atT11e43:31 AM
Fee Amt. $36.00 Pape 1 of 27
T C
Date of Instrument: [12/5/2008 ]
Albemarle County VA
Debra M. Shipp clerk
File# 2008-00015362
X R
Instrument Type: [DEC ]
BK3672 P6148-174
P
E
Number of Parcels [ 11
x
Number of Pages [ 25]
E
M
City ❑ County [xj [Albemarle County
] (Box for Deed Stamp Only)
P
First and Second Grantors
T
Last Name
First Name
Middle Name or Initial Suffix
[ALBEMARLE HOTEL LL¢[
] [ ] [ ]
❑ ❑
[TAP INVESTMENTS LLq [
First and Second Grantees
Last Name
First Name
I Middle Name or Initial Suffix
❑ ❑
[ALBEMARLE HOTEL LL¢[
] [ ] [ ]
❑ ❑
[TAP INVESTMENTS LLq [
] [ ] [ ]
Grantee Address (Name)
[NA
]
(Address 1)
[NA
]
(Address 2)
[NA
]
(City, State, Zip)
[NA
] [VA ] [NA ]
Consideration [0.00 ] Existing Debt [0.00
] Assumption Balance [0.00 ]
Prior Instr. Recorded at: City ❑ County ❑ [ ] Percent. in this Juris.
Book [ ] Page
Parcel Identification No (PIN)
Tax Map Num. (if different than PIN)
Short Property Description
Current Property Address (Address 1)
(Address 2)
(City, State, Zip)
Instrument Prepared by
Recording Paid for by
Return Recording to (Name)
(Address 1)
(Address 2)
(City, State, Zip)
Customer Case ID
Cover Sheet Page # 1 of 2
[ ] Instr. No [
[07800-00-00-00900 & 07800-00-00-009BO
[same
[Lots B, C & D
[
[
[McCallum & Kudravetz PC
[McCallum & Kudravetz PC
[McCallum & Kudravetz PC
[250 E High Street
I
[Charlottesville
[02000.1662 ] [
][VA ][22902
Instrument Control Number
T G G C
A R R O
X A A R
N N P
E T T
X O E
E R E
M
P
T
Commonwealth of Virginia
Land Record Instruments
Continuation Cover Sheet
Form B
[ILS VLR Cover Sheet Agent 1.0.661
Date of Instrument: 11215/2008 ]
Instrument Type: [DEC ]
Number of Parcels [ 11
Number of Pages [ 25]
City ❑ County x❑ [Albemarle County ] (Box for Deed Stamp Only)
Grantors/Grantees/Parcel Continuation Form B
Last Name First Name I Middle Name or Initial Suffix
Li LXj LJ LxJ [GUADALAJARA COR ] [ ] [ ] [
❑ ❑ ®❑ [GUADALAJARA COR ] [ ] [ ] [
❑❑❑❑ [ ][ ][ 1[
❑❑❑❑ [ ][ ][ 1[
❑❑❑❑ [ 1[ ][ ][
❑❑❑❑
El El [ 1[ ][ ][
El El [ ][ I[ ][
❑❑❑❑ [ ][ 1[ I[
El El [ 1[ ][ 1[
El El [ 1[ 1[ ][
❑❑El❑ [ ][ 1[ 1[
❑❑❑❑ [ 1[ 1[ ][
❑D❑El [ I[ 1[ 1[
❑❑❑❑
❑❑❑El [ 1[ I[ ][
Prior Instr. Recorded at: City ❑ County ❑
Book [ ] Page [
Parcel Identification No (PIN) [
Tax Map Num. (if different than PIN) [
Short Property Description [
Current Property Address (Address 1) [
(Address 2)
(City, State, Zip)
Cover Sheet Page # 2 of 2
] Percent. in this Juris.
Instr. No [
i5362
TMP # 07800-00-00-00900 & 07800-00-00-009BO
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS
THIS DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS
("Declaration") is made and entered into as of the 5th day of Decembv2008, among
ALBEMARLE HOTEL, LLC, a Virginia limited liability company ("Albemarle") (index as a
"grantor" and "grantee"); TAP INVESTMENTS, LLC, a Virginia limited liability company
("TAP") (index as "grantor" and "grantee"); and GUADALAJARA CORPORATION, IV, a
Virginia corporation ("Guadalajara") (index as a "grantor" and "grantee").
RECITALS:
A. Albemarle is the owner of that certain parcel of land located in Albemarle County,
Virginia, identified as "Lot D A Portion of Parcel 9, 104,424 SF, 2.40 Acres" (herein, "Lot D")
on that certain subdivision plat (the "Subdivision Plat") entitled "PLAT SHOWING
SUBDIVISION AND BOUNDARY ADJUSTMENT OF TAX MAP 78 PARCELS 9 & 11,
TOWN AND COUNTRY COMMERCIAL," dated October 4, 2007, last revised on February
12, 2008, prepared by Dominion Development Resources, LLC, Charlottesville, Virginia,
attached to and recorded with a Certificate of Plat recorded in the Clerk's Office of the Circuit
Court of the County of Albemarle (the "Clerk's Office") in Deed Book 3657, Page 564.
B. TAP is the owner of that certain parcel of land located in Albemarle County,
Virginia, identified on the Subdivision Plat as "Lot C, A Portion of Parcel 9, 55,421 SF, 1.27
Acres" (herein, "Lot C").
C. Albemarle is the owner of that certain parcel of land identified on the Subdivision
Plat as "Residue of TMP 78-9 Albemarle Hotel, LLC, DB 2533-201, DB 1965-32, DB 1911-
359, Zoned HC-EC, Current Use Vacant" (herein, the "TMP 78-9 Residue Lot").
D. Guadalajara is the owner of that certain parcel identified as "Lot B, A Portion of
Parcel 9, 33,598 SF, 0.77 Acres" (herein, "Lot B") on that certain subdivision plat entitled "Plat
Showing Subdivision of Tax Map 78 Parcel 9, Rivanna District, Albemarle County, Virginia"
dated October 24, 2005, last revised January 17, 2006, prepared by Dominion Development
Resources, LLC, recorded in the Clerk's Office in Deed Book 3339, Page 701.
E. In order to ensure the orderly development and use of Lot B, Lot C and Lot D
(collectively, the "Development Area") Albemarle, TAP, and Guadalajara desire to enter into
certain covenants and agreements benefiting and burdening the Development Area and to
establish certain easements, in, to, under, over, and across certain portions of the Development
Area, as more particularly set forth herein.
1
NOW. THEREFORE, in consideration of the premises, the covenants and agreements
hereinafter set forth and in furtherance of the parties understanding, it is declared and agreed as
follows:
ARTICLE I
1.1 Building. 'Building' shall mean any enclosed structure placed, constructed or
located on a Parcel, which for the purpose of this Declaration shall include any appurtenant
canopies, supports, overhangs, footings, loading docks, truck ramps and other outward
extensions.
1.2 Parcel. "Parcel" (individually) or "Parcels" (collectively) shall mean Lot B, Lot C
and Lot D and any future subdivisions thereof or additions thereto.
1.3. Parcel Use Area. 'Parcel Use Areas" shall mean all areas within the exterior
boundaries of a Parcel excluding Buildings, but including, without limitation, the parking areas,
lanes, drives, entrances, truck passageways, sidewalks, ramps, stairways, landscaped and other
unpaved areas located on the Parcel.
1.4 Constant Dollar. "Constant Dollars" means the present value of the dollars to
which such phrase refers. An adjustment shall occur on January 1 of the sixth calendar year
following the date of this Declaration, and thereafter at five (5) year intervals. Constant Dollars
shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator
of which is the Current Index Number and the denominator of which is the Base Index Number.
The 'Base Index Number" shall be the level of the Index for the month during which the
Declaration is dated; the "Current Index Number" shall be the level of the Index for the month of
September of the year preceding the adjustment year; the 'Index' shall be the Consumer Price
Index for All Urban Consumers, U.S. City Average, All items (CPI-U) published by the United
States Department of Commerce (base year 1982-84=100). or any successor index thereto as
hereinafter provided. If publication of the Index is discontinued, or if the basis of calculating the
Index is materially changed, then there shall be substituted for the Index comparable statistics as
computed by an agency of the United States Government or, if none, by a substantial and
responsible periodical or publication of recognized authority most closely approximating the
result which would have been achieved by the Index.
1.5 Defaulting Party. "Defaulting Party" shall be as defined in Section 6.1(A).
1.6 Driveway. The term "Driveway" shall mean those certain improved driveways
and related driveway improvements, paving, curbing, entrances and exits within the
Ingress/Egress Easement Areas.
1.7 Occupant. "Occupant" shall mean any Person from time to time entitled to the
use and occupancy of any portion of a Parcel under an ownership right or any lease, sublease,
license, concession, or other similar agreement.
1.8 Pam. "Party" shall mean any Person who owns a fee simple interest in any
portion of a Parcel. No tenant of any portion of a Parcel, which is not an owner of a Parcel, shall
be a Party. Each Party shall be liable for the performance of all covenants, obligations and
undertakings herein set forth with respect to the portion of a Parcel in which such Party has an
ownership interest which accrue during the period of such ownership and such liability shall
continue with respect to any portion transferred until the notice of transfer set forth below is
given, at which time the transferring Party shall be released from the obligations of this
Declaration arising subsequent to the effective date on the transfer notice. If a Parcel is owned
by more than one Person, the Person or Persons holding at least 51 % of the ownership interest in
the Parcel shall designate one of their number to represent all owners of the Parcel and such
designated Person shall be deemed the agent for all of the Persons owning an interest in such
Parcel.
1.9 Permittee. "Permittee" shall mean all Occupants and the officers, directors,
employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees,
subtenants, and concessionaires of Occupants insofar as their activities relate to the intended
development, use and occupancy of a Parcel.
1.10 Person. "Person" shall mean any individual, partnership, limited liability
company, firm, association, corporation, trust, or any other form of business or government
entity.
1.11 Utility Lines. "Utility Lines" shall mean those facilities and systems for the
transmission of utility services, including but not limited to sanitary sewers, storm drains, cable
TV, water (fire, domestic and irrigation), gas, electrical, telephone and communication lines.
ARTICLE Il
EASEMENTS
Subject to any express conditions, limitations or reservations contained herein, the Parties
hereby grant, establish, covenant and agree that the Parcels, and all Parties and Permittees of the
Parcels shall be benefited and burdened by the following nonexclusive and reciprocal easements
which are hereby imposed upon the Parcels and all present and future Parties and Permittees of
the Parcels:
2.1 Ingress and Egress.
(A) Ingress/Egress Easement Area. The Parties hereby grant and convey to
one another and Permittees of the Parcels a perpetual, non-exclusive easement for reasonable
access, ingress and egress over, across and through all paved driveways, roadways and walkways
located on those portions of the Development Area identified as "30' Access Easement &
Temporary Turnaround Easement DB 3339-701" on the Subdivision Plat (the "Ingress/Egress
Easement Area') including, without limitation, the Driveways, so as to provide for the passage
of motor vehicles and pedestrians (but not parking) between the Development Area and Town
and Country Lane as more particularly shown on the Subdivision Plat.
(B) Indemnification. Each Party and Occupant having rights with respect
to an easement granted hereunder shall indemnify and hold the Party whose Parcel is subject to
the easement and its Permittees (collectively, the "Indemnitees") harmless from and against all
claims, liabilities and expenses (including reasonable attorneys' fees) (collectively, "Loss")
relating to accidents, injuries, loss, or damage of or to any person or property arising from the
negligent, intentional or willful acts or omissions of such Party and Occupant, its contractors,
Permittees, employees, agents, licensees, invitees or others acting through or on behalf of such
Party or Occupant in using the easements described in this Declaration unless such Loss is the
result of the acts or omissions of the Indemnitee.
(C) Access Opening. The opening and access points contemplated
between the Parcels for use of the Driveways and such opening(s) and access point(s) between
the Parcels for use of the Driveways, as contemplated pursuant this Section 2.1 are hereinafter
called the "Access Openings." The Access Openings shall in no event be blocked, closed,
altered, changed or removed and shall at all times remain in place. There shall be maintained
between the Access Openings a smooth and level grade transition to allow the use of the
Driveways for pedestrian and vehicular ingress and egress as set forth in this Section 2.1.
(D) All of the easement rights granted pursuant to this Section 2.1 shall be
subject to the following reservations, as well as other provisions contained in this Declaration:
(i) Each Party reserves the right to close off its portion of the
Ingress/Egress Easement Areas for such reasonable period of time as may be legally necessary,
in the opinion of such Party's counsel, to prevent the acquisition of prescriptive rights by anyone;
provided, however, that prior to closing off any portion of the Ingress/Egress Easement Areas, as
herein provided, such Party shall give written notice to each other Party of its intention to do so.
and shall attempt to coordinate such closing with each other Party so that no unreasonable
interference in the passage of pedestrians or vehicles shall occur;
(ii) Except as provided in clause (i) above, the Ingress/Egress
Easement Areas shall be available for use on a "24 hour a day," "365 days a year" basis (subject
to governmental regulations or restrictions, and temporary interruptions that are attributable to
ordinary maintenance of such areas by the Parties, provided that each Party shall at all times
proceed diligently to minimize any such interruption);
(iii) Each Party reserves the right at any time and from time to time to
exclude and restrain any Person who is not a Permittee from using the Ingress/Egress Easement
Areas on its Parcel;
(iv) Each Party agrees to take all reasonable actions, with respect to
their respective Parcel, to prevent use of the Ingress/Egress Easement Area located on its Parcel
to be used by persons who are not Permittees and to prevent unauthorized use of the
Ingress/Egress Easement Area by Permittees;
(v) Each Party and Occupant agrees to take all reasonable actions to
require that the Permittees of the Party or Occupant of its Parcel park only on the Parcel owned
by the Party and with respect to which the Occupant has occupancy rights; and
(E) Maintenance. The Ingress/Egress Easement Area shall be maintained as
follows:
(i) The owner of Lot D covenants at all times during the term of this
Declaration to operate and maintain or cause to be operated and maintained in good order,
condition and repair the Ingress/Egress Easement Area (collectively, the "Access Easement
Maintenance"). The Parties hereby grant and convey to the owner of Lot D a non-exclusive
easement for reasonable access, ingress and egress over, across and through those portions of the
Ingress/Egress Easement Area located on each Party's Parcel as may be required to perform the
Access Easement Maintenance. All such work shall be accomplished in an expeditious manner,
in compliance with all laws, rules, regulations, orders, permits, approvals and licenses of
governmental authorities having jurisdiction. The owner of Lot D and any Permittee undertaking
such work shall take reasonable measures to minimize any disruption or inconvenience caused
by such work and, except in the case of an emergency, shall give the Party whose Parcel is
affected by such work written notice a minimum of ten (10) days prior to commencing such
work. After performing any work in connection with Access Easement Maintenance, owner of
Lot D shall repair any damage resulting from the exercise of its rights to the same condition as
existed prior to the exercise of such rights. In addition, owner of Lot D shall promptly pay all
costs and expenses associated therewith and shall indemnify and hold the Party(ies) and
Occupants harmless from all liens, damages, losses or claims, including reasonable attorney's
fees, attributable to the performance of such work. The actual costs and expenses reasonably
incurred by owner of Lot D to perform the Access Easement Maintenance shall be shared
pursuant to subsection 2.1(E)(ii) below. The provisions of this Declaration, including those
pertaining to Access Easement Maintenance hereunder, shall be deemed to supercede any
maintenance provisions concerning the referenced "30' Access Easement & Temporary
Turnaround Easement" as set forth in that certain Deed dated December 12. 2006, between
Albemarle and Guadalajara, recorded in Deed Book 3339. Page 710 in said Clerk's Office (the
"Guadalajara Deed".
(ii) Each Party shall be obligated to reimburse the owner of Lot D for its
respective share ("Parcel Access Easement Share") of the actual costs and expenses incurred by
the owner of Lot D to perform the Access Easement Maintenance (collectively, the "Annual
Access Easement Maintenance Costs"), which Annual Access Easement Maintenance Costs may
include administrative fees or costs, not to exceed five percent of the costs for goods and
services, incurred by the owner of Lot D in administering the performance of such maintenance
duties. The Parcel Access Easement Share of a Party shall be equal to the product of the Annual
g
Access Easement Maintenance Costs for the preceding calendar year multiplied by a fraction, the
numerator of which is the square foot area of such Party's Parcel, and the denominator of which
is the square foot area of the Development Area less the square foot area of any Parcels that are
not Developed Parcels. Prior to January 31st of each year, the owner of Lot D shall determine
the Annual Access Easement Maintenance Costs for the preceding calendar year and shall
submit to each Party a signed statement of said Annual Access Easement Maintenance Costs and
the Parcel Share thereof due from each such Party, together with supporting invoices and
receipts, which Parcel Share shall be paid in full within thirty (30) days of receipt of such
statement. No Party shall be obligated to pay the Annual Access Easement Maintenance Costs
until the Party's Parcel has had improvements constructed thereon and a Certificate of
Occupancy for those improvements has been issued by the appropriate governmental authorities
("Developed Parcel(s)"). Notwithstanding the foregoing, in the event that the owner of Lot D
anticipates that the Annual Access Easement Maintenance Costs in any given year will exceed
$3,000, then the owner of Lot D may require the Parties to pay estimated Parcel Access
Easement Shares of the Annual Access Easement Maintenance Costs in advance upon thirty (30)
days of receipt of a billing statement from the owner of Lot D. If the amount paid by a Party for
such calendar year shall have exceeded its actual Parcel Access Easement Share, the owner of
Lot D shall refund the excess to such Party at the time the actual Annual Access Easement
Maintenance Cost is determined, or if the amount paid by a Party for such calendar year shall be
less than its share, such Party shall pay the balance of its share to the owner of Lot D within
thirty (30) days after receipt of such statement. Any partial year obligation to pay the Annual
Access Easement Maintenance Fee shall be prorated. The obligations herein shall run with the
land and be binding on any successors in title.
(F) Related Access Easement. A portion of the Development Area is further
served by a separate access easement shown and designated on the Subdivision Plat as "New 30'
Access Easement" providing access to and from Olympia Drive (the "Olympia Drive Access
Easement") located along the eastern boundary line of Lot D. The Olympia Drive Access
Easement, to serve Lot C, Lot D, and the adjacent property of Hurt Investment Company
("Residue of TMP 78-11" on the Subdivision Plat), is the subject of a separate Declaration of
Cross -Access Easement dated October 28, 2008, between Albemarle and Hurt Investment
Company, recorded in said Clerk's Office in Deed Book 3657, Page 584, and shall be governed
by the terms and conditions thereof and shall not be deemed a part of the Ingress/Egress
Easement Area hereunder or subject to Access Easement Maintenance hereunder.
2.2 Storm Water Easement.
(A) Albemarle and Guadalajara each hereby declare, establish and grant to
each other for the benefit of Lot B and Lot D, a permanent, non-exclusive easement through,
under and across that portion of the TMP 78-9 Residue Lot identified on the Subdivision Plat as
"New SWM Maintenance Easement" (the "Storm Water Easement Area') and "New 20' Access
Easement", for the offsite drainage of storm water runoff through all lines, conduits, pipes and
other apparatus for water drainage, and all storage systems necessary in connection therewith,
(collectively, the "Storm Water Facilities") to be installed by Albemarle in compliance with the
storm water management ordinance and regulations of the County of Albemarle and
ri
Commonwealth of Virginia and any applicable private regional stormwater agreements
(collectively, the "Stormwater Regulations"). Upon its written acceptance of the installed Storm
Water Facilities, such facilities shall be maintained by the owner of Lot D as set forth herein.
(B) Albemarle does hereby declare and establish a permanent, non-exclusive
easement through, under and across that portion of the TMP 78-9 Residue Lot identified as "New
20' Access Easement" on the Subdivision Plat (the "Storm Water Access Easement Area"), for
the purpose of providing reasonable ingress and egress to the Storm Water Facilities located on
the TMP 78-9 Residue as may be required to install, maintain, inspect and operate the same.
(C) The Storm Water Access Easement Area and Storm Water Easement Area
shall be subject to the following, as well as other provisions contained in this Declaration:
(i) After perforating any work in connection with operation,
maintenance, repair or replacement of the Storm Water Facilities, the owner of Lot D shall repair
any damage resulting from the exercise of the rights granted pursuant to the Storm Water
Easement and shall restore the Storm Water Easement Area to the same condition as existed
prior to the exercise of such rights. In addition, the owner of Lot D shall indemnify and hold the
other Party(ies) and Occupants harmless from all liens, damages, losses or claims, including
reasonable attorney's fees, attributable to the performance of such work.
(ii) The owner of the TMP 78-9 Residue Lot shall have the right to use
the Storm Water Access Easement Area for such other purposes as will not interfere with the
easement rights granted hereunder and such reservation of rights shall include the right to install
and maintain pavement, parking lots, driveways and landscaping over the Storm Water Access
Easement Area. In no event, however, shall any party be permitted to use the Storm Water
Easement Area for the drainage of storm water without the prior written consent of the owners of
Lot D and Lot B.
(iii) Subject to any separate cost sharing agreements, the owner of the
TMP 78-9 Residue Lot shall install the Storm Water Facilities at its own cost and expense. Upon
the written acceptance of the Storm Water Facilities, the owner of Lot D shall maintain, repair
and replace, or cause to be maintained, repaired and replaced, the Storm Water Facilities as may
be reasonably necessary to keep them in good condition, functioning properly and in compliance
with the Stormwater Regulations and any applicable private regional stormwater agreements
(collectively, the "Storm Water Facility Maintenance"). The actual costs and expenses
reasonably incurred at competitive rates by the owner of Lot D to perform the Storm Water
Facility Maintenance shall be shared pursuant to subsection 2.2(C)(iv) below. Because Lot C
will not be served by the Storm Water Facilities hereunder but will instead be served by
alternative private drainage lines and related stormwater drainage structures through and across
the adjacent property of Hurt Investment Company as more particularly shown on that certain
amended drainage easement plat entitled "Plat Showing Drainage Easements For Tax Map 78,
Parcels 9C, 9D & 11 Town And Country Commercial, Rivanna District, Albemarle County,
Virginia" dated September 12, 2008, prepared by Dominion Development Resources, LLC,
recorded in Deed Book 3665, Pages 100-114 in said Clerk's Office, Lot C shall not be subject to
7
assessment for a pro rata share of Storm Water Facility Maintenance hereunder and shall have no
rights under the storm water easement created in this section 2.2.
(iv) Each Party shall be obligated to reimburse the owner of Lot D for
its respective share ("SWF Maintenance Parcel Share") of the actual costs and expenses
reasonably incurred at competitive rates by the owner of Lot D to perform the Storm Water
Facility Maintenance (collectively, the "Annual SWF Maintenance Costs"). which Annual SWF
Maintenance Costs may include administrative fees or costs, not to exceed five percent of the
costs for goods and services, incurred by the owner of Lot D in administering the performance of
such maintenance duties. The SWF Maintenance Parcel Shares for the Annual SWF
Maintenance Costs are as follows:
Parcel B 25%
Parcel D 75%
Prior to January 31st of each year, the owner of Lot D shall determine the Annual SWF
Maintenance Costs for the preceding calendar year and shall submit to each Party a signed
statement of said Annual SWF Maintenance Costs and the SWF Maintenance Parcel Share
thereof due from each such Parry, together with supporting invoices and receipts, which SWF
Maintenance Parcel Share shall be paid in full within thirty (30) days of receipt of such
statement. Notwithstanding the foregoing, in the event that the owner of Lot D anticipates that
the Annual SWF Maintenance Costs in any given year will exceed $3,000, then the owner of Lot
D may require the Parties to pay estimated SWF Maintenance Parcel Shares of the Annual SWF
Maintenance Costs in advance upon thirty (30) days of receipt of a billing statement from the
owner of Lot D. If the amount paid by a Party for such calendar year shall have exceeded its
actual SWF Maintenance Parcel Share, the owner of Lot D shall refund the excess to such Party
at the time the actual Annual SWF Maintenance Costs are determined, or if the amount paid by a
Party for such calendar year shall be less than its share, such Parry shall pay the balance of its
share to the owner of Lot D within thirty (30) days after receipt of such statement. Any partial
year obligation to pay the Annual SWF Maintenance Costs shall be prorated.
(d) The owner of Parcel D shall have the right and power to dedicate to public use, at
any time or from time to time, all or any portion of the easements over the Storm Water
Easement Area, the Storm Water Access Easement Area and the Storm Water Facilities and
assign to a public authority its maintenance obligations relating thereto and the owner of the
TMP 78-9 Residue Lot agrees to join in any such dedication.
2.3 Utility Easements.
(A) The Parties do hereby establish non-exclusive, perpetual easements in, to,
over, under, along and across those portions of the Development Area necessary for the
installation, operation, flow, passage, use, maintenance, connection, repair, relocation,
replacement and removal of Utility Lines serving the Development Area or improvements
thereon, including but not limited to, sanitary sewers, storm drains, cable TV, water (fire,
domestic and irrigation), gas, electrical, telephone and communication lines. The initial location
of any Utility Line shall be (i) outside the area of Buildings and any subsurface structures or
fixtures such as underground storage tanks, whether existing or to be constructed or installed. (ii)
located along the respective perimeters of the Parcel, the width of the easements for which
Utility Lines shall be determined by the benefited and burdened Parties, and (iii) subject to the
prior written approval of the Party whose Parcel is to be burdened thereby, such approval not to
be unreasonably withheld or delayed. Nothing herein shall prevent a Party from conveying
underground utility easements across that portion of the Parcel owned in fee by such Party (even
if not within a utility corridor) for the benefit of others. The area of the easements granted by
this section shall be no wider than necessary to reasonably satisfy the requirements of a private
or public utility, or five (5) feet on each side of the centerline if the easement is granted to a
Party. Upon request, the grantee shall provide to the grantor a copy of an as -built survey
showing the location of such Utility Line. All Utility Lines shall be underground except: (i)
ground mounted electrical transformers; (ii) as may be necessary during periods of construction,
reconstruction, repair, or temporary service; (iii) as may be required by governmental agencies
having jurisdiction; (iv) as may be required by the provider of such service; (v) fire hydrants; and
(vi) tie-ins, manholes and other surface access facilities.
At least thirty (30) days prior to exercising the right granted herein, the grantee shall first
provide the grantor with a written statement describing the need for such easement, shall identify
the proposed location of the Utility Line, the nature of the service to be provided, the anticipated
commencement and completion dates for the work and shall furnish a certificate of insurance
showing that its contractor has obtained the minimum insurance coverage required by Section
5.3(B) hereof. Except as otherwise agreed to by the grantor and the grantee, any Party installing
Utility Lines pursuant to the provisions of this subsection shall pay all costs and expenses with
respect to such Utility Lines, including, but not limited to, all costs and expenses associated with
the use, maintenance, installation, repair, operation, replacement and removal thereof, and shall
cause all work in connection therewith (including general clean-up and proper surface and/or
subsurface restoration)to be completed as quickly as possible and in a manner so as to minimize
interference with the use of the affected Parcel. In addition, the grantee of any Utility Line
agrees to defend, protect, indemnify and hold harmless the grantor, and the Occupant or
Occupants of the Parcel over which the easement is granted, from and against all claims or
demands, including any action or proceeding brought thereon, and all costs, loses, expenses and
liabilities of any kind relating thereto, including reasonable attorneys fees and costs of suit,
arising out of or resulting from the exercise of the right to install, maintain and operate the Utility
Line.
B. All construction, alteration and repair work to any Utility Lines described
in this Section 2.3 shall be accomplished in an expeditious manner, in compliance with all laws.
rules, regulations, orders, permits, approvals and licenses of governmental authorities having
jurisdiction. The Party and Permittee undertaking such work shall take all necessary measures to
minimize any disruption or inconvenience caused by such work and, except in the case of an
emergency, shall give the other Party written notice a minimum of ten (10) days prior to
commencing such work. Such work shall be accomplished in such a manner as to minimize any
damage or adverse effect which might be caused by such work. If such work requires excavation
in any portion of the Parcel, the Party and Permittee causing such work to be done shall use all
0
reasonable efforts to cause such excavation to commence and be completed during hours when
the Occupants of the affected Parcel(s) are not open for business to the public and, in any event,
shall provide suitable alternative ingress and egress if it is not practical to keep access open
during the work. Any excavation within the Parcel shall be properly backfilled within twenty-
four (24) hours if reasonably practical. The Party and Permittee undertaking such work shall
repair at their own cost and expense any and all damage caused by such work and shall restore
the affected portion of the Parcel upon which such work is performed to a condition which is at
least equal the condition which existed prior to the beginning of such work. In addition, the
Party and Permittee undertaking such work shall promptly pay all costs and expenses associated
therewith and shall indemnify and hold the other Party(ies) and Occupants harmless from all
liens, damages, losses or claims, including reasonable attorney's fees, attributable to the
performance of such work.
2.4 Relocation. A Party shall have the right to relocate a Utility Line on such Part's
Parcel, upon thirty (30) days' prior written notice, provided that such relocation:
(i) shall not interfere with or diminish the utility service to the
benefited Occupants during such Occupants' business hours; and if an electrical line/computer
line is being relocated, then the grantor and grantee shall coordinate such interruption to
eliminate any detrimental effects;
(ii) shall not reduce or unreasonably impair the usefulness or function
of such Utility Line or the Storm Water Facilities;
(iii) shall be performed without cost or expense to other Parties or
Occupants;
(iv) shall be completed using materials and design standards which
equal or exceed those originally used; and
(v) shall have been approved by the provider of such service and the
appropriate governmental or quasi -governmental agencies having jurisdiction thereover.
Documentation of the relocated easement area, including the furnishing of an "as -built" survey,
shall be the relocating Parry's expense and shall be accomplished as soon as possible following
completion of such relocation.
2.5 Reasonable Use of Easements.
(A) The easements herein above granted shall be used and enjoyed by the
owners of the Parcels and their respective Permittees in such a manner so as not to unreasonably
interfere with, obstruct or delay the conduct and operations of the business of any other owner or
its Permittees at any time conducted on its Parcel, including, without limitation, public access to
and from said business.
10
(B) Once commenced, any construction undertaken in reliance upon an
easement granted herein shall be diligently prosecuted to completion, so as to minimize any
interference with the business of any other owner and its Permittees. Except in cases of
emergency, the right of any owner to enter upon a Parcel of another owner for the exercise of
any right pursuant to the easements set forth, or to prosecute work on such owner's own Parcel if
the same interferes with utility or storm water easements or easements of ingress, egress or
access to or in favor of another owner's Parcel, shall be undertaken only in such a manner so as
to minimize any interference with the business of the other Parties and their Permittees. In such
case, unless otherwise provided herein, no affirmative monetary obligation shall be imposed
upon the other owner, and the owner undertaking such work shall with due diligence repair at its
sole cost and expense any and all damage caused by such work and restore the affected portion
of the Parcel upon which such work is performed to a condition which is at least equal to the
condition which existed prior to the commencement of such work. In addition, the owner
undertaking such work shall pay all costs and expenses associated therewith and shall indemnify,
defend and hold harmless the other owner(s) and its Permittees from all damages, losses, liens or
claims attributable to the performance of such work.
2.6 No Rights in Public; No Implied Easements. Nothing contained herein shall be
construed as creating any rights in the general public or as dedicating for public use any portion
of Lot B, Lot C, or Lot D. No easements, except those expressly set forth in Article 11 hereof,
shall be implied by this Declaration; in that regard, and without limiting the foregoing, no
easements for parking or signage are granted or implied. Notwithstanding the foregoing,
Albemarle reserves the right to subsequently dedicate or cause to be dedicated to public use or to
any public utility or public body, as applicable, the Storm Water Easement and any related
drainage easements shown and described on the Subdivision Plat, including any drainage lines,
structures, or appurtenances constructed within such easements. Each Party agrees to join in any
documents necessary or advisable in order to effect such subsequent public dedication.
ARTICLE Ill
LIENS
In the event any mechanic's lien is filed against the Parcel of one Party as a result of
services performed or materials furnished for the use of another Party, the Party permitting or
causing such lien to be so Fled agrees to cause such lien to be discharged within fifteen (15) days
after the entry of a final judgment (after all appeals) for the foreclosure of such lien; provided,
however, upon request of the Party whose Parcel is subject to such lien, the Party permitting or
causing such lien to be filed agrees to promptly cause such lien to be released and discharged of
record, either by paying the indebtedness which gave rise to such lien or by posting bond or other
security as shall be required by law to obtain such release and discharge.
11
ARTICLE IV
MAINTENANCE AND REPAIR
4.1 Parcel Use Areas. Each Party shall maintain, or cause to be maintained, the
Parcel Use Area on its Parcel in a sightly, safe condition and good state of repair. The
unimproved portions of the Parcel Use Areas shall be mowed or otherwise neatly maintained and
kept litter -free. The minimum standard of maintenance for the improved Parcel Use Areas shall
be comparable to the standard of maintenance followed in other first class retail developments of
comparable size in the Charlottesville area; notwithstanding the foregoing, however, the Parcel
Use Areas shall be operated and maintained in compliance with all applicable governmental
laws, rules, regulations, orders and ordinances, and the provisions of this Declaration.
4.2 Building Improvements.
(A) After completion of construction, each Party covenants and agrees to
maintain and keep the exterior portion of the Buildings located on its Parcel in first-class
condition and state of repair, in compliance with all governmental laws, rules, regulations.
orders, and ordinances exercising jurisdiction thereover, and in compliance with the provisions
of this Declaration.
(B) In the event any of the Buildings are damaged by fire or other casualty
(whether insured or not), the Party upon whose Parcel such Building is located shall, subject to
governmental regulations and/or insurance adjustment delays, immediately remove the debris
resulting from such event and provide a sightly barrier, and within a reasonable time thereafter
shall either (i) repair or restore the Building so damaged to a complete unit, such repair or
restoration to be performed in accordance with all provisions of this Declaration, or (ii) erect
another Building in such location, such construction to be performed in accordance with all
provisions of this Declaration, or (iii) demolish the damaged portion and/or the balance of such
Building and restore the cleared area to either a hard surface condition or a landscaped condition
until a replacement Building is erected. Such Party shall have the option to choose which of the
foregoing alternatives to perform, but such Party shall be obligated to perform one of such
alternatives. Such Party shall given notice to each other Party within ninety (90) days from the
date of such casualty of which alternative it elects.
ARTICLE V
OPERATION OF THE PARCELS
5.1 Prohibited Uses. Without the prior written consent of all of the Parties (which
consent may be granted or withheld in their sole and absolute discretion), the uses listed on
Exhibit A shall not be permitted on any Parcel and are hereby expressly prohibited.
5.2 Exclusive Uses. Lot D is expected to be developed for use as a hotel or lodging
facility. Without the prior written consent of the owner of Lot D (which consent may be granted
or withheld in its sole and absolute discretion), no Occupant of a Parcel or Occupant of the TMP
78-9 Residue Lot, or any portion thereof, shall engage in the operation of a hotel, motel, lodging
12
facility or similar use; provided, however, that this exclusive use covenant shall automatically
terminate at such time as Lot D is no longer used as a hotel or lodging facility (excluding any
temporary closings for repair, renovations, or otherwise).
5.3 Insurance.
(A) Each Party agrees to defend, protect, indemnify and hold harmless each
other Party and such Party's Occupants from and against all claims or demands, including any
action or proceedings brought hereon, and all costs, losses, expenses and liability of any kind
relating thereto, including reasonable attorneys' fees and cost of suit, arising out of or resulting
from the injury to or death of any Person, or damage to the property of any person located on the
Parcel owned or leased by the indemnifying Party; provided, however, the foregoing obligation
shall be subject to the indemnification provisions of subsections 2.1(B), 2.2(C) and 2.3(A) above
and shall not apply to claims caused by the negligence or willful act or omission of the
indemnified Party or Occupant, its licensees, concessionaires, agents, servants, or employees, or
the agents, servants, or employees of any licensee or concessionaire thereof. Each Party shall
maintain or cause to be maintained in full force and effect Commercial General Liability
Insurance with a combined single limit of Two Million Dollars ($2,000,000) in Constant Dollars
for bodily injury, personal injury and property damage, arising out of any one occurrence; the
other Parties and their Occupants shall be "additional insureds" under such policy as it applies to
the insuring Party's Commercial Parcel, provided the other Parties provide the insuring Party
annual written notice of those Parties and their Occupants to be named as "additional insureds".
(B) Prior to commencing any construction activities within another party's
Parcel, such constructing Party shall obtain or require its contractor to obtain and thereafter
maintain so long as such construction activity is occurring, at least the minimum insurance
coverages in Constant Dollars set forth below:
(i) Workers' compensation and employer's liability insurance
(a) Worker's compensation insurance as required by any
applicable law or regulation;
(b) Employer's liability insurance in the amount of $1.000,000
each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease and
$1,000,000 each employee for bodily injury by disease.
(ii) General liability insurance: Commercial General Liability
Insurance covering all operations by or on behalf of the contractor, which shall include the
minimum limits of liability and coverages as reasonably required by the owner of the affected
Parcel.
(C) All insurance required by Section 5.3 shall be procured from companies
authorized to do business in the Commonwealth of Virginia and shall be rated by Best's
Insurance Reports not less than B-8. All insurance may be provided under (i) an individual
13
policy covering this location, (ii) a blanket policy or policies which includes other liabilities,
properties and locations of such Party; provided, however, that if such blanket commercial
general liability insurance policy or policies contain a general policy aggregate of less than
$10,000,000 in Constant Dollars, then such insuring Party shall also maintain excess liability
coverage necessary to establish a total liability insurance limit of $10.000,000 in Constant
Dollars, (iii) a plan of self-insurance, provided that any Party so self -insuring notifies the other
Parties of its intent to self -insure and agrees that upon request it shall deliver to such other
Parties each calendar year a copy of its annual report that is audited by an independent certified
public accountant which discloses that such Party has $20,000,000 in Constant Dollars or more
of net current assets (calculated in accordance with generally accepted accounting standards and
excluding goodwill and intracompany notes and receivables as assets), or (iv) a combination of
any of the foregoing insurance programs. Each Party agrees to furnish to any Party requesting
the same, a certificate(s) of insurance, or statement of self-insurance, as the case may be,
evidencing that the insurance required to be carried by such Person is in full force and effect.
The insurance required pursuant to (A) and (B) above shall include the following
provisions:
(i) shall provide that the policy may not be canceled or reduced in
amount or coverage below the requirements of this Declaration, without at least thirty (30) days
prior written notice by the insurer to each insured and to each additional insured;
(ii) shall provide for severability of interests:
(iii) shall provide that an act or omission of one of the insureds or
additional insureds which would void or otherwise reduce coverage, shall not reduce or void the
coverage as to the other insureds; and
(iv) shall provide for contractual liability coverage with respect to the
indemnity obligation set forth in this Declaration.
5.4 Taxes and Assessments. Each Party shall pay, or cause to be paid prior to
delinquency, all taxes and assessments with respect to its Parcel, any Building, and other
improvements located thereon, and any personal property owned or leased by such Party in the
Parcel, provided that if the taxes or assessments or any part thereof may be paid in installments,
the Party may pay each such installment as and when the same becomes due and payable.
Nothing contained in this subsection shall prevent any Party from contesting at its cost and
expense any such taxes and assessments with respect to its Parcel in any manner such Party
elects, so long as such contest is maintained with reasonable diligence and in good faith. At the
time such contest is concluded (allowing for appeal to the highest appellate court), the contesting
Party shall promptly pay all such taxes and assessments determined to be owing, tggether with
all interest, penalties and costs thereon.
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ARTICLE VI
MISCELLANEOUS
6.1 Default.
(A) The occurrence of any one or more of the following events shall constitute
a material default and breach of this Declaration by the non -performing party (the "Defaulting
Party"):
(i) The failure to make any payment required to be made hereunder
within thirty (30) days of the due date, or
(ii) The failure to observe or perform any of the covenants, conditions
or obligations of this Declaration, other than as described in (i) above, within thirty (30) days
after the issuance of a notice by another Party (the "Non -Defaulting Party") specifying the nature
of the default claimed, or if the default is of such a character so as to reasonably require more
than thirty (30) days to cure, the Defaulting Party fails to commence to cure within thirty (30)
days after notice from the Non -Defaulting Party or thereafter diligently proceed to cure the
default
(B) With respect to any default under Section 6.1(A)(ii) above, any Non -
Defaulting Party shall have the right, but not the obligation, to cure such default by the payment
of money or the performance of some other action for the account of and at the expense of the
Defaulting Party; provided, however, that in the event the default shall constitute an emergency
condition, the Non -Defaulting Party, acting in good faith, shall have the right to cure such default
upon such advance notice as is reasonably possible under the circumstances or, if necessary,
without advance notice, so long as notice is given as soon as possible thereafter. To effectuate
any such cure, the Non -Defaulting Party shall have the right to enter upon the Parcel of the
Defaulting Party (but not into any Building) to perform any necessary work or furnish any
necessary materials or services to cure the default of the Defaulting Party. Each Party shall be
responsible for the default of its Occupants. In the event any Non -Defaulting Party shall cure a
default, the Defaulting Party shall reimburse the Non -Defaulting Party for all costs and expenses
reasonably incurred, in connection with such curative action, plus interest at the rate calculated
pursuant to Section 6.2 below from the date such costs and expenses are incurred, within thirty
(30) days of receipt of demand, together with reasonable documentation supporting the
expenditures made.
(C) Costs and expenses accruing and/or assessed pursuant to Section 6.1 shall
constitute a lien against the Defaulting Party's Parcel. The lien shall attach and take effect only
upon recordation of a claim of lien in the Clerk's Office of the Circuit Court of the County of
Albemarle, Virginia, by the Party making the claim. The claim of lien shall include (i) the name
of the lien claimant; (ii) a statement concerning the basis for the claim of lien and identifying the
lien claimant as a curing Person; (iii) an identification of the owner or reputed owner of the
Parcel or interest therein against which the lien is claimed; (iv) a description of the Parcel against
which the lien is claimed; (v) a description of the work performed which has given rise to the
15
claim of lien and a statement itemizing the amount thereof, and (vi) a statement that the lien is
claimed pursuant to the provisions of this Declaration, reciting the date, book and page of
recordation hereof. The notice shall be duly verified, acknowledged and contain a certificate that
a copy thereof has been served upon the Party against whom the lien is claimed, by personal
service or by mailing pursuant to Section 6.4 below. The lien so claimed shall attach from the
date of recordation solely in the amount claimed thereby and may be enforced in any judicial
proceedings allowed by law, including without limitation, suit in the nature of a suit to foreclose
a mortgage/deed of trust or mechanic's lien under the applicable provisions of the law of the
Commonwealth of Virginia.
(D) Each Non -Defaulting Party shall have the right to prosecute any
proceedings at law or in equity against any Defaulting Party hereto, or any other Person.
violating or attempting to violate or defaulting upon any of the provisions contained in this
Declaration and to recover damages for any such violation or default. Such proceeding shall
include the right to restrain by injunction any violation or threatened violation by another of any
of the terms, covenants, or conditions of this Declaration, or to obtain a decree to compel
performance of any such terms, covenants, or conditions, it being agreed that the remedy at law
for a breach of any such term, covenant, or condition (except those, if any, requiring the payment
of a liquidated sum) is not adequate. All of the remedies permitted or available to a party under
this Declaration or at law or in equity shall be cumulative and not alternative, and invocation of
any such right or remedy shall not constitute a waiver or election of remedies with respect to any
other permitted or available right or remedy.
6.2 Interest. Any time a Person shall not pay any sum payable hereunder to another
within thirty (30) days of the due date, such delinquent Person shall pay interest on such amount
from the due date to and including the date such payment is received by the Person entitled
thereto, at the lesser of:
(A) The highest rate permitted by law to be either paid on such type of
obligation by the Person obligated to make such payment or charged the person to whom such
payment is due, whichever is less; or
(B) Three percent (3%) per annum in excess of the prime rate published in the
"Money Rates" column of The Wall Street Journal, provided that if The Wall Street Journal
ceases to publish the "Money Rates" column, or if there is a suspension of publication of The
Wall Street Journal then the Party with the claim for interest shall be permitted to select another
index which is reasonably comparable to the present use of The Wall Street Journal for
establishing the prime rate of interest.
6.3 Estoppel Certificate. Each Party agrees that upon written request (which shall not
be more frequent than two (2) times during any calendar year) of any other Party, it will issue to
such Person, or its prospective mortgagee or successor, an estoppel certificate stating to the best
of the issuer's knowledge that as of such date:
16
(A) whether it knows of any default under this Declaration by the requesting
person, and if there are known defaults, specifying the nature thereof,
(B) whether this Declaration has been assigned, modified or amended in any
way by it and if so, then stating the nature thereof; and
(C) whether this Declaration is in full force and effect.
Such statement shall act as a waiver of any claim by the Person furnishing it to the extent such
claim is based upon facts contrary to those asserted in the statement and to the extent the claim is
asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to
the contrary of those contained in the statement, and who has acted in reasonable reliance upon
the statement. The issuance of an estoppel certificate shall in no event subject the Person
furnishing it to any liability for the negligent or inadvertent failure of such Person to disclose
and/or correct relevant information (but it shall stop such Person from making assertions
contrary to those set forth in the certificate for the period covered by the certificate), nor shall
such issuance be construed to waive any rights of the issuer to challenge acts committed by other
Parties for which approval was required but not sought or obtained.
6.4 Notices. All notices, demands and requests (collectively, the "notice") required or
permitted to be given under this Declaration must be in writing and shall be deemed to have been
given as of the date such notice is (i) delivered to the Person intended, (ii) delivered to the then
designated address of the Person intended, or (iii) rejected at the then designated address of the
Person intended, provided such notice was sent prepaid. The initial addresses of the Parties shall
be:
Albemarle: Albemarle Hotel, LLC
195 Riverbend Drive
Charlottesville, VA 22906
Guadalajara: Guadalajara Corporation, IV
395 Greenbrier Drive
Charlottesville, VA 22901
Upon at least thirty (30) days prior written notice, each person shall have the right to change its
address to any other address within the United States of America; provided, however,
notwithstanding anything herein contained to the contrary, in order for the notice of address
change to be effective it must actually be received; and further provided such address may not be
a post office box except to the extent necessary for delivery by the U.S. Postal Service. Upon
receipt of a written notice complying with the provisions of this Section 6.4 from a mortgagee
having an interest in one of the Parcels, the Parties agree that from and after such date a copy of
any notice given will be sent to such mortgagee. Such Notice from a mortgagee must clearly
state the Parcel(s) in which such mortgagee has an interest.
17
6.5 Approval Rights. Unless provision is made for a specific time period, each
response to a request for an approval or consent required to be considered pursuant to this
Declaration shall be given by the Person to whom directed within thirty (30) days of receipt.
Each disapproval shall be in writing and, subject to subsection 6.1 and Section 6.2 above, the
reasons shall be clearly stated. If a response is not given within the required time period, the
requested Party shall be deemed to have given its approval if the original notice stated in
capitalized letters that failure to respond within the applicable time period will be deemed an
approval.
6.6 Binding Effect. The terms of this Declaration and all easements granted
hereunder shall constitute covenants running with the land and shall bind the real estate
described herein and inure to the benefit of and be binding upon the signatories hereto and their
respective successors and assigns who become Parties.
6.7 Construction and Interpretation.
(A) Whenever required by the context of this Declaration, the singular shall
include the plural, and vice versa.
(B) The captions preceding the text of each article and section are included
only for convenience of reference. Captions shall be disregarded in the construction and
interpretation of this Declaration. Capitalized terms are also selected only for convenience of
reference and do not necessarily have any connection to the meaning that might otherwise be
attached to such term in a context outside of this Declaration.
(C) Invalidation of any of the provisions contained in this Declaration, or of
the application thereof to any person by judgment or court order shall in no way affect any of the
other provisions hereof or the application thereof to any other person and the same shall remain
in full force and effect.
(D) This Declaration may be amended by, and only by, a written agreement
signed by all of the then current Parties.
(E) The Parties hereby represent and warrant that all of the parties benefited or
burdened by any private easements granted in the Guadalajara Deed are parties hereto and that,
in the event of any inconsistent or contradictory provisions, the terms of this Declaration shall
control.
6.8 Negation of Partnership. None of the terms or provisions of this Declaration shall
be deemed to create a partnership between or among the Parties in their respective businesses or
otherwise, nor shall it cause them to be considered joint venturers or members of any joint
enterprise and no Party shall have the right to act as an agent for another Party unless expressly
authorized to do so herein or by separate written instrument signed by the Party to be charged.
18
6.9 Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of any Parcel or portion thereof to the general public. or for any public
use or purpose whatsoever. Except as herein specifically provided, no right, privileges or
immunities any Party hereto or of any of their respective successors in title shall inure to the
benefit of any third -party Person, nor shall any third -party Person be deemed to be a beneficiary
of any of the provisions contained herein.
6.10 Excusable Delays. Whenever performance is required of any Person hereunder,
such Person shall use all due diligence to perform and take all necessary measures in good faith
to perform; provided, however, that if completion of performance shall be delayed at any time by
reason of acts of God, war, civil commotion, riots, strikes, picketing or other labor disputes,
unavailability of labor or materials, damage to work in progress by reason of fire or other
casualty, or any cause beyond the reasonable control of such Person, then the time for
performance as herein specified shall be appropriately extended by the amount of the delay
actually so caused. The provisions of this Section 6.10 shall not operate to excuse any Person
from the prompt payment of any monies required by this Declaration.
6.11 Mitigation of Damages. In all situations arising out of this Declaration, all Parties
shall attempt to avoid and mitigate the damages resulting from the conduct of any other Party.
Each Party hereto shall take all reasonable measures to effectuate the provisions of this
Declaration.
6.12 Declaration Shall Continue Notwithstanding Breach. It is expressly agreed that
no breach of this Declaration shall entitle any Party to cancel, rescind, or otherwise terminate
this Declaration. However, such limitation shall not affect in any manner any other rights or
remedies which any Party may have hereunder by reason of any such breach.
6.13 No Waiver. The failure of any Party to insist upon strict performance of any of
the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies
which any Party may have hereunder, at law or in equity and shall not be deemed a waiver of any
subsequent breach or default in any of such terms, covenants and conditions. No waiver by any
Party of any default under this Declaration shall be effective or binding on any Party unless made
in writing by such other Party and no such waiver shall be implied from any omission by a Party
to take action in respect to such default. No express written waiver of any default shall affect
any other default or cover any other period of time other than any default and/or period of time
specified in such express waiver. One or more written waivers of any default under any
provision of this Declaration shall not be deemed to be a waiver of any subsequent default in the
performance of the same provision or any other term or provision contained in this Declaration.
IL
ARTICLE VII
TERM
This Declaration shall be effective as of the date first above written and shall continue in
full force and effect until 11:59 p.m. on December 31, 2025, and shall be deemed automatically
renewed for ten (10) year intervals thereafter unless terminated by written agreement of all
Parties; provided, however, that the easements referred to in Article II hereof which are specified
as being perpetual or as continuing beyond the term of this Declaration shall continue in force
and effect as provided therein. Upon termination of this Declaration, all rights and privileges
derived from and all duties and obligations created and imposed by the provisions of this
Declaration, except as relates to the easements mentioned above, shall terminate and have no
further force or effect; provided, however, that the termination of this Declaration shall not limit
or affect any remedy at law or in equity that a Party or may have against any other Party with
respect to any liability or obligation arising or to be performed under this Declaration prior to the
date of such termination.
IN WITNESS WHEREOF, the Parties have caused this Declaration to be executed
effective as of the day and year first above written.
[Signature Pages To Fo11ou J
20
ALBEMARLE:
ALBEMARLE HOTEL, LLC,
a Virginia limited liability company
i , _71 3
42
ii ,
COMMONWEALTH OF VIRGINIA
AT -LARGE
The foregoing signature was acknowledged before me in A16e_* aria
Virginia, this "t' day 2008 by /'I%9nfes 1.9, hG. 4� —,
mo-v sr of Albemarle Hotel, LLC, a Virginia limited liability company, on its
behalf Zwho is personally known to me or ❑ who has produced as
identification.
My commission expires:
(�-3v-Zao9
oti
Notary Pu lic
Reg. # /0.?0%O
21
STEPHEN M. MEL70N
NOTARY PUBLIC
REG.#102070
COMMONWEALTH OF VIRGINIA
MY COMMISSION EXPIRES JUNE 30, 2009
TAP:
TAP INVESTMENTS, LLC,
a Virginia linutedliability compan
i
By:
Its: /�� � iLL
COMMONWEALTH OF VIRGINIA
AT -LARGE
The foregoing signature was ackrg ledged before me in
Virginia, this 2-5� day of Z'-- , 2008 by Dr J,
Z of Tap Investments, LLC, a V' d liability company, on its
behalf LJ-Mio is personally known to mep who has produced as
identification.
Notary Public
Reg. #
My commission expires:�p�Z.o
22
H.
GUADALAJARA:
GUADALAJARA, IV,
a Virginia corporation
Its: QQESI C)Elgf
COMMONWEALTH OF VIRGINIA
AT -LARGE
The foregoing signature was acknowledged before me in 6varte (eun
Virginia, this Ste` day of` ee.4�er- 2008byG;Ibeth-�L
�rc*4es'7 of Guadalajara, IV, a Virginia corporation, on its behalf f✓, who is
personally known to me or ❑ who has produced as identification.
Nor-, /
-Notary Pu6lic
My commission expires:
g STEPHEN M. MELTON
NOTARY PUBLIC
REG. #102070
COMMONWEALTH OF VIRGINIA
MY COMMISSION EXPIRES JUNE 30, 2009
23
EXHIBIT A
Prohibited Uses
The following uses shall be Prohibited Uses:
1. funeral establishment;
2. auction or bankruptcy sale;
3. pawn shop;
4. outdoor circus, carnival or amusement park, or other outdoor entertainment facility;
5. outdoor meetings;
6. bowling alley;
7. primarily pool or billiard establishments;
8. shooting gallery;
9. off-track betting (provided that state sponsored lottery tickets shall not be prohibited):
10. refinery;
11. adult bookstore or facility selling or displaying obscene books, literature, or videotapes
(materials shall be considered 'obscene" for such purpose in accordance with the
definition of "obscene" materials as interpreted by the United States Supreme Court),
massage parlor;
12. theater;
11 auditorium, meeting hall, ballroom, school or other place of public assembly;
14. bingo or similar games of chance, but lottery tickets and other items commonly sold in
retail establishments may be sold as an incidental part of business;
15. skating or roller rink;
16. auction house or flea market;
17. chemical manufacturing and/or bulk storage of chemicals;
18. tank farms:
19. textile dying (other than incidental to permitted retail use) and/or textile dye
manufacturing and/or storage;
20, paint manufacturing;
21. dry cleaning plant;
22. automobile manufacturing or assembly plant;
23. metal finishing plant;
24. metal fabrication plant;
25. heavy equipment manufacturing or repair;
t
26. storage garages and storage facilities (except as incidental to and in support of retail use);
27. truck rental;
28. outdoor amusement facility;
29. wholesale and/or distribution operation;
30. wood preserving;
31. sporting events or other sports facilities (other than permitted retail use for sales of
sporting goods or accessories);
32. processing or rendering plant;
33. temporary sale of Christmas trees or pumpkin sales in the Parcel Use Area;
34. manufacturing operation, factory;
35. any industrial use, warehouse;
36. swap shop or "outlet store" selling merchandise that is used, damaged or discontinued;
37. place of instruction, reading room or any operation catering primarily to students or
trainees rather than to customers; and
38. facility for the sale of paraphernalia for use with illicit drugs.
RECORDED IN CLERKS OFFICE OF
ALBEMARLE COUNTY ON
December 22,2008 AT 11:43:31 AM
$0.00 GRANTOR TAX PD
AS REQUIRED BY VA CODE 158.1.802
STATE: $0.00 LOCA $0.00
ALBEMARLE COU Y. VA
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