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HomeMy WebLinkAbout05-12 Proffer Statement• idytg - 0 RESOLUTION C) Action: PLANNING COMMISSION: May 16, 2012 - Recommended Approval BOARD OF SUPERVISORS: May 23, 2012 ❑ APPROVED ❑ DENIED AN ORDINANCE AMENDING THE ZONING DISTRICT MAP REZONING #05-12 PROFFER REVISION OF BPG PROPERTIES WHEREAS, Rezoning #05 -12 Proffer Revision of BPG Properties, to revise the proffers associated with Rezoning #05 -08 relating to the "Transportation Mitigation" section of the proffers, was considered. The proffer, originally dated September 24, 2008, and amended May 18, 2012, is intended to allow for the possibility of multiple users on the site, which was previously not envisioned. The properties are located approximately .61 miles north of the Route 11 intersection with Cedar Hill (Route 671), bounded on the west by Interstate 81 and on the east by Martinsburg Pike (Route 11), in the Stonewall Magisterial District, and are identified by Property Identification Numbers 33 -A -109 and 33 -A -1 10. WHEREAS, the Planning Commission held a public hearing on this rezoning on May 16, 2012 and forwarded a recommendation of approval; and WHEREAS, the Board of Supervisors held a public hearing on this rezoning on May 23, 2012; and WHEREAS, the Frederick County Board of Supervisors finds the approval of this rezoning to be in the best interest of the public health, safety, welfare, and in conformance with the Comprehensive Policy Plan; NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that Chapter 165 of the Frederick County Code, Zoning, is amended to revise the proffers concerning Rezoning #05-08. The proffer revision is intended to allow for the possibility of multiple users on the site, which was previously not envisioned, as described by the application and attached conditions voluntarily proffered in writing by the applicant and the property owner. PDRes. k 17 -12 This ordinance shall be in effect on the date of adoption. Passed this 23rd day of May, 2012 by the following recorded vote: Richard C. Shickle, Chairman Aye Gary A. Lofton n u Aye Ross P. Spicer Aye Bill M. Ewing Aye Gene E. Fisher Aye Charles S. Del - laven, Jr. Aye Christopher E. Collins Aye A COPY ATTEST &�._ Jo R. Riley, Jr. Frederick County Administrator vIRGIMA: FR.?DERICK COUN "rY.SCf. This instrument of writing was produced to me oil 6- 6.1z ?.3/ f.44. :It and with certilic :,tr ac mn +irde ment thereto annexed was admitted to reword. Tns impowd by Sec. 58.1 -802 of $ , and 58.1 -801 have been paid, if assessable Clerk PDRes. # 17 -12 0 120005897 0 0 AMENDED PROFFER STATEMENT REZONING: Proffer Amendment #05 -12 Amending proffers associated with RZ #05 -08, Rezoning to B -3 PROPERTY: ±59 Acres, Tax Map Parcel No.'s 33- A- 109; 33 -A -110 RECORD OWNER: Frederick County Investors, LLC APPLICANT: BPG Properties, Ltd. PROJECT NAME: 1 -81 Distribution Center DATE OF APPROVAL OF ORIGINAL PROFFERS: September 24, 2008 AMENDED PROFFER SUBMISSION: May 18, 2012 The undersigned hereby proffers that the use and development of the subject property ( "Property "), as described above, shall be in strict conformance with the following conditions, which shall supersede all other proffers that may have been made prior hereto. In the event that the above referenced rezoning is not granted as applied for by the applicant ( "Applicant "), these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are con- tingent upon final rezoning of the Property with "final rezoning" defined as that rezoning which is in effect on the day following the last day upon which the Frederick County Board of Super- visors' (the "Board ") decision granting the rezoning may be contested in the appropriate court. The headings of the proffers set forth below have been prepared for convenience of ref- erence only and shall not control or affect the meaning or be taken as an interpretation of any provision of the proffers. The term "Applicant" as referenced herein shall include within its meaning all present and future owners and successors in interest. The development of the Property shall be in general conformance with the plan entitled "BPG Properties, Ltd., Frederick County, Virginia, Generalized Development Plan" dated Feb- ruary 9, 2012 (the "GDP "), prepared by Triad Engineering, Inc., subject to reasonable changes approved by the County in connection with Master Development Plan and Final Site Plan re- view, including revisions required for final engineering considerations, code and regulatory compliance, and revisions to parking layout and the location of structures to accommodate the potential for multiple buildings on the Property. The Applicant hereby proffers the following: Land Use Restrictions. 1.1. The Property shall be developed with not more than seven hundred fifty thousand (750,000) square feet of permitted uses, as those uses are modified hereby, which 750,000 square feet and permitted uses shall be located entirely within one build- ing or within multiple buildings on the Property. Amended 11roffer Statement Proffer 01 (110258602-3) x 0 rn N • • O O� W 1.2. Office uses may be employed on the Property only as accessory uses and shall be___ located entirely within the structure(s) for the primary use(s). In no event shall there be stand -alone office buildings on the Property. 1.3. The Applicant shall employ the yard and setback requirements for uses as provided in the M1 District, rather than those otherwise applicable to the B3 District. 2. Proffered -Out Uses. The Following uses shall not be permitted on the Property. 2.1 Transportation By Air and all Uses Classified as SIC 45 2.2 Transportation Services, and all Uses Classified as SIC 47 2.3 Automotive Dealers and Gasoline Service Stations and all Uses Classified as SIC 55 2.4 Restaurant, except food services as may be provided to service employees on site 2.5 Amusement and recreation services operated indoors 2.6 Drive -in motion picture theaters 2.7 Local and suburban transit and interurban highway passenger transportation 2.8 Outdoor ad services 2.9 Automobile recovery service 2.10 Automotive repair, services and parking 2.11 Automobile repossession service 2.12 Product sterilization service 2.13 Repossession service 2.14 Building materials, hardware, garden supply, mobile home dealers and retail nurse- ries, provided that this proffer does not exclude from the Property warehouse facil- ities that store and distribute goods associated with these uses. 2.15 Food stores or groceries. 3. Transportation Mitigation. 3.1. At the entrance to the Property, the Applicant will construct entrance improve- ments consistent with Virginia Department of Transportation (VDOT) require- ments. 3.2. There shall be no more than two entrances to the Property. The first such en- trance shall be constructed along Route l 1 in the general location identified on the GDP as the `Initial Entrance," which shall be separated at least 700' from the in- Amended Proffer Statement Proffer 01 (110258602 -3) tersection of Branson Spring Road and Route 11, unless otherwise approved -by Frederick County and VDOT. The second such entrance (the "South Entrance ") shall be located at the south end of the Property as depicted on the GDP 3.3. The Initial Entrance shall be closed by the Applicant, at its expense, within thirty (30) days after all of the following conditions have been met: i) an entrance to the Property has been constructed by others in the general location identified on the GDP as "Future Entrance" and ii) a right turn and deceleration lane meeting VDOT requirements has been constructed by others into the Future Entrance. The Applicant shall grant any necessary construction, grading and access ease- ments over the Property necessary for the construction of the Future Entrance and an associated right turn lane into such Entrance, provided that the Applicant ex- pressly approves of the plans for improvements associated with the Future En- trance, such approval not to be unreasonably withheld. 3.4. At such time as the Future Entrance is constructed as provided herein, the Appli- cant shall close the Initial Entrance and shall pay fifty (50) percent of the total au- dited costs incurred in constructing the Future Entrance to VDOT standards, which may include signalization thereof, such payment not to exceed $125,000.00. The "not to exceed" value of $125,000.00 is subject to the Escalator Clause set forth below and represents the Applicant's estimate of fifty (50) per- cent of the total costs of replacing the Initial Entrance and constructing a right turn lane deceleration lane and traffic signal at the Future Entrance's intersection with Route 11. The payment required by this Proffer 3.4 shall be used exclusively for costs associated with improvements necessary for the issuance of a VDOT en- trance permit for the Future Entrance and shall be made to the party designated by the Zoning Administrator for the construction of the Future Entrance upon written demand of the Zoning Administrator and within thirty (30) days after the follow- ing conditions have been met: i) the Future Entrance is opened for public use, though not accepted into the State System of Secondary Highways, and ii) the party responsible therefor provides the Zoning Administrator satisfactory proof of its audited costs. 3.5. The Applicant shall grant an access easement over the Property to and for the benefit of the adjoining parcels to the north and south of the Property to accom- modate access to the Future Entrance and to the South Entrance. 3.6. The Applicant shall enter into a signalization agreement for the Initial Entrance with VDOT as a condition of final site plan approval. 3.7. The Applicant shall dedicate right- of-way along the Property's Route I 1 frontage that is ten (10) feet wide from the existing edge of right -of -way. Such dedication shall be made prior to the approval of the first site plan for development of the Property. The Applicant shall construct a ten (10) foot wide asphalt trail outside of but adjacent to said right -of -way, and dedicate an easement to the County for public purposes for such trail, drainage and grading improvements upon written request by the County. The maintenance of the asphalt trial shall be the responsi- Amended Proffer Statement Pro0er 01 (P0258602 -3) o' rn r • • o m cn bility of the owner of the Property or a property owner's association created -for such purpose, unless and until the County affirmatively assumes maintenance of the trail in writing. 3.8. The Applicant will contribute to Frederick County the sum of five Hundred Fifty Thousand and 00 /100 Dollars ($550,000.00) subject to the escalation clause con- tained in these Proffers, to be used for improvements in the Route 1 1 north corri- dor. Such payment shall be made at the time of issuance of each building permit for a use on the Property, and each such payment shall be in proportion to the square footage of the proposed construction bears to the 750,000 square feet of building authorized hereunder. Such funds may be used by the Board in its dis- cretion for such transportation improvements. 4. Fire and Rescue. The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to Freder- ick County at the time of issuance of the first building permit for the Property, for use by the Board in its discretion, for fire and rescue purposes. 5. Site landscaping. 5.1. The Applicant shall provide a landscape strip within the area between the asphalt trail identified in Proffer 3.7 and the parking area identified on the GDP that is a minimum of ten (10) feet in width (the "Route 11 Buffer')., The Route 1 1 Buffer shall be comprised of three street trees (per Zoning Ordinance §165- 36.B.1, or equivalent) per one hundred linear feet, and twenty -five shrubs per one hundred linear feet. These plantings shall be in addition to those required by the County's buffering and screening requirements. If no berm or hedgerow along the Route 11 frontage is otherwise required, the Applicant agrees to install a three foot berm or hedgerow along the Route 1 1 frontage within the Route 1 1 Buffer. 5.2 The Applicant shall plant street trees (per Zoning Ordinance §165-36.B.1, or equivalent) in the area between the rear parking area the Property's western prop- erty line at a rate of no fewer than one tree per forty (40') linear feet. 6. Architectural. Facing materials of buildings facing Route 11 and Interstate 81 shall be primarily of con- crete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or simu- lated wood or glass. 7. Site development requirements. 7.1. All utilities will be underground. 7.2. Stonnwater management facilities will be maintained by the Applicant. 7.3. Prior to the issuance of an occupancy permit for a building on the Property, the Amended Prot lcr Statement Proffer 01 (110258602 -3) O ^"..- Q� Applicant shall construct a split rail fence no more than five feet in height along the Property's Route 11 frontage in a location to be determined by the Applicant in consultation with the County. 8. Deed. The Applicant proffers and agrees that any deed conveying the Property shall affix as an attachment and incorporation into said deed, a full copy of these proffers in order to fully advise any subsequent purchaser of these proffered terms and conditions. 9. Dedication of Right —of -Way for Branson Spring Road Extension. Upon VDOT's approval of a functional plan for the extension of Branson Spring Road through the Property in a location generally consistent with the current termination point of that Road and parallel to the northern property line of the Property (the "Branson Spring Road Ex- tension"), the Applicant shall, upon written request from the County or VDOT, dedicate not more than 100 feet of right -of -way from that property line to the County at no cost. No addi- tional landscaping, buffering or setbacks shall be required of the Applicant as a consequence of such dedication. 10. Escalator. In the event the monetary contributions set forth in the Proffer Statement are paid to Frederick County within eighteen (18) months of the approval of this rezoning, as applied for by the Applicant, said contributions shall be in the amounts as stated herein. Any monetary contri- butions set forth in this Proffer Statement which are paid to the County after eighteen (18) months following the approval of this rezoning shall be adjusted in accordance with the Urban Consumer Price Index ('CPI -U ") published by the United States Department of Labor, such that at the time contributions are paid they shall be adjusted by the percentage change in the CPI -U from that date eighteen (18) months after the approval of this rezoning to the most recently avail- able CPI -U to the date the contributions are paid, subject to a cap of 6 percent (6 %) per year, noncompounded. [SIGNATURES AND NOTARIES APPEAR ON FOLLOWING PAGES] Amended Proffer Suriement Prover 01 (P0258602 -3) u • • O Q� Owner: -r1 FREDERICK COUNTY INVESTORS, LLC By: Name: Daniel DiLella, Jr. Its: STATE OF`QcQ COUNTY /CITY OF , "fo -wit: The foregoing instrument was acknowledged before me this /,day of YYl 2012, by Daniel M. DiLella, Jr., as V /0- of Fred- . LLC. NOTARIACSBE/u_ CATNERM T SII&SON Notary Palk .MV DELAWARE CNTV My commission expires: Registration Number: /aaF7 6y Amended Proffer statement Prober 01 (110258602 -3) NOTARY PUBLIC 0 Applicant: BPG PROPERTIES, LTD. By: BPG -GP, , its General Partner By: Name: Daniel M. DiLella, Jr. Its: Vice President STATE OF Ai_L�UJ C COUNTY /CITY OF To -wit: • The foregoing instrument was acknowledged before me this 19day of 2012, by Daniel M. DiLella, Jr., as Vice President of 'rP 1 f' C:rneral Pnrhurr nF HhG PCOper[ICS, Ltd. CATHMN T BNAVEON NEWTO TWR DELAWARE CNTY IV CornmNnlon EWm Nov S. 201• My commission expires: Registration Number: lad 976V Amended Proffer Statement Proffer 01 (P0258602 -3) q ;. ale - - - - - - - - - - - - - - - - -- ------------------------------- --------------------------- --------- -- PPER', E I.R FUT U RE I�ITP.��OJIT I�ILOYFA IRA� 'A' E.Al ,,ORC 2 �WIN� UPAP�ON E um FUTUR jg EPIITING I�AUEIAI OA v UE R,MQ,EE 'FNAPOEED 4� RODE O.P� .2 IF 111 TAPFi AE OOE. ORT1.1 TpucK cOURT T N F I ER 'A I I - I I A i 'RF� AT Ol DMI �ON FUMAF E 11 i -MPNIMUR :t — - - - - - - - ��CAPE �EN (PROFFER 5 1) . . . . . . . PROPOR. TPkL RL — - - - - -- - - - PP9CFFA 7) zo vw I Rf AA�F7 11, SWT ENTAA�C E Irl �T I I 1 .1 N ^1 R ryRQIFER ay ZMAD GDP I � + 1A e� m i ae ��IIJ s COMfNWEALTH OF VIRGINIA 0 Q21i OFFICIAL RECEIPT FREDERICK CIRCUIT COURT DEED RECEIPT DATE: 06/06112 TIME: 14:31:07 ACCOUNT: 069CLRI20005897 RECEIPT: 126100011917 CASHIER: SSM REG: NE17 TYPE: OTHER PAYMENT: FULL PAYMENT INSTRUMENT : 12009`897 BOOK: PAGE: RECORDED: 06106/12 AT 14:31 GRANTOR: FREDERICK COUNTY INVESTORS LLC EX: N LOC: CO WNTEE: FREDERICK COUNTY VIRGINIA EX: `, PCT: WON AND ADDRESS : RECEIVED OF : ROOD WILLIAMS CASH: $21.010 DESCRIPTION 1: ST DISTOMENDED PROFFER STATEMENT) PAEES: 19 OF' 0 2: NAMES: CONSIDERATION: .00 ANAL: Af) MAP: MIST PIN: 301 DEEDS 14.50 145 VSLF 106 TECHNOLOGY TRST FND 5.00 e� •I i e� ocle nAOl I , TENDERED AMOUNT PAID: CHANG' AMT CLERK OF COURT: REBECCA P. HOGAN 1.50 21.00 21.90 PQ le 3� IA • „I �e le r, u e e e �e �e REZONING PROPERTY AMENDED PROFFER STATEMENT Proffer Amendment # cated with RZ 905 -08 amending proffers assoi- ±59 Acres, Tax Map Parcel No.'s 33 -A -109; 33 -A -110 RECORD OWNER: Frederick County Investors, LLC APPLICANT: BPG Properties, Ltd. PROJECT NAME: 1 -81 Distribution Center DATE OF APPROVAL, OF ORIGINAL PROFFERS: September 24, 2008 AMENDED PROFFER SUBMISSION: April 9, 2012 The undersigned hereby proffers that the use and development of the subject property ( "Property "), as described above, shall be in strict conformance with the following conditions, which shall supersede all other proffers that may have been made prior hereto. In the event that the above referenced rezoning is not granted as applied for by the applicant ( "Applicant "), these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are con- tingent upon final rezoning of the Property with "final rezoning" defined as that rezoning which is in effect on the day following the last day upon which the Frederick County Board of Super- visors' (the "Board ") decision granting the rezoning may be contested in the appropriate court. The headings of the proffers set forth below have been prepared for convenience of ref- erence only and shall not control or affect the meaning or be taken as an interpretation of any provision of the proffers. The term "Applicant" as referenced herein shall include within its meaning all present and future owners and successors in interest. The development of the Property shall be in general conformance with the plan entitled "BPG Properties, Ltd., Frederick County, Virginia, Generalized Development Plan" dated Feb- ruary 9, 2012 (the "GDP "), prepared by Triad Engineering, Inc., subject to reasonable changes approved by the County in connection with Master Development Plan and Final Site Plan re- view, including revisions required for -final engineering considerations, code and regulatory compliance, and revisions to parking layout and the location of structures to accommodate the potential for multiple buildings on the Property. The Applicant hereby proffers the following: Land Use Restrictions. 1.1. The Property shall be developed with not more than seven hundred fifty thousand (750,000) square feet of permitted uses, as those uses are modified hereby, which 750,000 square feet and permitted uses shall be located entirely within one build- ing or within multiple buildings on the Property. 00-SOlffE Amended Proffer statement Proffer 01 (P0258602 -2) 0 • 1.2. Office uses may be employed on the Property only as accessory uses and shall be located entirely within the structure(s) for the primary use(s). In no event shall there be stand -alone office buildings on the Property. 1.3. The Applicant shall employ the yard and setback requirements for uses as provided in the M1 District, rather than those otherwise applicable to the B3 District. Proffered -Out Uses. The following uses shall not be permitted on the Property. 2.1 Transportation By Air and all Uses Classified as SIC 45 2.2 Transportation Services, and all Uses Classified as SIC 47 2.3 Automotive Dealers and Gasoline Service Stations and all Uses Classified as SIC 55 2.4 Restaurant, except food services as may be provided to service employees on site 2.5 Amusement and recreation services operated indoors 2.6 Drive -in motion picture theaters 2.7 Local and suburban transit and interurban highway passenger transportation 2.8 Outdoor ad services 2.9 Automobile recovery service 2.10 Automotive repair, services and parking 2.11 Automobile repossession service 2.12 Product sterilization service 2.13 Repossession service 2.14 Building materials, hardware, garden supply, mobile home dealers and retail nurse- ries, provided that this proffer does not exclude from the Property warehouse facil- ities that store and distribute goods associated with these uses. 2.15 Food stores or groceries. Transportation Mitigation. 3.1. At the entrance to the Property, the Applicant will construct entrance improve- ments consistent with Virginia Department of Transportation (VDOT) require- ments. 3.2. There shall be no more than two entrances to the Property. The first such en- trance shall be constructed along Route 11 in the general location identified on the GDP as the "Initial Entrance," which shall be separated at least 700' from the in- Amended Proffer Statement Proffer 01 (f`0258602-2) tersection of Branson Spring Road and Route 11, unless otherwise approved by Frederick County and VDOT. The second such entrance (the "South Entrance ") shall be located at the south end of the Property as depicted on the GDP 3.3. The Initial Entrance shall be closed by the Applicant, at its expense, within thirty (30) days after all of the following conditions have been met: i) an entrance to the Property has been constructed by others in the general location identified on the GDP as "Future Entrance" and ii) a right turn and deceleration lane meeting VDOT requirements has been constructed by others into the Future Entrance. The Applicant shall grant any necessary construction, grading and access ease- ments over the Property necessary for the construction of the Future Entrance and an associated right turn lane into such Entrance, provided that the Applicant ex- pressly approves of the plans for improvements associated with the Future En- trance, such approval not to be unreasonably withheld. 3.4. At such time as the Future Entrance is constructed as provided herein, the Appli- cant shall close the Initial Entrance and shall pay fifty (50) percent of the total au- dited costs incurred in constructing the Future Entrance to VDOT standards, which may include signalization thereof, such payment not to exceed $125,000.00. The "not to exceed" value of $125,000.00 is subject to the Escalator Clause set forth below and represents the Applicant's estimate of fifty (50) per- cent of the total costs of replacing the Initial Entrance and constructing a right turn lane deceleration lane and traffic signal at the Future Entrance's intersection with Route 11. The payment required by this Proffer 3.4 shall be used exclusively for costs associated with improvements necessary for the issuance of a VDOT en- trance permit for the Future Entrance and shall be made to the party designated by the Zoning Administrator for the construction of the Future Entrance upon written demand of the Zoning Administrator and within thirty (30) days after the follow- ing conditions have been met: i) the Future Entrance is opened for public use, though not accepted into the State System of Secondary Highways, and ii) the party responsible therefor provides the Zoning Administrator satisfactory proof of its audited costs. 3.5. The Applicant shall grant an access easement over the Property to and for the benefit of the adjoining parcel to the north of the Property to accommodate access to the Future Entrance. 3.6. The Applicant shall enter into a signalization agreement for the Initial Entrance with VDOT as a condition of final site plan approval. 3.7. The Applicant shall dedicate right -of -way along the Property's Route 11 frontage that is ten (10) feet wide from the existing edge of right -of -way. Such dedication shall be made prior to the approval of the first site plan for development of the Property. The Applicant shall construct a ten (10) foot wide asphalt trail outside of but adjacent to said right -of -way, and dedicate an easement to the County for public purposes for such trail, drainage and grading improvements upon written request by the County. The maintenance of the asphalt trial shall be the responsi- Amended Proffer Statement Prober 01 (P0258602-2) bility of the owner of the Property or a property owner's association created for such purpose, unless and until the County affirmatively assumes maintenance of the trail in writing. 3.8. The Applicant will contribute to Frederick County the sum of Five Hundred Fifty Thousand and 00 /100 Dollars ($550,000.00) subject to the escalation clause con- tained in these Proffers, to be used for improvements in the Route 11 north corri- dor. Such payment shall be made at the time of issuance of each building permit for a use on the Property, and each such payment shall be in proportion to the square footage of the proposed construction bears to the 750,000 square feet of building authorized hereunder. Such funds may be used by the Board in its dis- cretion for such transportation improvements. 4. Fire and Rescue. The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to Frede- rick County at the time of issuance of the first building permit for the Property, for use by the Board in its discretion, for fire and rescue purposes. 5. Site landscaping. 5.1. The Applicant shall provide a landscape strip within the area between the asphalt trail identified in Proffer 3.7 and the parking area identified on the GDP that is a minimum of ten (10) feet in width (the "Route 11 Buffer"), The Route I I Buffer shall be comprised of three street trees (per Zoning Ordinance §165- 36.B.1, or equivalent) per one hundred linear feet, and twenty -five shrubs per one hundred linear feet. These plantings shall be in addition to those required by the County's buffering and screening requirements. If no berm or hedgerow along the Route 11 frontage is otherwise required, the Applicant agrees to install a three foot berm or hedgerow along the Route 11 frontage within the Route 11 Buffer. 5.2 The Applicant shall plant street trees (per Zoning Ordinance §165 - 36.13.1, or equivalent) in the area between the rear parking area the Property's western prop- erty line at a rate of no fewer than one tree per forty (40') linear feet. 6. Architectural. Facing materials of buildings facing Route I 1 and Interstate 81 shall be primarily of con- crete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or simu- lated wood or glass. Site development requirements. 7.1. All utilities will be underground. 7.2. Stormwater management facilities will be maintained by the Applicant. 7.3. Prior to the issuance of an occupancy permit for a building on the Property, the Amended Proffer statement Proffer 0 t (P0258602 -2) Applicant shall construct a split rail fence no more than five feet in height along the Property's Route I I frontage in a location to be determined by the Applicant in consultation with the County. 8. Deed. The Applicant proffers and agrees that any deed conveying the Property shall affix as an attachment and incorporation into said deed, a full copy of these proffers in order to fully advise any subsequent purchaser of these proffered terms and conditions. Dedication of Right —of -Way for Branson Spring Road Extension. Upon VDOT's approval of a functional plan for the extension of Branson Spring Road through the Property in a location generally consistent with the current termination point of that Road and parallel to the northern property line of the Property (the "Branson Spring Road Ex- tension "), the Applicant shall, upon written request from the County or VDOT, dedicate not more than 100 feet of right -of -way from that property line to the County at no cost. No addi- tional landscaping, buffering or setbacks shall be required of the Applicant as a consequence of such dedication. 10. Escalator. In the event the monetary contributions set forth in the Proffer Statement are paid to Fre- derick County within eighteen (18) months of the approval of this rezoning, as applied for by the Applicant, said contributions shall be in the amounts as stated herein. Any monetary contribu- tions set forth in this Proffer Statement which are paid to the County after eighteen (18) months following the approval of this rezoning shall be adjusted in accordance with the Urban Consumer Price Index ( "CPI -U ") published by the United States Department of Labor, such that at the time contributions are paid they shall be adjusted by the percentage change in the CPT -U from that date eighteen (18) months after the approval of this rezoning to the most recently available CPI - U to the date the contributions are paid, subject to a cap of 6 percent (6 %) per year, noncom- pounded. [SIGNATURES AND NOTARIES APPEAR ON FOLLOWING PAGES] Amended Proffer Statement Proffer 01 (P0258602 -2) Owner: FREDERICK COUNTY INVESTORS, LLC By: Name: D niel M. ella, Jr. Its: ��— STATE OF $' t A COUNTY /CITY OF L 6Lr , To -wit: 0 The foregoing instrument was acknowledged befor m this cay of 2012, by Daniel M. Dil-ella, Jr., as f Frede- rick ounty Investors, LLC. NOT AX PUBLIC My commission expires:�rt Registration Number: 1.2 05b 3-p- COMMONWEALTH OF PENNSYLVANIA_ NOTARIAL SEAL MARY E. LORD, Notary Public City of Philadelphia, Phila. County My Commission Expires April 26, 2415 Amended Proffer statement Proffer 01 (P0258602 -2) 0 • Applicant: BPG PROPERTIES, LTD. By: BPG -GP, LLC, its General Partner By Name: Daniel M. DiLella, Jr. Its: Vice President STATE OF >I irk COUNTYXITY OF T*)LjqbLjPj4jA, To -wit: The foregoing instrument was acknowledged before me this X day of 2012, by Daniel M. DiLella, Jr., as Vice President of BPG -GP, LLC, General Partner of BPG Properties, Ltd. E rL')_'Q N TAR PUBLIC My commission expires: Registration Number: I u 6-1p J e COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL MARY E. LORD, Notary Public City of Philadelphia, Phila. County My Commission Expires April 26, 2015 Amended Proffer Statement Proffer 01 (P0258602 -2) AMENDED PROFFER STATEMENT .. REZONING• Proffer Amendment # amendine proffers assoi- cated with RZ #05 -08 PROPERTY: ±59 Acres, Tax Map Parcel No.'s 33 ^A 11833 -A -109; 'q 1 109 33 -A -110 RECORD OWNER: BPG zexFrederick County Investors, LLC APPLICANT: BPG Properties, Ltd. PROJECT NAME: I -81 Distribution Center DATE OF APPROVAL OF ORIGINAL PROFFERS: September 4-724, 2008 AMENDED PROFFER SUBMISSION: April 9 2012 The undersigned hereby proffers that the use and development of the subject property ( "Property "), as described above, shall be in strict conformance with the following conditions, which shall supersede all other proffers that may have been made prior hereto. In the event that the above referenced rezoning is not granted as applied for by the applicant ( "Applicant "), these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are con- tingent upon final rezoning of the Property with "final rezoning" defined as that rezoning which is in effect on the day following the last day upon which the Frederick County Board of Super- visors' (the "Board ") decision granting the rezoning may be contested in the appropriate court. The headings of the proffers set forth below have been prepared for convenience of ref- erence only and shall not control or affect the meaning or be taken as an interpretation of any provision of the proffers. The term "Applicant" as referenced herein shall include within its meaning all present and future owners and successors in interest. The development of the Property shall be in general conformance with the plan entitled "BPG Properties, Ltd., Frederick County, Virginia, Generalized Development Plan" dated Stine d- 9Februa -y 9, -2008; 2012 (the "GDP ") prepared by Triad Engineerine. Inc., subject to reason- able changes approved by the County in connection with Master Development Plan and Final Site Plan review, including revisions required for final engineering considerations, code and regulatory compliance, and revisions to parking layout and the location of structures to accom- modate the potential for multiple buildings on the Property. The Applicant hereby proffers the following: Land Use Restrictions. 1.1. The Property shall be developed with not more than seven hundred fifty thousand (750,000) square feet of permitted uses, as those uses are modified hereby, which P0266747.DOCX 750,000 square feet and permitted uses shall be located entirely within one build- ing or within multiple buildings on the Property. 1.2. Office uses may be employed on the Property only as accessory uses and shall be located entirely within the structure(s) for the primary use(s). In no event shall there be stand -alone office buildings on the Property. 1.3. The Applicant shall employ the yard and setback requirements for uses as provided in the Ml District, rather than those otherwise applicable to the B3 District. Proffered -Out Uses. The following uses shall not be permitted on the Property. 2.1 Transportation By Air and all Uses Classified as SIC 45 2.2 Transportation Services, and all Uses Classified as SIC 47 2.3 Automotive Dealers and Gasoline Service Stations and all Uses Classified as SIC 55 2.4 Restaurant, except food services as may be provided to service employees on site 15 Amusement and recreation services operated indoors 2.6 Drive -in motion picture theaters 2.7 Local and suburban transit and interurban highway passenger transportation 2.8 Outdoor ad services 2.9 Automobile recovery service 2.10 Automotive repair, services and parking 2.11 Automobile repossession service 2.12 Product sterilization service 2.13 Repossession service 2.14 24- 5Building materials, hardware, garden supply, mobile home dealers and retail nurseries, provided that this proffer does not exclude from the Property warehouse facilities that store and distribute goods associated with these uses. 2.15 24 -6Food stores or groceries. Transportation Mitigation. 3.1. At the entrance to the Property, the Applicant will construct entrance improve- ments consistent with Virginia Department of Transportation (VDOT) require- ments. 3.2. There shall be no more than eiie ent = o entrances to the Property. The first such entrance shall be constructed along Route 11 in the general location identi- P0266747.DOCX fied on the GDP as the "Initial Entrance," which shall be separated at least 700' from the intersection of Branson Spring Road and Route 11, unless otherwise ap- proved by Frederick County and VDOT. The second such entrance (the "South Entrance ") shall be located at the south end of the Property as depicted on the GDP 3.3. The Initial Entrance shall be closed by the Applicant, at its expense, within thirty (30) days after all of the following conditions have been met: i) an entrance to the Property has been constructed by others in the general location identified on the GDP as "Future Entrance" and ii) a right turn and deceleration lane meeting VDOT requirements has been constructed by others into the Future Entrance. The Applicant shall grant any necessary construction, grading and access ease- ments over the Property necessary for the construction of the Future Entrance and an associated right turn lane into such Entrance, provided that the Applicant ex- pressly approves of the plans for improvements associated with the Future En- trance, such approval not to be unreasonably withheld. 3.4. At such time as the Future Entrance is constructed as provided herein, the Appli- cant shall close the Initial Entrance and shall pay fifty (50) percent of the total au- dited costs incurred in constructing the Future Entrance to VDOT standards, which may include signalization thereof, such payment not to exceed $125,000.00. The "not to exceed" value of $125,000.00 is subject to the Escalator Clause set forth below and represents the Applicant's estimate of fifty (50) per- cent of the total costs of replacing the Initial Entrance and constructing a right turn lane deceleration lane and traffic signal at the Future Entrance's intersection with Route 11. The payment required by this Proffer 3.4 shall be used exclusively for costs associated with improvements necessary for the issuance of a VDOT en- trance permit for the Future Entrance and shall be made to the party designated by the Zoning Administrator for the construction of the Future Entrance upon written demand of the Zoning Administrator and within thirty (30) days after the follow- ing conditions have been met: i) the Future Entrance is opened for public use, though not accepted into the State System of Secondary Highways, and ii) the party responsible therefor provides the Zoning Administrator satisfactory proof of its audited costs. 3.5. The Applicant shall grant an access easement over the Property to and for the benefit of the adjoining parcel to the north of the Property to accommodate access to the Future Entrance. 3.6. The Applicant shall enter into a signalization agreement for the Initial Entrance with VDOT as a condition of final site plan approval. 3.7. The Applicant shall dedicate right -of -way along the Property's Route 11 frontage that is ten (10) feet wide from the existing edge of right -of -way. Such dedication shall be made prior to the approval of the first site plan for development of the Property. The Applicant shall construct a ten (10) foot wide asphalt trail outside of but adjacent to said right -of -way, and dedicate an easement to the County for P0266747.DOCX public purposes for such trail, drainage and grading improvements upon written request by the County. The maintenance of the asphalt trial shall be the responsi- bility of the owner of the Property or a property owner's association created for such purpose, unless and until the County affirmatively assumes maintenance of the trail in writing. 3.8. The Applicant will contribute to Frederick County the sum of Five Hundred Fifty Thousand and 00 /100 Dollars ($550,000.00) subject to the escalation clause con- tained in these Proffers to be used for improvements in the Route 11 north corri- dor-. Such payment to -shall be made at the time of issuance of the€rrs� each building permit for a use on the Property and each such pavment shall be in pro- portion to the sauare footage of the proposed construction bears to the 750.000 square feet of building authorized hereunder. Such funds may be used by the Board in its discretion for such transportation improvements. 4. Fire and Rescue. The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to Freder- ick County at the time of issuance of the first building permit for the Property, for use by the Board in its discretion, for fire and rescue purposes. Site landscaping. 5.1. The Applicant shall provide a landscape strip within the area between the asphalt trail identified in Proffer 3.7 and the parking area identified on the GDP that is a minimum of ten (10) feet in width (the "Route 11 Buffer ")., The Route 11 Buffer shall be comprised of three street trees (per Zoning Ordinance §165-36.13.1, or equivalent) per one hundred linear feet, and twenty -five shrubs per one hundred linear feet. These plantings shall be in addition to those required by the County's buffering and screening requirements. If no berm or hedgerow along the Route 11 frontage is otherwise required, the Applicant agrees to install a three foot berm or hedgerow along the Route 11 frontage within the Route 11 Buffer. 5.2 The Applicant shall plant street trees (per Zoning Ordinance § 165 - 36.13.1, or equivalent) in the area between the rear parking area the Property's western prop- erty line at a rate of no fewer than one tree per forty (40') linear feet. 6. Architectural. Facing materials of buildings facing Route 11 and Interstate 81 shall be primarily of con- crete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or simu- lated wood or glass. Site development requirements. 7.1. All utilities will be underground. 7.2. Stormwater management facilities will be maintained by the Applicant. P0266747.DOCX 0 0 7.3. Prior to the issuance of an occupancy permit for a building on the Property, the Applicant shall construct a split rail fence no more than five feet in height along the Property's Route 11 frontage in a location to be determined by the Applicant in consultation with the County. 8. Deed. The Applicant proffers and agrees that any deed conveying the Property shall affix as an attachment and incorporation into said deed, a full copy of these proffers in order to fully advise any subsequent purchaser of these proffered terms and conditions. 9. Dedication of Right —of -Way for Branson Spring Road Extension. Upon VDOT's approval of a functional plan for the extension of Branson Spring Road through the Property in a location generally consistent with the current termination point of that Road and parallel to the northern property line of the Property (the "Branson Spring Road Ex- tension"), the Applicant shall, upon written request from the County or VDOT, dedicate not more than 100 feet of right -of -way from that property line to the County at no cost. No addi- tional landscaping, buffering or setbacks shall be required of the Applicant as a consequence of such dedication. 10. Escalator. In the event the monetary contributions set forth in the Proffer Statement are paid to Frederick County within eighteen (18) months of the approval of this rezoning, as applied for by the Applicant, said contributions shall be in the amounts as stated herein. Any monetary contri- butions set forth in this Proffer Statement which are paid to the County after eighteen (18) months following the approval of this rezoning shall be adjusted in accordance with the Urban Consumer Price Index ( "CPI -U ") published by the United States Department of Labor, such that at the time contributions are paid they shall be adjusted by the percentage change in the CPI -U from that date eighteen (18) months after the approval of this rezoning to the most recently avail- able CPI -U to the date the contributions are paid, subject to a cap of 6 percent (6 %) per year, noncompounded. [SIGNATURES AND NOTARIES APPEAR ON FOLLOWING PAGES] P0266747.DOCX 0 Owner: FREDERICK COUNTY INVESTORS, LLC By: Name: Daniel M DiLella, L Its: STATE OF COUNTY /CITY OF To -wit: 0 NOTARY PUBLIC My commission expires: Registration Number: P0266747.DOCX 0 Annlicant: BPG PROPERTIES, LTD. By: BPG -GP, LLC, its General Partner By: Name: Its: Daniel M, DiLella, Jr. Vice President STATE OF COUNTY /CITY OF To -wit: 0 The foregoing instrument was acknowledged before me this _ day of , 2012, by Daniel M. DiLella, Jr., as Vice President of BPG-GP, LLC, General Partner of BPG Properties, Ltd. NOTARY PUBLIC My commission expires: Registration Number: P0266747.DOCX 9 0 AMENDED PROFFER STATEMENT REZONING: Proffer Amendment # , amending proffers assoi- cated with RZ 905 -08 PROPERTY: f59 Acres, Tax Map Parcel No.'s 33 -A -109; 33 -A -110 RECORD OWNER: Frederick County Investors, LLC APPLICANT: BPG Properties, Ltd. PROJECT NAME: I -81 Distribution Center DATE OF APPROVAL OF ORIGINAL PROFFERS: September 24, 2008 AMENDED PROFFER SUBMISSION: April 9, 2012 The undersigned hereby proffers that the use and development of the subject property ( "Property "), as described above, shall be in strict conformance with the following conditions, which shall supersede all other proffers that may have been made prior hereto. In the event that the above referenced rezoning is not granted as applied for by the applicant ( "Applicant "), these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are con- tingent upon final rezoning of the Property with "final rezoning" defined as that rezoning which is in effect on the day following the last day upon which the Frederick County Board of Super- visors' (the "Board ") decision granting the rezoning may be contested in the appropriate court. The headings of the proffers set forth below have been prepared for convenience of ref- erence only and shall not control or affect the meaning or be taken as an interpretation of any provision of the proffers. The term "Applicant" as referenced herein shall include within its meaning all present and future owners and successors in interest. The development of the Property shall be in general conformance with the plan entitled "BPG Properties, Ltd., Frederick County, Virginia, Generalized Development Plan" dated Feb- ruary 9, 2012 (the "GDP "), prepared by Triad Engineering, Inc., subject to reasonable changes approved by the County in connection with Master Development Plan and Final Site Plan re- view, including revisions required for final engineering considerations, code and regulatory compliance, and revisions to parking layout and the location of structures to accommodate the potential for multiple buildings on the Property. The Applicant hereby proffers the following: Land Use Restrictions. I.I. The Property shall be developed with not more than seven hundred fifty thousand (750,000) square feet of permitted uses, as those uses are modified hereby, which 750,000 square feet and permitted uses shall be located entirely within one build- ing or within multiple buildings on the Property. P0258602.DOC 0 • 1.2. Office uses may be employed on the Property only as accessory uses and shall be located entirely within the structure(s) for the primary use(s). In no event shall there be stand -alone office buildings on the Property. 1.3. The Applicant shall employ the yard and setback requirements for uses as provided in the Ml District, rather than those otherwise applicable to the B3 District. 2. Proffered -Out Uses. The following uses shall not be permitted on the Property. 2.1 Transportation By Air and all Uses Classified as SIC 45 2.2 Transportation Services, and all Uses Classified as SIC 47 2.3 Automotive Dealers and Gasoline Service Stations and all Uses Classified as SIC 55 2.4 Restaurant, except food services as may be provided to service employees on site 2.5 Amusement and recreation services operated indoors 2.6 Drive -in motion picture theaters 2.7 Local and suburban transit and interurban highway passenger transportation 2.8 Outdoor ad services 2.9 Automobile recovery service 2.10 Automotive repair, services and parking 2.11 Automobile repossession service 2.12 Product sterilization service 2.13 Repossession service 2.14 Building materials, hardware, garden supply, mobile home dealers and retail nurse- ries, provided that this proffer does not exclude from the Property warehouse facil- ities that store and distribute goods associated with these uses. 2.15 Food stores or groceries. Transportation Mitigation. 3.1. At the entrance to the Property, the Applicant will construct entrance improve- ments consistent with Virginia Department of Transportation (V DOT) require- ments. 3.2. There shall be no more than two entrances to the Property. The first such en- trance shall be constructed along Route 11 in the general location identified on the GDP as the "Initial Entrance," which shall be separated at least 700' from the in- P0258602.DOC 0 0 tersection of Branson Spring Road and Route 11, unless otherwise approved by Frederick County and VDOT. The second such entrance (the "South Entrance ") shall be located at the south end of the Property as depicted on the GDP 3.3. The Initial Entrance shall be closed by the Applicant, at its expense, within thirty (30) days after all of the following conditions have been met: i) an entrance to the Property has been constructed by others in the general location identified on the GDP as "Future Entrance" and ii) a right turn and deceleration lane meeting VDOT requirements has been constructed by others into the Future Entrance. The Applicant shall grant any necessary construction, grading and access ease- ments over the Property necessary for the construction of the Future Entrance and an associated right turn lane into such Entrance, provided that the Applicant ex- pressly approves of the plans for improvements associated with the Future En- trance, such approval not to be unreasonably withheld. 3.4. At such time as the Future Entrance is constructed as provided herein, the Appli- cant shall close the Initial Entrance and shall pay fifty (50) percent of the total au- dited costs incurred in constructing the Future Entrance to VDOT standards, which may include signalization thereof, such payment not to exceed $125,000.00. The "not to exceed" value of $125,000.00 is subject to the Escalator Clause set forth below and represents the Applicant's estimate of fifty (50) per- cent of the total costs of replacing the Initial Entrance and constructing a right turn lane deceleration lane and traffic signal at the Future Entrance's intersection with Route 11. The payment required by this Proffer 3.4 shall be used exclusively for costs associated with improvements necessary for the issuance of a VDOT en- trance permit for the Future Entrance and shall be made to the party designated by the Zoning Administrator for the construction of the Future Entrance upon written demand of the Zoning Administrator and within thirty (30) days after the follow- ing conditions have been met: i) the Future Entrance is opened for public use, though not accepted into the State System of Secondary Highways, and ii) the party responsible therefor provides the Zoning Administrator satisfactory proof of its audited costs. 3.5. The Applicant shall grant an access easement over the Property to and for the benefit of the adjoining parcel to the north of the Property to accommodate access to the Future Entrance. 3.6. The Applicant shall enter into a signalization agreement for the Initial Entrance with VDOT as a condition of final site plan approval. 3.7. The Applicant shall dedicate right -of -way along the Property's Route 11 frontage that is ten (10) feet wide from the existing edge of right -of -way. Such dedication shall be made prior to the approval of the first site plan for development of the Property. The Applicant shall construct a ten (10) foot wide asphalt trail outside of but adjacent to said right -of -way, and dedicate an easement to the County for public purposes for such trail, drainage and grading improvements upon written request by the County. The maintenance of the asphalt trial shall be the responsi- P0258602.DOC 0 0 bility of the owner of the Property or a property owner's association created for such purpose, unless and until the County affirmatively assumes maintenance of the trail in writing. 3.8. The Applicant will contribute to Frederick County the sum of Five Hundred Fifty Thousand and 00 /100 Dollars ($550,000.00) subject to the escalation clause con- tained in these Proffers, to be used for improvements in the Route 11 north corri- dor. Such payment shall be made at the time of issuance of each building permit for a use on the Property, and each such payment shall be in proportion to the square footage of the proposed construction bears to the 750,000 square feet of building authorized hereunder. Such funds may be used by the Board in its dis- cretion for such transportation improvements. 4. Fire and Rescue. The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to Freder- ick County at the time of issuance of the first building permit for the Property, for use by the Board in its discretion, for fire and rescue purposes. 5. Site landscaping. 5.1. The Applicant shall provide a landscape strip within the area between the asphalt trail identified in Proffer 3.7 and the parking area identified on the GDP that is a minimum of ten (10) feet in width (the "Route 1 1 Buffer ")., The Route 11 Buffer shall be comprised of three street trees (per Zoning Ordinance §165 - 36.13.1, or equivalent) per one hundred linear feet, and twenty -five shrubs per one hundred linear feet. These plantings shall be in addition to those required by the County's buffering and screening requirements. If no berm or hedgerow along the Route 11 frontage is otherwise required, the Applicant agrees to install a three foot berm or hedgerow along the Route 11 frontage within the Route 11 Buffer. 5.2 The Applicant shall plant street trees (per Zoning Ordinance § 165 - 36.13.1, or equivalent) in the area between the rear parking area the Property's western prop- erty line at a rate of no fewer than one tree per forty (40') linear feet. 6. Architectural. Facing materials of buildings facing Route 11 and Interstate 81 shall be primarily of con- crete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or simu- lated wood or glass. Site development requirements. 7.1. All utilities will be underground. 7.2. Stormwater management facilities will be maintained by the Applicant. 7.3. Prior to the issuance of an occupancy permit for a building on the Property, the P0258602.DOC • Applicant shall construct a split rail fence no more than five feet in height along the Property's Route 11 frontage in a location to be determined by the Applicant in consultation with the County. 8. Deed, The Applicant proffers and agrees that any deed conveying the Property shall affix as an attachment and incorporation into said deed, a full copy of these proffers in order to fully advise any subsequent purchaser of these proffered terms and conditions. 9. Dedication of Right —of -Way for Branson Spring Road Extension. Upon VDO "r's approval of a functional plan for the extension of Branson Spring Road through the Property in a location generally consistent with the current termination point of that Road and parallel to the northern property line of the Property (the "Branson Spring Road Ex- tension"), the Applicant shall, upon written request from the County or VDOT, dedicate not more than 100 feet of right -of -way from that property line to the County at no cost. No addi- tional landscaping, buffering or setbacks shall be required of the Applicant as a consequence of such dedication. 10. Escalator. In the event the monetary contributions set forth in the Proffer Statement are paid to Frederick County within eighteen (18) months of the approval of this rezoning, as applied for by the Applicant, said contributions shall be in the amounts as stated herein. Any monetary contri- butions set forth in this Proffer Statement which are paid to the County after eighteen (18) months following the approval of this rezoning shall be adjusted in accordance with the Urban Consumer Price Index ( "CPI -U ") published by the United States Department of Labor, such that at the time contributions are paid they shall be adjusted by the percentage change in the CPI -U from that date eighteen (18) months after the approval of this rezoning to the most recently avail- able CPI -U to the date the contributions are paid, subject to a cap of 6 percent (6 %) per year, noncompounded. [SIGNATURES AND NO'T'ARIES APPEAR ON FOLLOWING PAGES] P0258602.DOC 0 Owner: FREDERICK COUNTY INVESTORS, LLC By: Name Its: Daniel M. DiLella, Jr. STATE OF COUNTY /CITY OF To -wit: • The foregoing instrument was acknowledged before me this _ day of , 2012, by Daniel M. DiLella, Jr., as of Fred- erick-County Investors, LLC. NOTARY PUBLIC My commission expires: Registration Number: P0258602.DOC 0 Applicant: BPG PROPERTIES, LTD. By: BPG -GP, LLC, its General Partner By: Name: Daniel M. DiLella, Jr. Its: Vice President STATE OF COUNTY /CITY OF To -wit: The foregoing instrument was acknowledged before me this _ day of 2012, by Daniel M. DiLella, Jr., as Vice President of BPG GP, LLC, General Partner of BPG Properties, Ltd. NOTARY PUBLIC My commission expires: Registration Number: P0258602.DOC 1 0 Introduction Narrative Statement BPG Properties, Ltd. I -81 Distribution Center Proffer Amendment February 27, 2012 0 Frederick County Investors, LLC, the Applicant, by BPG Properties, Ltd., its agent, requests to amend the proffers associated with Rezoning #05 -08, approved by the Frederick County Board of Supervisors on September 24, 2008. RZ 905 -08 authorized the rezoning of approximately 59 acres from the RA (Rural Area) District to B -3 (Business, Industrial Transition) District for the development of up to 750,000 square feet of warehouse /office space. At the time of approval, RZ #05 -08 had been fully vetted by all county reviewing agencies and was ultimately supported by Staff and Planning Commission members and approved by the Board. With this proffer amendment application, the Applicant is requesting only two modifications to RZ #05 -08. First, the Applicant seeks a modification to Proffer 43.2 and the Generalized Development Plan to allow a second (southern) entrance to the Property and lastly to amend Proffer 93.8 to allow a proportionate payment of the $550,000.00 (escalated) monetary contribution based the building square footage that is permitted and constructed. Proposal As noted, the Applicant's proposed modifications are to provide for a second entrance ( "South Entrance ") to the site and a proportionate payment of the $550,000.00 monetary contribution. While the Applicant continues to anticipate an ultimate build out of 750,000 square feet per the existing proffers, the economic climate of the last few years has significantly slowed the market and, as a result, the Applicant is experiencing a demand for smaller building footprints that can be expanded over time. It would be of material consequence to the Owner to be able to phase the payment of its contribution to the County, which is, in any event, subject to a proffered escalation clause. P0259944.DOCX t 0 0 The intent of the South Entrance will be to facilitate traffic movements in and around the site. It will provide the possibility of relief between truck and car traffic and minimize potential conflicts between permitted uses, such as warehouse, and ancillary uses located on the site. To maintain maximum flexibility and marketability, the Applicant understands that providing for a second access point into the 59 acre complex will serve the interests of both the Applicant's future users as well as enhancing the functionality of the entire site. Moreover, prospective users of the site have uniformly advised the Owner that a second entrance is critical to internal traffic movement and to safety in the event that the single entrance should be closed during an emergency. With respect to payment of the monetary contribution, the Applicant is proposing language that will provide for a proportionate payment of the proffered contribution based on the actual construction of the building(s) and the ability to pay in accordance with an established pro -rata amount. The language, as proposed below, will enhance the marketability of the Property and spread the financial burden equitably over the full build -out. The proffers do not presently require that the permitted square footage of the permitted structure be constructed as a single facility, and thus it was always anticipated that the building(s) could be phased up to the total authorized amount. As noted, in the proffer, payment of the contribution(s) would be subject to the escalation clause. "Proffer 43.8. The Applicant will contribute to Frederick County the sum of Five Hundred Fifty Thousand and 00 /100 Dollars (S550,000.00) subject to the escalation clause contained in these Proffers, to be used for improvements in the Route 11 north corridor. Such payment shall be made at the time of issuance of each building permit for a use on the Property, and each such payment shall be in proportion to the square footage of the proposed construction bears to the 750,000 square feet of building authorized hereunder. Such funds may be used by the Board in its discretion for such transportation improvements. " The Applicant suggests that these are minor changes to the proffers. The second entrance will not create significant adverse burdens on Route 11 and will improve the safety and utility of the site. Moreover, the County will eventually receive all of the monies that it anticipated at the time the proffers were originally written at no loss in value of the amount of that original contribution. P0259944.DDCX