developer rights and responsibilities agreements...developer rights and responsibilities agreements...
Post on 01-Jul-2020
16 Views
Preview:
TRANSCRIPT
Developer Rights and Responsibilities Agreements
Public Hearing – November 30, 2010, 3:30 pm
Purpose
This Public Hearing and subsequent work session is to receive public comments on the pending DRRA
applications and consider all or some of the Agreements for approval as submitted or as may be
amended.
Contents
1) Staff Summary of Pending DRRAs
2) Summary Table
2) Location Map and Proposed DRRAs for the following Projects:
Bensville Acres
Chelsea Manor
Burroughs Hall
Brentwood
Belmont
1
Report to the County Commissioners
Pending Developer Rights and Responsibilities Agreements Public Hearing – November 30, 2010, 3:30 pm
Brief Description of the Proposed Agreements
Five Applications have been received requesting approval of Developer Rights and Responsibilities Agreements
related to the adequacy of school capacity (See attached Summary Table). The Applicants are proposing to
mitigate the impact of school construction costs by offering to pay $13,000 per single family dwelling unit and
$12,625 per townhouse unit to satisfy the Adequate Public Facilities Ordinance for school (See attached
amended petitions). To show good faith, each Applicant has proffered to pay a non-refundable deposit in an
amount equaling at least 10 percent of the total mitigation payment within 30 days of the execution of the
Agreement. All Applicants have agreed to an inflation adjustment tied to the cost of school construction plus 3
percent.
Project Description
The locations of subject properties are shown on the attached ADC Map Exhibits for each application. Each
project consists of residential dwellings; four containing single family dwellings and one containing townhomes
(see attached Summary Table).
Staff Findings
The County Commissioners conducted the Initial Work Session, on November 9, 2010 to determine if there was
merit for formal staff review and to schedule a public hearing. It was determined that the proposal had merit;
therefore, a formal review was conducted by the County Attorney’s Office, the Department of Planning and
Growth Management and the Dept. of Fiscal and Administrative Services.
The Department of Fiscal and Administrative Services has determined that the proffered mitigation amounts of
$13,000 for single family units and $12,625 for townhouse units will adequately cover the estimated State share
of the cost of school construction based on the dwelling types. Further, it was determined that the inflation
provisions will adequately safeguard the County from any escalation in school constructions costs. Based on
their review of the project and the proposed mitigation, the Department of Planning and Growth Management
have no concerns with the Agreements as revised.
The revised agreements have been reviewed for legal sufficiency and revised as appropriate. Final signature
copies have been prepared by the County Attorney’s Office.
The Planning Commission’s approval of the Preliminary Plan of subdivision for each of the projects included a
finding of consistency with the Comprehensive Plan; therefore, referral to the Planning Commission was not
required.
Recommendations
Based on the staff’s findings, it was determined that the agreement contains mutually beneficial terms and
conditions which adequately mitigate for the impacts of the project on the school capacity as required by Article
XVI Section 297-258 of the Zoning Ordinance. Therefore, the Staff recommends approval of the proposed
DRRA applications, as amended.
F:\HOME\PGMS2\RIM\Developer Rights\Staff Rpt CC hearing Nov 30 2010.docx
Developer Rights and Responsibilities Agreements Summary –November 2010
All DRRA Applications are Primarily to Mitigate School Impacts
DRRA # Project Planning
Commission
Approval
Dwelling
Units
Mitigated
Mitigation per
unit
Total Mitigation General
Location
10-0002 Bensville
Acres
Yes 77 $13,000 $ 1,001,000 Bensville
10-0003 Chelsea Manor Yes 179 (TH) $12,625 $ 2,259,875 Bryans Road
10-0004 Burroughs
Hall
Yes 36 $13,000 $ 468,000 Mt. Victoria
10-0005 Brentwood Yes 138 $13,000 $ 1,794,000 Bensville
10-0006 Belmont Yes 30 $13,000 $ 390,000 Dentsville
228229
BERRY
MID
DLETO
WN
RO
AD
EY ROAD
229
BILLINGSLE
Y
ROAD
©0 5,000 10,0002,500Feet
Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.
DRAWN BY:
CHECKED BY:
SCALE DATE
CHARLES COUNTY GOVERNMENT
200 Baltimore St
PO BOX 2150
La Plata, MD 20646
(301)645-0627
Department of Planning and
Growth Management
LOCATION MAPCHARLES COUNTY, MD
OCT, 2010
Subject PropertyTM 13 P 10
!\
BENSVILLE ACRESDRRA
PRINCE
GEORGE'S
COUNTY
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
THIS DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
(“Agreement”), made as of the ____ day of _________________, 2010, by and between
BADIOLLAH PROPERTIES, LLC, a Maryland limited liability company (“Developer”), and
the COUNTY COMMISSIONERS OF CHARLES COUNTY, MARYLAND, a body politic
and corporate (“County Commissioners”).
RECITALS
1. The Developer is the owner of certain real property located in the County of
Charles, State of Maryland, as identified specifically in Exhibit 1 attached hereto and made a part
hereof (“Subject Property”).
2. The names of all parties having an equitable or legal interest in the Subject
Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof
and certified to by counsel to the Developer.
3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland, and
§297-498 of the Charles County Zoning Ordinance, the County Commissioners are authorized to
enter into binding development rights and responsibility agreements with any person having legal
or equitable interest in the Subject Property. Both the Developer and the County Commissioners
specifically recognize that a principal purpose of this Agreement is to bind the Developer to make
monetary contributions towards long term public improvements which it can make in
consideration of and in reliance upon the County Commissioners’ agreement not to change the
rules and regulations pertaining to the development of the Subject Property from those in effect
when this Agreement was executed.
4. The County Commissioners have the authority to provide for the construction
of public school facilities within Charles County, Maryland, pursuant to Section 11A of Article
25 and Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the
Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”) requires adequate school
capacity and the granting of school seat allocations prior to the approval of final plats for a
residential subdivision.
5. The Developer proposes to develop a residential community of 77 single-family
detached dwelling units to be known as “Bensville Acres,” upon the Subject Property.
6. The Charles County Planning Commission (the “Planning Commission”)
approved the Preliminary Plan of Subdivision (XPN 10-0002) for the Subject Property on May 3,
2010. In approving the Preliminary Plan, the Planning Commission concluded that Bensville
Acres was consistent with the applicable development regulations and the Charles County
Comprehensive Plan. The Planning Commission approved the Preliminary Plan subject to certain
conditions, terms, restrictions, and other requirements that it deemed necessary to ensure public
health, safety, and welfare.
7. On ________________, the County Commissioners held a public hearing on
this Agreement, notice of which was published in accordance with Article 66B, Section 4.04 of
the Annotated Code of Maryland.
8. The Developer and the County Commissioners desire to enter into this
Agreement for the purposes of: (a) confirming that adequate school capacity will be provided for
Bensville Acres, in accordance with the provisions contained herein; (b) agreeing that the rules
and regulations pertaining to the development of Bensville Acres shall not be changed after the
Effective Date of this Agreement; and (d) establishing the duration and effect of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are not merely
prefatory, but are hereby incorporated into and made a part of this Agreement, and the mutual
covenants and agreements set forth below, and other good and valuable consideration, the receipt
and sufficiency of which the parties hereby acknowledge, the County Commissioners and the
Developer hereby agree as follows:
ARTICLE I
DEVELOPER’S OBLIGATIONS
1.1 The development of Bensville Acres shall be subject to the Charles County
Adequate Public Facilities Ordinance, which requires that adequate school capacity must be
available for proposed developments. Therefore, in exchange for the seventy-seven (77) School
Capacity Allocations required for the completion of Bensville Acres, the Developer shall pay a
“Mitigation Payment” in the total sum of one million, one thousand dollars ($1,001,000.00).The
Mitigation Payment is intended to mitigate the impact of Bensville Acres on the Charles County
Public Schools in accordance with the Zoning Ordinance. The County Commissioners and the
Developer agree that the Mitigation Payment shall be paid by the Developer and the School
Capacity Allocations shall be issued by the County Commissioners as follows:
(a) On or before December 31, 2013, the Developer shall pay thirteen thousand
dollars ($13,000.00) per School Capacity Allocation for twenty-six (26) School Capacity
Allocations, and the County Commissioners shall grant twenty-six (26) School Capacity
Allocations;
(b) On or before December 31, 2014, the Developer shall pay thirteen thousand
dollars ($13,000.00) per School Capacity Allocation for twenty-six (26) School Capacity
Allocations, and the County Commissioners shall grant twenty-six (26) School Capacity
Allocations;
(c) On or before December 31, 2015, the Developer shall pay thirteen thousand
dollars ($13,000.00) per School Capacity Allocation for twenty-five (25) School Capacity
Allocations, and the County Commissioners shall grant twenty-five (25) School Capacity
Allocations.
If, due to engineering constraints discovered during the preparation of the Final
Subdivision Plat, the number of single-family detached lots located within the Subject Property is
reduced to a number below seventy-seven (77), the Mitigation Payment to be remitted to the
County Commissioners shall be reduced by the sum of thirteen thousand dollars ($13,000.00) per
lot lost.
1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent
(10%) of the total Mitigation Payment within thirty (30) days of execution of this Agreement as
set forth in the schedule below. However, this deposit shall be fully credited toward the
Mitigation Payment that is due no later than December 31, 2013 (see Section 1.1(a)) above). The
schedule for paying the deposit is as follows:
(a) No later than thirty (30) days after the recordation of this Agreement, the
Developer shall pay a deposit of twenty-five thousand and twenty-five dollars ($25,025.00),
which is approximately two and one-half percent (2.5%) of the total Mitigation Payment due
under the terms of this Agreement.
(b) No later than 90 days after the recordation of this Agreement, the Developer
shall pay a deposit of twenty-five thousand and twenty-five dollars ($25,025.00), which is
approximately two and one-half percent (2.5%) of the total Mitigation Payment due under the
terms of this Agreement.
(c) No later than one hundred and eighty (180) days after the recordation of this
Agreement, the Developer shall pay a final deposit of fifty-thousand and fifty dollars
($50,050.00), which is approximately five percent (5%) of the total Mitigation Payment due
under the terms of this Agreement.
1.2 Inflation Factor. In calculating the Mitigation Payment to be made by the
Developer after June 30, 2011, the payment of thirteen thousand dollars ($13,000.00) per School
Capacity Allocation shall be adjusted by the same percentage as the change in the “State of
Maryland Eligible Cost per Square Foot for Charles County,” as set forth by the Maryland State
Board of Education each July, for the average of the two preceding years for which the amount is
calculated. Additionally, three percent (3%) shall be added to the “State of Maryland Eligible
Costs of Square Foot for Charles County.”
ARTICLE II
COUNTY COMMISSIONERS’ OBLIGATIONS
2.1 The County Commissioners hereby agree, confirm, consent, and covenant as
follows:
(a) The terms and conditions set forth in Article I are acceptable to the County
Commissioners and other than the excise taxes imposed by the County Commissioners, there
shall be no further fees of any kind related to School Capacity Allocations, impacts to public
school facilities, school, or school adequacy in conjunction with the development of Bensville
Acres beyond those outlined in Article I.
(b) The County Commissioners hereby find that, upon satisfaction of the
terms and conditions set forth in this Agreement, school capacity will either currently exist or be
programmed to exist under the applicable capital improvement projects program as specified in
the Adequate Public Facilities Manual, as required by § 297-258 of the Charles County Zoning
Ordinance.
2.2 Timely Development Review. The Charles County Commissioners and
Developer recognize that but for the construction and build out of Bensville Acres, many benefits
to the public in the form of off-site improvements, increased tax revenue and positive fiscal
impacts cannot begin to be realized by the community. Additionally, it is recognized that
Bensville Acres has to date, gone through extensive and comprehensive design and
environmental review and approval including the Preliminary Plan and other permits and plan
approvals listed on Exhibit 3. Accordingly, the County Commissioners agree to use their best
efforts to ensure that all remaining development reviews, including but not limited to, preliminary
subdivision, final development plan review are performed in a succinct, timely manner, without
undue delay, not inconsistent with the County’s current development review process. The
County Commissioners hereby agree, provided that the Developer is not in default hereof beyond
all applicable notice and cure periods, that the Preliminary Plan together with any other plans
currently approved shall remain in full force and effect and no further requests for extensions
shall be required.
ARTICLE III
LIMITATIONS, PERMITS AND PLAN CONSISTENCY
3.1 Development Limitations.
(a) The permissible uses on the Subject Property are those permitted by the
Charles County Zoning Ordinance, specifically in the Low Density Residential (RL) Zone.
(b) The density or intensity of uses on the Subject Property shall be that
depicted on approved Preliminary Plan, subject to future modifications approved by the Planning
Commission.
3.2 Permits. The County Commissioners and the Developer agree that the permits
required by the County Commissioners and those already approved for Bensville Acres are those
set forth in Exhibit 3, attached hereto and made a part hereof. The Developer's obligations set
forth in Section 1.1 are contingent upon the issuance of development-related permits as required
by Maryland State regulatory agencies, including but not limited to Maryland Department of the
Environment (MDE).
3.3 Consistency with Plan and Development Regulations. The Planning
Commission has determined that Bensville Acres as depicted on the approved Preliminary Plan is
consistent with the Charles County Comprehensive Plan and the development regulations of
Charles County, as set forth in the minutes from its meeting held on May 3, 2010 (Exhibit 4).
3.4 Plan Consistency. The County Commissioners hereby determine that Bensville
Acres is consistent with the Comprehensive Plan of Charles County and the zoning and
development regulations of Charles County.
ARTICLE IV
SURVIVAL AND TRANSFER OF OBLIGATIONS
4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all
obligations assumed by it under this Agreement shall be binding upon it, its successors and
assigns (except owners of an individual lot and/or dwelling purchased solely for use as a private
residence). To assure that all such successors and assigns have notice of this Agreement and the
obligations created by it, the Developer agrees that it shall have this Agreement recorded among
the Land Records of Charles County within twenty (20) days after the Effective Date of this
Agreement. The Effective Date of this Agreement shall be the date when this Agreement was
finally executed by all parties.
4.2 The County Commissioners agree that all obligations respectively assumed
under this Agreement shall be binding on Charles County, its successors and assigns.
ARTICLE V
BREACH AND REMEDIES
5.1 In the event that the Developer shall fail to pay any installment of the
Mitigation Payment to the County as set forth in this Agreement, and fails to cure such default by
paying the full amount of the delinquent installment within thirty (30) days after receipt of written
notice of such default from the County Commissioners, the County Commissioners shall have
each and all of the following rights and remedies:
(a) All rights and remedies at law or in equity;
(b) The right to seek an injunction to be issued by a court of competent
jurisdiction, enjoining the Developer from any further violation of this
Agreement and/or mandating that the Developer pay the delinquent
Mitigation Payment in compliance with this Agreement; and
(c) Without the need to resort to any court or other administrative
proceedings or hearing, the right to suspend and/or revoke permits issued
by the County that were granted in reliance upon this Agreement.
Within thirty (30) days of any cure of default under this section, the
County Commissioners shall reinstate and/or reissue any permit
suspended and/or revoked under this clause (c).
5.2 If the County Commissioners fail or refuse to perform the obligations as
required, then after thirty (30) days written notice provided to the County Commissioners by the
Developer indicating the nature of said default, and if the County has not cured such default
within thirty (30) days after receipt of written notice of such default from the Developer, the
Developer may seek and obtain equitable relief to enforce the terms of this Agreement either
through a decree for specific performance or an injunction, and further the Developer shall be
entitled to bring legal action for damages or other redress.
5.3 In the event of a judicial proceeding brought by one party to this Agreement
against the other party to this Agreement for the enforcement or breach of any provision herein,
the prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs
and expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial
proceeding.
5.4 The County Commissioners and the Developer hereby expressly covenant and
agree to waive the right to trial by jury in connection with any litigation or judicial proceeding
relating to this Agreement or the conduct, omission, action, obligation, duty, right, benefit,
privilege or liability of a party hereunder to the full extent permitted by law.
ARTICLE VI
EFFECT OF DEVELOPMENT REGULATIONS
6.1 Effect of Agreement.
(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations
and policies governing the use, density or intensity of the Subject Property, including but not
limited to those governing development, zoning, subdivision, growth management (i.e., growth
rate controls including, but not limited to, the County Commissioners’ limitations or "caps" on
the issuance of building permits), impact fees, water, sewer, stormwater management,
environmental protection, land planning and design, adequate public facilities laws and
architecture, (hereafter collectively the "Development Laws") shall be the laws, rules, regulations
and policies, if any, in force on the Effective Date of the Agreement.
(b) If the County Commissioners have specifically determined that the
imposition upon the Bensville Acres development of Development Laws enacted or adopted after
the Effective Date of this Agreement is essential to ensure the health, safety or welfare of
residents of all or part of Charles County, the County Commissioners may impose the change in
laws, rules, regulations and policies and the effect thereof upon the Bensville Acres development.
However, prior to changing the Development Laws, the County Commissioners must hold a
public hearing during which time the effect of the proposed change in Development Laws on
Bensville Acres shall be analyzed and fully debated. In conjunction with the required public
hearing, the County Commissioners agree that the foregoing phrase "essential to ensure the public
health, safety and welfare of residents" requires study, evaluation, conclusions and findings above
and beyond the legal standards and legislative discretion normally used to enact and apply land
use regulations.
ARTICLE VII
MISCELLANEOUS
7.1 Time of Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
7.2 Terms. This Agreement shall run with and bind the Subject Property so long as
Bensville Acres is under construction and development, but in any event this Agreement shall be
void twenty (20) years after the Effective Date of this Agreement.
7.3 Notices. All notices and other communications in connection with this
Agreement shall be in writing and shall be deemed delivered to the addressee thereof (1) when
delivered in person on a business day at the address set forth below; or (2) on the third business
day after being deposited in any main or branch United States Post Office, for delivery by
properly addressed, postage prepaid, certified or registered mail, return receipt requested, at the
address set forth below.
Notices and communications to the Developer shall be addressed to, and delivered at, the
following address:
Mr. Khalid Rahmi
Badiollah Properties, LLC
12210 Lake Potomac Terrace
Potomac, Maryland 20854
with a copy to:
Jessica S. Barnes, Esquire
Andrews, Bongar, Starkey & Clagett, PA
11705 Berry Road, Suite 202
Waldorf, Maryland 20603
Notices and communications to the County Commissioners shall be addressed to, and delivered
at, the following address:
President, Charles County Commissioners
P.O. Box 2150
La Plata, Maryland 20646
with a copy to:
Charles County Attorney
Charles County Government
P.O. Box 2150
La Plata, Maryland 20646
By notice complying with the requirements of this Section, each party shall have the right to
change the address or addressee or both for all future notices and communications to such party,
but no notice of a change of address shall be effective until actually received.
7.4 Amendments. It is agreed that this Agreement embodies the entire
understanding between the parties and that any amendment to this Agreement shall be in writing
and shall be executed by each party whose obligations or actions are impacted by the
Amendment.
7.5 Authority to Execute. The County Commissioners and the Developer hereby
acknowledge and agree that all required notices, meetings, and hearings have been properly given
and held by the County Commissioners, as necessary, with respect to the approval of this
Agreement and agree not to challenge this Agreement or any of the obligations created by it on
the grounds of any procedural infirmity or any denial of any procedural right. The County
Commissioners hereby warrant and represent to the Developer that the person executing this
Agreement on behalf of each of them has been properly authorized to do so. The Developer
hereby warrants and represents: (1) it is the fee simple, record owner of the Subject Property; (2)
it has the right, power and authority to enter into this Agreement and to agree to the terms,
provisions, and conditions set forth herein and to bind the Subject Property as set forth herein;
and (3) all legal actions needed to authorize the execution, delivery and performance of this
Agreement have been taken.
7.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of
the Circuit Court of Charles County, Maryland, or any Federal court sitting in the District of
Maryland.
7.8 Remedies Cumulative. Each right, power, and remedy of a party provided for
herein, or any other agreement between the parties, now or hereafter existing, shall be cumulative
and concurrent and in addition to every other right, power or remedy provided for in this
Agreement or any other agreement between the parties, now or hereinafter existing.
7.9 Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
7.10 Effective Date. This date is the date that the last party executes this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates set forth
below.
WITNESS/ATTEST: Badiollah Properties, LLC
_______________________________ By: _________________________________
Khalid Rahmi, Vice-President
WITNESS/ATTEST: COUNTY COMMISSIONERS
OF CHARLES COUNTY, MARYLAND
_______________________________ By: _________________________________
STATE OF MARYLAND :
ss:
COUNTY OF _________________________ :
I HEREBY CERTIFY that on this ______ day of ____________________, 2010, before me,
the undersigned notary public, personally appeared Khalid Rahmi who acknowledged himself to
be the Vice-President of Badiollah Properties, LLC, and that he, as Vice-President, being
authorized so to do, executed the foregoing instrument for the purposes therein contained by
signing the name of the company by himself as such officer.
.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
____________________________________
Notary Public
My commission expires: _________________________
STATE OF MARYLAND :
ss:
COUNTY OF _________________________ :
I HEREBY CERTIFY that on this ______ day of ____________________, 2010, before me,
the undersigned notary public, personally appeared______________________, who
acknowledged him/herself to be the ______________ of COUNTY COMMISSIONERS OF
CHARLES COUNTY, MARYLAND, and duly acknowledged the foregoing Agreement to be
the act of said body corporate.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
____________________________________
Notary Public
My commission expires: ____________________________
BENSVILLE ACRES
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
EXHIBIT 1
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Property Tax Identification Number: 06-048803
Tax Map 13, Parcel 10
BEING the same property conveyed to Badiollah Properties, LLC, a Maryland limited
liability companty, by deed dated December 30, 2002, by Carolyn Diane Dries (also
known as Carolyn Diane Pickeral) recorded among the Land Records of Charles County,
Maryland, in Liber 4978 at Folio 548.
BENSVILLE ACRES
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
EXHIBIT 2
PARTIES HAVING AN EQUITABLE OR LEGAL INTEREST IN THE SUBJECT
PROPERTY
Property Owner:
Badiollah Properties, LLC
Trustee:
John Dries (for the benefit of Diane Dries) as set forth in the Deferred Purchase
Money Deed of Trust recorded among the Land Records of Charles County,
Maryland, in Liber 4978, Folio 548, as amended by the First Amendment to
Deferred Purchase Money Deed of Trust recorded among the Land Records of
Charles County, Maryland, in Liber 6535, Folio 619.
BENSVILLE ACRES
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
EXHIBIT 3
PLAN APPROVALS/PERMITS REQUIRED/PREVIOUSLY APPROVED
1. Preliminary Plan of Subdivision (XPN 10-0002): Approved: May 3, 2010
Together with all other plans and/or permits that may be required by federal, state, or local
laws as of the date of execution of this Agreement.
BENSVILLE ACRES
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
EXHIBIT 4
MINUTES FROM PLANNING COMMISSION – MAY 3, 2010
(see following pages)
22
210
225
INDIAN
HEAD
227
HWY
BILLINGSLEY ROAD
BRYANSROAD
210
©0 5,000 10,0002,500Feet
Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.
DRAWN BY:
CHECKED BY:
SCALE DATE
CHARLES COUNTY GOVERNMENT
200 Baltimore St
PO BOX 2150
La Plata, MD 20646
(301)645-0627
Department of Planning and
Growth Management
LOCATION MAPCHARLES COUNTY, MD
OCT, 2010
Subject PropertyTM 5 P 67&420
!\
CHELSEA MANOR
DRRA 10-0003
1
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
THIS DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT (“Agreement”),
made as of the ___________ day of _________________, 2010, by and between Chelsea Manor II,
L.C., a Maryland limited liability company, Sedgemore, L.C., a Maryland limited liability company
(collectively the "Developer"), and THE COUNTY COMMISSIONERS OF CHARLES COUNTY,
MARYLAND, a body politic and corporate ("County Commissioners").
RECITALS
1. The Developer is the owner of certain real property in Charles County, Maryland,
described in Exhibit 1, attached hereto and made part hereof, (collectively referred to as "Subject
Property").
2. The names of all parties having an equitable or legal interest in the Subject
Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof and
certified to by counsel to the Developer.
3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland and § 297-498
of the Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”), the County
Commissioners are authorized to enter into binding development rights and responsibility
agreements with any person having legal or equitable interest in the Subject Property. Both the
Developer and the County specifically recognize that a principal purpose of this Agreement is to bind
the Developer to make monetary contributions towards long term public improvements which it can
make in consideration of and in reliance upon the County Commissioners’ agreement to provide
School Capacity Allocations for the Subject Property and not to change the rules and regulations
pertaining to the development of the Subject Property from those in effect when this Agreement
was executed.
4. The County Commissioners have the authority to provide for the construction of
public school facilities within Charles County, Maryland, pursuant to Section 11A of Article 25 and
Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the Zoning
Ordinance requires adequate school capacity and the granting of school allocations prior to the
approval of final plats for a residential subdivision.
5. The Developer is currently in the process of developing a residential community
known as Chelsea Manor which is planned and approved to ultimately consist of two hundred forty-
six (246) single family attached residential dwelling units on approximately 30.83 acres of land
located in the Bryans Road Town Center. The Chelsea Manor project is intended to be improved
with community amenities as further described herein and in the approved Preliminary Subdivision
and Site Development Plans. Development of Chelsea Manor will further the goals of the Bryans
Road - Indian Head Sub-Area Plan.
6. On April 5, 2004, the Charles County Planning Commission (the "Planning
Commission") approved Preliminary Subdivision Plan XPN#03-0023 for the Subject Property, (as
amended and extended on March 31, 2006, March 27, 2007, June 5, 2007, March 20, 2008, March
25, 2009, January 25, 2010 and May 10, 2010) (collectively, the "Preliminary Plan"). In approving
the Preliminary Plan the Planning Commission found that the proposed development was consistent
with the applicable development regulations and the comprehensive plan. The Planning
Commission approved the Preliminary Plan subject to certain conditions, terms, restrictions and
other requirements that it determined to be necessary to ensure the public health, safety and welfare.
2
7. On ________________, 2010, the County Commissioners held a public hearing
on this Agreement, notice of which had been published in accordance with Article 66B, Section 4.04
of the Annotated Code of Maryland.
8. The Developer and the County Commissioners desire to enter into this Agreement
for the purposes of: (a) confirming that adequate school capacity will be provided for Chelsea
Manor in accordance with the provisions contained herein; (b) agreeing that the rules and
regulations pertaining to the development of Chelsea Manor shall not be changed after the Effective
Date of this Agreement; and (c) establishing the duration and effect of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are not merely
prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual
covenants and agreements set forth below, and other good and valuable consideration, the receipt
and sufficiency of which the parties hereby acknowledge, the County Commissioners and the
Developer hereby agree as follows:
ARTICLE I
DEVELOPER’S OBLIGATIONS
1.1 The development of Chelsea Manor shall be subject to the Charles County
Adequate Public Facilities Ordinance, which requires that adequate school capacity must be
available for proposed developments. Therefore, in exchange for the one hundred and seventy-
nine (179) School Capacity Allocations required for the completion of Chelsea Manor, the
Developer shall pay a “Mitigation Payment” in the total sum of two million, two hundred fifty-
nine thousand, eight hundred and seventy-five dollars ($2,259,875.00). The Mitigation Payment is
intended to mitigate the impact of Chelsea Manor on the Charles County Public Schools in
accordance with the Zoning Ordinance. The County Commissioners and the Developer agree that
the Mitigation shall be paid by the Developer and the School Capacity Allocations shall be issued
by the County Commissioners as follows:
(a) On or before December 31, 2012, the Developer shall pay twelve thousand, six
hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation
for sixty-five (65) School Capacity Allocations, and the County shall grant sixty-
five (65) School Capacity Allocations;
(b) On or before December 31, 2013, the Developer shall pay twelve thousand, six
hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation
for sixty-five (65) School Capacity Allocations, and the County shall grant sixty-
five (65) School Capacity Allocations; and
(c) On or before December 31, 2014, the Developer shall pay twelve thousand, six
hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation for
forty-nine (49) School Capacity Allocations, and the County shall grant forty-nine
(49) School Capacity Allocations.
3
1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent (10%)
of the total Mitigation Payment as set forth in the schedule belowwithin thirty (30) days of
execution of this Agreement. However, this deposit shall be fully credited toward the Mitigation
Payment that is due no later than December 31, 2012 (see Section 1.1(a) above). The schedule for
paying the deposit is as follows:
(a) No later than thirty (30) days after the recordation of this Agreement, the
Developer shall pay a deposit of fifty-six thousand, four hundred and ninety-
seven dollars ($56,497.00), which is approximately two and one-half percent
(2.5%) of the total Mitigation Payment due under the terms of this Agreement.
(b) No later than ninety (90) days after the recordation of this Agreement, the
Developer shall pay a deposit of fifty-six thousand, four hundred and ninety-
seven dollars ($56,497.00), which is approximately two and one-half percent
(2.5%) of the total Mitigation Payment due under the terms of this Agreement.
(c) No later than one hundred and eighty (180) days after the recordation of this
Agreement, the Developer shall pay a final deposit of one hundred twelve
thousand, nine hundred and ninety-four dollars ($112,994.00), which is
approximately five percent (5%) of the total Mitigation Payment due under the
terms of this Agreement.
1.3 Inflation Factor. In calculating the Mitigation Payment to be made by the
Developer after June 30, 2011, the payment of twelve thousand, six hundred and twenty-five
dollars ($12,625.00) per School Capacity Allocation shall be adjusted by the same percentage as
the change in the “State of Maryland Eligible Costs per Square Foot for Charles County,” as set
forth by the Maryland State Board of Education each July, for the average of the preceding two
years for which the amount is calculated. Additionally, three percent (3%) shall be added to the
“State of Maryland Eligible Costs per Square Foot for Charles County.”
ARTICLE II
COUNTY COMMISSIONERS’ OBLIGATIONS
2.1 The County Commissioners hereby agree, confirm, consent, and covenant as
follows:
(a) The terms and conditions set forth in Article I are acceptable to the County
Commissioners and other than the excise taxes imposed by the County
Commissioners, there shall be no further fees of any kind related to School
Capacity Allocations, impacts to public school facilities, or school adequacy in
conjunction with the development of Chelsea Manor beyond those outlined in
Article I.
(b) The County Commissioners hereby find that, upon satisfaction of the terms and
conditions set forth in this Agreement, school capacity will either currently exist or
be programmed to exist under the applicable capital improvement projects program
as specified in the Adequate Public Facilities Manual, as required by § 297-258 of
the Charles County Zoning Ordinance.
4
2.2 Timely Development Review. The County and Developer recognize that but for
the construction and build out of Chelsea Manor, many of the benefits to the public in the form of
off-site improvements; increased tax revenue and positive fiscal impacts cannot begin to be realized
by the community. Additionally, it is recognized that Chelsea Manor has, to date, gone through
extensive and comprehensive design and environmental review and approval including the
Preliminary Plan and the other permit and plan approvals listed on Exhibit 3. Accordingly, the
County agrees to use its best efforts to ensure that all remaining development reviews, including
but not limited to, preliminary subdivision, final subdivision and final development plan review
are performed in a succinct, timely manner, without undue delay, not inconsistent with the County’s
current development review process. The County hereby agrees, provided that the Developer is not
in default hereof beyond all applicable notice and cure periods, that the Preliminary Plan, as
amended, and the Site Development Plan shall remain in full force and effect and no further
requests for extension(s) shall be required.
ARTICLE III
LIMITATIONS, PERMITS, AND PLAN CONSISTENCY
3.1 Development Limitations.
(a) The permissible uses on the Subject Property are those permitted by the Charles
County Zoning Ordinance, specifically in the Core Mixed Residential (CMR)
Zone.
(b) The density or intensity of uses on the Subject Property shall be that depicted on
the approved Preliminary Plan, subject to future modifications approved by the
Planning Commission.
3.2 Permits. The County Commissioners and the Developer agree that the permits,
approvals and agreements required by the County and those already approved for the proposed
Chelsea Manor development are those set forth on Exhibit 3, attached hereto and made a part hereof.
3.3 Consistency with Plan and Development Regulations. The Planning Commission
has determined that Chelsea Manor as depicted on the approved Preliminary Plan is consistent with
the Charles County Comprehensive Plan and the development regulations of Charles County.
3.4. Plan Consistency. The County Commissioners hereby determine that Chelsea
Manor is consistent with the Charles County Comprehensive Plan and the zoning and development
regulations of Charles County.
ARTICLE IV
SURVIVAL AND TRANSFER OF OBLIGATIONS
4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all
obligations assumed by it under this Agreement shall be binding upon it, its successors and assigns
(except owners of an individual lot and/or dwelling purchased solely for use as a private residence),
and upon any and all successor owners of record of all or any portion of the Subject Property (except
owners of an individual lot and/or dwelling purchased solely for use as a private residence). To
assure that all such successors, assigns, and successor owners have notice of this Agreement and the
obligations created by it, the Developer agrees that it shall have this Agreement recorded among the
5
Land Records of Charles County, Maryland within twenty (20) days after the Effective Date of this
Agreement. The Effective Date of this Agreement shall be date when this Agreement was finally
executed by all parties.
4.2 The County Commissioners agree that all obligations respectively assumed under
this Agreement shall be binding on Charles County, it successors and assigns.
ARTICLE V
BREACH AND REMEDIES
5.1 In the event that the Developer shall fail to pay any installment of the Mitigation
Payment to the County as set forth in this Agreement, and fails to cure such default by paying the
full amount of the delinquent installment within thirty (30) days after receipt of written notice of
such default from the County Commissioners, the County Commissioners shall have each and all of
the following rights and remedies:
(a) All rights and remedies at law or in equity;
(b) The right to seek an injunction to be issued by a court of competent jurisdiction,
enjoining the Developer from any further violation of this Agreement and/or
mandating that the Developer pay the delinquent Mitigation Payment in
compliance with this Agreement; and
(c) Without the need to resort to any court or other administrative proceedings or
hearing, the right to suspend and/or revoke permits issued by the County that were
granted in reliance upon this Agreement. Within thirty (30) days of any cure of
default under this section, the County Commissioners shall reinstate and/or reissue
any permit suspended and/or revoked under this clause (c).
5.2 If the County Commissioners fail or refuse to perform the obligations as required,
then after thirty (30) days written notice provided to the County Commissioners by the Developer
indicating the nature of said default, and if the County has not cured such default within thirty (30)
days after receipt of written notice of such default from the Developer, the Developer may seek and
obtain equitable relief to enforce the terms of this Agreement either through a decree for specific
performance or an injunction, and further the Developer shall be entitled to bring legal action for
damages or other redress.
5.3 In the event of a judicial proceeding brought by one party to this Agreement against
the other party to this Agreement for the enforcement or breach of any provision herein, the
prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs and
expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial
proceeding.
5.4 The County Commissioners and the Developer hereby expressly covenant and
agree to waive the right to trial by jury in connection with any litigation or judicial proceeding
relating to this Agreement or the conduct, omission, action, obligation, duty, right, benefit, privilege
or liability of a party hereunder to the full extent permitted by law.
6
ARTICLE VI
EFFECT OF DEVELOPMENT REGULATIONS
6.1 Effect of Agreement.
(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations and policies
governing the use, density or intensity of the Subject Property, including but not
limited to those governing development, subdivision, growth management (i.e.,
growth rate controls including, but not limited to, County limitations or “caps” on the
issuance of building permits or School Allocations), impact fees, water, sewer,
stormwater management, environmental protection, land planning and design,
adequate public facilities laws and architecture, (hereafter collectively the
"Development Laws") shall be the laws, rules, regulations and policies, if any, in
force on the Effective Date of the Agreement.
(b) If the County Commissioners have specifically determined that the imposition upon
Subject Property and compliance by Chelsea Manor development with
Development Laws enacted or adopted after the Effective Date of this Agreement is
essential to ensure the health, safety or welfare of residents of all or part of Charles
County, the County Commissioners may impose the change in laws, rules,
regulations and policies and the effect thereof upon the Chelsea Manor development.
However, prior to changing the Development Laws, the County Commissioners must
hold a public hearing during which time, the effect of the proposed change in
Development Laws on Chelsea Manor shall be analyzed and fully debated. In
conjunction with the required public hearing, the County Commissioners agree that
the foregoing phrase "essential to ensure the public health, safety and welfare of
residents" requires study, evaluation, conclusions and findings above and beyond the
legal standards and legislative discretion normally used to enact and apply land use
regulations.
ARTICLE VII
MISCELLANEOUS
7.1 Time of Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
7.2 Terms. This Agreement shall run with and bind the Subject Property so long as the
Chelsea Manor development is under construction and development, but in any event this Agreement
shall be void twenty (20) years after the Effective Date of this Agreement.
7.3 Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed delivered to the addressee thereof (1) when delivered in
person on a business day at the address set forth below or (2) on the third business day after being
deposited in any main or branch United States post office, for delivery by properly addressed,
postage prepaid, certified or registered mail, return receipt requested, at the address set forth below,
or upon receipt if sent by telecopier to the telecopier numbers set forth below.
Notices and communications to the Developer shall be addressed to, and delivered at, the
following address:
7
Chelsea Manor II, L.C. and Sedgemore, L.C.
175 Admiral Cochrane Drive, Suite 112
Annapolis, Maryland 21401
Attn: Douglas
Meeker
Telephone: 410-266-9700
Telecopier: 410-266-9165
with a copy to:
Michael A. Faerber, Esq.
McMillan & Metro, P.C.
1901 Research Boulevard, Suite 500
Rockville, Maryland 20850
Telephone: (301) 251-1180
Telecopier: (301) 251-0447
Notices and communications to the County Commissioners shall be addressed to, and
delivered at, the following address:
President, Charles County Commissioners
P.O. Box 2150
La Plata, Maryland 20646
with a copy to:
Charles County Attorney
Charles County Government
P.O. Box 2150
La Plata, Maryland 20646
Telephone: (301) 645-0555
Telecopier: (301) 645-0515
By notice complying with the requirements of this Section, each party shall have the right to change
the address or addressee or both for all future notices and communications to such party, but no
notice of a change of address shall be effective until actually received.
7.4 Amendments. It is agreed that this Agreement embodies the entire understanding
between the parties and that any amendments to this Agreement shall be in writing and shall be
executed by the County Commissioners and the Developer.
7.5 Authority to Execute. The County Commissioners and the Developer hereby
acknowledge and agree that all required notices, meetings, and hearings have been properly given
and held by the County with respect to the approval of this Agreement and agree not to challenge
this Agreement or any of the obligations created by it on the grounds of any procedural infirmity or
any denial of any procedural right. The County Commissioners hereby warrant and represent to the
Developer that the persons executing this Agreement on their behalf have been properly authorized to
do so. The Developer hereby warrants and represents to the County Commissioners (1) that it is the
fee simple, record owner of the Subject Property, (2) that it has the right, power and authority to
enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to
bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize the
8
execution, delivery and performance of this Agreement have been taken.
7.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of the
Circuit Court of Charles County, Maryland or any federal court sitting in the District of Maryland.
7.8 Remedies Cumulative. Each right, power and remedy of a party provided for
herein, or any other agreement between the parties, now or hereafter existing, shall be cumulative
and concurrent and in addition to every other right, power or remedy provided for in this Agreement
or any other agreement between the parties, now or hereinafter existing.
7.9 Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.10 Effective Date. This is the date that the last party executes this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above
written.
WITNESS: CHELSEA MANOR II, L.C.
a Maryland limited liability company
________________________ By:___________________________(SEAL)
Douglas W. Meeker, Manager
WITNESS: SEDGEMORE, L.C.
a Maryland limited liability company
________________________ By:___________________________(SEAL)
Douglas W. Meeker, Manager
WITNESS: COUNTY COMMISSIONERS OF
CHARLES COUNTY, MARYLAND
________________________ By: ___________________________
9
STATE OF MARYLAND, COUNTY OF ANNE ARUNDEL, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me, the
subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared Douglas W.
Meeker, who acknowledged himself to be a Manager of Chelsea Manor II, L.C., a Maryland limited
liability company, and Sedgemore, L.C., a Maryland limited liability company, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that she executed the same for the purpose therein contained as the duly authorized
Manager of said companies.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
STATE OF MARYLAND, COUNTY OF CHARLES, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me, the
subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
_____________________________, who acknowledged herself to be the _________________ of
the County Commissioners of Charles County, Maryland, a body corporate and politic, known to
me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument,
and acknowledged that he/she executed the same for the purpose therein contained to be his/her act
on behalf of said entity.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
10
EXHIBIT 1
LEGAL DESCRIPTION
Being all of the land described in a deed dated December 30, 2009 by and between The
Ryland Group, Inc. and Chelsea Manor II, L.C. and recorded among the Land Records of Charles
County, Maryland in Liber 7087 at folio 209, said parcel of land being described as follows:
Lot numbered One (1) as shown and described on the plats of subdivision of “PLAT OF
CORRECTION – CHELSEA MANOR” as per Plats One, Two and Three of PLAT OF
CORRECTION – CHELSEA MANOR recorded in Plat Book 58 at plat 315, 316 and 317 among
the land records of Charles County, Maryland. CONTAINING 907,355 square feet or 20.83 acres
of land more or less.
Being all of the land described in a deed dated July 21, 2009 by and between Bryans Green,
L.C. and Sedgemore, L.C. and recorded among the Land Records of Charles County, Maryland in
Liber 6944 at folio 426, said parcel of land being described as follows:
BEGINNING for the said parcel of land at an iron pipe found at the westerly corner of
Parcel 305, said iron pipe also lying on the southeasterly Right of Way line of Matthews Manor
Road (Variable width Right of Way), thence running with the southeasterly Right of Way line of
Matthews Manor Road;
1. North 46' 22' 36" East, 24.00 feet to an iron pipe found, thence;
2. North 44' 34' 38" East, 186.01feet to an iron pipe found at the common corner of said Parcel
305 and Parcel 67, thence ;
3. North 44' 35' 16" East, 404.29 feet to an iron pipe found at the northerly corner of said Parcel
67, said iron pipe also lying on the southwesterly Right of Way line of Matthews
Manor Road, thence running with a portion of the said southwesterly Right of Way line
of Matthews Manor Road and with the common division line between said Parcel 67
and Parcel 68, the property now or formerly owned by Artery-Gourley Chelsea Manor,
L.L.C., Liber 6069 Folio 745;
4. South 49' 02' 54" East, 660.00 feet to an iron pipe found at the common corner of said Parcel
67, Parcel 68 and Parcel 396, thence running with the common division line between
said Parcel 68 and Parcel 396;
5. North 45' 28' 05" East, 70.55 feet to an iron pipe found, thence;
6. South 48' 03' 30" East, 21.07 feet to a point, thence leaving said common division line
between said Parcel 68 and Parcel 396 and running in, through, over and across part of
Parcel 396;
7. South 40' 59' 00" West, 687.18 feet to a point on the northeasterly Right of Way line of the
aforementioned Matthews Manor Road, thence running with and binding on the said
northeasterly Right of Way line of Matthews Manor Road;
8. North 49' 01' 00" West, 65.61 feet to an iron pipe found, thence;
9. North 48' 19' 44" West, 495.37 feet to an iron pipe found, thence;
10. North 54' 02' 24" West, 103.93 feet to an iron pipe found, thence;
11. North 42' 33' 04" West, 61.83 feet to the point of beginning.
CONTAINING 435,663 square feet or 10.00 acres of land more or less.
11
EXHIBIT 2
LEGAL AND EQUITABLE INTEREST HOLDERS
IN THE SUBJECT PROPERTY
Chelsea Manor II, L.C.
Sedgemore, L.C.
Sandy Spring Bank
12
EXHIBIT 3
PERMITS AND APPROVALS
REQUIRED AND/OR APPLICABLE TO
THE SUBJECT PROPERTY
Permits and Approvals Granted
Preliminary Subdivision Plan XPN #03-0023
Forest Stand Delineation FC 03-183 and 06-78
Preliminary Forest Conservation Plan FC 03-183
Site Development Plan SDP#090033
Army COE Permit 200666964
Army COE Jurisdictional Determination JD 2006-64180
MDE General Permit for Construction Activity 08CH0007
Development Services Permit (Phase 1A) VR #10-0022
Development Services Permit (Phase 1B) VR #10-0023
Final Forest Conservation Plan (Phase 1A & 1B) FC 03-183
Erosion and Sediment Control Plan (Phase 1A) SED 93-09
Erosion and Sediment Control Plan (Phase 1B) SED 94-09
MSHA Access Permit
Permits and Approvals Pending
Final Plats (Phase 1A) XRS #10-0008
Final Plats (Phase 1B) XRS #10-0007
MSHA Utility Permit
Future Permits and Approvals Required
Development Services Permit (Phase 2)
Final Forest Conservation Plan (Phase 2)
Erosion and Sediment Control Plan (Phase 2)
Final Plats (Phase 2)
Final Forest Conservation Plan (Phase 3)
Development Services Permit (Phase 3)
Erosion and Sediment Control Plan (Phase 3)
Final Forest Conservation Plan (Phase 4)
Development Services Permit (Phase 4)
Erosion and Sediment Control Plan (Phase 4)
257
RO
AD
POPES CREEK
ED
GE
HIL
L
25701301
MILL RUNROAD
MORGANTOWN
NEWBURG
MOUNT
VICTORIA
RO
AD
©0 5,000 10,0002,500Feet
Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.
DRAWN BY:
CHECKED BY:
SCALE DATE
CHARLES COUNTY GOVERNMENT
200 Baltimore St
PO BOX 2150
La Plata, MD 20646
(301)645-0627
Department of Planning and
Growth Management
LOCATION MAPCHARLES COUNTY, MD
OCT, 2010
Subject PropertyTM 83 P9,11,13,&A
!\
BURROUGHS HALL
DRRA #10-0004
1
DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT
THIS DEVELOPER RIGHTS AND RESPONSIBILITY AGREEMENT (“Agreement”),
made as of the ___________ day of _________________, 2010, by and between MT. TIRZAH
FAMILY LIMITED PARTNERSHIP, a Maryland limited partnership ("Developer"), and THE
COUNTY COMMISSIONERS OF CHARLES COUNTY, MARYLAND, a body politic and
corporate ("County Commissioners").
RECITALS
1. The Developer is the owner of certain real property in Charles County, Maryland,
described in Exhibit 1, attached hereto and made part hereof, (collectively referred to as "Subject
Property").
2. The names of all parties having an equitable or legal interest in the Subject
Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof and
certified to by counsel to the Developer.
3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland and § 297-498
of the Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”), the County
Commissioners are authorized to enter into binding development rights and responsibility
agreements with any person having legal or equitable interest in the Subject Property. Both the
Developer and the County specifically recognize that a principal purpose of this Agreement is to bind
the Developer to make monetary contributions towards long term public improvements which it can
make in consideration of and in reliance upon the County Commissioners’ agreement to provide
School Capacity Allocations for the Subject Property and not to change the rules and regulations
pertaining to the development of the Subject Property from those in effect when this Agreement
was executed.
4. The County Commissioners have the authority to provide for the construction of
public school facilities within Charles County, Maryland, pursuant to Section 11A of Article 25 and
Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the Zoning
Ordinance requires adequate school capacity and the granting of school allocations prior to the
approval of final plats for a residential subdivision.
5. The Developer is currently in the process of developing a residential community
known as ‘BURROUGHS HALL’ which will contain thirty-Six (36) single family detached lots.
6. The Charles County Planning Commission has reviewed the proposed subdivision
through case number XPN 09-0002 and on September 28, 2009 approved the Preliminary
Subdivision Plan for the Property which Preliminary Plan is hereby incorporated herein by
reference.
7. On ________________, 2010, the County Commissioners held a public hearing
on this Agreement, notice of which had been published in accordance with Article 66B, Section 4.04
of the Annotated Code of Maryland.
8. The Developer and the County Commissioners desire to enter into this Agreement
for the purposes of: (a) confirming that adequate school capacity will be provided for Burroughs
Hall in accordance with the provisions contained herein; (b) agreeing that the rules and regulations
pertaining to the development of Burroughs shall not be changed after the Effective Date of this
2
Agreement; and (c) establishing the duration and effect of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are not merely
prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual
covenants and agreements set forth below, and other good and valuable consideration, the receipt
and sufficiency of which the parties hereby acknowledge, the County Commissioners and the
Developer hereby agree as follows:
ARTICLE I
DEVELOPER’S OBLIGATIONS
1.1 The development of Burroughs Hall shall be subject to the Charles County
Adequate Public Facilities Ordinance, which requires that adequate school capacity must be
available for proposed developments. Therefore, in exchange for the thirty-six (36) School
Capacity Allocations required for the completion of Burroughs, the Developer shall pay a
“Mitigation Payment” in the total sum of four hundred and sixty-eight thousand dollars
($468,000.00). The Mitigation Payment is intended to mitigate the impact of Burroughs on the
Charles County Public Schools in accordance with the Zoning Ordinance. The County
Commissioners and the Developer agree that the Mitigation shall be paid by the Developer and the
School Capacity Allocations shall be issued by the County Commissioners as follows:
(a) On or before June 30, 2011, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations;
(b) On or before June 30, 2012, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations;
(c) On or before June 30, 2013, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations;
(d) On or before June 30, 2014, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations;
(e) On or before June 30, 2015, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations;
(f) On or before June 30, 2016, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for five (5) School Capacity
Allocations, and the County shall grant five (5) School Capacity Allocations; and
(g) On or before June 30, 2017, the Developer shall pay thirteen thousand dollars
($13,000.00) per School Capacity Allocation for six (6) School Capacity
Allocations, and the County shall grant six (6) School Capacity Allocations;
3
If, due to engineering constraints discovered during preparation of the Final Subdivision
Plat, the number of single-family lots located within the Subject Property is reduced to a number
below thirty-six (36), the Mitigation Payment to be remitted to the County shall be reduced by the
sum of thirteen thousand dollars ($13,000.00) per lot lost.
1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent (10%)
of the total Mitigation Payment within thirty days of the execution of this Agreement.as set forth
in the schedule below. However, this deposit shall be fully credited toward the Mitigation
Payment that is due no later than June 30, 2011 (see Section 1.1(a) above). The schedule for
paying the deposit is as follows:
(a) No later than thirty (30) days after the recordation of this Agreement, the
Developer shall pay a deposit of eleven thousand, seven hundred dollars
($11,700.00), which is approximately two and one-half percent (2.5%) of the
total Mitigation Payment due under the terms of this Agreement.
(b)(a) No later than ninety (90) days after the recordation of this Agreement, the
Developer shall pay a deposit of thirty-five thousand, one hundred dollars
($35,100.00), which is approximately seven and one-half percent (7.5%) of
the total Mitigation Payment due under the terms of this Agreement.
1.3 Inflation Factor. In calculating the Mitigation Payment to be made by the
Developer after June 30, 2011, the payment of thirteen thousand dollars ($13,000.00) per School
Capacity Allocation shall be adjusted by the same percentage as the change in the “State of
Maryland Eligible Costs per Square Foot for Charles County,” as set forth by the Maryland State
Board of Education each July, for the average of the preceding two years for which the amount is
calculated. Additionally, three percent (3%) shall be added to the “State of Maryland Eligible
Costs per Square Foot for Charles County.”
ARTICLE II
COUNTY COMMISSIONERS’ OBLIGATIONS
2.1 The County Commissioners hereby agree, confirm, consent, and covenant as
follows:
(a) The terms and conditions set forth in Article I are acceptable to the County
Commissioners and other than the excise taxes imposed by the County
Commissioners, there shall be no further fees of any kind related to School
Capacity Allocations, impacts to public school facilities, or school adequacy in
conjunction with the development of Burroughs Hall beyond those outlined in
Article I.
(b) The County Commissioners hereby find that, upon satisfaction of the terms and
conditions set forth in this Agreement, school capacity will either currently exist or
be programmed to exist under the applicable capital improvement projects program
as specified in the Adequate Public Facilities Manual, as required by § 297-258 of
the Charles County Zoning Ordinance.
2.2 Timely Development Review. The County and Developer recognize that but for
the construction and build out of Burroughs Hall, many of the benefits to the public in the form of
4
off-site improvements; increased tax revenue and positive fiscal impacts cannot begin to be realized
by the community. Additionally, it is recognized that Burroughs Hall has, to date, gone through
extensive and comprehensive design and environmental review and approval including the
Preliminary Plan. Accordingly, the County agrees to use its best efforts to ensure that all remaining
development reviews, including but not limited to, preliminary subdivision, final subdivision and
final development plan review are performed in a succinct, timely manner, without undue delay,
not inconsistent with the County’s current development review process. The County hereby agrees,
provided that the Developer is not in default hereof beyond all applicable notice and cure periods,
that the Preliminary Plan shall remain in full force and effect and no further requests for
extension(s) shall be required.
ARTICLE III
LIMITATIONS, PERMITS, AND PLAN CONSISTENCY
3.1 Development Limitations.
(a) The permissible uses on the Subject Property are those permitted in the
Comprehensive Land Use Plan of Charles County, Maryland for the area within which the Subject
Property is located and those permitted in the Preliminary Plan. Specifically, the Developer intends
to and is currently in the process of developing a single family detached residential lot community.
Any modifications to the permissible uses must be approved by the Planning Commission as an
amendment to the Preliminary Plan, and the County Commissioners as an amendment to this
Agreement.
(b) The density or intensity of uses on the Subject Property shall be that depicted on
the approved Preliminary Plan, subject to future modifications approved by the Planning
Commission.
3.2 Permits. The County Commissioners and the Developer agree that the permits,
approvals and agreements required by the County and those already approved for the proposed
Burroughs Hall development are those set forth on Exhibit 3, attached hereto and made a part
hereof.
3.3 Consistency with Plan and Development Regulations. The Planning Commission
has determined that Burroughs Hall as depicted on the approved Preliminary Plan is consistent with
the Charles County Comprehensive Plan and the development regulations of Charles County.
3.4. Plan Consistency. The County Commissioners hereby determine that Burroughs
Hall is consistent with the Charles County Comprehensive Plan and the zoning and development
regulations of Charles County.
5
ARTICLE IV
SURVIVAL AND TRANSFER OF OBLIGATIONS
4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all
obligations assumed by it under this Agreement shall be binding upon it, its successors and assigns
(except owners of an individual lot and/or dwelling purchased solely for use as a private residence),
and upon any and all successor owners of record of all or any portion of the Subject Property (except
owners of an individual lot and/or dwelling purchased solely for use as a private residence). To
assure that all such successors, assigns, and successor owners have notice of this Agreement and the
obligations created by it, the Developer agrees that it shall have this Agreement recorded among the
Land Records of Charles County, Maryland within twenty (20) days after the Effective Date of this
Agreement. The Effective Date of this Agreement shall be date when this Agreement was finally
executed by all parties.
4.2 The County Commissioners agree that all obligations respectively assumed under
this Agreement shall be binding on Charles County, it successors and assigns.
ARTICLE V
BREACH AND REMEDIES
5.1 In the event that the Developer shall fail to pay any installment of the Mitigation
Payment to the County as set forth in this Agreement, and fails to cure such default by paying the
full amount of the delinquent installment within thirty (30) days after receipt of written notice of
such default from the County Commissioners, the County Commissioners shall have each and all of
the following rights and remedies:
(a) All rights and remedies at law or in equity;
(b) The right to seek an injunction to be issued by a court of competent jurisdiction,
enjoining the Developer from any further violation of this Agreement and/or
mandating that the Developer pay the delinquent Mitigation Payment in
compliance with this Agreement; and
(c) Without the need to resort to any court or other administrative proceedings or
hearing, the right to suspend and/or revoke permits issued by the County that were
granted in reliance upon this Agreement. Within thirty (30) days of any cure of
default under this section, the County Commissioners shall reinstate and/or reissue
any permit suspended and/or revoked under this clause (c).
5.2 If the County Commissioners fail or refuse to perform the obligations as required,
then after thirty (30) days written notice provided to the County Commissioners by the Developer
indicating the nature of said default, and if the County has not cured such default within thirty (30)
days after receipt of written notice of such default from the Developer, the Developer may seek and
obtain equitable relief to enforce the terms of this Agreement either through a decree for specific
performance or an injunction, and further the Developer shall be entitled to bring legal action for
damages or other redress.
5.3 In the event of a judicial proceeding brought by one party to this Agreement against
the other party to this Agreement for the enforcement or breach of any provision herein, the
prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs and
6
expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial
proceeding.
5.4 The County Commissioners and the Developer hereby expressly covenant and
agree to waive the right to trial by jury in connection with any litigation or judicial proceeding
relating to this Agreement or the conduct, omission, action, obligation, duty, right, benefit, privilege
or liability of a party hereunder to the full extent permitted by law.
ARTICLE VI
EFFECT OF DEVELOPMENT REGULATIONS
6.1 Effect of Agreement.
(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations and policies
governing the use, density or intensity of the Subject Property, including but not
limited to those governing development, subdivision, growth management (i.e.,
growth rate controls including, but not limited to, County limitations or “caps” on the
issuance of building permits or School Allocations), impact fees, water, sewer,
stormwater management, environmental protection, land planning and design,
adequate public facilities laws and architecture, (hereafter collectively the
"Development Laws") shall be the laws, rules, regulations and policies, if any, in
force on the Effective Date of the Agreement.
(b) If the County Commissioners have specifically determined that the imposition upon
Subject Property and compliance by the Developer with Development Laws
enacted or adopted after the Effective Date of this Agreement is essential to ensure
the health, safety or welfare of residents of all or part of Charles County, the County
Commissioners may impose the change in laws, rules, regulations and policies and
the effect thereof upon the Burroughs Hall development. However, prior to changing
the Development Laws, the County Commissioners must hold a public hearing
during which time, the effect of the proposed change in Development Laws on
Burroughs Hall shall be analyzed and fully debated. In conjunction with the required
public hearing, the County Commissioners agree that the foregoing phrase "essential
to ensure the public health, safety and welfare of residents" requires study,
evaluation, conclusions and findings above and beyond the legal standards and
legislative discretion normally used to enact and apply land use regulations.
ARTICLE VII
MISCELLANEOUS
7.1 Time of Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
7.2 Terms. This Agreement shall run with and bind the Subject Property so long as the
Burroughs Hall development is under construction and development, but in any event this Agreement
shall be void twenty (20) years after the Effective Date of this Agreement.
7.3 Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed delivered to the addressee thereof (1) when delivered in
7
person on a business day at the address set forth below or (2) on the third business day after being
deposited in any main or branch United States post office, for delivery by properly addressed,
postage prepaid, certified or registered mail, return receipt requested, at the address set forth below,
or upon receipt if sent by telecopier to the telecopier numbers set forth below.
Notices and communications to the Developer shall be addressed to, and delivered at, the
following address:
Mt. Tirzah Family Limited Partnership
P.O. Box 7
Mt. Victoria, Maryland 20661
with a copy to:
Jessica S. Barnes, Esq.
Andrews, Bongar, Starkey & Clagett, P.A.
11705 Berry Road, Suite 202
Waldorf, Maryland 20603
Telephone: (301) 645-4100
Telecopier: (301) 843-2351
Notices and communications to the County Commissioners shall be addressed to, and
delivered at, the following address:
President, Charles County Commissioners
P.O. Box 2150
La Plata, Maryland 20646
with a copy to:
Charles County Attorney
Charles County Government
P.O. Box 2150
La Plata, Maryland 20646
Telephone: (301) 645-0555
Telecopier: (301) 645-0515
By notice complying with the requirements of this Section, each party shall have the right to change
the address or addressee or both for all future notices and communications to such party, but no
notice of a change of address shall be effective until actually received.
7.4 Amendments. It is agreed that this Agreement embodies the entire understanding
between the parties and that any amendments to this Agreement shall be in writing and shall be
executed by the County Commissioners and the Developer.
7.5 Authority to Execute. The County Commissioners and the Developer hereby
acknowledge and agree that all required notices, meetings, and hearings have been properly given
and held by the County with respect to the approval of this Agreement and agree not to challenge
this Agreement or any of the obligations created by it on the grounds of any procedural infirmity or
any denial of any procedural right. The County Commissioners hereby warrant and represent to the
Developer that the persons executing this Agreement on their behalf have been properly authorized to
8
do so. The Developer hereby warrants and represents to the County Commissioners (1) that it is the
fee simple, record owner of the Subject Property, (2) that it has the right, power and authority to
enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to
bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize the
execution, delivery and performance of this Agreement have been taken.
7.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of the
Circuit Court of Charles County, Maryland or any federal court sitting in the District of Maryland.
7.8 Remedies Cumulative. Each right, power and remedy of a party provided for
herein, or any other agreement between the parties, now or hereafter existing, shall be cumulative
and concurrent and in addition to every other right, power or remedy provided for in this Agreement
or any other agreement between the parties, now or hereinafter existing.
7.9 Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
7.10 Effective Date. This is the date that the last party executes this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above
written.
WITNESS: Mt. Tirzah Family Limited Partnership
a Maryland limited partnership
________________________ By: ___________________________(SEAL)
Mt. Tirzah, Inc., General Partner
Michael J. Sullivan, President
STATE OF MARYLAND, COUNTY OF CHARLES, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me, the
subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared Mt. Tirzah
Family Limited Partnership by its General Partner, Mr. Tirzah, Inc., by its President, Michael J.
Sullivan, known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that he executed the same for the purpose therein contained
as the duly authorized Manager of said company.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
9
WITNESS: COUNTY COMMISSIONERS OF
CHARLES COUNTY, MARYLAND
________________________ By: ___________________________ (SEAL)
STATE OF MARYLAND, COUNTY OF CHARLES, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me, the
subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
_____________________________, who acknowledged herself to be the _________________ of
the County Commissioners of Charles County, Maryland, a body corporate and politic, known to
me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument,
and acknowledged that he/she executed the same for the purpose therein contained to be her act on
behalf of said entity.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
10
EXHIBIT 1
LEGAL DESCRIPTION
(INFORMATION TO FOLLOW)
11
EXHIBIT 2
LEGAL AND EQUITABLE INTEREST HOLDERS
IN THE SUBJECT PROPERTY
Mt. Tirzah Family Limited Partnership
Community Bank of Tri-County
12
EXHIBIT 3
PERMITS AND APPROVALS
REQUIRED AND/OR APPLICABLE TO
THE SUBJECT PROPERTY
Permits and Approvals Granted
Preliminary Subdivision Plan XPN 09-0002
Future Permits and Approvals Required
Final Forest Conservation Plan
Erosion and Sediment Control Plan
Final Plat
228229
BERRY
MID
DLETO
WN
RO
AD
EY ROAD
229
BILLINGSLE
Y
ROAD
©0 5,000 10,0002,500Feet
Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.
DRAWN BY:
CHECKED BY:
SCALE DATE
CHARLES COUNTY GOVERNMENT
200 Baltimore St
PO BOX 2150
La Plata, MD 20646
(301)645-0627
Department of Planning and
Growth Management
LOCATION MAPCHARLES COUNTY, MD
OCT, 2010
Subject PropertyTM 13 P 98
!\
DRRA
PRINCE
GEORGE'S
COUNTY
BRENTWOOD
Pa
ge1
DEVELOPER RIGHTS AND RESPONSIBILITIES AGREEMENT
THIS DEVELOPER RIGHTS AND RESPONSIBILITY AGREEMENT
(“Agreement”), made as of the ___________ day of _________________, 2010, by and
between WETHERBURN ASSOCIATES, LLC, a Maryland limited liability company ("Developer"), and THE COUNTY COMMISSIONERS OF CHARLES COUNTY,
MARYLAND, a body politic and corporate ("County Commissioners").
RECITALS
1. The Developer is the owner of certain real property in Charles County, Maryland, described in Exhibit 1, attached hereto and made part hereof, (collectively referred
to as "Subject Property").
2. The names of all parties having an equitable or legal interest in the Subject Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part
hereof and certified to by counsel to the Developer.
3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland, and
Section 297-498 of the Charles County Zoning Ordinance, Charles County, Maryland, by and
through the County Commissioners, on behalf of all agencies and governmental authorities
within and part of the government of Charles County (collectively, the "County") is authorized
to enter into binding development rights and responsibility agreements with any person
having legal or equitable interest in the Subject Property. Both the Developer and the
County specifically recognize that a principal purpose of this Agreement is to provide certain
school related funding that the Developer would otherwise not be obligated to provide, and in
consideration of and upon reliance that (a) the County will provide school allocations to the
Developer in certain quantities and at certain specified times and (b) the County will not change
the rules and regulations pertaining to the development of the Subject Property from those in
effect when this Agreement was executed.
4. The Developer is currently in the process of developing a residential community
known as ‘BRENTWOOD’ which will contain a total of Three Hundred Fifty (350) single
family detached lots of which, 212 school allocations have already been issued. The remaining balance of one hundred thirty eight (138) single family detached lots are in need of school
allocations to satisfy the Adequate Public Facilities Ordinance.
5. The Charles County Planning Commission has reviewed the proposed subdivision through case number XPN 97-0010 and on ________________________ approved
the Preliminary Subdivision Plan for the Property which Preliminary Plan is hereby
incorporated herein by reference.
Pa
ge2
6. On the ______ day of _____________, 2010, the County Commissioners held
a public hearing on this Agreement, notice of which had been published in accordance with §297-502 of the County Code.
NOW, THEREFORE, in consideration of the foregoing recitals, which are not
merely prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual covenants and agreements set forth below, and other good and valuable consideration,
the receipt and sufficiency of which the parties hereby acknowledge, the County
Commissioners and the Developer hereby agree as follows:
The County Commissioners and the Developer hereby enter into this Agreement for
the purposes of permitting the Developer to (i) pay to the County a total of One Million Seven
Hundred Ninety Four Thousand Dollars ($1,794,000.00) (the "School Allocation Fee")
($13,000.00/each lot) plus the Inflationary Factor discussed below added to each installment
after the initial installment in order to have the County (a) issue one hundred thirty eight (138)
School Allocations to the Developer simultaneously with said payment(s) and (b) agree to not
change the rules and regulations pertaining to the development of the Subject Property from
those in effect when this Agreement was executed. If due to engineering constraints
discovered during preparation of the Final Subdivision Plat, the number of single-family lots
located within the Subject Property is reduced to a number below one hundred thirty eight
(138), the School Allocation Fee to be remitted to the County shall be reduced by the sum of
Thirteen Thousand Dollars ($13,000.00) per lot reduced.
The timetable through which Developer shall remit to County the aforegoing
consideration and through which the County shall release school allocations to the Developer shall be as follows:
1. Within seven (7) days of the ratification of this Agreement by all parties, the
Developer shall remit to the County the sum of One Hundred Eighty Two
Thousand Dollars ($182,000.00) and upon payment of the foregoing sum the
County shall release to Developer a total of fourteen (14) school allocations for
the Subject Property;
2. On or before June 30, 2011, the Developer shall remit to the County the sum
of Seventy Eight Thousand Dollars ($78,000.00) and upon payment of the
foregoing sum the County shall release to Developer a total of six (6) school
allocations for the Subject Property;
3. On or before June 30, 2012, the Developer shall remit to the County the sum
of Two Hundred Sixty Thousand Dollars ($260,000.00) plus the inflationary factor as described below and upon payment of the foregoing sum the County
Pa
ge3
shall release to Developer a total of twenty (20) school allocations for the
Subject Property;
4. On or before June 30, 2013, the Developer shall remit to the County the sum
of Two Hundred Sixty Thousand Dollars ($260,000.00) plus the inflationary
factor as described below and upon payment of the foregoing sum the County shall release to Developer a total of twenty (20) school allocations for the
Subject Property;
5. On or before June 30, 2014, the Developer shall remit to the County the sum of Two Hundred Sixty Thousand Dollars ($260,000.00) plus the inflationary
factor as described below and upon payment of the foregoing sum the County
shall release to Developer a total of twenty (20) school allocations for the
Subject Property;
6. On or before June 30, 2015, the Developer shall remit to the County the sum
of Two Hundred Sixty Thousand Dollars ($260,000.00) plus the inflationary
factor as described below and upon payment of the foregoing sum the County
shall release to Developer a total of twenty (20) school allocations for the
Subject Property;
7. On or before June 30, 2016, the Developer shall remit to the County the sum
of Two Hundred Sixty Thousand Dollars ($260,000.00) plus the inflationary
factor as described below and upon payment of the foregoing sum the County
shall release to Developer a total of twenty (20) school allocations for the Subject Property;
8. On or before June 30, 2017, the Developer shall remit to the County the sum
of Two Hundred Thirty Four Thousand Dollars ($234,000.00) plus the
inflationary factor as described below and upon payment of the foregoing sum
the County shall release to Developer a total of eighteen (18) school allocations
for the Subject Property; and
9. The Developer may accelerate payments and receipt of school allocations for
installments in advance of the fiscal year in which the installment is due. In the
event such early installment is made, the consideration payable will be
equivalent to the allocation cost for the fiscal year in which the early payment
is made.
The Inflationary Factor as described above shall be computed on an annual basis and equate to the same percentage as the change in the State of Maryland Eligible Costs per Square Foot for
Pa
ge4
Charles County as set forth by the Board of education for the State of Maryland each July for
the average of the preceding two years for which the amount is calculated plus an additional margin of three percent (3%).
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words, when used in this Agreement, shall have the
following meanings:
(a) “Agreement” means this Developer’s Rights and Responsibilities Agreement.
(b) “County Code” means the Code of Charles County, Maryland and in effect
on the Effective Date of this Agreement.
(c) “County Commissioners” means the County Commissioners of Charles
County, Maryland, a body politic.
(d) “Department” means the Charles County Department of Planning and
Growth Management.
(e) “Development Approval” means final governmental approval of Subdivision
Plat and Site Plan(s) for each respective phase of the project that has been obtained and all
conditions of said approval that have been satisfied, and all applicable appeal periods have
expired without the filing of any appeal, or if an appeal(s) was filed, the appeal has been
defeated beyond the possibility or existence of further appeal of any kind.
(f) “Developer” means Wetherburn Associates, LLC, a Maryland limited liability
company, its successors and assigns in ownership of the Subject Property.
(g) “Effective Date of this Agreement” means the date the last party executes this Agreement.
(h) “Improvements” means those improvements to be made to road, sewer, water,
stormwater, parks and other facilities necessary to service the Subject Property as set forth on the Preliminary Plan Approval.
(i) “Planning Commission” means the Planning Commission for Charles County
Maryland.
(j) “School Allocation" means an allotment of school capacity with 1 allocation
Pa
ge5
required for recordation of each single family detached lot on the Subject Property.
(k) “Subdivision Plat” means a final plat(s) of subdivision for BRENTWOOD, or any Phase thereof, prepared in accordance with the County Code and approved by the
Planning Commission.
(l) “Subject Property” means all of the real property described in Exhibit 1
attached hereto.
ARTICLE II
LIMITATIONS, PERMITS AND PLAN CONSISTENCY
2.1 Development Limitations. Many development limitations have been established on
the Preliminary Plan, and when the same can be clearly ascertained therefrom (such as setbacks,
building heights and buffer requirements) the same limitations are not repeated herein in this
Article II. If a limitation or restriction contained herein conflicts with that shown on the
Preliminary Plan, the more restrictive shall apply.
(a) The permissible uses on the Subject Property are those permitted in the
Comprehensive Land Use Plan of Charles County, Maryland for the area within which the
Subject Property is located and those permitted in the Preliminary Plan. Specifically, the
Developer intends to and is currently in the process of developing a single family detached
residential lot community. Any modifications to the permissible uses must be approved by the
Planning Commission as an amendment to the Preliminary Plan, and the County
Commissioners as an amendment to this Agreement.
(b) The density or intensity of uses on the Subject Property shall be that
depicted on the Preliminary Plan.
2.2 Permits. The County Commissioners and the Developer agree that the permits, approvals and agreements required by the County and those already approved for Brentwood
Subdivision are those set forth on Exhibit 3, attached hereto and made a part hereof.
2.3 Regulation and Plan Consistency. The Planning Commission has determined that
the proposed development as depicted on the approved Preliminary Plan is consistent with
the Comprehensive Land Use Plan of Charles County, Maryland.
Pa
ge6
ARTICLE III
DEVELOPMENT REVIEW
3.1 Timely Development Review. The County and Developer recognize that but for the construction and build out of the project, many of the benefits to the public in the form of
off-site improvements, increased tax revenue and positive fiscal impacts cannot begin to be
realized by the community. Additionally, it is recognized that the project has, to date, gone
through extensive and comprehensive design and environmental review and approval including the Preliminary Plan and the other permit and plan approvals. Accordingly, the County agrees
to use its best efforts to ensure that all remaining development reviews, including but not
limited to, preliminary subdivision, final subdivision and final development plan review are performed in a succinct, timely manner, without undue delay, not inconsistent with the
County’s current development review process.
ARTICLE IV
SURVIVAL AND TRANSFER OF OBLIGATION
4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all
obligations assumed by it under this Agreement shall be binding upon it, its successors and
assigns (except owners of an individual lot and/or dwelling purchased solely for use as a private
residence), and upon any and all successor owners of record of all or any portion of the Subject
Property (except owners of an individual lot and/or dwelling purchased solely for use as a
private residence). To assure that all such successors, assigns, and successor owners have notice
of this Agreement and the obligations created by it, the Developer agrees that it shall:
(a) Have this Agreement recorded among the Land Records of Charles
County within 20 days after the effective date of this Agreement;
(b) Incorporate, by reference, this Agreement into any and all real estate
sales contracts entered into after the effective date of this Agreement for the sale of all or any portion of the Subject Property, other than a contract of sale for the sale of an individual lot
and/or dwelling solely for use as a private residence; and
(c) Prior to the transfer of all or any portion of the Subject Property (other than the transfer of an individual lot and/or dwelling purchased solely for use as a private
residence and/or a sale of lots not constituting a transfer of all or substantially all of the lots at
any one time), or any legal or equitable interest therein, require the transferee of said portion of
the Subject Property to execute an enforceable written agreement, in a form reasonably satisfactory to the County Attorney, agreeing to be bound by the provisions of this Agreement,
and to provide the County, upon request, with such reasonable assurance of the financial
ability of such transferee to meet those obligations as the County reasonably may require.
Pa
ge7
4.2 Responsibilities of Developer Upon Transfer to a Successor. The County agrees that upon a successor becoming bound to the obligation created herein in the manner provided
herein and providing the financial assurances required herein, the liability of the Developer
shall be released to the extent of the transferee's assumption of such liability. The Developer
agrees to notify the County, in writing, at least 30 days prior to any date upon which the Developer transfers a legal or beneficial interest in any portion of the Subject Property, other
than individual lots and/or dwellings purchased solely for use as a private residence and/or a
sale of lots not constituting a transfer of all or substantially all of the lots at any one time.
4.3 Binding Upon Successors and Assigns of The County. The County agrees that all
obligations assumed by it under this Agreement shall be binding on it, its agencies,
governmental units, the Planning Commission and its and their respective successors and
assigns.
ARTICLE V
BREACH AND REMEDIES
5.1 In the event that any default under this Agreement by the Developer, the
County shall have all rights and remedies, at law or in equity. Without limitation to the
foregoing, the Developer recognizes that in the event of a default hereunder by the Developer,
the County may not have an adequate remedy at law, and that therefore, the County shall
have the right to seek an injunction to be issued by a court of competent jurisdiction,
enjoining the developer from any further violation of this Agreement and/or mandating that
the Developer comply with this Agreement. In addition to all other rights and remedies, the
Developer shall be responsible for all costs incurred by the County in enforcing this
Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue
for any proceedings brought with respect to this Agreement shall be in the Circuit Court of
Charles County, Maryland. The Developer does hereby waive trial by jury in connection
with any proceedings brought to enforce the terms of this Agreement. In addition to the
above referenced remedies, and in addition to all remedies of the County at law or in equity,
in the event of any default under this Agreement by the Developer, the County shall have
the right, unilaterally, and without prior notice to the Developer, and without the need for
resort to any court or administrative proceedings or hearing, to suspend and/or revoke, in
the County's sole discretion, any and all development permits, development services permits,
grading permits, building permits and/or other permits or approvals issued by the County
with respect to the Property. The County reserves the right, it its sole and absolute
discretion, to reinstate and/or reissue any permit or approval suspended or revoke
hereunder, upon any cure or correction of the default hereunder by the Developer, but the
County shall not have the obligation to reinstate or reissue any such permit or approval.
Pa
ge8
5.2 In the event that any default under this Agreement by the Developer, the
County shall have all rights and remedies, at law or in equity. Without limitation to the foregoing, the Developer recognizes that in the event of a default hereunder by the Developer,
the County may not have an adequate remedy at law, and that therefore, the County shall
have the right to seek an injunction to be issued by a court of competent jurisdiction,
enjoining the Developer from any further violation of this Agreement and/or mandating that the Developer comply with this Agreement. In addition to all other rights and remedies the
Developer shall be responsible for all costs incurred by the County in enforcing this
Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue for
any proceedings brought with respect to this Agreement shall be in the Circuit Court Charles County, Maryland. The Developer does hereby waive trial by jury in connection with any
proceedings brought to enforce the terms of this Agreement.
5.3 Breach by County. If the County shall fail or refuse to perform its obligations as required, then after thirty (30) days written notice provided to the County by the Developer
indicating the nature of said default and if the County has not cured said default, the Developer
may seek and obtain equitable relief to enforce the terms and conditions of this Agreement
either through a decree for specific performance or an injunction, and further the Developer shall be entitled to bring a legal action for damages or other redress.
5.4 Costs and Attorneys' Fees. In the event of a judicial proceeding brought by one
party to this Agreement against the other party to this Agreement, for the enforcement or
breach of any provision of this Agreement, the prevailing party in such judicial proceeding
shall be entitled to reimbursement from the unsuccessful party of all costs and expenses,
including reasonable attorneys’ fees incurred in connection with such judicial proceeding.
ARTICLE VI
EFFECT OF DEVELOPMENT REGULATIONS
6.1 Effect of Agreement.
(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations
and policies governing the use, density or intensity of the Subject Property, including but not limited to those governing development, subdivision, growth management (i.e., growth
rate controls including, but not limited to, County limitations or “caps” on the issuance of
building permits or School Allocations), impact fees, water, sewer, stormwater
management, environmental protection, land planning and design, adequate public facilities laws and architecture, (hereafter collectively the "Development Laws") shall be the laws,
Pa
ge9
rules, regulations and policies, if any, in force on the Effective Date of the Agreement.
(b) If the County Commissioners have specifically determined that the
imposition upon the Subject Property and compliance by the subject development with
Development Laws enacted or adopted after the Effective Date of this Agreement is
essential to ensure the health, safety or welfare of residents of all or part of Charles County, the County may impose the change in laws, rules, regulations and policies and the effect
thereof upon the subject development. The County Commissioners agree that the
foregoing phrase “essential to ensure the public health, safety and welfare of residents”
requires study, evaluation, conclusions and findings above and beyond the legal standards and legislative discretion normally used to enact and apply land use regulations, after a
public hearing during which the effect of the proposed change in Development Laws
upon the Subject Property is fully debated and analyzed.
(c) The County hereby agrees that during the term of this Agreement and
provided that Developer is not in default hereof beyond all applicable notice and cure
periods, then the Preliminary Plan, as amended, shall remain in full force and effect and
no further requests for extension shall be required.
6.2 Developer’s Reliance. The County Commissioners understand that but for their
commitment to "freeze" County Development Laws for purposes of this Agreement to the
maximum extent permitted by law as they apply to the development, to those County
Development Laws in effect upon the execution of this Agreement, the Developer would not
make the considerations to the County contained herein.
ARTICLE VII
MISCELLANEOUS
7.1 Time of Essence. Time is of the essence in the performance of all terms and provisions of this Agreement.
7.2 Terms. This Agreement shall run with and bind the Subject Property so long as the
development is under construction and development, but in any event this Agreement shall be
void 20 years after the effective date of this Agreement.
7.3 Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed delivered to the addressee thereof (1) when delivered in person on a business day at the address set forth below or (2) on the third business day after
being deposited in any main or branch United States post office, for delivery by properly
addressed, postage prepaid, certified or registered mail, return receipt requested, at the address
Pa
ge1
0
set forth below, or upon receipt if sent by telecopier to the telecopier numbers set forth below.
Notices and communications to the Developer shall be addressed to, and delivered at,
the following address:
Wetherburn Associates, LLC 3475 Leonardtown Road, Suite 100
Waldorf, Maryland 20602
with a copy to:
Louis P. Jenkins, Jr., Esq.
JENKINS LAW FIRM, L.L.C.
103 Centennial Street, Suite K
La Plata, Maryland 20646
Telephone: (301) 934-2444
Telecopier: (301) 934-2221
Notices and communications to the County Commissioners shall be addressed to, and
delivered at, the following address:
The County Commissioners for Charles County
P.O. Box 2150
LaPlata, Maryland 20646
Attn: Melvin C. Beall, Jr., Director Department of Planning and Growth Management
Telephone: (301) 645-0627
Telecopier: (301)
with a copy to:
Roger L. Fink, Esq.
County Attorney P.O. Box 2150
LaPlata, Maryland 20646
Telephone: (301) 645-0582
Telecopier: (301)
By notice complying with the requirements of this Section, each party shall have the right to
change the address or addressee or both for all future notices and communications to such
party, but no notice of a change of address shall be effective until actually received.
Pa
ge1
1
7.4 Amendments. All amendments to this Agreement shall be in writing and shall be executed by the County Commissioners and the Developer.
7.5 Authority to Execute. The County Commissioners and the Developer hereby
acknowledge and agree that all required notices, meetings, and hearings have been properly given and held by the County with respect to the approval of this Agreement and agree not to
challenge this Agreement or any of the obligations created by it on the grounds of any
procedural infirmity or any denial of any procedural right. The County Commissioners hereby
warrant and represent to the Developer that the persons executing this Agreement on their behalf have been properly authorized to do so. The Developer hereby warrants and represents
to the County Commissioners (1) that it is the fee simple, record owner or the contract
purchaser of the Subject Property, (2) that it has the right, power and authority to enter into
this Agreement and to agree to the terms, provisions, and conditions set forth herein and to
bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize
the execution, delivery and performance of this Agreement have been taken.
7.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of the
Circuit Court of Charles County, Maryland or any federal court sitting in the District of
Maryland.
7.8 Remedies Cumulative. Each right, power and remedy of a party provided for herein, or any other agreement between the parties, now or hereafter existing, shall be
cumulative and concurrent and in addition to every other right, power or remedy provided for
in this Agreement or any other agreement between the parties, now or hereinafter existing.
7.9 Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceablity shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first
above written.
Pa
ge1
2
WITNESS: DEVELOPER:
(SEAL) Wetherburn Associates, LLC,
a Maryland limited liability company
By: David H. Posey & Associates, Inc., Member
By: David H. Posey, President
STATE OF MARYLAND, COUNTY OF CHARLES, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me,
the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
Wetherburn Associates, LLC by its member, David H. Posey & Associates, Inc., by its
President, David H. Posey, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for
the purpose therein contained as the duly authorized Member of said company.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
Pa
ge1
3
WITNESS: COUNTY COMMISSIONERS OF
CHARLES COUNTY, MARYLAND
By: ___________________________(SEAL)
Name:___________________________
Title:____________________________
STATE OF MARYLAND, COUNTY OF ______________, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me,
the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
______________________, who acknowledged him/herself to the ___________________ of
the County Commissioners of Charles County, Maryland, a body corporate and politic,
known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that he/she executed the same for the purpose therein
contained to be his/her act on behalf of said entity.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC Printed Name__________________
My Commission Expires:
Approved for Acceptance: Approved as to Legal Sufficiency:
__________________________ ______________________________
Director, Planning and Growth County Attorney
Management
Pa
ge1
4
ATTORNEY'S CERTIFICATION
THIS IS TO CERTIFY that the undersigned is a Member, in good standing, of the Bar
of the Court of Appeals of Maryland, and that the within instrument was prepared by him or under his supervision and to further certify that the Developer listed in the foregoing
instrument has both a legal and equitable interest in the Subject Property.
______________________________ Louis P. Jenkins, Jr.
Upon Recordation Please Return To:
Louis P. Jenkins, Jr., Esquire JENKINS LAW FIRM LLC
103 Centennial Street, Suite K
La Plata, Maryland 20646
(301) 934-2444
Pa
ge1
5
EXHIBIT 1
LEGAL DESCRIPTION
Pa
ge1
6
EXHIBIT 2
LEGAL AND EQUITABLE INTEREST HOLDERS
IN THE SUBJECT PROPERTY
1. Deed of Trust securing John J. Duffy and Richard Marcinek, Trustees for the
benefit of NVR, Inc., dated November 8, 2005 in the principal amount of
$7,714,000.00 recorded among the land records of Charles County, Maryland at Liber
5652 Folio 545 and re-recorded at Liber 5689 Folio 722.
Pa
ge1
7
EXHIBIT 3
PERMITS AND APPROVALS
REQUIRED AND/OR APPLICABLE TO
THE SUBJECT PROPERTY
Permits and Approvals Granted
Preliminary Subdivision Plan XPN 97-0010
Future Permits and Approvals Required
Final Forest Conservation Plan
Erosion and Sediment Control Plan
Final Plat
OA
D
RO
AD
CHARLES
STRE ET 6
6
OL
IVE
RS
SHOP
RO
AD
GROSSTOWNROAD
©0 5,000 10,0002,500Feet
Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.
DRAWN BY:
CHECKED BY:
SCALE DATE
CHARLES COUNTY GOVERNMENT
200 Baltimore St
PO BOX 2150
La Plata, MD 20646
(301)645-0627
Department of Planning and
Growth Management
LOCATION MAPCHARLES COUNTY, MD
OCT, 2010
Subject PropertyTM 45 P 1
!\
DRRA
BELMONT
Pa
ge1
DEVELOPER RIGHTS AND RESPONSIBILITIES AGREEMENT
THIS DEVELOPER RIGHTS AND RESPONSIBILITY AGREEMENT
(“Agreement”), made as of the ___________ day of _________________, 2010, by and
between BELMONT, LLC, a Maryland limited liability company ("Developer"), and THE COUNTY COMMISSIONERS OF CHARLES COUNTY, MARYLAND, a body politic
and corporate ("County Commissioners").
RECITALS
1. The Developer is the owner of certain real property in Charles County, Maryland, described in Exhibit 1, attached hereto and made part hereof, (collectively referred
to as "Subject Property").
2. The names of all parties having an equitable or legal interest in the Subject Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part
hereof and certified to by counsel to the Developer.
3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland, and
Section 297-498 of the Charles County Zoning Ordinance, Charles County, Maryland, by and
through the County Commissioners, on behalf of all agencies and governmental authorities
within and part of the government of Charles County (collectively, the "County") is authorized
to enter into binding development rights and responsibility agreements with any person
having legal or equitable interest in the Subject Property. Both the Developer and the
County specifically recognize that a principal purpose of this Agreement is to provide certain
school related funding that the Developer would otherwise not be obligated to provide, and in
consideration of and upon reliance that (a) the County will provide school allocations to the
Developer in certain quantities and at certain specified times and (b) the County will not change
the rules and regulations pertaining to the development of the Subject Property from those in
effect when this Agreement was executed.
4. The Developer is currently in the process of developing a residential community
known as ‘BELMONT’ which will contain a total of Thirty (30) single family detached lots. The
forementioned lots are in need of school allocations to satisfy the Adequate Public Facilities Ordinance.
5. The Charles County Planning Commission has reviewed the proposed
subdivision through case number XPN 08-0007 and on September 8, 2008 approved the Preliminary Subdivision Plan for the Property which Preliminary Plan is hereby incorporated
herein by reference.
6. On the ______ day of _____________, 2010, the County Commissioners held
Pa
ge2
a public hearing on this Agreement, notice of which had been published in accordance with
§297-502 of the County Code.
NOW, THEREFORE, in consideration of the foregoing recitals, which are not
merely prefatory but are hereby incorporated into and made a part of this Agreement, and the
mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the County
Commissioners and the Developer hereby agree as follows:
The County Commissioners and the Developer hereby enter into this Agreement for the purposes of permitting the Developer to (i) pay to the County a total of Three Hundred
Ninety Thousand Dollars ($390,000.00) (the "School Allocation Fee") ($13,000.00/each lot) plus
the Inflationary Factor discussed below added to each installment after the initial installment in
order to have the County (a) issue thirty (30) School Allocations to the Developer
simultaneously with said payment(s) and (b) agree to not change the rules and regulations
pertaining to the development of the Subject Property from those in effect when this
Agreement was executed. If due to engineering constraints discovered during preparation of
the Final Subdivision Plat, the number of single-family lots located within the Subject
Property is reduced to a number below thirty (30), the School Allocation Fee to be remitted
to the County shall be reduced by the sum of Thirteen Thousand Dollars ($13,000.00) per lot
reduced.
The timetable through which Developer shall remit to County the aforegoing
consideration and through which the County shall release school allocations to the Developer
shall be as follows:
1. Within seven (7) days of the ratification of this Agreement by all parties, the
Developer shall remit to the County the sum of Thirty Nine Thousand Dollars
($39,000.00) and upon payment of the foregoing sum the County shall release
to Developer a total of three (3) school allocations for the Subject Property;
2. On or before June 30, 2011, the Developer shall remit to the County the sum
of Twenty Six Thousand Dollars ($26,000.00) plus the inflationary factor as described below and upon payment of the foregoing sum the County shall
release to Developer a total of two (2) school allocations for the Subject
Property
3. On or before June 30, 2012, the Developer shall remit to the County the sum
of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as
described below and upon payment of the foregoing sum the County shall release to Developer a total of five (5) school allocations for the Subject
Pa
ge3
Property;
4. On or before June 30, 2013, the Developer shall remit to the County the sum
of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as
described below and upon payment of the foregoing sum the County shall
release to Developer a total of five (5) school allocations for the Subject Property;
5. On or before June 30, 2014, the Developer shall remit to the County the sum
of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as described below and upon payment of the foregoing sum the County shall
release to Developer a total of five (5) school allocations for the Subject
Property;
6. On or before June 30, 2015, the Developer shall remit to the County the sum
of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as
described below and upon payment of the foregoing sum the County shall
release to Developer a total of five (5) school allocations for the Subject
Property;
7. On or before June 30, 2016, the Developer shall remit to the County the sum
of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as
described below and upon payment of the foregoing sum the County shall
release to Developer a total of five (5) school allocations for the Subject
Property; and
8. The Developer may accelerate payments and receipt of school allocations for
installments in advance of the fiscal year in which the installment is due. In the
event such early installment is made, the consideration payable will be
equivalent to the allocation cost for the fiscal year in which the early payment
is made.
The Inflationary Factor as described above shall be computed on an annual basis and equate to the same percentage as the change in the State of Maryland ‘Eligible Costs per
Square Foot’ for Charles County as set forth by the Board of Education for the State of
Maryland each July for the average of the preceding two years for which the amount is
calculated plus an additional margin of three percent (3%).
Pa
ge4
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words, when used in this Agreement, shall have the following meanings:
(a) “Agreement” means this Developer’s Rights and Responsibilities Agreement.
(b) “County Code” means the Code of Charles County, Maryland and in effect
on the Effective Date of this Agreement.
(c) “County Commissioners” means the County Commissioners of Charles County, Maryland, a body politic.
(d) “Department” means the Charles County Department of Planning and
Growth Management.
(e) “Development Approval” means final governmental approval of Subdivision
Plat and Site Plan(s) for each respective phase of the project that has been obtained and all
conditions of said approval that have been satisfied, and all applicable appeal periods have
expired without the filing of any appeal, or if an appeal(s) was filed, the appeal has been
defeated beyond the possibility or existence of further appeal of any kind.
(f) “Developer” means Belmont, LLC, a Maryland limited liability company, its
successors and assigns in ownership of the Subject Property.
(g) “Effective Date of this Agreement” means the date the last party executes this
Agreement.
(h) “Improvements” means those improvements to be made to road, sewer, water,
stormwater, parks and other facilities necessary to service the Subject Property as set forth on
the Preliminary Plan Approval.
(i) “Planning Commission” means the Planning Commission for Charles County Maryland.
(j) “School Allocation" means an allotment of school capacity with 1 allocation
required for recordation of each single family detached lot on the Subject Property.
(k) “Subdivision Plat” means a final plat(s) of subdivision for BELMONT, or any
Phase thereof, prepared in accordance with the County Code and approved by the Planning
Commission.
Pa
ge5
(l) “Subject Property” means all of the real property described in Exhibit 1
attached hereto.
ARTICLE II
LIMITATIONS, PERMITS AND PLAN CONSISTENCY
2.1 Development Limitations. Many development limitations have been established on
the Preliminary Plan, and when the same can be clearly ascertained therefrom (such as setbacks,
building heights and buffer requirements) the same limitations are not repeated herein in this Article II. If a limitation or restriction contained herein conflicts with that shown on the
Preliminary Plan, the more restrictive shall apply.
(a) The permissible uses on the Subject Property are those permitted in the
Comprehensive Land Use Plan of Charles County, Maryland for the area within which the
Subject Property is located and those permitted in the Preliminary Plan. Specifically, the
Developer intends to and is currently in the process of developing a single family detached
residential lot community. Any modifications to the permissible uses must be approved by the
Planning Commission as an amendment to the Preliminary Plan, and the County
Commissioners as an amendment to this Agreement.
(b) The density or intensity of uses on the Subject Property shall be that
depicted on the Preliminary Plan.
2.2 Permits. The County Commissioners and the Developer agree that the permits,
approvals and agreements required by the County and those already approved for Belmont
Subdivision are those set forth on Exhibit 3, attached hereto and made a part hereof.
2.3 Regulation and Plan Consistency. The Planning Commission has determined that
the proposed development as depicted on the approved Preliminary Plan is consistent with
the Comprehensive Land Use Plan of Charles County, Maryland.
ARTICLE III
DEVELOPMENT REVIEW
3.1 Timely Development Review. The County and Developer recognize that but for
the construction and build out of the project, many of the benefits to the public in the form of
off-site improvements, increased tax revenue and positive fiscal impacts cannot begin to be
realized by the community. Additionally, it is recognized that the project has, to date, gone
through extensive and comprehensive design and environmental review and approval including the Preliminary Plan and the other permit and plan approvals. Accordingly, the County agrees
Pa
ge6
to use its best efforts to ensure that all remaining development reviews, including but not
limited to, preliminary subdivision, final subdivision and final development plan review are performed in a succinct, timely manner, without undue delay, not inconsistent with the
County’s current development review process.
ARTICLE IV
SURVIVAL AND TRANSFER OF OBLIGATION
4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all
obligations assumed by it under this Agreement shall be binding upon it, its successors and
assigns (except owners of an individual lot and/or dwelling purchased solely for use as a private
residence), and upon any and all successor owners of record of all or any portion of the Subject Property (except owners of an individual lot and/or dwelling purchased solely for use as a
private residence). To assure that all such successors, assigns, and successor owners have notice
of this Agreement and the obligations created by it, the Developer agrees that it shall:
(a) Have this Agreement recorded among the Land Records of Charles
County within 20 days after the effective date of this Agreement;
(b) Incorporate, by reference, this Agreement into any and all real estate
sales contracts entered into after the effective date of this Agreement for the sale of all or any
portion of the Subject Property, other than a contract of sale for the sale of an individual lot
and/or dwelling solely for use as a private residence; and
(c) Prior to the transfer of all or any portion of the Subject Property
(other than the transfer of an individual lot and/or dwelling purchased solely for use as a private
residence and/or a sale of lots not constituting a transfer of all or substantially all of the lots at
any one time), or any legal or equitable interest therein, require the transferee of said portion of
the Subject Property to execute an enforceable written agreement, in a form reasonably
satisfactory to the County Attorney, agreeing to be bound by the provisions of this Agreement,
and to provide the County, upon request, with such reasonable assurance of the financial ability of such transferee to meet those obligations as the County reasonably may require.
4.2 Responsibilities of Developer Upon Transfer to a Successor. The County agrees that upon a successor becoming bound to the obligation created herein in the manner provided
herein and providing the financial assurances required herein, the liability of the Developer
shall be released to the extent of the transferee's assumption of such liability. The Developer
agrees to notify the County, in writing, at least 30 days prior to any date upon which the Developer transfers a legal or beneficial interest in any portion of the Subject Property, other
than individual lots and/or dwellings purchased solely for use as a private residence and/or a
Pa
ge7
sale of lots not constituting a transfer of all or substantially all of the lots at any one time.
4.3 Binding Upon Successors and Assigns of The County. The County agrees that all
obligations assumed by it under this Agreement shall be binding on it, its agencies,
governmental units, the Planning Commission and its and their respective successors and
assigns.
ARTICLE V
BREACH AND REMEDIES
5.1 In the event that any default under this Agreement by the Developer, the County shall have all rights and remedies, at law or in equity. Without limitation to the
foregoing, the Developer recognizes that in the event of a default hereunder by the Developer,
the County may not have an adequate remedy at law, and that therefore, the County shall
have the right to seek an injunction to be issued by a court of competent jurisdiction, enjoining the developer from any further violation of this Agreement and/or mandating that
the Developer comply with this Agreement. In addition to all other rights and remedies, the
Developer shall be responsible for all costs incurred by the County in enforcing this
Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue
for any proceedings brought with respect to this Agreement shall be in the Circuit Court of
Charles County, Maryland. The Developer does hereby waive trial by jury in connection
with any proceedings brought to enforce the terms of this Agreement. In addition to the
above referenced remedies, and in addition to all remedies of the County at law or in equity,
in the event of any default under this Agreement by the Developer, the County shall have
the right, unilaterally, and without prior notice to the Developer, and without the need for
resort to any court or administrative proceedings or hearing, to suspend and/or revoke, in
the County's sole discretion, any and all development permits, development services permits,
grading permits, building permits and/or other permits or approvals issued by the County
with respect to the Property. The County reserves the right, it its sole and absolute
discretion, to reinstate and/or reissue any permit or approval suspended or revoke
hereunder, upon any cure or correction of the default hereunder by the Developer, but the
County shall not have the obligation to reinstate or reissue any such permit or approval.
5.2 In the event that any default under this Agreement by the Developer, the County shall have all rights and remedies, at law or in equity. Without limitation to the
foregoing, the Developer recognizes that in the event of a default hereunder by the Developer,
the County may not have an adequate remedy at law, and that therefore, the County shall
have the right to seek an injunction to be issued by a court of competent jurisdiction, enjoining the Developer from any further violation of this Agreement and/or mandating that
the Developer comply with this Agreement. In addition to all other rights and remedies the
Developer shall be responsible for all costs incurred by the County in enforcing this
Pa
ge8
Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue for
any proceedings brought with respect to this Agreement shall be in the Circuit Court Charles County, Maryland. The Developer does hereby waive trial by jury in connection with any
proceedings brought to enforce the terms of this Agreement.
5.3 Breach by County. If the County shall fail or refuse to perform its obligations as
required, then after thirty (30) days written notice provided to the County by the Developer indicating the nature of said default and if the County has not cured said default, the Developer
may seek and obtain equitable relief to enforce the terms and conditions of this Agreement
either through a decree for specific performance or an injunction, and further the Developer
shall be entitled to bring a legal action for damages or other redress.
5.4 Costs and Attorneys' Fees. In the event of a judicial proceeding brought by one
party to this Agreement against the other party to this Agreement, for the enforcement or
breach of any provision of this Agreement, the prevailing party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful party of all costs and expenses,
including reasonable attorneys’ fees incurred in connection with such judicial proceeding.
ARTICLE VI
EFFECT OF DEVELOPMENT REGULATIONS
6.1 Effect of Agreement.
(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations
and policies governing the use, density or intensity of the Subject Property, including but
not limited to those governing development, subdivision, growth management (i.e., growth
rate controls including, but not limited to, County limitations or “caps” on the issuance of building permits or School Allocations), impact fees, water, sewer, stormwater
management, environmental protection, land planning and design, adequate public facilities
laws and architecture, (hereafter collectively the "Development Laws") shall be the laws, rules, regulations and policies, if any, in force on the Effective Date of the Agreement.
(b) If the County Commissioners have specifically determined that the
imposition upon the Subject Property and compliance by the subject development with Development Laws enacted or adopted after the Effective Date of this Agreement is
essential to ensure the health, safety or welfare of residents of all or part of Charles County,
the County may impose the change in laws, rules, regulations and policies and the effect
thereof upon the subject development. The County Commissioners agree that the foregoing phrase “essential to ensure the public health, safety and welfare of residents”
requires study, evaluation, conclusions and findings above and beyond the legal standards
Pa
ge9
and legislative discretion normally used to enact and apply land use regulations, after a
public hearing during which the effect of the proposed change in Development Laws upon the Subject Property is fully debated and analyzed.
(c) The County hereby agrees that during the term of this Agreement and
provided that Developer is not in default hereof beyond all applicable notice and cure periods, then the Preliminary Plan, as amended, shall remain in full force and effect and
no further requests for extension shall be required.
6.2 Developer’s Reliance. The County Commissioners understand that but for their commitment to "freeze" County Development Laws for purposes of this Agreement to the
maximum extent permitted by law as they apply to the development, to those County
Development Laws in effect upon the execution of this Agreement, the Developer would not
make the considerations to the County contained herein.
ARTICLE VII
MISCELLANEOUS
7.1 Time of Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
7.2 Terms. This Agreement shall run with and bind the Subject Property so long as the
development is under construction and development, but in any event this Agreement shall be
void 20 years after the effective date of this Agreement.
7.3 Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed delivered to the addressee thereof (1) when delivered in
person on a business day at the address set forth below or (2) on the third business day after
being deposited in any main or branch United States post office, for delivery by properly addressed, postage prepaid, certified or registered mail, return receipt requested, at the address
set forth below, or upon receipt if sent by telecopier to the telecopier numbers set forth below.
Notices and communications to the Developer shall be addressed to, and delivered at, the following address:
Belmont, LLC
3475 Leonardtown Road, Suite 100 Waldorf, Maryland 20602
Pa
ge1
0
with a copy to:
Louis P. Jenkins, Jr., Esq.
JENKINS LAW FIRM, L.L.C.
103 Centennial Street, Suite K
La Plata, Maryland 20646 Telephone: (301) 934-2444
Telecopier: (301) 934-2221
Notices and communications to the County Commissioners shall be addressed to, and delivered at, the following address:
The County Commissioners for Charles County
P.O. Box 2150
LaPlata, Maryland 20646
Attn: Melvin C. Beall, Jr., Director
Department of Planning and Growth Management
Telephone: (301) 645-0627
Telecopier: (301)
with a copy to:
Roger L. Fink, Esq.
County Attorney
P.O. Box 2150 LaPlata, Maryland 20646
Telephone: (301) 645-0582
Telecopier: (301)
By notice complying with the requirements of this Section, each party shall have the right to
change the address or addressee or both for all future notices and communications to such
party, but no notice of a change of address shall be effective until actually received.
7.4 Amendments. All amendments to this Agreement shall be in writing and shall be
executed by the County Commissioners and the Developer.
7.5 Authority to Execute. The County Commissioners and the Developer hereby acknowledge and agree that all required notices, meetings, and hearings have been properly
given and held by the County with respect to the approval of this Agreement and agree not to
challenge this Agreement or any of the obligations created by it on the grounds of any
procedural infirmity or any denial of any procedural right. The County Commissioners hereby
Pa
ge1
1
warrant and represent to the Developer that the persons executing this Agreement on their
behalf have been properly authorized to do so. The Developer hereby warrants and represents to the County Commissioners (1) that it is the fee simple, record owner or the contract
purchaser of the Subject Property, (2) that it has the right, power and authority to enter into
this Agreement and to agree to the terms, provisions, and conditions set forth herein and to
bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize the execution, delivery and performance of this Agreement have been taken.
7.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of the
Circuit Court of Charles County, Maryland or any federal court sitting in the District of
Maryland.
7.8 Remedies Cumulative. Each right, power and remedy of a party provided for
herein, or any other agreement between the parties, now or hereafter existing, shall be
cumulative and concurrent and in addition to every other right, power or remedy provided for
in this Agreement or any other agreement between the parties, now or hereinafter existing.
7.9 Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceablity shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
[SIGNATURE PAGES FOLLOW]
Pa
ge1
2
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above written.
WITNESS: DEVELOPER:
(SEAL) Belmont, LLC,
a Maryland limited liability company
By: David H. Posey, Member
STATE OF MARYLAND, COUNTY OF CHARLES, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me,
the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
Belmont, LLC by its member, David H. Posey, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument, and acknowledged that he
executed the same for the purpose therein contained as the duly authorized Member of said
company.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC
Printed Name__________________
My Commission Expires:
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
Pa
ge1
3
WITNESS: COUNTY COMMISSIONERS OF
CHARLES COUNTY, MARYLAND
By: ___________________________(SEAL)
Name:___________________________
Title:____________________________
STATE OF MARYLAND, COUNTY OF ______________, to wit:
I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me,
the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared
______________________, who acknowledged him/herself to the ___________________ of
the County Commissioners of Charles County, Maryland, a body corporate and politic,
known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that he/she executed the same for the purpose therein
contained to be his/her act on behalf of said entity.
WITNESS my hand and notarial seal the year and day first above written.
_____________________________
NOTARY PUBLIC Printed Name__________________
My Commission Expires:
Approved for Acceptance: Approved as to Legal Sufficiency:
__________________________ ______________________________
Director, Planning and Growth County Attorney
Management
Pa
ge1
4
ATTORNEY'S CERTIFICATION
THIS IS TO CERTIFY that the undersigned is a Member, in good standing, of the Bar
of the Court of Appeals of Maryland, and that the within instrument was prepared by him or under his supervision and to further certify that the Developer listed in the foregoing
instrument has both a legal and equitable interest in the Subject Property.
______________________________ Louis P. Jenkins, Jr.
Upon Recordation Please Return To:
Louis P. Jenkins, Jr., Esquire JENKINS LAW FIRM LLC
103 Centennial Street, Suite K
La Plata, Maryland 20646
(301) 934-2444
Pa
ge1
5
EXHIBIT 1
LEGAL DESCRIPTION
Pa
ge1
6
EXHIBIT 2
LEGAL AND EQUITABLE INTEREST HOLDERS
IN THE SUBJECT PROPERTY
1. Deed of Trust securing Louis P. Jenkins, Jr. as Trustee for Dorothy Winn and
Barbara Bullin dated 8-16-07 in the principal amount of $600,000.00 and recorded
among the land records of Charles County, Maryland at Liber 6429 Folio 0359.
Pa
ge1
7
EXHIBIT 3
PERMITS AND APPROVALS
REQUIRED AND/OR APPLICABLE TO
THE SUBJECT PROPERTY
Permits and Approvals Granted
Preliminary Subdivision Plan XPN 08-0007
Future Permits and Approvals Required
Final Forest Conservation Plan
Erosion and Sediment Control Plan
Final Plat
top related