developer rights and responsibilities agreements...developer rights and responsibilities agreements...

Developer Rights and Responsibilities Agreements

Public Hearing – November 30, 2010, 3:30 pm

Purpose

This Public Hearing and subsequent work session is to receive public comments on the pending DRRA

applications and consider all or some of the Agreements for approval as submitted or as may be

amended.

Contents

1) Staff Summary of Pending DRRAs

2) Summary Table

2) Location Map and Proposed DRRAs for the following Projects:

Bensville Acres

Chelsea Manor

Burroughs Hall

Brentwood

Belmont

1

Report to the County Commissioners

Pending Developer Rights and Responsibilities Agreements Public Hearing – November 30, 2010, 3:30 pm

Brief Description of the Proposed Agreements

Five Applications have been received requesting approval of Developer Rights and Responsibilities Agreements

related to the adequacy of school capacity (See attached Summary Table). The Applicants are proposing to

mitigate the impact of school construction costs by offering to pay $13,000 per single family dwelling unit and

$12,625 per townhouse unit to satisfy the Adequate Public Facilities Ordinance for school (See attached

amended petitions). To show good faith, each Applicant has proffered to pay a non-refundable deposit in an

amount equaling at least 10 percent of the total mitigation payment within 30 days of the execution of the

Agreement. All Applicants have agreed to an inflation adjustment tied to the cost of school construction plus 3

percent.

Project Description

The locations of subject properties are shown on the attached ADC Map Exhibits for each application. Each

project consists of residential dwellings; four containing single family dwellings and one containing townhomes

(see attached Summary Table).

Staff Findings

The County Commissioners conducted the Initial Work Session, on November 9, 2010 to determine if there was

merit for formal staff review and to schedule a public hearing. It was determined that the proposal had merit;

therefore, a formal review was conducted by the County Attorney’s Office, the Department of Planning and

Growth Management and the Dept. of Fiscal and Administrative Services.

The Department of Fiscal and Administrative Services has determined that the proffered mitigation amounts of

$13,000 for single family units and $12,625 for townhouse units will adequately cover the estimated State share

of the cost of school construction based on the dwelling types. Further, it was determined that the inflation

provisions will adequately safeguard the County from any escalation in school constructions costs. Based on

their review of the project and the proposed mitigation, the Department of Planning and Growth Management

have no concerns with the Agreements as revised.

The revised agreements have been reviewed for legal sufficiency and revised as appropriate. Final signature

copies have been prepared by the County Attorney’s Office.

The Planning Commission’s approval of the Preliminary Plan of subdivision for each of the projects included a

finding of consistency with the Comprehensive Plan; therefore, referral to the Planning Commission was not

required.

Recommendations

Based on the staff’s findings, it was determined that the agreement contains mutually beneficial terms and

conditions which adequately mitigate for the impacts of the project on the school capacity as required by Article

XVI Section 297-258 of the Zoning Ordinance. Therefore, the Staff recommends approval of the proposed

DRRA applications, as amended.

F:\HOME\PGMS2\RIM\Developer Rights\Staff Rpt CC hearing Nov 30 2010.docx

Developer Rights and Responsibilities Agreements Summary –November 2010

All DRRA Applications are Primarily to Mitigate School Impacts

DRRA # Project Planning

Commission

Approval

Dwelling

Units

Mitigated

Mitigation per

unit

Total Mitigation General

Location

10-0002 Bensville

Acres

Yes 77 $13,000 $ 1,001,000 Bensville

10-0003 Chelsea Manor Yes 179 (TH) $12,625 $ 2,259,875 Bryans Road

10-0004 Burroughs

Hall

Yes 36 $13,000 $ 468,000 Mt. Victoria

10-0005 Brentwood Yes 138 $13,000 $ 1,794,000 Bensville

10-0006 Belmont Yes 30 $13,000 $ 390,000 Dentsville

228229

BERRY

MID

DLETO

WN

RO

AD

EY ROAD

229

BILLINGSLE

Y

ROAD

©0 5,000 10,0002,500Feet

Information contained on this drawing is for graphical purposes only and is not meant to be used for engineering purposes.

DRAWN BY:

CHECKED BY:

SCALE DATE

CHARLES COUNTY GOVERNMENT

200 Baltimore St

PO BOX 2150

La Plata, MD 20646

(301)645-0627

Department of Planning and

Growth Management

LOCATION MAPCHARLES COUNTY, MD

OCT, 2010

Subject PropertyTM 13 P 10

!\

BENSVILLE ACRESDRRA

PRINCE

GEORGE'S

COUNTY

DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT

THIS DEVELOPER’S RIGHTS AND RESPONSIBILITIES AGREEMENT

(“Agreement”), made as of the ____ day of _________________, 2010, by and between

BADIOLLAH PROPERTIES, LLC, a Maryland limited liability company (“Developer”), and

the COUNTY COMMISSIONERS OF CHARLES COUNTY, MARYLAND, a body politic

and corporate (“County Commissioners”).

RECITALS

1. The Developer is the owner of certain real property located in the County of

Charles, State of Maryland, as identified specifically in Exhibit 1 attached hereto and made a part

hereof (“Subject Property”).

2. The names of all parties having an equitable or legal interest in the Subject

Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof

and certified to by counsel to the Developer.

3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland, and

§297-498 of the Charles County Zoning Ordinance, the County Commissioners are authorized to

enter into binding development rights and responsibility agreements with any person having legal

or equitable interest in the Subject Property. Both the Developer and the County Commissioners

specifically recognize that a principal purpose of this Agreement is to bind the Developer to make

monetary contributions towards long term public improvements which it can make in

consideration of and in reliance upon the County Commissioners’ agreement not to change the

rules and regulations pertaining to the development of the Subject Property from those in effect

when this Agreement was executed.

4. The County Commissioners have the authority to provide for the construction

of public school facilities within Charles County, Maryland, pursuant to Section 11A of Article

25 and Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the

Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”) requires adequate school

capacity and the granting of school seat allocations prior to the approval of final plats for a

residential subdivision.

5. The Developer proposes to develop a residential community of 77 single-family

detached dwelling units to be known as “Bensville Acres,” upon the Subject Property.

6. The Charles County Planning Commission (the “Planning Commission”)

approved the Preliminary Plan of Subdivision (XPN 10-0002) for the Subject Property on May 3,

2010. In approving the Preliminary Plan, the Planning Commission concluded that Bensville

Acres was consistent with the applicable development regulations and the Charles County

Comprehensive Plan. The Planning Commission approved the Preliminary Plan subject to certain

conditions, terms, restrictions, and other requirements that it deemed necessary to ensure public

health, safety, and welfare.

7. On ________________, the County Commissioners held a public hearing on

this Agreement, notice of which was published in accordance with Article 66B, Section 4.04 of

the Annotated Code of Maryland.

8. The Developer and the County Commissioners desire to enter into this

Agreement for the purposes of: (a) confirming that adequate school capacity will be provided for

Bensville Acres, in accordance with the provisions contained herein; (b) agreeing that the rules

and regulations pertaining to the development of Bensville Acres shall not be changed after the

Effective Date of this Agreement; and (d) establishing the duration and effect of this Agreement.

NOW, THEREFORE, in consideration of the foregoing recitals, which are not merely

prefatory, but are hereby incorporated into and made a part of this Agreement, and the mutual

covenants and agreements set forth below, and other good and valuable consideration, the receipt

and sufficiency of which the parties hereby acknowledge, the County Commissioners and the

Developer hereby agree as follows:

ARTICLE I

DEVELOPER’S OBLIGATIONS

1.1 The development of Bensville Acres shall be subject to the Charles County

Adequate Public Facilities Ordinance, which requires that adequate school capacity must be

available for proposed developments. Therefore, in exchange for the seventy-seven (77) School

Capacity Allocations required for the completion of Bensville Acres, the Developer shall pay a

“Mitigation Payment” in the total sum of one million, one thousand dollars ($1,001,000.00).The

Mitigation Payment is intended to mitigate the impact of Bensville Acres on the Charles County

Public Schools in accordance with the Zoning Ordinance. The County Commissioners and the

Developer agree that the Mitigation Payment shall be paid by the Developer and the School

Capacity Allocations shall be issued by the County Commissioners as follows:

(a) On or before December 31, 2013, the Developer shall pay thirteen thousand

dollars ($13,000.00) per School Capacity Allocation for twenty-six (26) School Capacity

Allocations, and the County Commissioners shall grant twenty-six (26) School Capacity

Allocations;

(b) On or before December 31, 2014, the Developer shall pay thirteen thousand

dollars ($13,000.00) per School Capacity Allocation for twenty-six (26) School Capacity

Allocations, and the County Commissioners shall grant twenty-six (26) School Capacity

Allocations;

(c) On or before December 31, 2015, the Developer shall pay thirteen thousand

dollars ($13,000.00) per School Capacity Allocation for twenty-five (25) School Capacity

Allocations, and the County Commissioners shall grant twenty-five (25) School Capacity

Allocations.

If, due to engineering constraints discovered during the preparation of the Final

Subdivision Plat, the number of single-family detached lots located within the Subject Property is

reduced to a number below seventy-seven (77), the Mitigation Payment to be remitted to the

County Commissioners shall be reduced by the sum of thirteen thousand dollars ($13,000.00) per

lot lost.

1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent

(10%) of the total Mitigation Payment within thirty (30) days of execution of this Agreement as

set forth in the schedule below. However, this deposit shall be fully credited toward the

Mitigation Payment that is due no later than December 31, 2013 (see Section 1.1(a)) above). The

schedule for paying the deposit is as follows:

(a) No later than thirty (30) days after the recordation of this Agreement, the

Developer shall pay a deposit of twenty-five thousand and twenty-five dollars ($25,025.00),

which is approximately two and one-half percent (2.5%) of the total Mitigation Payment due

under the terms of this Agreement.

(b) No later than 90 days after the recordation of this Agreement, the Developer

shall pay a deposit of twenty-five thousand and twenty-five dollars ($25,025.00), which is

approximately two and one-half percent (2.5%) of the total Mitigation Payment due under the

terms of this Agreement.

(c) No later than one hundred and eighty (180) days after the recordation of this

Agreement, the Developer shall pay a final deposit of fifty-thousand and fifty dollars

($50,050.00), which is approximately five percent (5%) of the total Mitigation Payment due

under the terms of this Agreement.

1.2 Inflation Factor. In calculating the Mitigation Payment to be made by the

Developer after June 30, 2011, the payment of thirteen thousand dollars ($13,000.00) per School

Capacity Allocation shall be adjusted by the same percentage as the change in the “State of

Maryland Eligible Cost per Square Foot for Charles County,” as set forth by the Maryland State

Board of Education each July, for the average of the two preceding years for which the amount is

calculated. Additionally, three percent (3%) shall be added to the “State of Maryland Eligible

Costs of Square Foot for Charles County.”

ARTICLE II

COUNTY COMMISSIONERS’ OBLIGATIONS

2.1 The County Commissioners hereby agree, confirm, consent, and covenant as

follows:

(a) The terms and conditions set forth in Article I are acceptable to the County

Commissioners and other than the excise taxes imposed by the County Commissioners, there

shall be no further fees of any kind related to School Capacity Allocations, impacts to public

school facilities, school, or school adequacy in conjunction with the development of Bensville

Acres beyond those outlined in Article I.

(b) The County Commissioners hereby find that, upon satisfaction of the

terms and conditions set forth in this Agreement, school capacity will either currently exist or be

programmed to exist under the applicable capital improvement projects program as specified in

the Adequate Public Facilities Manual, as required by § 297-258 of the Charles County Zoning

Ordinance.

2.2 Timely Development Review. The Charles County Commissioners and

Developer recognize that but for the construction and build out of Bensville Acres, many benefits

to the public in the form of off-site improvements, increased tax revenue and positive fiscal

impacts cannot begin to be realized by the community. Additionally, it is recognized that

Bensville Acres has to date, gone through extensive and comprehensive design and

environmental review and approval including the Preliminary Plan and other permits and plan

approvals listed on Exhibit 3. Accordingly, the County Commissioners agree to use their best

efforts to ensure that all remaining development reviews, including but not limited to, preliminary

subdivision, final development plan review are performed in a succinct, timely manner, without

undue delay, not inconsistent with the County’s current development review process. The

County Commissioners hereby agree, provided that the Developer is not in default hereof beyond

all applicable notice and cure periods, that the Preliminary Plan together with any other plans

currently approved shall remain in full force and effect and no further requests for extensions

shall be required.

ARTICLE III

LIMITATIONS, PERMITS AND PLAN CONSISTENCY

3.1 Development Limitations.

(a) The permissible uses on the Subject Property are those permitted by the

Charles County Zoning Ordinance, specifically in the Low Density Residential (RL) Zone.

(b) The density or intensity of uses on the Subject Property shall be that

depicted on approved Preliminary Plan, subject to future modifications approved by the Planning

Commission.

3.2 Permits. The County Commissioners and the Developer agree that the permits

required by the County Commissioners and those already approved for Bensville Acres are those

set forth in Exhibit 3, attached hereto and made a part hereof. The Developer's obligations set

forth in Section 1.1 are contingent upon the issuance of development-related permits as required

by Maryland State regulatory agencies, including but not limited to Maryland Department of the

Environment (MDE).

3.3 Consistency with Plan and Development Regulations. The Planning

Commission has determined that Bensville Acres as depicted on the approved Preliminary Plan is

consistent with the Charles County Comprehensive Plan and the development regulations of

Charles County, as set forth in the minutes from its meeting held on May 3, 2010 (Exhibit 4).

3.4 Plan Consistency. The County Commissioners hereby determine that Bensville

Acres is consistent with the Comprehensive Plan of Charles County and the zoning and

development regulations of Charles County.

ARTICLE IV

SURVIVAL AND TRANSFER OF OBLIGATIONS

4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that all

obligations assumed by it under this Agreement shall be binding upon it, its successors and

assigns (except owners of an individual lot and/or dwelling purchased solely for use as a private

residence). To assure that all such successors and assigns have notice of this Agreement and the

obligations created by it, the Developer agrees that it shall have this Agreement recorded among

the Land Records of Charles County within twenty (20) days after the Effective Date of this

Agreement. The Effective Date of this Agreement shall be the date when this Agreement was

finally executed by all parties.

4.2 The County Commissioners agree that all obligations respectively assumed

under this Agreement shall be binding on Charles County, its successors and assigns.

ARTICLE V

BREACH AND REMEDIES

5.1 In the event that the Developer shall fail to pay any installment of the

Mitigation Payment to the County as set forth in this Agreement, and fails to cure such default by

paying the full amount of the delinquent installment within thirty (30) days after receipt of written

notice of such default from the County Commissioners, the County Commissioners shall have

each and all of the following rights and remedies:

(a) All rights and remedies at law or in equity;

(b) The right to seek an injunction to be issued by a court of competent

jurisdiction, enjoining the Developer from any further violation of this

Agreement and/or mandating that the Developer pay the delinquent

Mitigation Payment in compliance with this Agreement; and

(c) Without the need to resort to any court or other administrative

proceedings or hearing, the right to suspend and/or revoke permits issued

by the County that were granted in reliance upon this Agreement.

Within thirty (30) days of any cure of default under this section, the

County Commissioners shall reinstate and/or reissue any permit

suspended and/or revoked under this clause (c).

5.2 If the County Commissioners fail or refuse to perform the obligations as

required, then after thirty (30) days written notice provided to the County Commissioners by the

Developer indicating the nature of said default, and if the County has not cured such default

within thirty (30) days after receipt of written notice of such default from the Developer, the

Developer may seek and obtain equitable relief to enforce the terms of this Agreement either

through a decree for specific performance or an injunction, and further the Developer shall be

entitled to bring legal action for damages or other redress.

5.3 In the event of a judicial proceeding brought by one party to this Agreement

against the other party to this Agreement for the enforcement or breach of any provision herein,

the prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs

and expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial

proceeding.

5.4 The County Commissioners and the Developer hereby expressly covenant and

agree to waive the right to trial by jury in connection with any litigation or judicial proceeding

relating to this Agreement or the conduct, omission, action, obligation, duty, right, benefit,

privilege or liability of a party hereunder to the full extent permitted by law.

ARTICLE VI

EFFECT OF DEVELOPMENT REGULATIONS

6.1 Effect of Agreement.

(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations

and policies governing the use, density or intensity of the Subject Property, including but not

limited to those governing development, zoning, subdivision, growth management (i.e., growth

rate controls including, but not limited to, the County Commissioners’ limitations or "caps" on

the issuance of building permits), impact fees, water, sewer, stormwater management,

environmental protection, land planning and design, adequate public facilities laws and

architecture, (hereafter collectively the "Development Laws") shall be the laws, rules, regulations

and policies, if any, in force on the Effective Date of the Agreement.

(b) If the County Commissioners have specifically determined that the

imposition upon the Bensville Acres development of Development Laws enacted or adopted after

the Effective Date of this Agreement is essential to ensure the health, safety or welfare of

residents of all or part of Charles County, the County Commissioners may impose the change in

laws, rules, regulations and policies and the effect thereof upon the Bensville Acres development.

However, prior to changing the Development Laws, the County Commissioners must hold a

public hearing during which time the effect of the proposed change in Development Laws on

Bensville Acres shall be analyzed and fully debated. In conjunction with the required public

hearing, the County Commissioners agree that the foregoing phrase "essential to ensure the public

health, safety and welfare of residents" requires study, evaluation, conclusions and findings above

and beyond the legal standards and legislative discretion normally used to enact and apply land

use regulations.

ARTICLE VII

MISCELLANEOUS

7.1 Time of Essence. Time is of the essence in the performance of all terms and

provisions of this Agreement.

7.2 Terms. This Agreement shall run with and bind the Subject Property so long as

Bensville Acres is under construction and development, but in any event this Agreement shall be

void twenty (20) years after the Effective Date of this Agreement.

7.3 Notices. All notices and other communications in connection with this

Agreement shall be in writing and shall be deemed delivered to the addressee thereof (1) when

delivered in person on a business day at the address set forth below; or (2) on the third business

day after being deposited in any main or branch United States Post Office, for delivery by

properly addressed, postage prepaid, certified or registered mail, return receipt requested, at the

address set forth below.

Notices and communications to the Developer shall be addressed to, and delivered at, the

following address:

Mr. Khalid Rahmi

Badiollah Properties, LLC

12210 Lake Potomac Terrace

Potomac, Maryland 20854

with a copy to:

Jessica S. Barnes, Esquire

Andrews, Bongar, Starkey & Clagett, PA

11705 Berry Road, Suite 202

Waldorf, Maryland 20603

Notices and communications to the County Commissioners shall be addressed to, and delivered

at, the following address:

President, Charles County Commissioners

P.O. Box 2150

La Plata, Maryland 20646

with a copy to:

Charles County Attorney

Charles County Government

P.O. Box 2150


By notice complying with the requirements of this Section, each party shall have the right to

change the address or addressee or both for all future notices and communications to such party,

but no notice of a change of address shall be effective until actually received.

7.4 Amendments. It is agreed that this Agreement embodies the entire

understanding between the parties and that any amendment to this Agreement shall be in writing

and shall be executed by each party whose obligations or actions are impacted by the

Amendment.

7.5 Authority to Execute. The County Commissioners and the Developer hereby

acknowledge and agree that all required notices, meetings, and hearings have been properly given

and held by the County Commissioners, as necessary, with respect to the approval of this

Agreement and agree not to challenge this Agreement or any of the obligations created by it on

the grounds of any procedural infirmity or any denial of any procedural right. The County

Commissioners hereby warrant and represent to the Developer that the person executing this

Agreement on behalf of each of them has been properly authorized to do so. The Developer

hereby warrants and represents: (1) it is the fee simple, record owner of the Subject Property; (2)

it has the right, power and authority to enter into this Agreement and to agree to the terms,

provisions, and conditions set forth herein and to bind the Subject Property as set forth herein;

and (3) all legal actions needed to authorize the execution, delivery and performance of this

Agreement have been taken.

7.6 Governing Law. This Agreement shall be governed by and construed in

accordance with the laws of the State of Maryland.

7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of

the Circuit Court of Charles County, Maryland, or any Federal court sitting in the District of

Maryland.

7.8 Remedies Cumulative. Each right, power, and remedy of a party provided for

herein, or any other agreement between the parties, now or hereafter existing, shall be cumulative

and concurrent and in addition to every other right, power or remedy provided for in this

Agreement or any other agreement between the parties, now or hereinafter existing.

7.9 Severability. In case any one or more of the provisions contained in this

Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such

invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this

Agreement shall be construed as if such invalid, illegal or unenforceable provision had never

been contained herein.

7.10 Effective Date. This date is the date that the last party executes this Agreement.

IN WITNESS WHEREOF, the parties have hereunto set their hands on the dates set forth

below.

WITNESS/ATTEST: Badiollah Properties, LLC

_______________________________ By: _________________________________

Khalid Rahmi, Vice-President

WITNESS/ATTEST: COUNTY COMMISSIONERS

OF CHARLES COUNTY, MARYLAND

_______________________________ By: _________________________________

STATE OF MARYLAND :

ss:

COUNTY OF _________________________ :

I HEREBY CERTIFY that on this ______ day of ____________________, 2010, before me,

the undersigned notary public, personally appeared Khalid Rahmi who acknowledged himself to

be the Vice-President of Badiollah Properties, LLC, and that he, as Vice-President, being

authorized so to do, executed the foregoing instrument for the purposes therein contained by

signing the name of the company by himself as such officer.

.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

____________________________________

Notary Public

My commission expires: _________________________

STATE OF MARYLAND :

ss:

COUNTY OF _________________________ :

I HEREBY CERTIFY that on this ______ day of ____________________, 2010, before me,

the undersigned notary public, personally appeared______________________, who

acknowledged him/herself to be the ______________ of COUNTY COMMISSIONERS OF

CHARLES COUNTY, MARYLAND, and duly acknowledged the foregoing Agreement to be

the act of said body corporate.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

____________________________________

Notary Public

My commission expires: ____________________________

BENSVILLE ACRES


EXHIBIT 1

LEGAL DESCRIPTION OF SUBJECT PROPERTY

Property Tax Identification Number: 06-048803

Tax Map 13, Parcel 10

BEING the same property conveyed to Badiollah Properties, LLC, a Maryland limited

liability companty, by deed dated December 30, 2002, by Carolyn Diane Dries (also

known as Carolyn Diane Pickeral) recorded among the Land Records of Charles County,

Maryland, in Liber 4978 at Folio 548.

BENSVILLE ACRES


EXHIBIT 2

PARTIES HAVING AN EQUITABLE OR LEGAL INTEREST IN THE SUBJECT

PROPERTY

Property Owner:

Badiollah Properties, LLC

Trustee:

John Dries (for the benefit of Diane Dries) as set forth in the Deferred Purchase

Money Deed of Trust recorded among the Land Records of Charles County,

Maryland, in Liber 4978, Folio 548, as amended by the First Amendment to

Deferred Purchase Money Deed of Trust recorded among the Land Records of

Charles County, Maryland, in Liber 6535, Folio 619.

BENSVILLE ACRES


EXHIBIT 3

PLAN APPROVALS/PERMITS REQUIRED/PREVIOUSLY APPROVED

1. Preliminary Plan of Subdivision (XPN 10-0002): Approved: May 3, 2010

Together with all other plans and/or permits that may be required by federal, state, or local

laws as of the date of execution of this Agreement.

BENSVILLE ACRES


EXHIBIT 4

MINUTES FROM PLANNING COMMISSION – MAY 3, 2010

(see following pages)

22

210

225

INDIAN

HEAD

227

HWY

BILLINGSLEY ROAD

BRYANSROAD

210

©0 5,000 10,0002,500Feet


DRAWN BY:

CHECKED BY:

SCALE DATE


200 Baltimore St

PO BOX 2150

La Plata, MD 20646

(301)645-0627


Growth Management


OCT, 2010

Subject PropertyTM 5 P 67&420

!\

CHELSEA MANOR

DRRA 10-0003

1


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").


Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof and

certified to by counsel to the Developer.

3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland and § 297-498

of the Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”), the County

Commissioners are authorized to enter into binding development rights and responsibility

agreements with any person having legal or equitable interest in the Subject Property. Both the

Developer and the County specifically recognize that a principal purpose of this Agreement is to bind

the Developer to make monetary contributions towards long term public improvements which it can

make in consideration of and in reliance upon the County Commissioners’ agreement to provide

School Capacity Allocations for the Subject Property and not to change the rules and regulations

pertaining to the development of the Subject Property from those in effect when this Agreement

was executed.

4. The County Commissioners have the authority to provide for the construction of

public school facilities within Charles County, Maryland, pursuant to Section 11A of Article 25 and

Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the Zoning

Ordinance requires adequate school capacity and the granting of school allocations prior to the

approval of final plats for a residential subdivision.

5. The Developer is currently in the process of developing a residential community

known as Chelsea Manor which is planned and approved to ultimately consist of two hundred forty-

six (246) single family attached residential dwelling units on approximately 30.83 acres of land

located in the Bryans Road Town Center. The Chelsea Manor project is intended to be improved

with community amenities as further described herein and in the approved Preliminary Subdivision

and Site Development Plans. Development of Chelsea Manor will further the goals of the Bryans

Road - Indian Head Sub-Area Plan.

6. On April 5, 2004, the Charles County Planning Commission (the "Planning

Commission") approved Preliminary Subdivision Plan XPN#03-0023 for the Subject Property, (as

amended and extended on March 31, 2006, March 27, 2007, June 5, 2007, March 20, 2008, March

25, 2009, January 25, 2010 and May 10, 2010) (collectively, the "Preliminary Plan"). In approving

the Preliminary Plan the Planning Commission found that the proposed development was consistent

with the applicable development regulations and the comprehensive plan. The Planning

Commission approved the Preliminary Plan subject to certain conditions, terms, restrictions and

other requirements that it determined to be necessary to ensure the public health, safety and welfare.

2

7. On ________________, 2010, the County Commissioners held a public hearing

on this Agreement, notice of which had been published in accordance with Article 66B, Section 4.04

of the Annotated Code of Maryland.

8. The Developer and the County Commissioners desire to enter into this Agreement

for the purposes of: (a) confirming that adequate school capacity will be provided for Chelsea

Manor in accordance with the provisions contained herein; (b) agreeing that the rules and

regulations pertaining to the development of Chelsea Manor shall not be changed after the Effective

Date of this Agreement; and (c) establishing the duration and effect of this Agreement.


prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual




ARTICLE I


1.1 The development of Chelsea Manor shall be subject to the Charles County


available for proposed developments. Therefore, in exchange for the one hundred and seventy-

nine (179) School Capacity Allocations required for the completion of Chelsea Manor, the

Developer shall pay a “Mitigation Payment” in the total sum of two million, two hundred fifty-

nine thousand, eight hundred and seventy-five dollars ($2,259,875.00). The Mitigation Payment is

intended to mitigate the impact of Chelsea Manor on the Charles County Public Schools in

accordance with the Zoning Ordinance. The County Commissioners and the Developer agree that

the Mitigation shall be paid by the Developer and the School Capacity Allocations shall be issued

by the County Commissioners as follows:

(a) On or before December 31, 2012, the Developer shall pay twelve thousand, six

hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation

for sixty-five (65) School Capacity Allocations, and the County shall grant sixty-

five (65) School Capacity Allocations;

(b) On or before December 31, 2013, the Developer shall pay twelve thousand, six

hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation

for sixty-five (65) School Capacity Allocations, and the County shall grant sixty-

five (65) School Capacity Allocations; and

(c) On or before December 31, 2014, the Developer shall pay twelve thousand, six

hundred and twenty-five dollars ($12,625.00) per School Capacity Allocation for

forty-nine (49) School Capacity Allocations, and the County shall grant forty-nine

(49) School Capacity Allocations.

3

1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent (10%)

of the total Mitigation Payment as set forth in the schedule belowwithin thirty (30) days of

execution of this Agreement. However, this deposit shall be fully credited toward the Mitigation

Payment that is due no later than December 31, 2012 (see Section 1.1(a) above). The schedule for

paying the deposit is as follows:


Developer shall pay a deposit of fifty-six thousand, four hundred and ninety-

seven dollars ($56,497.00), which is approximately two and one-half percent

(2.5%) of the total Mitigation Payment due under the terms of this Agreement.

(b) No later than ninety (90) days after the recordation of this Agreement, the

Developer shall pay a deposit of fifty-six thousand, four hundred and ninety-

seven dollars ($56,497.00), which is approximately two and one-half percent

(2.5%) of the total Mitigation Payment due under the terms of this Agreement.

(c) No later than one hundred and eighty (180) days after the recordation of this

Agreement, the Developer shall pay a final deposit of one hundred twelve

thousand, nine hundred and ninety-four dollars ($112,994.00), which is

approximately five percent (5%) of the total Mitigation Payment due under the

terms of this Agreement.


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



follows:


Commissioners and other than the excise taxes imposed by the County

Commissioners, there shall be no further fees of any kind related to School

Capacity Allocations, impacts to public school facilities, or school adequacy in

conjunction with the development of Chelsea Manor beyond those outlined in

Article I.

(b) The County Commissioners hereby find that, upon satisfaction of the terms and

conditions set forth in this Agreement, school capacity will either currently exist or

be programmed to exist under the applicable capital improvement projects program

as specified in the Adequate Public Facilities Manual, as required by § 297-258 of

the Charles County Zoning Ordinance.

4

2.2 Timely Development Review. The County and Developer recognize that but for

the construction and build out of Chelsea Manor, many of the benefits to the public in the form of

off-site improvements; increased tax revenue and positive fiscal impacts cannot begin to be realized

by the community. Additionally, it is recognized that Chelsea Manor has, to date, gone through

extensive and comprehensive design and environmental review and approval including the

Preliminary Plan and the other permit and plan approvals listed on Exhibit 3. Accordingly, the

County agrees to use its best efforts to ensure that all remaining development reviews, including

but not limited to, preliminary subdivision, final subdivision and final development plan review

are performed in a succinct, timely manner, without undue delay, not inconsistent with the County’s

current development review process. The County hereby agrees, provided that the Developer is not

in default hereof beyond all applicable notice and cure periods, that the Preliminary Plan, as

amended, and the Site Development Plan shall remain in full force and effect and no further

requests for extension(s) shall be required.

ARTICLE III

LIMITATIONS, PERMITS, AND PLAN CONSISTENCY


(a) The permissible uses on the Subject Property are those permitted by the Charles

County Zoning Ordinance, specifically in the Core Mixed Residential (CMR)

Zone.

(b) The density or intensity of uses on the Subject Property shall be that depicted on

the approved Preliminary Plan, subject to future modifications approved by the

Planning Commission.

3.2 Permits. The County Commissioners and the Developer agree that the permits,

approvals and agreements required by the County and those already approved for the proposed

Chelsea Manor development are those set forth on Exhibit 3, attached hereto and made a part hereof.

3.3 Consistency with Plan and Development Regulations. The Planning Commission

has determined that Chelsea Manor as depicted on the approved Preliminary Plan is consistent with

the Charles County Comprehensive Plan and the development regulations of Charles County.

3.4. Plan Consistency. The County Commissioners hereby determine that Chelsea

Manor is consistent with the Charles County Comprehensive Plan and the zoning and development

regulations of Charles County.

ARTICLE IV



obligations assumed by it under this Agreement shall be binding upon it, its successors and assigns

(except owners of an individual lot and/or dwelling purchased solely for use as a private residence),

and upon any and all successor owners of record of all or any portion of the Subject Property (except

owners of an individual lot and/or dwelling purchased solely for use as a private residence). To

assure that all such successors, assigns, and successor owners have notice of this Agreement and the

obligations created by it, the Developer agrees that it shall have this Agreement recorded among the

5

Land Records of Charles County, Maryland within twenty (20) days after the Effective Date of this

Agreement. The Effective Date of this Agreement shall be date when this Agreement was finally

executed by all parties.

4.2 The County Commissioners agree that all obligations respectively assumed under

this Agreement shall be binding on Charles County, it successors and assigns.

ARTICLE V

BREACH AND REMEDIES

5.1 In the event that the Developer shall fail to pay any installment of the Mitigation

Payment to the County as set forth in this Agreement, and fails to cure such default by paying the

full amount of the delinquent installment within thirty (30) days after receipt of written notice of

such default from the County Commissioners, the County Commissioners shall have each and all of

the following rights and remedies:


(b) The right to seek an injunction to be issued by a court of competent jurisdiction,

enjoining the Developer from any further violation of this Agreement and/or

mandating that the Developer pay the delinquent Mitigation Payment in

compliance with this Agreement; and

(c) Without the need to resort to any court or other administrative proceedings or

hearing, the right to suspend and/or revoke permits issued by the County that were

granted in reliance upon this Agreement. Within thirty (30) days of any cure of

default under this section, the County Commissioners shall reinstate and/or reissue

any permit suspended and/or revoked under this clause (c).

5.2 If the County Commissioners fail or refuse to perform the obligations as required,

then after thirty (30) days written notice provided to the County Commissioners by the Developer

indicating the nature of said default, and if the County has not cured such default within thirty (30)

days after receipt of written notice of such default from the Developer, the Developer may seek and

obtain equitable relief to enforce the terms of this Agreement either through a decree for specific

performance or an injunction, and further the Developer shall be entitled to bring legal action for

damages or other redress.

5.3 In the event of a judicial proceeding brought by one party to this Agreement against

the other party to this Agreement for the enforcement or breach of any provision herein, the

prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs and

expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial

proceeding.



relating to this Agreement or the conduct, omission, action, obligation, duty, right, benefit, privilege

or liability of a party hereunder to the full extent permitted by law.

6

ARTICLE VI



(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations and policies

governing the use, density or intensity of the Subject Property, including but not

limited to those governing development, subdivision, growth management (i.e.,

growth rate controls including, but not limited to, County limitations or “caps” on the

issuance of building permits or School Allocations), impact fees, water, sewer,

stormwater management, environmental protection, land planning and design,

adequate public facilities laws and architecture, (hereafter collectively the

"Development Laws") shall be the laws, rules, regulations and policies, if any, in

force on the Effective Date of the Agreement.

(b) If the County Commissioners have specifically determined that the imposition upon

Subject Property and compliance by Chelsea Manor development with

Development Laws enacted or adopted after the Effective Date of this Agreement is

essential to ensure the health, safety or welfare of residents of all or part of Charles

County, the County Commissioners may impose the change in laws, rules,

regulations and policies and the effect thereof upon the Chelsea Manor development.

However, prior to changing the Development Laws, the County Commissioners must

hold a public hearing during which time, the effect of the proposed change in

Development Laws on Chelsea Manor shall be analyzed and fully debated. In

conjunction with the required public hearing, the County Commissioners agree that

the foregoing phrase "essential to ensure the public health, safety and welfare of

residents" requires study, evaluation, conclusions and findings above and beyond the

legal standards and legislative discretion normally used to enact and apply land use

regulations.

ARTICLE VII

MISCELLANEOUS



7.2 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.


following address:

7

Chelsea Manor II, L.C. and Sedgemore, L.C.

175 Admiral Cochrane Drive, Suite 112

Annapolis, Maryland 21401

Attn: Douglas

Meeker

Telephone: 410-266-9700

Telecopier: 410-266-9165

with a copy to:

Michael A. Faerber, Esq.

McMillan & Metro, P.C.

1901 Research Boulevard, Suite 500

Rockville, Maryland 20850

Telephone: (301) 251-1180

Telecopier: (301) 251-0447

Notices and communications to the County Commissioners shall be addressed to, and

delivered at, the following address:


P.O. Box 2150


with a copy to:



P.O. Box 2150


Telephone: (301) 645-0555

Telecopier: (301) 645-0515

By notice complying with the requirements of this Section, each party shall have the right to change

the address or addressee or both for all future notices and communications to such party, but no

notice of a change of address shall be effective until actually received.

7.4 Amendments. It is agreed that this Agreement embodies the entire understanding

between the parties and that any amendments to this Agreement shall be in writing and shall be

executed by the County Commissioners and the Developer.



and held by the County with respect to the approval of this Agreement and agree not to challenge

this Agreement or any of the obligations created by it on the grounds of any procedural infirmity or

any denial of any procedural right. The County Commissioners hereby warrant and represent to the

Developer that the persons executing this Agreement on their behalf have been properly authorized to

do so. The Developer hereby warrants and represents to the County Commissioners (1) that it is the

fee simple, record owner of the Subject Property, (2) that it has the right, power and authority to

enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to

bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize the

8

execution, delivery and performance of this Agreement have been taken.

7.6 Governing Law. This Agreement shall be governed by and construed in accordance

with the laws of the State of Maryland.

7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdiction of the

Circuit Court of Charles County, Maryland or any federal court sitting in the District of Maryland.

7.8 Remedies Cumulative. Each right, power and remedy of a party provided for


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.


Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such invalidity,

illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be

construed as if such invalid, illegal or unenforceable provision had never been contained herein.

7.10 Effective Date. This is the date that the last party executes this Agreement.

IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above

written.

WITNESS: CHELSEA MANOR II, L.C.

a Maryland limited liability company

________________________ By:___________________________(SEAL)

Douglas W. Meeker, Manager

WITNESS: SEDGEMORE, L.C.


________________________ By:___________________________(SEAL)

Douglas W. Meeker, Manager

WITNESS: COUNTY COMMISSIONERS OF

CHARLES COUNTY, MARYLAND

________________________ By: ___________________________

9

STATE OF MARYLAND, COUNTY OF ANNE ARUNDEL, to wit:

I HEREBY CERTIFY that on the _____ day of _______________, 2010, before me, the

subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared Douglas W.

Meeker, who acknowledged himself to be a Manager of Chelsea Manor II, L.C., a Maryland limited

liability company, and Sedgemore, L.C., a Maryland limited liability company, known to me (or

satisfactorily proven) to be the person whose name is subscribed to the within instrument, and

acknowledged that she executed the same for the purpose therein contained as the duly authorized

Manager of said companies.

WITNESS my hand and notarial seal the year and day first above written.

_____________________________

NOTARY PUBLIC

Printed Name__________________

My Commission Expires:

STATE OF MARYLAND, COUNTY OF CHARLES, to wit:


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.


_____________________________

NOTARY PUBLIC

Printed Name__________________


10

EXHIBIT 1

LEGAL DESCRIPTION

Being all of the land described in a deed dated December 30, 2009 by and between The

Ryland Group, Inc. and Chelsea Manor II, L.C. and recorded among the Land Records of Charles

County, Maryland in Liber 7087 at folio 209, said parcel of land being described as follows:

Lot numbered One (1) as shown and described on the plats of subdivision of “PLAT OF

CORRECTION – CHELSEA MANOR” as per Plats One, Two and Three of PLAT OF

CORRECTION – CHELSEA MANOR recorded in Plat Book 58 at plat 315, 316 and 317 among

the land records of Charles County, Maryland. CONTAINING 907,355 square feet or 20.83 acres

of land more or less.

Being all of the land described in a deed dated July 21, 2009 by and between Bryans Green,

L.C. and Sedgemore, L.C. and recorded among the Land Records of Charles County, Maryland in

Liber 6944 at folio 426, said parcel of land being described as follows:

BEGINNING for the said parcel of land at an iron pipe found at the westerly corner of

Parcel 305, said iron pipe also lying on the southeasterly Right of Way line of Matthews Manor

Road (Variable width Right of Way), thence running with the southeasterly Right of Way line of

Matthews Manor Road;

1. North 46' 22' 36" East, 24.00 feet to an iron pipe found, thence;

2. North 44' 34' 38" East, 186.01feet to an iron pipe found at the common corner of said Parcel

305 and Parcel 67, thence ;

3. North 44' 35' 16" East, 404.29 feet to an iron pipe found at the northerly corner of said Parcel

67, said iron pipe also lying on the southwesterly Right of Way line of Matthews

Manor Road, thence running with a portion of the said southwesterly Right of Way line

of Matthews Manor Road and with the common division line between said Parcel 67

and Parcel 68, the property now or formerly owned by Artery-Gourley Chelsea Manor,

L.L.C., Liber 6069 Folio 745;

4. South 49' 02' 54" East, 660.00 feet to an iron pipe found at the common corner of said Parcel

67, Parcel 68 and Parcel 396, thence running with the common division line between

said Parcel 68 and Parcel 396;

5. North 45' 28' 05" East, 70.55 feet to an iron pipe found, thence;

6. South 48' 03' 30" East, 21.07 feet to a point, thence leaving said common division line

between said Parcel 68 and Parcel 396 and running in, through, over and across part of

Parcel 396;

7. South 40' 59' 00" West, 687.18 feet to a point on the northeasterly Right of Way line of the

aforementioned Matthews Manor Road, thence running with and binding on the said

northeasterly Right of Way line of Matthews Manor Road;

8. North 49' 01' 00" West, 65.61 feet to an iron pipe found, thence;



11. North 42' 33' 04" West, 61.83 feet to the point of beginning.

CONTAINING 435,663 square feet or 10.00 acres of land more or less.

11

EXHIBIT 2

LEGAL AND EQUITABLE INTEREST HOLDERS

IN THE SUBJECT PROPERTY

Chelsea Manor II, L.C.

Sedgemore, L.C.

Sandy Spring Bank

12

EXHIBIT 3

PERMITS AND APPROVALS

REQUIRED AND/OR APPLICABLE TO

THE SUBJECT PROPERTY

Permits and Approvals Granted

Preliminary Subdivision Plan XPN #03-0023

Forest Stand Delineation FC 03-183 and 06-78

Preliminary Forest Conservation Plan FC 03-183

Site Development Plan SDP#090033

Army COE Permit 200666964

Army COE Jurisdictional Determination JD 2006-64180

MDE General Permit for Construction Activity 08CH0007

Development Services Permit (Phase 1A) VR #10-0022

Development Services Permit (Phase 1B) VR #10-0023

Final Forest Conservation Plan (Phase 1A & 1B) FC 03-183

Erosion and Sediment Control Plan (Phase 1A) SED 93-09

Erosion and Sediment Control Plan (Phase 1B) SED 94-09

MSHA Access Permit

Permits and Approvals Pending

Final Plats (Phase 1A) XRS #10-0008

Final Plats (Phase 1B) XRS #10-0007

MSHA Utility Permit

Future Permits and Approvals Required

Development Services Permit (Phase 2)

Final Forest Conservation Plan (Phase 2)

Erosion and Sediment Control Plan (Phase 2)

Final Plats (Phase 2)







257

RO

AD

POPES CREEK

ED

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25701301

MILL RUNROAD

MORGANTOWN

NEWBURG

MOUNT

VICTORIA

RO

AD

©0 5,000 10,0002,500Feet


DRAWN BY:

CHECKED BY:

SCALE DATE


200 Baltimore St

PO BOX 2150

La Plata, MD 20646

(301)645-0627


Growth Management


OCT, 2010

Subject PropertyTM 83 P9,11,13,&A

!\

BURROUGHS HALL

DRRA #10-0004

1


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").


Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereof and

certified to by counsel to the Developer.

3. Pursuant to Section 13.01, Article 66B, Annotated Code of Maryland and § 297-498

of the Charles County Zoning Ordinance (hereinafter the “Zoning Ordinance”), the County

Commissioners are authorized to enter into binding development rights and responsibility

agreements with any person having legal or equitable interest in the Subject Property. Both the

Developer and the County specifically recognize that a principal purpose of this Agreement is to bind

the Developer to make monetary contributions towards long term public improvements which it can

make in consideration of and in reliance upon the County Commissioners’ agreement to provide

School Capacity Allocations for the Subject Property and not to change the rules and regulations

pertaining to the development of the Subject Property from those in effect when this Agreement

was executed.

4. The County Commissioners have the authority to provide for the construction of

public school facilities within Charles County, Maryland, pursuant to Section 11A of Article 25 and

Section 14.05 of Article 66B of the Annotated Code of Maryland. Section 297-258 of the Zoning

Ordinance requires adequate school capacity and the granting of school allocations prior to the

approval of final plats for a residential subdivision.


known as ‘BURROUGHS HALL’ which will contain thirty-Six (36) single family detached lots.

6. The Charles County Planning Commission has reviewed the proposed subdivision

through case number XPN 09-0002 and on September 28, 2009 approved the Preliminary

Subdivision Plan for the Property which Preliminary Plan is hereby incorporated herein by

reference.

7. On ________________, 2010, the County Commissioners held a public hearing

on this Agreement, notice of which had been published in accordance with Article 66B, Section 4.04

of the Annotated Code of Maryland.

8. The Developer and the County Commissioners desire to enter into this Agreement

for the purposes of: (a) confirming that adequate school capacity will be provided for Burroughs

Hall in accordance with the provisions contained herein; (b) agreeing that the rules and regulations

pertaining to the development of Burroughs shall not be changed after the Effective Date of this

2

Agreement; and (c) establishing the duration and effect of this Agreement.


prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual




ARTICLE I


1.1 The development of Burroughs Hall shall be subject to the Charles County


available for proposed developments. Therefore, in exchange for the thirty-six (36) School

Capacity Allocations required for the completion of Burroughs, the Developer shall pay a

“Mitigation Payment” in the total sum of four hundred and sixty-eight thousand dollars

($468,000.00). The Mitigation Payment is intended to mitigate the impact of Burroughs on the

Charles County Public Schools in accordance with the Zoning Ordinance. The County

Commissioners and the Developer agree that the Mitigation shall be paid by the Developer and the

School Capacity Allocations shall be issued by the County Commissioners as follows:

(a) On or before June 30, 2011, the Developer shall pay thirteen thousand dollars

($13,000.00) per School Capacity Allocation for five (5) School Capacity

Allocations, and the County shall grant five (5) School Capacity Allocations;

(b) On or before June 30, 2012, the Developer shall pay thirteen thousand dollars



(c) On or before June 30, 2013, the Developer shall pay thirteen thousand dollars



(d) On or before June 30, 2014, the Developer shall pay thirteen thousand dollars



(e) On or before June 30, 2015, the Developer shall pay thirteen thousand dollars



(f) On or before June 30, 2016, the Developer shall pay thirteen thousand dollars


Allocations, and the County shall grant five (5) School Capacity Allocations; and

(g) On or before June 30, 2017, the Developer shall pay thirteen thousand dollars

($13,000.00) per School Capacity Allocation for six (6) School Capacity

Allocations, and the County shall grant six (6) School Capacity Allocations;

3

If, due to engineering constraints discovered during preparation of the Final Subdivision

Plat, the number of single-family lots located within the Subject Property is reduced to a number

below thirty-six (36), the Mitigation Payment to be remitted to the County shall be reduced by the

sum of thirteen thousand dollars ($13,000.00) per lot lost.

1.2 Deposit. The Developer shall pay a non-refundable deposit of ten percent (10%)

of the total Mitigation Payment within thirty days of the execution of this Agreement.as set forth

in the schedule below. However, this deposit shall be fully credited toward the Mitigation

Payment that is due no later than June 30, 2011 (see Section 1.1(a) above). The schedule for

paying the deposit is as follows:


Developer shall pay a deposit of eleven thousand, seven hundred dollars

($11,700.00), which is approximately two and one-half percent (2.5%) of the

total Mitigation Payment due under the terms of this Agreement.

(b)(a) No later than ninety (90) days after the recordation of this Agreement, the

Developer shall pay a deposit of thirty-five thousand, one hundred dollars

($35,100.00), which is approximately seven and one-half percent (7.5%) of

the total Mitigation Payment due under the terms of this Agreement.


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



follows:


Commissioners and other than the excise taxes imposed by the County

Commissioners, there shall be no further fees of any kind related to School

Capacity Allocations, impacts to public school facilities, or school adequacy in

conjunction with the development of Burroughs Hall beyond those outlined in

Article I.

(b) The County Commissioners hereby find that, upon satisfaction of the terms and

conditions set forth in this Agreement, school capacity will either currently exist or

be programmed to exist under the applicable capital improvement projects program

as specified in the Adequate Public Facilities Manual, as required by § 297-258 of

the Charles County Zoning Ordinance.


the construction and build out of Burroughs Hall, many of the benefits to the public in the form of

4

off-site improvements; increased tax revenue and positive fiscal impacts cannot begin to be realized

by the community. Additionally, it is recognized that Burroughs Hall has, to date, gone through

extensive and comprehensive design and environmental review and approval including the

Preliminary Plan. Accordingly, the County agrees to use its best efforts to ensure that all remaining

development reviews, including but not limited to, preliminary subdivision, final subdivision and

final development plan review are performed in a succinct, timely manner, without undue delay,

not inconsistent with the County’s current development review process. The County hereby agrees,

provided that the Developer is not in default hereof beyond all applicable notice and cure periods,

that the Preliminary Plan shall remain in full force and effect and no further requests for

extension(s) shall be required.

ARTICLE III

LIMITATIONS, PERMITS, AND PLAN CONSISTENCY


(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.


approvals and agreements required by the County and those already approved for the proposed

Burroughs Hall development are those set forth on Exhibit 3, attached hereto and made a part

hereof.

3.3 Consistency with Plan and Development Regulations. The Planning Commission

has determined that Burroughs Hall as depicted on the approved Preliminary Plan is consistent with

the Charles County Comprehensive Plan and the development regulations of Charles County.

3.4. Plan Consistency. The County Commissioners hereby determine that Burroughs

Hall is consistent with the Charles County Comprehensive Plan and the zoning and development

regulations of Charles County.

5

ARTICLE IV



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:


(b) The right to seek an injunction to be issued by a court of competent jurisdiction,

enjoining the Developer from any further violation of this Agreement and/or

mandating that the Developer pay the delinquent Mitigation Payment in

compliance with this Agreement; and

(c) Without the need to resort to any court or other administrative proceedings or

hearing, the right to suspend and/or revoke permits issued by the County that were

granted in reliance upon this Agreement. Within thirty (30) days of any cure of

default under this section, the County Commissioners shall reinstate and/or reissue

any permit suspended and/or revoked under this clause (c).

5.2 If the County Commissioners fail or refuse to perform the obligations as required,

then after thirty (30) days written notice provided to the County Commissioners by the Developer

indicating the nature of said default, and if the County has not cured such default within thirty (30)

days after receipt of written notice of such default from the Developer, the Developer may seek and

obtain equitable relief to enforce the terms of this Agreement either through a decree for specific

performance or an injunction, and further the Developer shall be entitled to bring legal action for

damages or other redress.

5.3 In the event of a judicial proceeding brought by one party to this Agreement against

the other party to this Agreement for the enforcement or breach of any provision herein, the

prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs and

6

expenses, including reasonable attorneys’ fees incurred in conjunction with such judicial

proceeding.



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



(a) Except as provided in Section 6.1(b) herein, the laws, rules, regulations and policies

governing the use, density or intensity of the Subject Property, including but not

limited to those governing development, subdivision, growth management (i.e.,

growth rate controls including, but not limited to, County limitations or “caps” on the

issuance of building permits or School Allocations), impact fees, water, sewer,

stormwater management, environmental protection, land planning and design,

adequate public facilities laws and architecture, (hereafter collectively the

"Development Laws") shall be the laws, rules, regulations and policies, if any, in

force on the Effective Date of the Agreement.

(b) If the County Commissioners have specifically determined that the imposition upon

Subject Property and compliance by the Developer with Development Laws

enacted or adopted after the Effective Date of this Agreement is essential to ensure

the health, safety or welfare of residents of all or part of Charles County, the County

Commissioners may impose the change in laws, rules, regulations and policies and

the effect thereof upon the Burroughs Hall development. However, prior to changing

the Development Laws, the County Commissioners must hold a public hearing

during which time, the effect of the proposed change in Development Laws on

Burroughs Hall shall be analyzed and fully debated. In conjunction with the required

public hearing, the County Commissioners agree that the foregoing phrase "essential

to ensure the public health, safety and welfare of residents" requires study,

evaluation, conclusions and findings above and beyond the legal standards and

legislative discretion normally used to enact and apply land use regulations.

ARTICLE VII

MISCELLANEOUS




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

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.


following address:

Mt. Tirzah Family Limited Partnership

P.O. Box 7

Mt. Victoria, Maryland 20661

with a copy to:

Jessica S. Barnes, Esq.

Andrews, Bongar, Starkey & Clagett, P.A.

11705 Berry Road, Suite 202


Telephone: (301) 645-4100

Telecopier: (301) 843-2351




P.O. Box 2150


with a copy to:



P.O. Box 2150


Telephone: (301) 645-0555

Telecopier: (301) 645-0515

By notice complying with the requirements of this Section, each party shall have the right to change

the address or addressee or both for all future notices and communications to such party, but no

notice of a change of address shall be effective until actually received.

7.4 Amendments. It is agreed that this Agreement embodies the entire understanding

between the parties and that any amendments to this Agreement shall be in writing and shall be




and held by the County with respect to the approval of this Agreement and agree not to challenge

this Agreement or any of the obligations created by it on the grounds of any procedural infirmity or

any denial of any procedural right. The County Commissioners hereby warrant and represent to the

Developer that the persons executing this Agreement on their behalf have been properly authorized to

8

do so. The Developer hereby warrants and represents to the County Commissioners (1) that it is the

fee simple, record owner of the Subject Property, (2) that it has the right, power and authority to

enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to

bind the Subject Property as set forth herein, and (3) that all legal actions needed to authorize the

execution, delivery and performance of this Agreement have been taken.




Circuit Court of Charles County, Maryland or any federal court sitting in the District of Maryland.



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.


Agreement shall for any reason by held invalid, illegal or unenforceable in any respect, such invalidity,

illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be

construed as if such invalid, illegal or unenforceable provision had never been contained herein.

7.10 Effective Date. This is the date that the last party executes this Agreement.

IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above

written.

WITNESS: Mt. Tirzah Family Limited Partnership

a Maryland limited partnership

________________________ By: ___________________________(SEAL)

Mt. Tirzah, Inc., General Partner

Michael J. Sullivan, President



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.


_____________________________

NOTARY PUBLIC

Printed Name__________________


9



________________________ By: ___________________________ (SEAL)



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.


_____________________________

NOTARY PUBLIC

Printed Name__________________


10

EXHIBIT 1

LEGAL DESCRIPTION

(INFORMATION TO FOLLOW)

11

EXHIBIT 2



Mt. Tirzah Family Limited Partnership

Community Bank of Tri-County

12

EXHIBIT 3





Preliminary Subdivision Plan XPN 09-0002


Final Forest Conservation Plan

Erosion and Sediment Control Plan

Final Plat

228229

BERRY

MID

DLETO

WN

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EY ROAD

229

BILLINGSLE

Y

ROAD

©0 5,000 10,0002,500Feet


DRAWN BY:

CHECKED BY:

SCALE DATE


200 Baltimore St

PO BOX 2150

La Plata, MD 20646

(301)645-0627


Growth Management


OCT, 2010


!\

DRRA

PRINCE

GEORGE'S

COUNTY

BRENTWOOD

Pa

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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.


Section 297-498 of the Charles County Zoning Ordinance, Charles County, Maryland, by and

through the County Commissioners, on behalf of all agencies and governmental authorities

within and part of the government of Charles County (collectively, the "County") is authorized

to enter into binding development rights and responsibility agreements with any person

having legal or equitable interest in the Subject Property. Both the Developer and the

County specifically recognize that a principal purpose of this Agreement is to provide certain

school related funding that the Developer would otherwise not be obligated to provide, and in

consideration of and upon reliance that (a) the County will provide school allocations to the

Developer in certain quantities and at certain specified times and (b) the County will not change

the rules and regulations pertaining to the development of the Subject Property from those in

effect when this Agreement was executed.


known as ‘BRENTWOOD’ which will contain a total of Three Hundred Fifty (350) single

family detached lots of which, 212 school allocations have already been issued. The remaining balance of one hundred thirty eight (138) single family detached lots are in need of school

allocations to satisfy the Adequate Public Facilities Ordinance.

5. The Charles County Planning Commission has reviewed the proposed subdivision through case number XPN 97-0010 and on ________________________ approved

the Preliminary Subdivision Plan for the Property which Preliminary Plan is hereby

incorporated herein by reference.

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6. On the ______ day of _____________, 2010, the County Commissioners held

a public hearing on this Agreement, notice of which had been published in accordance with §297-502 of the County Code.

NOW, THEREFORE, in consideration of the foregoing recitals, which are not

merely prefatory but are hereby incorporated into and made a part of this Agreement, and the mutual covenants and agreements set forth below, and other good and valuable consideration,

the receipt and sufficiency of which the parties hereby acknowledge, the County

Commissioners and the Developer hereby agree as follows:

The County Commissioners and the Developer hereby enter into this Agreement for

the purposes of permitting the Developer to (i) pay to the County a total of One Million Seven

Hundred Ninety Four Thousand Dollars ($1,794,000.00) (the "School Allocation Fee")

($13,000.00/each lot) plus the Inflationary Factor discussed below added to each installment

after the initial installment in order to have the County (a) issue one hundred thirty eight (138)

School Allocations to the Developer simultaneously with said payment(s) and (b) agree to not

change the rules and regulations pertaining to the development of the Subject Property from

those in effect when this Agreement was executed. If due to engineering constraints

discovered during preparation of the Final Subdivision Plat, the number of single-family lots

located within the Subject Property is reduced to a number below one hundred thirty eight

(138), the School Allocation Fee to be remitted to the County shall be reduced by the sum of

Thirteen Thousand Dollars ($13,000.00) per lot reduced.

The timetable through which Developer shall remit to County the aforegoing

consideration and through which the County shall release school allocations to the Developer shall be as follows:

1. Within seven (7) days of the ratification of this Agreement by all parties, the

Developer shall remit to the County the sum of One Hundred Eighty Two

Thousand Dollars ($182,000.00) and upon payment of the foregoing sum the

County shall release to Developer a total of fourteen (14) school allocations for

the Subject Property;

2. On or before June 30, 2011, the Developer shall remit to the County the sum

of Seventy Eight Thousand Dollars ($78,000.00) and upon payment of the

foregoing sum the County shall release to Developer a total of six (6) school

allocations for the Subject Property;


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

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shall release to Developer a total of twenty (20) school allocations for the

Subject Property;


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


Subject Property;





Subject Property;




shall release to Developer a total of twenty (20) school allocations for the Subject Property;


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

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Charles County as set forth by the Board of education for the State of Maryland each July for

the average of the preceding two years for which the amount is calculated plus an additional margin of three percent (3%).

ARTICLE I

DEFINITIONS

1.1 Definitions. The following words, when used in this Agreement, shall have the

following meanings:

(a) “Agreement” means this Developer’s Rights and Responsibilities Agreement.

(b) “County Code” means the Code of Charles County, Maryland and in effect

on the Effective Date of this Agreement.

(c) “County Commissioners” means the County Commissioners of Charles

County, Maryland, a body politic.

(d) “Department” means the Charles County Department of Planning and

Growth Management.

(e) “Development Approval” means final governmental approval of Subdivision

Plat and Site Plan(s) for each respective phase of the project that has been obtained and all

conditions of said approval that have been satisfied, and all applicable appeal periods have

expired without the filing of any appeal, or if an appeal(s) was filed, the appeal has been

defeated beyond the possibility or existence of further appeal of any kind.

(f) “Developer” means Wetherburn Associates, LLC, a Maryland limited liability

company, its successors and assigns in ownership of the Subject Property.

(g) “Effective Date of this Agreement” means the date the last party executes this Agreement.

(h) “Improvements” means those improvements to be made to road, sewer, water,

stormwater, parks and other facilities necessary to service the Subject Property as set forth on the Preliminary Plan Approval.

(i) “Planning Commission” means the Planning Commission for Charles County

Maryland.

(j) “School Allocation" means an allotment of school capacity with 1 allocation

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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


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.


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.


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.

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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




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.

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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.

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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,


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


Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue for

any proceedings brought with respect to this Agreement shall be in the Circuit Court Charles County, Maryland. The Developer does hereby waive trial by jury in connection with any

proceedings brought to enforce the terms of this Agreement.

5.3 Breach by County. If the County shall fail or refuse to perform its obligations as required, then after thirty (30) days written notice provided to the County by the Developer

indicating the nature of said default and if the County has not cured said default, the Developer

may seek and obtain equitable relief to enforce the terms and conditions of this Agreement

either through a decree for specific performance or an injunction, and further the Developer shall be entitled to bring a legal action for damages or other redress.

5.4 Costs and Attorneys' Fees. In the event of a judicial proceeding brought by one

party to this Agreement against the other party to this Agreement, for the enforcement or

breach of any provision of this Agreement, the prevailing party in such judicial proceeding

shall be entitled to reimbursement from the unsuccessful party of all costs and expenses,

including reasonable attorneys’ fees incurred in connection with such judicial proceeding.

ARTICLE VI




and policies governing the use, density or intensity of the Subject Property, including but not limited to those governing development, subdivision, growth management (i.e., growth

rate controls including, but not limited to, County limitations or “caps” on the issuance of

building permits or School Allocations), impact fees, water, sewer, stormwater

management, environmental protection, land planning and design, adequate public facilities laws and architecture, (hereafter collectively the "Development Laws") shall be the laws,

Pa

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rules, regulations and policies, if any, in force on the Effective Date of the Agreement.


imposition upon the Subject Property and compliance by the subject development with

Development Laws enacted or adopted after the Effective Date of this Agreement is

essential to ensure the health, safety or welfare of residents of all or part of Charles County, the County may impose the change in laws, rules, regulations and policies and the effect

thereof upon the subject development. The County Commissioners agree that the

foregoing phrase “essential to ensure the public health, safety and welfare of residents”

requires study, evaluation, conclusions and findings above and beyond the legal standards and legislative discretion normally used to enact and apply land use regulations, after a

public hearing during which the effect of the proposed change in Development Laws

upon the Subject Property is fully debated and analyzed.

(c) The County hereby agrees that during the term of this Agreement and

provided that Developer is not in default hereof beyond all applicable notice and cure

periods, then the Preliminary Plan, as amended, shall remain in full force and effect and

no further requests for extension shall be required.

6.2 Developer’s Reliance. The County Commissioners understand that but for their

commitment to "freeze" County Development Laws for purposes of this Agreement to the

maximum extent permitted by law as they apply to the development, to those County

Development Laws in effect upon the execution of this Agreement, the Developer would not

make the considerations to the County contained herein.

ARTICLE VII

MISCELLANEOUS

7.1 Time of Essence. Time is of the essence in the performance of all terms and provisions of this Agreement.


development is under construction and development, but in any event this Agreement shall be

void 20 years after the effective date of 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

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0

set forth below, or upon receipt if sent by telecopier to the telecopier numbers set forth below.

Notices and communications to the Developer shall be addressed to, and delivered at,

the following address:

Wetherburn Associates, LLC 3475 Leonardtown Road, Suite 100


with a copy to:

Louis P. Jenkins, Jr., Esq.

JENKINS LAW FIRM, L.L.C.

103 Centennial Street, Suite K


Telephone: (301) 934-2444

Telecopier: (301) 934-2221



The County Commissioners for Charles County

P.O. Box 2150

LaPlata, Maryland 20646

Attn: Melvin C. Beall, Jr., Director Department of Planning and Growth Management

Telephone: (301) 645-0627

Telecopier: (301)

with a copy to:

Roger L. Fink, Esq.

County Attorney P.O. Box 2150


Telephone: (301) 645-0582

Telecopier: (301)


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.

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1

7.4 Amendments. All amendments to this Agreement shall be in writing and shall be executed by the County Commissioners and the Developer.


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.




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.


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.

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WITNESS: DEVELOPER:

(SEAL) Wetherburn Associates, LLC,


By: David H. Posey & Associates, Inc., Member

By: David H. Posey, President


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.


_____________________________

NOTARY PUBLIC

Printed Name__________________


[ADDITIONAL SIGNATURE PAGE FOLLOWS]

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3



By: ___________________________(SEAL)

Name:___________________________

Title:____________________________

STATE OF MARYLAND, COUNTY OF ______________, to wit:



______________________, 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.


_____________________________

NOTARY PUBLIC Printed Name__________________


Approved for Acceptance: Approved as to Legal Sufficiency:

__________________________ ______________________________

Director, Planning and Growth County Attorney

Management

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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



(301) 934-2444

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EXHIBIT 1

LEGAL DESCRIPTION

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EXHIBIT 2



1. Deed of Trust securing John J. Duffy and Richard Marcinek, Trustees for the

benefit of NVR, Inc., dated November 8, 2005 in the principal amount of

$7,714,000.00 recorded among the land records of Charles County, Maryland at Liber

5652 Folio 545 and re-recorded at Liber 5689 Folio 722.

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EXHIBIT 3









Final Plat

OA

D

RO

AD

CHARLES

STRE ET 6

6

OL

IVE

RS

SHOP

RO

AD

GROSSTOWNROAD

©0 5,000 10,0002,500Feet


DRAWN BY:

CHECKED BY:

SCALE DATE


200 Baltimore St

PO BOX 2150

La Plata, MD 20646

(301)645-0627


Growth Management


OCT, 2010


!\

DRRA

BELMONT

Pa

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DEVELOPER RIGHTS AND RESPONSIBILITIES AGREEMENT

THIS DEVELOPER RIGHTS AND RESPONSIBILITY AGREEMENT

(“Agreement”), made as of the ___________ day of _________________, 2010, by and

between BELMONT, LLC, a Maryland limited liability company ("Developer"), and THE COUNTY COMMISSIONERS OF CHARLES COUNTY, MARYLAND, a body politic

and corporate ("County Commissioners").

RECITALS

1. The Developer is the owner of certain real property in Charles County, Maryland, described in Exhibit 1, attached hereto and made part hereof, (collectively referred

to as "Subject Property").

2. The names of all parties having an equitable or legal interest in the Subject Property, including lien holders, are set forth in Exhibit 2, attached hereto and made a part

hereof and certified to by counsel to the Developer.


Section 297-498 of the Charles County Zoning Ordinance, Charles County, Maryland, by and

through the County Commissioners, on behalf of all agencies and governmental authorities

within and part of the government of Charles County (collectively, the "County") is authorized

to enter into binding development rights and responsibility agreements with any person

having legal or equitable interest in the Subject Property. Both the Developer and the

County specifically recognize that a principal purpose of this Agreement is to provide certain

school related funding that the Developer would otherwise not be obligated to provide, and in

consideration of and upon reliance that (a) the County will provide school allocations to the

Developer in certain quantities and at certain specified times and (b) the County will not change

the rules and regulations pertaining to the development of the Subject Property from those in

effect when this Agreement was executed.


known as ‘BELMONT’ which will contain a total of Thirty (30) single family detached lots. The

forementioned lots are in need of school allocations to satisfy the Adequate Public Facilities Ordinance.

5. The Charles County Planning Commission has reviewed the proposed

subdivision through case number XPN 08-0007 and on September 8, 2008 approved the Preliminary Subdivision Plan for the Property which Preliminary Plan is hereby incorporated

herein by reference.

6. On the ______ day of _____________, 2010, the County Commissioners held

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a public hearing on this Agreement, notice of which had been published in accordance with

§297-502 of the County Code.

NOW, THEREFORE, in consideration of the foregoing recitals, which are not

merely prefatory but are hereby incorporated into and made a part of this Agreement, and the

mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the County

Commissioners and the Developer hereby agree as follows:

The County Commissioners and the Developer hereby enter into this Agreement for the purposes of permitting the Developer to (i) pay to the County a total of Three Hundred

Ninety Thousand Dollars ($390,000.00) (the "School Allocation Fee") ($13,000.00/each lot) plus

the Inflationary Factor discussed below added to each installment after the initial installment in

order to have the County (a) issue thirty (30) School Allocations to the Developer

simultaneously with said payment(s) and (b) agree to not change the rules and regulations

pertaining to the development of the Subject Property from those in effect when this

Agreement was executed. If due to engineering constraints discovered during preparation of

the Final Subdivision Plat, the number of single-family lots located within the Subject

Property is reduced to a number below thirty (30), the School Allocation Fee to be remitted

to the County shall be reduced by the sum of Thirteen Thousand Dollars ($13,000.00) per lot

reduced.

The timetable through which Developer shall remit to County the aforegoing

consideration and through which the County shall release school allocations to the Developer

shall be as follows:

1. Within seven (7) days of the ratification of this Agreement by all parties, the

Developer shall remit to the County the sum of Thirty Nine Thousand Dollars

($39,000.00) and upon payment of the foregoing sum the County shall release

to Developer a total of three (3) school allocations for the Subject Property;


of Twenty Six Thousand Dollars ($26,000.00) plus the inflationary factor as described below and upon payment of the foregoing sum the County shall

release to Developer a total of two (2) school allocations for the Subject

Property


of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as

described below and upon payment of the foregoing sum the County shall release to Developer a total of five (5) school allocations for the Subject

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Property;



described below and upon payment of the foregoing sum the County shall

release to Developer a total of five (5) school allocations for the Subject Property;


of Sixty Five Thousand Dollars ($65,000.00) plus the inflationary factor as described below and upon payment of the foregoing sum the County shall

release to Developer a total of five (5) school allocations for the Subject

Property;





Property;





Property; and

8. The Developer may accelerate payments and receipt of school allocations for

installments in advance of the fiscal year in which the installment is due. In the

event such early installment is made, the consideration payable will be

equivalent to the allocation cost for the fiscal year in which the early payment

is made.

The Inflationary Factor as described above shall be computed on an annual basis and equate to the same percentage as the change in the State of Maryland ‘Eligible Costs per

Square Foot’ for Charles County as set forth by the Board of Education for the State of

Maryland each July for the average of the preceding two years for which the amount is

calculated plus an additional margin of three percent (3%).

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ARTICLE I

DEFINITIONS

1.1 Definitions. The following words, when used in this Agreement, shall have the following meanings:

(a) “Agreement” means this Developer’s Rights and Responsibilities Agreement.

(b) “County Code” means the Code of Charles County, Maryland and in effect

on the Effective Date of this Agreement.

(c) “County Commissioners” means the County Commissioners of Charles County, Maryland, a body politic.

(d) “Department” means the Charles County Department of Planning and

Growth Management.

(e) “Development Approval” means final governmental approval of Subdivision

Plat and Site Plan(s) for each respective phase of the project that has been obtained and all

conditions of said approval that have been satisfied, and all applicable appeal periods have

expired without the filing of any appeal, or if an appeal(s) was filed, the appeal has been

defeated beyond the possibility or existence of further appeal of any kind.

(f) “Developer” means Belmont, LLC, a Maryland limited liability company, its

successors and assigns in ownership of the Subject Property.

(g) “Effective Date of this Agreement” means the date the last party executes this

Agreement.

(h) “Improvements” means those improvements to be made to road, sewer, water,

stormwater, parks and other facilities necessary to service the Subject Property as set forth on

the Preliminary Plan Approval.

(i) “Planning Commission” means the Planning Commission for Charles County Maryland.

(j) “School Allocation" means an allotment of school capacity with 1 allocation

required for recordation of each single family detached lot on the Subject Property.

(k) “Subdivision Plat” means a final plat(s) of subdivision for BELMONT, or any

Phase thereof, prepared in accordance with the County Code and approved by the Planning

Commission.

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(l) “Subject Property” means all of the real property described in Exhibit 1

attached hereto.

ARTICLE II


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.


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.


depicted on the Preliminary Plan.


approvals and agreements required by the County and those already approved for Belmont

Subdivision are those set forth on Exhibit 3, attached hereto and made a part hereof.

2.3 Regulation and Plan Consistency. The Planning Commission has determined that

the proposed development as depicted on the approved Preliminary Plan is consistent with

the Comprehensive Land Use Plan of Charles County, Maryland.

ARTICLE III

DEVELOPMENT REVIEW


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

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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




residence), and upon any and all successor owners of record of all or any portion of the Subject Property (except owners of an individual lot and/or dwelling purchased solely for use as a

private residence). To assure that all such successors, assigns, and successor owners have notice

of this Agreement and the obligations created by it, the Developer agrees that it shall:

(a) Have this Agreement recorded among the Land Records of Charles

County within 20 days after the effective date of this Agreement;

(b) Incorporate, by reference, this Agreement into any and all real estate

sales contracts entered into after the effective date of this Agreement for the sale of all or any

portion of the Subject Property, other than a contract of sale for the sale of an individual lot

and/or dwelling solely for use as a private residence; and

(c) Prior to the transfer of all or any portion of the Subject Property

(other than the transfer of an individual lot and/or dwelling purchased solely for use as a private

residence and/or a sale of lots not constituting a transfer of all or substantially all of the lots at

any one time), or any legal or equitable interest therein, require the transferee of said portion of

the Subject Property to execute an enforceable written agreement, in a form reasonably

satisfactory to the County Attorney, agreeing to be bound by the provisions of this Agreement,

and to provide the County, upon request, with such reasonable assurance of the financial ability of such transferee to meet those obligations as the County reasonably may require.

4.2 Responsibilities of Developer Upon Transfer to a Successor. The County agrees that upon a successor becoming bound to the obligation created herein in the manner provided

herein and providing the financial assurances required herein, the liability of the Developer

shall be released to the extent of the transferee's assumption of such liability. The Developer

agrees to notify the County, in writing, at least 30 days prior to any date upon which the Developer transfers a legal or beneficial interest in any portion of the Subject Property, other

than individual lots and/or dwellings purchased solely for use as a private residence and/or a

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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



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


Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue

for any proceedings brought with respect to this Agreement shall be in the Circuit Court of

Charles County, Maryland. The Developer does hereby waive trial by jury in connection

with any proceedings brought to enforce the terms of this Agreement. In addition to the

above referenced remedies, and in addition to all remedies of the County at law or in equity,

in the event of any default under this Agreement by the Developer, the County shall have

the right, unilaterally, and without prior notice to the Developer, and without the need for

resort to any court or administrative proceedings or hearing, to suspend and/or revoke, in

the County's sole discretion, any and all development permits, development services permits,

grading permits, building permits and/or other permits or approvals issued by the County

with respect to the Property. The County reserves the right, it its sole and absolute

discretion, to reinstate and/or reissue any permit or approval suspended or revoke

hereunder, upon any cure or correction of the default hereunder by the Developer, but the

County shall not have the obligation to reinstate or reissue any such permit or approval.

5.2 In the event that any default under this Agreement by the Developer, the County shall have all rights and remedies, at law or in equity. Without limitation to the



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


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Agreement, including, but not limited to, reasonable attorneys fees. Jurisdiction and venue for

any proceedings brought with respect to this Agreement shall be in the Circuit Court Charles County, Maryland. The Developer does hereby waive trial by jury in connection with any

proceedings brought to enforce the terms of this Agreement.

5.3 Breach by County. If the County shall fail or refuse to perform its obligations as

required, then after thirty (30) days written notice provided to the County by the Developer indicating the nature of said default and if the County has not cured said default, the Developer

may seek and obtain equitable relief to enforce the terms and conditions of this Agreement

either through a decree for specific performance or an injunction, and further the Developer

shall be entitled to bring a legal action for damages or other redress.

5.4 Costs and Attorneys' Fees. In the event of a judicial proceeding brought by one

party to this Agreement against the other party to this Agreement, for the enforcement or

breach of any provision of this Agreement, the prevailing party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful party of all costs and expenses,

including reasonable attorneys’ fees incurred in connection with such judicial proceeding.

ARTICLE VI




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.


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

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and legislative discretion normally used to enact and apply land use regulations, after a

public hearing during which the effect of the proposed change in Development Laws upon the Subject Property is fully debated and analyzed.

(c) The County hereby agrees that during the term of this Agreement and

provided that Developer is not in default hereof beyond all applicable notice and cure periods, then the Preliminary Plan, as amended, shall remain in full force and effect and

no further requests for extension shall be required.

6.2 Developer’s Reliance. The County Commissioners understand that but for their commitment to "freeze" County Development Laws for purposes of this Agreement to the

maximum extent permitted by law as they apply to the development, to those County

Development Laws in effect upon the execution of this Agreement, the Developer would not

make the considerations to the County contained herein.

ARTICLE VII

MISCELLANEOUS




development is under construction and development, but in any event this Agreement shall be

void 20 years after the effective date of this Agreement.



person on a business day at the address set forth below or (2) on the third business day after

being deposited in any main or branch United States post office, for delivery by properly addressed, postage prepaid, certified or registered mail, return receipt requested, at the address

set forth below, or upon receipt if sent by telecopier to the telecopier numbers set forth below.

Notices and communications to the Developer shall be addressed to, and delivered at, the following address:

Belmont, LLC

3475 Leonardtown Road, Suite 100 Waldorf, Maryland 20602

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with a copy to:

Louis P. Jenkins, Jr., Esq.

JENKINS LAW FIRM, L.L.C.


La Plata, Maryland 20646 Telephone: (301) 934-2444

Telecopier: (301) 934-2221

Notices and communications to the County Commissioners shall be addressed to, and delivered at, the following address:

The County Commissioners for Charles County

P.O. Box 2150


Attn: Melvin C. Beall, Jr., Director

Department of Planning and Growth Management

Telephone: (301) 645-0627

Telecopier: (301)

with a copy to:

Roger L. Fink, Esq.

County Attorney

P.O. Box 2150 LaPlata, Maryland 20646

Telephone: (301) 645-0582

Telecopier: (301)


change the address or addressee or both for all future notices and communications to such

party, but no notice of a change of address shall be effective until actually received.

7.4 Amendments. All amendments to this Agreement shall be in writing and shall be


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

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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.




Circuit Court of Charles County, Maryland or any federal court sitting in the District of

Maryland.


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.


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]

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IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above written.

WITNESS: DEVELOPER:

(SEAL) Belmont, LLC,


By: David H. Posey, Member




Belmont, LLC by its member, David H. Posey, known to me (or satisfactorily proven) to be

the person whose name is subscribed to the within instrument, and acknowledged that he

executed the same for the purpose therein contained as the duly authorized Member of said

company.


_____________________________

NOTARY PUBLIC

Printed Name__________________


[ADDITIONAL SIGNATURE PAGE FOLLOWS]

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By: ___________________________(SEAL)

Name:___________________________

Title:____________________________

STATE OF MARYLAND, COUNTY OF ______________, to wit:



______________________, 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.


_____________________________

NOTARY PUBLIC Printed Name__________________


Approved for Acceptance: Approved as to Legal Sufficiency:

__________________________ ______________________________

Director, Planning and Growth County Attorney

Management

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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



(301) 934-2444

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EXHIBIT 1

LEGAL DESCRIPTION

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EXHIBIT 2



1. Deed of Trust securing Louis P. Jenkins, Jr. as Trustee for Dorothy Winn and

Barbara Bullin dated 8-16-07 in the principal amount of $600,000.00 and recorded

among the land records of Charles County, Maryland at Liber 6429 Folio 0359.

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EXHIBIT 3









Final Plat

developer rights and responsibilities agreements...developer rights and responsibilities agreements...

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