Developer Rights and Responsibilities Agreements

Transcription

1 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. 1) Staff Summary of Pending DRRAs 2) Summary Table Contents 2) Location Map and Proposed DRRAs for the following Projects: Bensville Acres Chelsea Manor Burroughs Hall Brentwood Belmont

2 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 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 docx 1

3 Developer Rights and Responsibilities Agreements Summary November 2010 All DRRA Applications are Primarily to Mitigate School Impacts DRRA # Project Planning Commission Approval Bensville Acres Dwelling Units Mitigated Mitigation per unit Total Mitigation General Location Yes 77 $13,000 $ 1,001,000 Bensville Chelsea Manor Yes 179 (TH) $12,625 $ 2,259,875 Bryans Road Burroughs Yes 36 $13,000 $ 468,000 Mt. Victoria Hall Brentwood Yes 138 $13,000 $ 1,794,000 Bensville Belmont Yes 30 $13,000 $ 390,000 Dentsville

4 BERRY PRINCE GEORGE'S ROAD COUNTY MIDDLETOWN 229 EY ROAD Subject Property TM 13 P 10!\ BILLINGSLEY ROAD 0 2,500 5,000 10,000 Feet Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes. DRAWN BY: SCALE CHECKED BY: CHARLES COUNTY GOVERNMENT Department of Planning and Growth Management 200 Baltimore St PO BOX 2150 La Plata, MD (301) DATE OCT, 2010 BENSVILLE ACRES DRRA LOCATION MAP CHARLES COUNTY, MD

5 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 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 of Article 66B of the Annotated Code of Maryland. Section 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 ) for the Subject Property on May 3, 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.

6 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

7 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 follows: 2.1 The County Commissioners hereby agree, confirm, consent, and covenant as (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 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

8 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.

9 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) (b) (c) All rights and remedies at law or in equity; 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 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.

10 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 Lake Potomac Terrace Potomac, Maryland 20854

11 with a copy to: Jessica S. Barnes, Esquire Andrews, Bongar, Starkey & Clagett, PA Berry Road, Suite 202 Waldorf, Maryland 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 with a copy to: Charles County Attorney Charles County Government P.O. Box 2150 La Plata, Maryland 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.

12 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 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 : COUNTY OF : ss: 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:

13 STATE OF MARYLAND : COUNTY OF : ss: 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:

14 BENSVILLE ACRES DEVELOPER S RIGHTS AND RESPONSIBILITIES AGREEMENT EXHIBIT 1 LEGAL DESCRIPTION OF SUBJECT PROPERTY Property Tax Identification Number: 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.

15 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.

16 BENSVILLE ACRES DEVELOPER S RIGHTS AND RESPONSIBILITIES AGREEMENT EXHIBIT 3 PLAN APPROVALS/PERMITS REQUIRED/PREVIOUSLY APPROVED 1. Preliminary Plan of Subdivision (XPN ): 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.

17 BENSVILLE ACRES DEVELOPER S RIGHTS AND RESPONSIBILITIES AGREEMENT EXHIBIT 4 MINUTES FROM PLANNING COMMISSION MAY 3, 2010 (see following pages)

18 22 Subject Property TM 5 P 67&420!\ 227 HWY 210 BRYANS ROAD BILLINGSLEY ROAD 210 INDIAN HEAD ,500 5,000 10,000 Feet Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes. DRAWN BY: SCALE CHECKED BY: CHARLES COUNTY GOVERNMENT Department of Planning and Growth Management 200 Baltimore St PO BOX 2150 La Plata, MD (301) DATE OCT, 2010 CHELSEA MANOR DRRA LOCATION MAP CHARLES COUNTY, MD

19 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 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 of Article 66B of the Annotated Code of Maryland. Section 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 fortysix (246) single family attached residential dwelling units on approximately 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# 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. 1

20 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 seventynine (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 fiftynine 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) (b) (c) 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 sixtyfive (65) School Capacity Allocations; 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 sixtyfive (65) School Capacity Allocations; and 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. 2

21 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) (b) (c) 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 ninetyseven 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. 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 ninetyseven 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. 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) (b) 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. 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 of the Charles County Zoning Ordinance. 3

22 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) (b) The permissible uses on the Subject Property are those permitted by the Charles County Zoning Ordinance, specifically in the Core Mixed Residential (CMR) Zone. 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 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 4

23 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) (b) (c) All rights and remedies at law or in equity; 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 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. 5

24 ARTICLE VI EFFECT OF DEVELOPMENT REGULATIONS 6.1 Effect of Agreement. (a) (b) 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. 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: 6

25 Chelsea Manor II, L.C. and Sedgemore, L.C. 175 Admiral Cochrane Drive, Suite 112 Annapolis, Maryland Attn: Douglas Meeker Telephone: Telecopier: with a copy to: Michael A. Faerber, Esq. McMillan & Metro, P.C Research Boulevard, Suite 500 Rockville, Maryland Telephone: (301) Telecopier: (301) 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 with a copy to: Charles County Attorney Charles County Government P.O. Box 2150 La Plata, Maryland Telephone: (301) 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. 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 7

26 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 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: 8

27 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. My Commission Expires: NOTARY PUBLIC Printed Name 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. My Commission Expires: NOTARY PUBLIC Printed Name 9

28 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 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, feet to an iron pipe found, thence; 2. North 44' 34' 38" East, feet to an iron pipe found at the common corner of said Parcel 305 and Parcel 67, thence ; 3. North 44' 35' 16" East, 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, 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, feet to an iron pipe found, thence; 6. South 48' 03' 30" East, 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, 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, feet to an iron pipe found, thence; 9. North 48' 19' 44" West, feet to an iron pipe found, thence; 10. North 54' 02' 24" West, feet to an iron pipe found, thence; 11. North 42' 33' 04" West, feet to the point of beginning. CONTAINING 435,663 square feet or acres of land more or less. 10

29 EXHIBIT 2 LEGAL AND EQUITABLE INTEREST HOLDERS IN THE SUBJECT PROPERTY Chelsea Manor II, L.C. Sedgemore, L.C. Sandy Spring Bank 11

30 Permits and Approvals Granted EXHIBIT 3 PERMITS AND APPROVALS REQUIRED AND/OR APPLICABLE TO THE SUBJECT PROPERTY Preliminary Subdivision Plan XPN # Forest Stand Delineation FC and Preliminary Forest Conservation Plan FC Site Development Plan SDP# Army COE Permit Army COE Jurisdictional Determination JD MDE General Permit for Construction Activity 08CH0007 Development Services Permit (Phase 1A) VR # Development Services Permit (Phase 1B) VR # Final Forest Conservation Plan (Phase 1A & 1B) FC Erosion and Sediment Control Plan (Phase 1A) SED Erosion and Sediment Control Plan (Phase 1B) SED MSHA Access Permit Permits and Approvals Pending Final Plats (Phase 1A) XRS # Final Plats (Phase 1B) XRS # 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) 12

31 POPES CREE HILL EDGE NEWBURG MOUNT VICTORIA ROAD Subject Property TM 83 P9,11,13,&A!\ MORGANTOWN MILL RUN ROAD 0 2,500 5,000 10,000 Feet Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes. DRAWN BY: SCALE CHECKED BY: 257 CHARLES COUNTY GOVERNMENT Department of Planning and Growth Management 200 Baltimore St PO BOX 2150 La Plata, MD (301) DATE OCT, 2010 ROAD BURROUGHS HALL DRRA # LOCATION MAP CHARLES COUNTY, MD

32 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 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 of Article 66B of the Annotated Code of Maryland. Section 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 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 1

33 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) (b) (c) (d) (e) (f) (g) 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; 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; 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; 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; 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; 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 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; 2

34 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) (b)(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. 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) (b) 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. 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 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 3

35 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 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. 4

36 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) (b) (c) All rights and remedies at law or in equity; 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 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 5

37 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) (b) 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. 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 6

38 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 with a copy to: Jessica S. Barnes, Esq. Andrews, Bongar, Starkey & Clagett, P.A Berry Road, Suite 202 Waldorf, Maryland Telephone: (301) Telecopier: (301) 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 with a copy to: Charles County Attorney Charles County Government P.O. Box 2150 La Plata, Maryland Telephone: (301) 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. 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 7

39 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 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. My Commission Expires: NOTARY PUBLIC Printed Name 8

40 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. My Commission Expires: NOTARY PUBLIC Printed Name 9

41 EXHIBIT 1 LEGAL DESCRIPTION (INFORMATION TO FOLLOW) 10

42 EXHIBIT 2 LEGAL AND EQUITABLE INTEREST HOLDERS IN THE SUBJECT PROPERTY Mt. Tirzah Family Limited Partnership Community Bank of Tri-County 11

43 EXHIBIT 3 PERMITS AND APPROVALS REQUIRED AND/OR APPLICABLE TO THE SUBJECT PROPERTY Permits and Approvals Granted Preliminary Subdivision Plan XPN Future Permits and Approvals Required Final Forest Conservation Plan Erosion and Sediment Control Plan Final Plat 12

44 BERRY PRINCE GEORGE'S ROAD COUNTY MIDDLETOWN EY ROAD 229 Subject Property TM 13 P 98!\ BILLINGSLEY ROAD 0 2,500 5,000 10,000 Feet Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes. DRAWN BY: SCALE CHECKED BY: CHARLES COUNTY GOVERNMENT Department of Planning and Growth Management 200 Baltimore St PO BOX 2150 La Plata, MD (301) DATE OCT, 2010 BRENTWOOD DRRA LOCATION MAP CHARLES COUNTY, MD

45 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 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 and on approved the Preliminary Subdivision Plan for the Property which Preliminary Plan is hereby incorporated herein by reference. Page1

46 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 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 Page2

47 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 Page3

48 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) Agreement. Effective Date of this Agreement means the date the last party executes this (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) Maryland. (j) Planning Commission means the Planning Commission for Charles County School Allocation" means an allotment of school capacity with 1 allocation Page4

49 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. Page5

50 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. Page6

51 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. Page7

52 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. 6.1 Effect of Agreement. ARTICLE VI EFFECT OF DEVELOPMENT REGULATIONS (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, Page8

53 (b) (c) rules, regulations and policies, if any, in force on the Effective Date of the Agreement. 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. 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 Page9

54 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 with a copy to: Louis P. Jenkins, Jr., Esq. JENKINS LAW FIRM, L.L.C. 103 Centennial Street, Suite K La Plata, Maryland Telephone: (301) Telecopier: (301) 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 Attn: Melvin C. Beall, Jr., Director Department of Planning and Growth Management Telephone: (301) Telecopier: (301) with a copy to: Roger L. Fink, Esq. County Attorney P.O. Box 2150 LaPlata, Maryland Telephone: (301) 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. Page10

55 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. Page11

56 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. My Commission Expires: NOTARY PUBLIC Printed Name [ADDITIONAL SIGNATURE PAGE FOLLOWS] Page12

57 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. My Commission Expires: NOTARY PUBLIC Printed Name Approved for Acceptance: Approved as to Legal Sufficiency: Director, Planning and Growth Management County Attorney Page13

58 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 (301) Page14

59 EXHIBIT 1 LEGAL DESCRIPTION Page15

60 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, recorded among the land records of Charles County, Maryland at Liber 5652 Folio 545 and re-recorded at Liber 5689 Folio 722. Page16

61 Permits and Approvals Granted Preliminary Subdivision Plan XPN Future Permits and Approvals Required Final Forest Conservation Plan Erosion and Sediment Control Plan Final Plat EXHIBIT 3 PERMITS AND APPROVALS REQUIRED AND/OR APPLICABLE TO THE SUBJECT PROPERTY Page17

62 GROSSTOWN ROAD!\ Subject Property TM 45 P 1 ROAD SHOP 6 OLIVERS CHARLES STRE ET 6 OAD ROAD 0 2,500 5,000 10,000 Feet Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes. DRAWN BY: SCALE CHECKED BY: CHARLES COUNTY GOVERNMENT Department of Planning and Growth Management 200 Baltimore St PO BOX 2150 La Plata, MD (301) DATE OCT, 2010 BELMONT DRRA LOCATION MAP CHARLES COUNTY, MD