PROFFER STATEMENT BISCUIT RUN

PROFFER STATEMENT BISCUIT RUN Date: January 3, 2006 (revised February 28, 2007) ZMA #: ZMA-2005-017 Biscuit Run (formerly known as Fox Ridge) Tax Map Parcel Numbers: 90-5, 90-6D (portion), 90-17D, 90A-3, 90A1-1, 90A1-1E, 90-15A, 90A-1A, 90A-1B, and 90A-1C[Will need to adjust parcels accurately] Tax Map Parcel Numbers: 90-5, 90-6D (portion), 90-17D, 90A-3, 90A1-1, 90A1-1E, 90-15A, 90A-1A, 90A-1B, and 90A-1C[Will need to adjust parcels accurately] comprising approximately 828 acres are subject to rezoning application ZMA 2005-017 and to this Proffer Statement (the Property ). The Property is described with more particularity on sheet 6 of the General Development Plan entitled Biscuit Run Neighborhood Model District General Development Plan for a Zoning Map Amendment ZMA-2005-017 prepared by Collins Engineering, containing nine (9) sheets, dated September 26, 2005, last revised December 12, 2006,[If plan changes this will need to change] and attached hereto as Exhibit A (the General Development Plan ). The Owners of the Property are Forest Lodge, LLC, a Virginia limited liability company, Elizabeth Breeden, Biscuit Run, LLC, a Virginia limited liability company, their successors and assigns (collectively, the Owner ). The Owner hereby voluntarily proffers that if the Albemarle County Board of Supervisors acts to rezone the Property to Neighborhood Model District[Not an essential change, but it is useful to have a statement explaining what the land is being zoned from in addition to what it is being zoned to]. as requested, the Owner shall develop the Property in accord with the following proffers (each, a Proffer, and collectively, the Proffers ) pursuant to Section 15.2-2298 of the Code of Virginia, 1950, as amended, and pursuant to Section 33.3 of the Albemarle County Zoning Ordinance. These conditions are voluntarily proffered as part of the requested rezoning, and the Owner acknowledges that (1) the rezoning itself gives rise to the need for the conditions; and (2) such conditions have a reasonable relation to the rezoning requested. If rezoning application ZMA 2005-017 is denied, these proffers shall immediately be null and void and of no further force and effect. This Proffer Statement shall relate to the General Development Plan and to the Code of Development dated December 12, 2006, as amended [insert date] and attached hereto as Exhibit B (the Code of Development ). 1. Greenway Dedication and Pocket Parks. Within five (5) years after the date that ZMA-2005-017 is approved by the County, or upon final approval by the County of the first subdivision plat or site plan applicable to any portion of blocks 9, 12, 13 or 14, whichever is sooner, the Owner shall dedicate to the County for public use no less than 126 acres[acres needs to be consistent with COD] in greenway area as shown on sheet 5 of the General Development Plan (the Greenway ). At the time of the conveyance and dedication, the Greenway will be subject to the trail and historic preservation standards as provided in the Code of Development for Biscuit Run. The dedication of land for the Greenway shall be in fee simple and may be contemplated 1

dedicated in phases. [More specificity is needed regarding the phasing of the dedication of the Greenway so that the proffers are clear as to what events trigger the phased dedication. Parks would rather avoid a complicated phasing process and accept the whole Greenway system sooner than later. The Class A Trail construction can come later, as the existing volunteer trails currently established throughout the Biscuit Run area could be easily maintained and serve the public s recreation interests as a Class B nature trail.] If the Greenway is not completely dedicated as part of one or more site plans or subdivision plats, the Owner shall pay the costs of surveying any undedicated land and preparing a deed or deeds of dedication. The Owner shall construct the trail through the Greenway, as shown on sheet 5[make sure these are accurate and consistent] of the General Development Plan, within six (6) months after final approval by the County of the first subdivision plat or site plan applicable to any portion of blocks 9, 12, 13 or 14. The trail shall be constructed in accordance with the Detail for Trailway Design and notes on sheet 5[make sure these are accurate and consistent] of the General Development Plan. The Owner shall contribute up to $25,000 for the cost of extending the Greenway Trail from the Northern boundary of the Property to I-64 along Biscuit Run. The Owner shall coordinate with the County s Parks and Recreation Department on the method and specifications for installing at the Owner s expense, foot bridges, boardwalks, signage, benches, and pet waste disposal stations. Are the footbridges, boardwalks, signage, benches and pet waste disposal stations for the entire greenway or just the extension?in addition, the Owner shall provide not less than 37.47 [make sure this is accurate with COD]acres in public pocket parks on the Property in the locations shown on the General Development Plan (each, a Pocket Park, and collectively, the Pocket Parks ). The Pocket Parks shall be developed in conjunction with the approval of the final subdivision plat or site plan for the adjacent lots within the Property that are adjacent to any particular Pocket Park. [The change is recommended because the pocket park is an improvement that should be developed in conjunction with the other improvements associated with the approved subdivision plat or site plan. Without the change, the pocket parks would not have to be developed until, presumably, a house or other building is built on the adjacent, even if every other lot in that phase is developed.] Each Pocket Park shall be improved and conveyed to a responsible property owners association or associations to be created by the Owner. Each Pocket Park shall be conveyed to the property owners association at the time of subdivision or plat approval. For the purposes of this Proffer 1, the term adjacent shall mean abutting property and property immediately across the street or road as shown on the approved, final subdivision plat or site plan including a Pocket Park (or active green space area) or such adjacent lot. In addition, the Owner shall provide other active green space on the Property in the locations shown on the General Development Plan (collectively, the active green space ). The active green space shall be developed in conjunction with adjacent lots within the Property that are adjacent to any particular active green space. Active green space, (other than Pocket Parks) shall be either reserved by the Owner by an easement assuring public access and use, or conveyed to a responsible property owners association or associations to be created by the Owner. Each Pocket Park shall be reserved by the Owner by an easement assuring public access and use or conveyed to the property owners association at the time of subdivision or plat approval. litter [ Formatted: Font: Not Italic ] 2. Affordable Housing. The Owner shall provide affordable housing, as defined herein, equal to fifteen percent (15%) of the total residential units constructed on the Property, in the form of for-sale condominiums and townhouses, and/or for-rent condominiums, townhouses, apartments and accessory units, or the equivalent as provided in Proffer 2(C) below. If the 2

Owner elects at its sole option to provide affordable for-sale single family detached units, such units shall be applied toward the 15% requirement. The Owner shall convey the responsibility of initially constructing and selling the affordable units to the subsequent owners of lots within the Property. Therefore, this proffer shall not apply to a plat of subdivision for a sale in bulk to the builder(s) and/or developer(s) of the housing units contemplated hereby, so long as this proffer is disclosed to such buyers at the time of sale. [The meaning of the preceding sentence is unclear. The proffer will run with the land and the Owner cannot relieve some successor in interest by proffer] Such owner(s) and/or developer(s) shall succeed to the duties of the Owner under this proffer, and the term Owner shall refer to such subsequent owner(s) and/or developer(s), as applicable. A. For-Sale Units. At least forty percent (40%) of the total affordable housing dwelling units provided to satisfy this proffer shall be for-sale units; provided that such forty percent (40%) limit shall apply to the Project as a whole and not to individual site plans and subdivision plats. (1) Affordability; Credit Thresholds. For the purposes of this Proffer 2(A), affordable housing shall mean units affordable to households with incomes less than eighty percent (80%) of the area median income such that housing costs consisting of principal, interest, real estate taxes and homeowners insurance (PITI) do not exceed thirty percent (30%) of the gross household income; provided, however, that in no event shall the selling price for such affordable units be more than sixty-five percent (65%) of the applicable Virginia Housing Development Authority (VHDA) maximum sales price/loan limit for first-time homebuyer programs at the beginning of the 90-day period referenced in Proffer 2(A)(3) hereof (the VHDA Limit ). (2) Sale of Affordable Units. All purchasers of the for-sale affordable units shall be approved by the Albemarle County Housing Office or its designee (the "Housing Office"). At the proposed time of construction of any affordable unit, the Owner shall provide the Housing Office a period of one hundred eighty (180) days to identify and approve an eligible purchaser for such affordable unit. The 180-day qualification period shall commence upon written notice from the Owner to the Housing Office of the approximate date the unit is expected to receive a certificate of occupancy from the County. Such written notice shall be given no more than sixty (60) days prior to the expected issuance of the certificate of occupancy, and the 180-day approval period shall extend no less than ninety (90) days after the issuance of the certificate of occupancy. Nothing in this section 2(A)(2) shall prohibit the Housing Office from providing the Owner with information on income eligibility sufficient for the Owner to identify eligible purchasers of affordable units for approval by the Housing Office. If, prior to the end of the 180- day qualification period, (i) the Housing Office fails to approve a qualified purchaser, or (ii) a qualified purchaser fails to execute a purchase contract for an affordable unit, then, in either case, the Owner shall have the right to sell the unit without any restriction on sales price or income of the purchaser(s), and such unit shall be counted toward the satisfaction of this Proffer 2(A). This proffer shall apply only to the first sale of each of the for-sale affordable units. [Suggested language: If, at any time prior to thirty (30) days after the Housing Office s receipt of the written notice from the Owner, the Housing Office informs the Owner in writing that it will not have a qualified purchaser for one or more for-sale affordable units, the Owner shall prequalify qualification 3

provide a cash contribution to the Housing Office in the amount of $16,000 per unit, and such cash contribution shall be in lieu of the affordable unit(s). See proposed proffer 10 to assure that the proffered cash contribution is adjusted for inflation.] B. For-Rent Units. No more than thirty percent (30%) of the total affordable housing dwelling units provided to satisfy this Proffer 2 may be for-rent apartments, and no more than thirty percent (30%) of the affordable housing dwelling units provided to satisfy this Proffer 2 may be accessory units; provided, in any case, that such thirty percent (30%) limits shall apply to the Project as a whole and not to individual site plans and subdivision plats. For purposes of this Proffer 2(B), accessory units shall include Accessory Apartments as defined in the Albemarle County Code, Chapter 18, Section 3.1, as regulated by the Albemarle County Code, Chapter 18, Section 5.1.34, and a unit within a two-family dwelling as a two-family dwelling is defined in the Virginia Uniform Statewide Building Code. (1) Affordability; Rental Rates. For the purposes of this Proffer 2(B), affordable housing shall mean rental units for which the initial net rent does not exceed the then-current and applicable maximum net rent rate as published by the Albemarle County Housing Office; provided that, in each subsequent calendar year, the monthly net rent for each for-rent affordable unit may be increased up to three percent (3%). For purposes of this Proffer 2(B), the term net rent means that the rent does not include tenant-paid utilities. (2) Term. The requirement that the rents for such for-rent affordable units may not exceed the maximum rents established in this Proffer 2(B) shall apply for a period of five (5) years following the date the certificate of occupancy is issued by Albemarle County for each for-rent affordable unit, or until the units are sold as low or moderate cost units qualifying as such under either the Virginia Housing Development Authority, Farmers Home Administration, or Housing and Urban Development, Section 8, whichever comes first (the Affordable Term ). (3) Conveyance of Interest. All instruments conveying any interest in the forrent affordable units during the Affordable Term shall contain language reciting that such unit is subject to the terms of this Proffer 2(B). In addition, all contracts pertaining to a conveyance of any for-rent affordable unit, or any part thereof, during the Affordable Term shall contain a complete disclosure of the restrictions and controls established by this Proffer 2(B). At least thirty (30) days prior to the conveyance of any interest (other than for the securing of a mortgage or deed of trust) in any for-rent affordable unit during the Affordable Term, the then-current owner shall notify the Albemarle County Chief of Housing in writing of the conveyance and provide the name, address and telephone number of the potential grantee, and state that the requirements of this Proffer 2(B)(3) have been satisfied. (4) Reporting Rental Rates. During the Affordable Term, within thirty (30) days after the commencement of the lease term for each for-rent affordable unit, the Owner shall provide to the Albemarle County Housing Office a copy of the lease agreement for each such unit rented that shows the rental rate for such unit and the term of the lease. In addition, during the Affordable Term, the Owner shall provide to Albemarle County, if requested, any reports, 4

copies of lease agreements, or other data pertaining to rental rates as Albemarle County may reasonably require. C. Credit for Off-Site Units and Design Services. If the land abutting the Property currently known as Southwood Mobile Home park is redeveloped into a mixed use development to include low-income and/or workforce housing (the Southwood Development ), then Owner may fulfill up to one third (1/3) of its commitment to provide affordable housing under this Proffer 2 by providing a cash contribution to the developer of the Southwood Development in the amount of $16,000.00 per unit for the purpose of leveraging the costs of affordable units within the Southwood Development in cooperation with other funding sources. [County concerns: Under this language, the County will not have ability to directly know whether the cash is being applied for the stated purpose, unless the Owner proffers that it will provide the County with documentation from Southwood upon the County s request. This will put the burden on the Owner to obtain documentation from Southwood. There will be a similar issue with enforcement of the proffer-the County s recourse will be against the Owner, not Southwood.]Each off-site unit to which the Owner makes the cash contribution provided herein shall be the equivalent of providing one unit of affordable housing on the Property. Alternatively, the Owner may receive credit for donation of up to $500,000.00 in design services for the Southwood Development at the rate of one dwelling unit per $16,000.00 in documented design costs paid by the Owner for the Southwood Development. [It is unclear what kind of design services are envisioned. Nothing requires that the design services will be applied to affordable housing design in Southwood (it could be argued that if the services are provided, it will free up Southwood money to apply to the proposed affordable units). It also is unclear how the value of the design services would be determined. In the event that the Southwood Development should not be ready for development to include affordable housing by the time that the owner has already fulfilled at least two thirds (2/3) of its commitment to provide affordable housing under this Proffer 2, then Owner may fulfill up to one third (1/3) of its commitment to provide affordable housing under this Proffer 2 by providing a cash contribution to another qualified affordable housing project in the amount of $16,000.00 per unit. [This cash proffer may reach a segment of the population the County/developers have not been able to reach under the County s affordable housing policy and corresponding proffers. However, the proffer needs to be clarified because the term qualified afford housing project is not defined and it is unclear whether such a project would be another County-approved rezoning where affordable units are proffered or whether it is some other form of project in which affordable units are concentrated, which is contrary to the County s policy of integrating affordable housing throughout the community. Each off-site unit in a qualified affordable housing project to which the Owner makes the cash contribution provided herein shall be the equivalent of providing one unit of affordable housing on the Property. For the purposes of this Proffer, a qualified affordable housing project ( QHP ) shall be any new or redeveloped housing project located in the City Charlottesville or the County of Albemarle that provides housing that meets the County s definition of affordable housing at the time of the contribution. The Owner shall receive credit for such contribution upon receipt of written acknowledgment from the developer of the Southwood Development (or the Albemarle County Housing Office, in the case of contribution to a QHP) that the per-unit contribution has been received and that it will be used for the provision of affordable housing in the Southwood Development (or in a QHP), or, as the case may be, that the design services have been provided. The Owner shall submit such 5

written acknowledgment to the County with any site plan or subdivision plat for the Property for which the Owner claims credit for off-site units, which site plan or subdivision plat shall also reference the contribution to the Southwood Development or to the QHP; provided, however, that the maximum number of credited off-site affordable units shall not exceed five percent (5%) of the total units on the Property, which 5% limit shall apply to the Project as a whole and not to individual site plans and subdivision plats. The Owner may bank such credits and apply them to site plans and subdivision plats for the Property at the Owner s discretion without limitation on the number of credits applied to any particular plat or plan. [The last two sentences allow the Owner to defer the 5% credited units until the end of the project, which may be many years in the future and the cash amount will undoubtedly not keep up with inflation. D. Verification on Site Plans and Subdivision Plats. Each subdivision plat and site plan for land within the Property (except for subdivisions that either (i) do not create lots or units for individual residential occupancy, or (ii) contain only for-sale single family detached units, unless the Owner elects to provide affordable single family detached units in such subdivision [Other than plats and plans pertaining to the commercial area, it appears that (i) and (ii) cover all of the residential development, it is unclear what is left, unless unit for individual residential occupancy means something else) shall identify the lots and/or units that will constitute affordable housing. The total number of such lots or units designated for affordable units within each subdivision plat and site plan shall constitute a minimum of fifteen percent (15%) of the lots and units in such subdivision plat or site plan, subject to the credits provided in Proffer 2(C) hereof. Notwithstanding the foregoing, however, the Owner may bank and carry over credit for affordable housing dwelling units in the event an individual subdivision plat or site plan designates affordable lots or units that in the aggregate exceed the fifteen percent (15%) minimum for such subdivision plat or site plan, and such additional affordable units may be allocated toward the fifteen percent (15%) minimum on any future subdivision plat or site plan; provided, however, that the maximum number of affordable housing dwelling units that may be carried over or banked at any one time shall not exceed fifteen percent (15%) of the total units on any subdivision plat or site plan. seven and s and 2(D) E. Phasing of Affordable Housing Units. The Owner shall have offered for sale or for rent as provided in Proffers 2 (A) and 2 (B), respectively, a minimum of fifty (50) affordable housing units for every five hundred (500) dwellings proposed in sequence, subject to the credits provided in Proffers 2(C) and 2(D) hereof[suggested revised language: Before the Owner applies for a building permit for the 501 st, 1001 st, 1501 st, 2001 st, 2501 st, and 3001 st, dwelling unit, the Owner shall have offered for sale or rent as provided in Proffers 2 (A) and 2 (B) respectively, a minimum of fifty (50) affordable housing units. ] [We suggest you proffer cash equivalent to 5% of your proposed units or 155 units x $16,500 to the County specifically for the redevelopment of Southwood with a time frame sufficient to allow the owners of Southwod to commence redevelopment. The proffer could state that if this does not occur within the specified timeframe, the County could use those funds for other affordable housing initiatives. If you agree to do this, the cash equivalent proffer would be $2,557,500 and the proffers should specify an agreed upon pay in.] If you plan to provide design services to Southwood, such services should be specified in the proffer and the County should. Formatted: Superscript Formatted: Superscript Formatted: Superscript Formatted: Superscript Formatted: Superscript Formatted: Superscript 6

have the opportunity to determine if the requested credit is 1) reasonable, 2) necessary, and 3) not associated with other proffers being made by you such as roads. The proffering of cash to the County where the developers of Southwood could access the cash for development activities as needed is easier to monitor. We are concerned with a proffer that goes to a third party who may or may not do something. The profferin of services is also of concern. We have no idea what services will be needed or how well (efficiently) they will be provided. 3. Learning Center Site. Upon the request of the County, the Owner shall donate by gift in fee simple to the County or its designee, subject to matters of record affecting title, land for a public learning center or elementary school site of not less than 11 acres [County standard is 12 usable acres for this site; We will need a 12 acre site] as shown on sheet 5 of the Development Plan ( Learning Center ), [Suggestion: Describe/define what a Learning Center is] together with appropriate right-of-way for road and utility service to the school site. The Learning Center site shall be graded and compacted by Owner to a minimum of 95% compaction as measured by a standard Proctor test with suitable material for building construction as certified by a professional engineer or as otherwise approved by the County Engineer to establish a fully graded pad site to accommodate an elementary school. Owner may grade the Learning Center site in conjunction with construction of the Southwood Connector described in Proffer 6D below. The sidewalks at the perimeter of the Learning Center site shall be reflected on the subdivision plat prepared by Owner creating the Learning Center parcel and the sidewalks shall be installed by the Owner when the site is graded. The Owner shall provide all utilities to the parcel boundary of Learning Center. A storm water facility is available off-site from the Learning Center Site for use by such site so that no on-site storm water measures will be required. The dedication shall include easements across Owner s land for access to and use of storm water facilities, together with all temporary easements to allow storm water facilities to be redesigned and enlarged, if necessary, to accommodate the Learning Center storm water. The Learning Center may be used as an elementary school site, but if the County determines that the Learning Center will not be used as an elementary school site, it shall be used by the County for educational purposes [Suggested wording: or a community park] serving both the Biscuit Run community and the region.. [We need further discussion with the schools division regarding this proffer: Cash contribution needs to be included. This development will not only create the need for the elementary school, but the enrollment of middle and high school will also increase creating an expansion need. Need to include construction of the road to the school site, irrigation and sprigging of the site. Need clarification on road phasing. Zoning recommends that the proffer clarify that the grading, soil compaction, provision of utilities, access and any easements to completed prior to dedication to the County. ], including but not limited to a community park 4. District Park. A. Upon the request of the County, the Owner shall donate by gift to the County or its designee, subject to matters of record affecting title, land for a public park of not less than 92 acres, approximately 72 acres of which is exclusive of the Greenway as shown on sheet 5 of the Development Plan, together with the appropriate right-of-way for road and utility service to the district park. The conveyance to the County may contain a reservation of right-of-way and utility access to land to the South of the park that is owned by Owner at the time of such conveyance. [We need further discussion with Parks regarding this proffer.] 7

B. Within six (6) months after final approval by the County of the first subdivision plat or site plan within the Property, the Owner shall make a cash contribution to the County in the amount of Two Hundred Thousand Dollars ($200,000.00) for the purpose of funding a master plan for the District Park (the Park Master Plan ). If the Park Master Plan is completed for less than Two Hundred Thousand Dollars ($200,000.00), any remaining funds may be retained by the County and used to fund parks and recreation projects and improvements in the Biscuit Run neighborhood. [Is the Biscuit Run neighborhood limited to the Property, or to surrounding areas as well?] If such cash contribution is not expended for the Park Master Plan or to fund park and recreation improvements in the Biscuit Run neighborhood [Does this addition and the deletion at the end of the proffer accomplish what you intended?]within two (2) years from the date of the contribution, all unexpended funds shall be refunded to the Owner;.[The Board s policy is to have the unexpended cash proffers disbursed to address other CIP projects in the area, rather than return the money to the Owner.] [See Attachment E of March 27, 2007 staff report regarding the need for cash contribution towards park improvements.] 5. Overlot Grading Plan. The Owner shall submit an overlot grading plan meeting the requirements of this Proffer (hereinafter, the Plan ) with the application for each subdivision of the single family detached and single family attached dwelling units shown on the General Development Plan. The Plan shall show existing and proposed topographic features to be considered in the development of the proposed subdivision. The Plan shall be approved by the County Engineer prior to final approval of the subdivision plat. The subdivision shall be graded as shown on the approved Plan. No certificate of occupancy shall be issued for any dwelling on a lot where the County Engineer [or Department of Community Development.] has determined the lot is not graded consistent with the approved grading Plan. The Plan shall satisfy the following: provided that any portion of the cash contribution not required to fund the Park Master Plan that is retained by the County as provided herein, shall be refunded to the Owner if such funds are not expended within the time provided therein department of engineering A. The Plan shall show all proposed streets, building sites, surface drainage, driveways, trails, and other features the County department of engineering determines are needed to verify that the Plan satisfies the requirements of this Proffer 5. feet. B. The Plan shall be drawn to a scale not greater than one (1) inch equals fifty (50) C. All proposed grading shall be shown with contour intervals not greater than two (2) feet. All concentrated surface drainage over lots shall be clearly shown with the proposed grading. All proposed grading shall be shown to assure that surface drainage can provide adequate relief from the flooding of dwellings in the event a storm sewer fails. D. Graded slopes on lots proposed to be planted with turf grasses (lawns) shall not exceed a gradient of three (3) feet of horizontal distance for each one (1) foot of vertical rise or fall (3:1). Steeper slopes shall be vegetated with low maintenance vegetation as determined to be appropriate by the County s program authority in its approval of an erosion and sediment control Plan for the land disturbing activity. These steeper slopes shall not exceed a gradient of two (2) feet of horizontal distance for each one (1) foot of vertical rise or fall (2:1), unless the County 8

Engineer finds that the grading recommendations for steeper slopes have adequately addressed the impacts. E. Surface drainage may flow across up to three (3) lots before being collected in a storm sewer or directed to a drainage way outside of the lots. F. No surface drainage across a residential lot shall have more than one-half (1/2) acre of land draining to it. G. All drainage from streets shall be carried across lots in a storm sewer to a point beyond the rear of the building site. H. The Plan shall demonstrate that driveways to lots will not be steeper than twenty (20) percent unless certified by an engineer that the driveway at the proposed steepness would be safe and convenient for vehicles (including emergency vehicles) to use the driveway, and shall include grading transitions at the street that the agent determines will allow passenger vehicles to avoid scraping the vehicle body on the driveway or the street. Additionally, the driveway grading shall provide an area in front of the proposed garage, or an area proposed for vehicle parking where no garage is proposed, that is not less than eighteen (18) feet in length that will be graded no steeper than eight (8) percent. I. The Plan shall demonstrate that an area at least ten (10) feet in width, or to the lot line if it is less than (10) feet, from the portion of the structure facing the street, has grades no steeper than ten (10) percent adjacent to possible entrances to dwellings that will not be served by a stairway. This graded area also shall extend from the entrances to the driveways or walkways connecting the dwelling to the street. J. Any requirement of this condition may be waived by the County Engineer [or Department of Community Development.]by submitting a waiver request with the preliminary plat. If such a request is made, it shall include: (i) a justification for the request contained in a certified engineer s report; (ii) a vicinity map showing a larger street network at a scale no smaller than one (1) inch equals six hundred (600) feet; (iii) a conceptual plan at a scale no smaller than one (1) inch equals two hundred (200) feet showing surveyed boundaries of the property; (iv) topography of the property at five (5) foot intervals for the property being subdivided and on abutting lands to a distance of five hundred (500) feet from the boundary line or a lesser distance determined to be sufficient by the agent; (v) the locations of streams, stream buffers, steep slopes, floodplains, known wetlands; and (vi) the proposed layout of streets and lots, unit types, uses, and location of parking, as applicable. In reviewing a waiver request, the County department of engineering shall consider whether the alternative proposed by the Owner satisfies the purpose of the requirement to be waived to at least an equivalent degree. In approving a waiver, the County department of engineering shall find that requiring compliance with the requirement of this condition would not forward the purposes of the County s Subdivision and Water Protection Ordinances or otherwise serve the public interest; and granting the waiver would not be detrimental to the public health, safety or welfare, to the orderly development of the Project, and to the land adjacent thereto. department of engineering 9

K. The Owner may request that the Plan be amended at any time. All amendments shall be subject to the review and approval by of the Director of the Department of Community Development. [See suggestions in Proffer 9] 6. Transportation Improvements. [Zoning: The proffer as proposed has sunset provisions that are affected by the rate of build-out of Biscuit Run. It may be more appropriate to base the timing of the provision of transportation improvements on the need for them whenever that occurs since it is possible that a significant portion of Biscuit Run may be developed far into the future. The terms constructed and installed must be defined to make clear at what point in the process of road design, bonding, construction and acceptance the proffer shall be determined to be satisfied.][planning: Refer to Attachment K in the public hearing staff report dated March 27, 2007 for additional comments regarding transportation proffers] A. Off-Site Traffic Signals. When warranted, the Owner shall install a traffic signal [Is a single traffic signal, full signalization, or something in between as determined by VDOT needed at each intersection?] [Suggested wording should include: the addition of necessary construction to the affected intersections.] at each of the following two (2) intersections in Albemarle County in accordance with the terms of this Proffer 6(A): (i) 5 th Street Extended and Sunset Avenue, and (ii) Scottsville Road (Rt. 20) and Avon Street Extended. Within ninety (90) days of receipt of a warrant analysis supporting the applicable signal improvement, the Owner shall submit proposed traffic signal designs for the two traffic signals are the Virginia Department of Transportation ( VDOT ). The Owner shall then install the traffic signals within six (6) months after approval by VDOT of the designs for both traffic signals. [Same comment as above] [If the need for these traffic signals is substantially generated by Biscuit Run, the proffer needs to eliminate the contingencies, assure that it will obtain the right-of-way (or proffer cash to pay for the cost of obtaining the right-of-way, and adequately address its impacts.] B. Off-Site Turn Lanes. At the intersection of 5 th Street and the Interstate 64 eastbound ramps in Albemarle County, the Owner shall construct one southbound right turn lane (turning from southbound 5 th Street onto the westbound I-64 on ramp) and one westbound right turn lane (turning from the westbound I-64 off ramp onto northbound 5 th Street), in accordance with the terms of this proffer. In addition, at the intersection of 5 th Street and the Interstate 64 westbound ramps, the Owner shall construct one northbound right turn lane (turning from northbound 5 th Street onto the eastbound I-64 on ramp) and one eastbound right turn lane (turning from the eastbound I-64 off-ramp onto 5 th Street southbound), in accordance with the terms of this proffer. [We need further discussion with staff/vdot regarding this proffer.] The geometrics of all turn lanes shall be subject to prior approval by the Virginia Department of Transportation ( VDOT ). The turn lanes shall be installed within twelve (12) months after receipt of final approval by the County of the first site plan or subdivision plat creating lots or units for individual occupancy within the Property. [It is unclear what a lot or unit for individual occupancy is is it referring only to single family detached dwellings, all of the residential units other than apartments, something else? The triggering event should be one that is related to when a certain trafficgenerating threshold is reached, and not a type of lot or unit. If a lot or unit for individual L. In the event that the County adopts overlot grading regulations after the date ZMA 2005-017 is approved, any requirement of those regulations that is less restrictive than any requirement of this Proffer 5 shall supersede the corresponding requirement of this Proffer 5, subject to the approval of the Director of the Department of Community Development. The Owner s obligation under this Proffer 6(A) shall be contingent on the provision, without cost to the Owner, of adequate right-of-way and easements as necessary for installation and maintenance of the traffic signals. In the event all contingencies to this Proffer 6(A) have not been satisfied by, then this Proffer 6(A) shall expire and Owner shall have no further obligation to make this Proffer 6(A). The Owner s obligation under this Proffer 6(B) shall be contingent on the provision, without cost to the Owner, of adequate right-of-way and easements as necessary for the improvements to be constructed and maintained. 10

occupancy means only single family detached, then all of the commercial retail, office, and 2450 (that will be apartments, townhouses and condominiums) of the 3,100 dwelling units could be planned or platted before these improvements are triggered.] [If the need for these turn lane improvements is substantially generated by Biscuit Run, the proffer needs to eliminate the contingencies, assure that it will obtain the right-of-way (or proffer cash to pay for the cost of obtaining the right-of-way), and adequately address its impacts.] C. Cash Proffer for Area Transportaion Projects. The Owner shall make a cash contribution to the County [VDOT has said in the past that the cash proffers should go to the County, not to VDOT.] of Five Million Five Hundred Thousand Dollars ($5,500,000.00) cash to Albemarle County for funding and improvements as determined by the County for: (i) bicycle lanes on Old Lynchburg Road (State Route 631) and in the City, State Route 20, and Avon Street; (ii) spot improvements [Are these spot improvements identified anywhere?] for State Route 20 and Old Lynchburg Road, and (iii) widening State Route 20. [This cash proffer may be inadequate to address the impacts to these roads. In its February 7, 2007 letter, the City stated that it needs [a] contribution of $1.5 million toward improvements to the Old Lynchburg Road. The potential for negative traffic impacts is greater on Old Lynchburg Road than any other non major arterial impacted by projected traffic. In its March 5, 2007 email, VDOT stated that the widening of Route 20 proposed by Biscuit Run (adding a lane on each side) is not appropriate. VDOT state that Route 20 needs to be a 4-lane divided section with bike lanes and either graded medians or curbing with raised medians, and that Biscuit Run s proportionate share of the cost of these improvements for route 20 alone is closer to $14,969,000.00.] Such cash contribution shall be made available for request by the County upon the issuance of the certificate of occupancy for the 500 th dwelling unit on the Property (the Availability Date ). [We need further discussion with staff/vdot regarding this proffer]if the County fails to request all or any part of such contribution within ten (10) years after the Availability Date, then this Proffer 6(C) shall become null and void. In the event any contribution made by Owner to the County in accordance with this Proffer 6(C) has not been exhausted for the stated purpose within 10 years after the date of the County s receipt of the final contribution hereunder, all unexpended funds shall be applied towards a community development authority including the Property or, if none exists, then to the County s Revenue Sharing Road Program. D. Southwood Connector. The Owner shall design and construct a connecting road (the Southwood Connector ) between the Property and State Route 631 (Old Lynchburg Road) through the Southwood Development, as defined in Proffer 2(C). The Owner shall be responsible for necessary right-of-way acquisition and shall cause the dedication of the Southwood Connector and related drainage, slope and utility easements to public use. The design of the Southwood Connector shall be coordinated with the developer of the Southwood Development and subject to prior approval by VDOT and shall include, without limitation, two paved travel lanes, additional right-of-way dedication of sufficient width for future construction of two additional lanes, and one pedestrian and bicycle underpass serving the Southwood Development. Street and parking lane widths for the Southwood Connector may be reduced if allowed by VDOT and approved by the County Engineer [or the County s Transportation Engineer?]. The Southwood Connector shall be accepted by VDOT for public use or bonded within twelve (12) months after the issuance of the certificate of occupancy for the 500 th dwelling unit on the Property. [Staff recommends the owner provide assurance that the owner of In the event all contingencies to this Proffer 6(A) have not been satisfied by, then this Proffer 6(B) shall expire and Owner shall have no further obligation to make this Proffer 6(B). or VDOT up to engineering department 11

Southwood is committed to this proffer. Staff understands the applicant is working on this. Staff recommends that the deadline for construction of the connector be specified in addition to deadline for VDOT acceptance or bonding.][engineering: Prefers not to allow bonding satisfy the proffer. Would like to see the transportation infrastructure in place when it is needed.] E. Mill Creek South Connection. The Owner shall dedicate sufficient right-of-way between the Property and Mill Creek South in the area depicted on the General Development Plan for future vehicular connection. The right-of-way shall be used for pedestrian access to the Property until such time as the vehicular connection is required. [Zoning: Staff recommends that the proffer state that the County Engineer shall determine the sufficiency of the right-of-way.] F. District Park Road Segment. The Owner shall design and construct a road segment or segments and a trail link connecting the boundary of the Property and Mill Creek South to the District Park. The road segment(s) connecting the District Park and Mill Creek shall be accepted by VDOT for public use or bonded within twelve (12) months after the issuance of the certificate of occupancy for the 500 th dwelling unit on the Property. The trail link shall be completed by Owner before issuance of the certificate of occupancy for the 500 th dwelling unit on the Property.[Zoning: Staff recommends that the deadline for construction of the raod segment be specified in addition to deadline for VDOT acceptance or bonding.] G. Intelligence Transportation System (ITS) Improvements. The Owner shall contribute cash in the amount of One Hundred Fifty Thousand Dollars ($150,000) for use by the County and the City of Charlottesville for communication and signal timing improvements at locations to be agreed to by the City and the County. The cash contribution shall be made within twelve (12) months after receipt of final approval by the County of the first site plan or subdivision plat creating lots or units for individual occupancy within the Property. H. Owner s Share of Other Off-Site Improvements. For each dwelling unit constructed on the Property, the Owner shall contribute Two Hundred Sixty-three Dollars ($263.00) cash (total: $815,300.00) to Albemarle County for funding: i) signal improvements at Avon and Southern Parkway; ii) signal improvements at Old Lynchburg Road at Route 631/5 th Street; iii) signal improvements at Scottsville Road/Route 20 at I-64; iv) lane addition at Old Lynchburg Road and Country Green [Lane addition to which street?]; v) lane addition at Old Lynchburg Road and Mountain Wood [Lane addition to which street?]; vi) lane addition at Route 20 and PVCC [Lane addition to which street?]; and vii) lane addition and bridge expansion at I-64 and 5 th Street [Lane addition to which street?]. The cash contribution for each dwelling unit shall be paid at the time of the issuance of the building permit for such dwelling unit. If the cash contribution has not been exhausted by the County for the stated purpose within ten (10) years from the date of the issuance of the last residential building permit within the Property, all unexpended funds shall be refunded to the Owner.[Is the amount of this cash proffer a proportionate share for this project? Preferably, the timing of the cash contribution needs to be linked to when the signal improvements and lane additions are needed, and having the cash come in at $263.00 per unit for the next 10, 20, 30 years may not allow this.] I. Sunset Connector. [Confirm that the name for this project is correct. The City s February 7. 2007 letter refers to it as the Sunset/Fontaine Connector, the County s proposed upon the E. F. 816,25.00 G Formatted: Underline 12

comprehensive plan amendment for Area B refers to it as the Fontaine/Sunset Avenue Connector Road For each dwelling unit constructed on the Property, the Owner shall contribute Five Hundred Dollars ($500.00) cash (total: $1,550,000.00) to Albemarle County for funding construction of the Sunset Connector as contemplated in the Area B Study. The cash contribution for each dwelling unit shall be paid at the time of the issuance of the building permit for such dwelling unit. If the cash contribution has not been exhausted by the County for the stated purpose within ten (10) years from the date of the issuance of the last residential building permit within the Property, all unexpended funds shall be refunded to the Owner. [The timing of the cash proffer needs to be linked to when traffic impacts from this project are such that the Sunset/Fontaine Connector is needed, and having the cash come in at $500.00 per unit for the next 10, 20 or 30 years may not allow this. The City noted in its February 7, 2007 letter that the Sunset/Fontaine Connector will relieve much of the pressure on City streets from traffic in the southern growth area headed towards Fontaine Research Park or the University. J. Transit. Within thirty (30) days of the introduction of public transportation to the Property, Owner shall contribute Twenty-Five Thousand Dollars ($25,000.00) cash to the County to be used for operating expenses related to such service, and shall thereafter annually contribute Twenty-Five Thousand Dollars ($25,000.00) cash for a period of nine (9) additional years, such that the total funds contributed to the County pursuant to this Section 6(H) shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00). [The Owner has not addressed staff s identified need for a park and ride lot.] K. Satisfaction of Proffer. Regardless of whether the road improvements described in this Proffer 6 have been accepted by VDOT for public use, each obligation of this Proffer 6 that relates to completion of public road improvements shall be satisfied if plans for such road improvement have been submitted for review and approved by VDOT and sufficient bond has been supplied to satisfy all costs to complete such improvement in accordance with such plans. H Formatted: Underline I 7. Sewer Phasing Plan. Prior to approval of the first site plan or subdivision plat for the Property, the Owner shall provide to the Albemarle County Service Authority (ACSA) and the Rivanna Water and Sewer Authority (RWSA)for their review and approval a master sewer phasing plan for the purposes of assisting ACSA and RWSA in capital projects planning. Owner shall provide the RWSA and ACSA with changes to the master sewer phasing plan on an annual basis, as the actual project unfolds and all such changes shall be subject to the review and approval of the ACSA and RWSA. Prior to approval of the first site plan or subdivision plat for the Property, the Owner shall enter into an agreement with the ACSA to design and construct a replacement or a parallel sanitary sewer line installation for the Biscuit Run Interceptor and all other improvements and upgrades determined to be necessary by the ACSA, at the Owner s expenseif the Biscuit Run Interceptor or any other improvements are determined to be inadequate for the build out of the Property. The agreement shall run with the land and be recorded in the Clerk s Office of the Circuit Court of Albemarle County, Virginia before the first sale of land within the Property. The requirements of this Proffer shall in no way bind or limit the powers of the ACSA or the RWSA. [See Attachment F of the March 27, 2007 public hearing staff report regarding the following requested changes/revisions. In a meeting with ACSA representatives on March 16, 2007, the Within twelve (12) months from County approval of ZMA-2005-017, to, update such. T agrees to the, prior to the approval of the first site plan or plat for the Property is m 13