CHARLES COUNTY GOVERNMENT

Department of Planning and Growth Management

Melvin C. Beall, Jr., P.E., Director

INTEROFFICE MEMORANDUM

TO: Denise Ferguson, Clerk to the Commissioners

THRU: Chuck Beall, Director

THRU: Jason Groth, Chief of Resource and Infrastructure Mgmt.

FROM: Zak Krebeck, Senior Resource Planner

DATE: August 25, 2009

SUBJECT: AGENDA ITEM: Lords Creek Developer Rights and Responsibilities Agreement (DRRA) – Commissioner's Initial Work Session -- September 1, 2009

This memorandum serves to transmit 3 copies of the application and DRRA for Lords Creek Subdivision for the Commissioner's initial work session. This work session is to determine if the application merits formal staff review. The County Attorney has reviewed the attached submittal.

The Commissioner's Initial Work Session is scheduled for Tuesday, September 1, 2009 at 12:30 PM in the Commissioners Meeting Room. Should you have any questions or request additional copies, please contact me by calling (301) 396-5816 or by email: krebeckz@charlescounty.org. Attachments (3) – 1) Preliminary Staff Findings with 3 Location/Informational Maps 2) Application and submitted Draft DRRA 3) Approved and Pending DRRA Allocation Tracking Table cc: Roger Fink, County Attorney w/o Application and DRRA

F:\HOME\PGMS2\RIM\APF Section\Developer's Rights\LordsCreektransmitmemo_Aug09

Preliminary Findings

Developer Rights and Responsibilities Agreement

Lords Creek Subdivision

Initial Work Session – September 1, 2009

1. The applicants, Leroy C. and Diane S. Wagner., request approval of a Developer Rights

and Responsibilities Agreement related to SY 2010 DRRA school allocation request.

2. The subject property is accessed from the north side of Grosstown Road which connects

to Olivers Shop Road. The property is specifically located on Tax Map 46, Grid 7,

Parcel 31 containing 14.2 acres and is situated north of Dentsville (See attached Aerial

Photo and Location Map Exhibits).

3. The zoning of the subject property is AC, Agricultural Conservation, which permits a

density of one (1) dwelling unit per three acres by right (See attached Zoning Map

Exhibit). The proposed development is a conventional subdivision for 3 new lots.

4. The proposed lots are to be serviced by individual private wells and on-site septic

systems.

5. The Preliminary Plan of subdivision for Lords Creek was approved by the Planning

Commission on July 21, 2003. The Planning Commission’s approval included a finding

of consistency with the Comprehensive Plan; therefore, referral to the Planning

Commission was not required.

6. According to the Adequate Public Facilities Manual the creation of an additional three

(3) lots to the subdivision requires that the project be placed on the School Allocation

Waiting List in the order of the official approval date of their Preliminary Plan of

Subdivision. The project is currently waiting for a school allocation in the La Plata

High School Attendance Zone, the Milton Somers Middle School Zone, and the T.C.

Martin Elementary School Zone.

7. The County Commissioners are scheduled to conduct the Initial Work Session, on

September 1, 2009, at 12:30 PM, to determine if there is merit for formal staff review.

8. The applicant is proposing to mitigate the impact of school construction costs by

offering to pay $16,500.00 per lot for three (3) lots to satisfy the Adequate Public

Facilities Ordinance for schools. Therefore, the applicant proposes to pay a total of

$49,500.00 at the time the 3 allocations are granted for SY 2010. Prior to final signature,

the agreement will state the actual date of the granting of allocations and the due date of

the payment.

F:\HOME\PGMS2\PZ\APF Section\Developer Rights\Lords Creek_Findings_CC worksession_Aug09

©0 0.4 0.80.2Miles

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

DRAWN BY:

CHECKED BY:

DATECHARLES COUNTY GOVERNMENT

200 Baltimore StPO BOX 2150

La Plata, MD 20646(301)645-0627

Department of Planning andGrowth Management LOCATION MAP

CHARLES COUNTY, MD

Lord's Creek

!\

Subject PropertyTax Map 46 Parcel 31

August, 2009SCALE

©0 490 980 1,470 1,960245Feet

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 DATECHARLES COUNTY GOVERNMENT

200 Baltimore StPO BOX 2150

La Plata, MD 20646(301)645-0627

AERIAL MAPCHARLES COUNTY, MD

Department of Planning andGrowth Management

Lord's Creek

Subject PropertyTax Map 46 Parcel 31

August, 2009

(2007)

GROSSTOWN ROAD

OLIVERS

SHO

P R

OAD

©0 1,900 3,800 5,700 7,600950Feet

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 DATECHARLES COUNTY GOVERNMENT

200 Baltimore StPO BOX 2150

La Plata, MD 20646(301)645-0627

Department of Planning andGrowth Management ZONING MAP

CHARLES COUNTY, MD

Lord's Creek

Subject PropertyTax Map 46 Parcel 31

August, 2009

AC

AC

AC

AC

LEGENDZONING

AC

Approved and Pending Developer Rights and Responsibilities Agreements (DRRA) Allocations Tracking FormDRRA Project No. of P.C. Approval Application CC Approval Recorded DRRA Allocation Phasing

# Name DRRA Lots Prelim. Plan Submittal Date Agreement Date 2006 2007 2008 2009 2010 2011 2012 2013 2014

05-01 Scotland Heights 60 10/18/2004 03/23/2005 01/24/2006 01/07/2007 0 25 75 50 50 50 50 50 005-04 Leighland Meadows 60 10/18/2004 03/23/2005 01/24/2006 06/29/2006 58 0 0 0 0 0 0 0 005-05 Heritage Green (La Plata) 3,170 N/A 03/29/2005 04/01/2008 06/20/2008 0 0 0 0 200 200 200 200 20005-03 Holly Hall 39 06/06/2005 06/13/2005 01/24/2006 06/29/2006 39 0 0 0 0 0 0 0 005-02 Piney Grove Estates 185 08/15/2005 08/25/2005 01/24/2006 10/05/2006 60 0 0 125 0 0 0 0 005-09 Autumn Hills 150 01/06/2003 10/28/2005 03/06/2006 05/11/2006 50 50 50 0 0 0 0 0 006-02 Swan's Rest 2 06/21/2005 01/24/2006 08/01/2006 09/25/2006 2 0 0 0 0 0 0 0 006-09 Twins Ponds 20 12/12/2005 03/06/2006 06/20/2006 11/11/2006 0 0 20 0 0 0 0 007-01 Sandy Pointe 2 03/06/2006 03/20/2006 11/28/2006 04/16/2007 0 2 0 0 0 0 0 0 006-12 Town Center South 691 08/21/2006 05/19/2006 09/19/2006 07/18/2008 180 262 200 0 0 0 0 0 006-13 Misty's Cove 3 01/05/2004 06/14/2006 10/16/2006 02/22/2007 0 3 0 0 0 0 0 0 006-14 Chandler Property Lot 6/7 N/A N/A 06/26/2006 07/31/2006 10/18/2006 0 0 0 0 0 0 0 0 006-16 Knotting Hill 57 09/11/2006 09/22/2006 03/07/2007 04/16/2007 0 0 18 20 13 6 0 006-17 Covington Pointe 12 10/30/2006 09/22/2006 03/07/2007 03/19/2007 0 6 6 0 0 0 0 0 007-02 North Pointe 70 01/13/2003 05/07/2007 07/25/2007 08/02/2007 0 70 0 0 0 0 0 0 007-04 The Willows 25 06/18/2007 07/23/2007 10/24/2007 04/21/2008 0 0 0 0 25 0 0 0 007-03 Waterford 18 01/18/2007 07/23/2007 10/24/2007 04/21/2008 0 0 18 0 0 0 0 0 008-01 Ryceville Woods Lot 2B 1 05/24/2007 02/21/2008 05/23/2008 05/23/2008 0 0 1 0 0 0 0 0 008-02 Ballantrae Subdivision 25 07/21/2003 05/16/2008 07/29/2008 03/16/2009 0 0 0 25 0 0 0 0 009-01 Lords Creek Subdivision 3 12/19/2003 4/20/2009

TOTALS: 389 418 350 238 295 263 256 250 200

NOTES1. 900 DRRA allocations available annually for 2006 - 2017, as approved by the County Commissioners June 6, 2005.2. In all cases Mitigation Payments have been proposed to be paid in the year in which the allocations are granted.3. This spreadsheet represents the best available information as a working document that is subject to revision. 4. The Chandler Property DRRA is related to an off-site road improvements proffers.5. Allocations shown in RED means that the mitigation requirement has been satisfied. 6. Heritage Green will reach final allocations at 200 per year through 2019.

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DAVIS UPTONPALUMBO&KEFFLER,LLC

~d~Members Associates

Mark J. Davis

Mark J. Palumbo

Rosemary J. Kerner April 20, 2009

Robert I. Damalouji

Mikaela Rossman Clark

PauIJ.Dougherty,lll

Tracy M. Delaney

or Counsel VIA HAND DELIVERY

Jack G. Upton

Charles County Commissionersc/o Charles County Government Planning and Growth ManagementAttn: Director of Planning and Growth ManagementP.O. Box 2150La Plata, MD 20646

Re: Proposed Development Rights and Responsibilities AgreementLord's Creek SubdivisionXRS 07-0101Lots SA-SD

Dear Director:

Please consider this letter to be the requisite transmittal document petitioningthe Commissioners of Charles County to enter into a Developer's Rights andResponsibilities Agreement (hereinafter "DRRA") for and on behalf of thePetitioners, LeRoy C. and Diane S. Wagner (hereinafter collectively "Wagner","Developer" or the "Petitioners"), owners of the subject property referenced above.

In summary, the Petitioners request to enter into the DRRA for the benefit ofobtaining three (3) school allocations for the proposed residential subdivision knownas "Lord's Creek", for which only three (3) school allocation(s) are needed for thesubdivision lots consisting of a total of 14.20 +/- acres. Indeed, the Charles CountyPlanning Staff reviewed the proposed major subdivision through case numberXPN030002 (the "Preliminary Plan") and approved the same subject to theattainment of three (3) school allocations. In or about March, 2005 the Developerapplied for, paid and received the required three (3) school allocations. However,the school allocations expired before the subdivision plats could be recorded. Inapproving the Preliminary Plan on or about December 19, 2003, the Planning stafffound that the proposed development was consistent with the applicabledevelopment regulations and the comprehensive plan. The Petitioners request toenter into this DRRA in order to pay over time (for a period of two years) therequisite school allocation fee as it appears now that the County has requiredadditional road engineering work to be completed, that upon information and beliefwill take approximately two years to complete, before final subdivision approval isgranted. As such, Petitioners have a need to enter into this Agreement in order to,

132MainStreet . Prince Frederick, MD20678 . 410- 535-1780 . 301-855-1522 . Fax:301-855-1916

www.DavisUpton.com info@DavisUpton.com

DAVIS UPTON

PALUMBO & KEFFLER. LLC

~d~Charles County Commissionersc/o Charles County Government Planning and Growth ManagementApril 20, 2009Page 2

among other things, pay the required school allocation fee of $49,500.00 ($16,500.00x three (3) school allocations) over time in order to obtain final record plat.

It is the intention of the Petitioners to comply with all applicable local, stateand Federal laws. To that end enclosed please find the following:

1. DRRA Application;2. Twelve (12) copies of the formal draft ofthe DRRA;3. Check in the amount of$3,629.00 for the filing fee.

If you have any questions, please feel free to call me. Thank you.

Very truly yours,

ft::!t.Enclosures:

cc: Mr.LeRoyWagnerMr. Herbert Crowder

onsibilities A~eement A

Lord's Crp-p-k Sl1hnhri!';;nn, Lni-!'; 1:\~-5nProject Name

Leroy C.& Diane S. Waqner 419 Saber Creek DrivePropertyOwner'sName Arldress

SAME AS ABOVEAddress

r waqner43@hotmail.comApplicant's e-mail address

Application is hereby made for approval oftbe DeveloperRights & Responsibilities Agreement hereinafter described:

719-244-SSR4 .

PropertyOwner'sPhoneNumber

Leroy .<t~&m};iane SApplicant'sName

SAMEApplicant's Phone Number

Preliminary Plan Approved?

P~rmit C?fficeUse'Onl~. 0° ,"

DateSubm:lfte,i"( , _ .:: ..'.

~j~~;Plid'i/>..:<~:~::::;~..~.~..",'.~:. ~:. ':':'~..:.: .:.. .f.. '.

.~'.'-~:~I'U~"-::'~:~~~:.:I,':'::,:',~'-"I~'.:"ll:.~f-::...:' ~..:'.~"~~: ...Proper.'ty '.":~" ,.. .'.' ..,.. . , - '..

::'~:.\'~~~~v~~~i.::;"':~;..~:'\': ;,,:~:::~\::i:,;..,:~::...t~\:: ,,::;,~" :.::'..:.-. :.,:FiIeNiimber:..A:ssiirlied:1~'~.:. .: .~'-:':::'.~.::'!~'. ::.~; ) :.

~: (..;.-. ;""i ';:Lj1.~...:.:'.' .," . .: ~..I. .1 '0. . ':". Staff:In'ltials:.: .. '" '. . ". ,., .-:-.. :\'~':!..~:~ :~.:' .~ I' ~:.~.:..

MonumentCity,State

Colorado 80401Zip

City,State Zip

Yes--X No_ ApprovalDate 12-1 Q-01

Numberof ResidentialDwellingsApproved? SingleFamily-L

Current Number of School Allocations granted to project, if any?

SITE INFORMATION

12774;: Grosstown RoadStreet Location

Tax Ma~ 46, Grid 07, Parcp-l 31Tax Map, Grid, ParcellBlock & Lot

14 7.0 Acrp!';Acreage of Entire Tract

~~?.1/338LiberlFofio

ACBaseZoneDistrict(s) .Pl~ed Develop. District(s)

Compo Plan use Designation(s) Public Water & Sewer 0 .

Townhouse_ Multi-family_

Use Intended for Proposal

B.t.bElection District

RI)1100Census Tract

PlatBoo~

Overlay District(s)

Well& Septic ~

PublicRoad 0 PublicWaterFacility 0 PublicSewerFacility 0

Public Facility Subject to Developer Agreement? (If multiple, please select all applicable facility types.)

Other 0PublicSchoolFacility 0

IfDRRA is for School Capacity Allocation, please state number of allocations requested by year: #_ in200_,#_ in200-,#_ in200_.

. Permit Technician Only

1. Transmittal Letter

2. Required application processing fee.

3. 12 Copies oftbe draft Agreement Package

,fJi itemisprovidedooo

Okayto Commentsprocessooo

....

Developer Rights & Responsibilities Agreement Application (DRRA)Pae:e 2

B. Submittal Requirements -DRRA Application submittal MUST include the following:(To be completed by applicant)

If item isprovided

1. Ae:reement Application -transmittal letter

~ a.

) Addressed to County Commissioners via Director of Planning and Growth Management.I:J./ b) nature and scope of agreement summaryr!f /c) current review status of applicant's development plan~ for the subject property~ d) applicant's statement of need for the proposed agreementC!'r e) affirmation of applicant's intent to comply with all applicable local, State, and

Federal laws.

2. ~ Required application processing fee.

3. Formal draft ofDRRA containing:

~ a) Lawyer Certification that petitioner as legal interest.

(9/ b) a complete legal description of the property(ies) subject to the agreement

e/' c) The names of all parties having an equitable or legal interest in the subject property(ies), including any and all lien holders.

~_. d) The duration of the agreement, including any proposed phasing plans.

. () ':?ODO1-o e) PreliminaryPlanNo~ tJ - {tfnone include the following:)

o 1. The proposed permissible uses of the real property(ies), as specified by the Charles County Zoning Ordinance,including identification of proposed land uses that are permitted with conditions or by special exception inaccordance with the applicable zoning;

o 2. The density or intensity of use of the real property(ies), including a statement of intent to purchase or utilize TDRs(or verification that TDRs have been purchased, as the case may be) for any proposed increase in density over themaximum allowed by the applicable zoning;

o 3. The maximum height and size of structures to be located on the real property(ies);

o 4. Architectural elevation sketches;

~ f) A description of the plan approvals and permits required or already approved for the development of the property(ies);

~ g) A statement that the proposed development is consistent with the applicable development regulations and the~omprehensive plan;

~ h) A description of the conditions, terms, restrictions or other requirements determined by the County Commissioner or theirdesignees to be necessary to ensure the public health, safety, or welfare;

o I) To the extent applicable, provisions for:

I. Dedication or reservation of a portion ofthe real property(ies) for public or private uses;2. Protection of sensitive areas;3. Preservation or restoration of historic structures;4.. Construction or financing of public facilities;

~j) Provisions to the effect that the petitioner shall be responsible for attorney's fees, costs, and expenses incurred by theCounty Commissioners in the event an agreement is abandoned or breached by the petitioner, and

o k) If applicable or desired by the petitioner, the terms by which development and construction may commence and becompleted, including, but not limited to, specific construction start and completion dates, development phasing schedules, andgrandfather provisions., I) the Petitioner's Proposed Terms of Agreement or Proffer, as Introduced and Summarized in the Accompanying TransmittalLetter Required in Subparagraph a Above.

Developer Rights & Responsibilities Agreement Application (DRRA)Pa~e 3

The applicant hereby certifies that this application for Developer Rights & Responsibility Agreement is complete and that theinformation provided is correct.

C:\Documents and Settir.gs\Administrator\Local Se:tir:gs\Temp\DRRA Application.wpd

DEVELOPMENT RIGHTS AND RESPONSIBILITIES AGREEMENT

This Development Rights and Responsibilities Agreement (the "Agreement") is madethis day of , 2009, by and between LeRoy C. Wagner and Diane S.Wilder (collectively the "Developer"), and the County Commissioners of Charles County,Maryland, a body corporate and politic (hereinafter the "County").

WITNESSETH:

1. Developer is the fee simple owner of that certain land and premises (the"Property") lying and being in the Eighth (8th)Election District of Charles County, Maryland,and more particularly described on Exhibit 1 attached hereto and made a part hereof; and

2. The names of all parties having an equitable or legal interest in the SubjectProperty, including lien holders, are set forth in Exhibit 2, attached hereto and made a part hereofand certified to by counsel to the Developer.

3. Pursuant to Chapter 297, Zoning Regulations, Article XXX, Development Rightsand Responsibilities Agreements, of the Code of Charles County, Maryland (the "Act"), CharlesCounty, Maryland, by and through the County Commissioners, on behalf of all agencies andgovernmental authorities within and part of the government of Charles County (collectively, the"County") is authorized to enter into binding development rights and responsibility agreementswith any person having legal or equitable interest in the Subject Property. Both the Developerand the County specifically recognize that a principal purpose of this Agreement is to providecertain 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 tothe Developer in certain quantities and at certain specified times and (b) the County will notchange the rules and regulations pertaining to the development of the Subject Property fromthose in effect when this Agreement was executed.

4. The Developer is currently in the process of developing a residential communityknown as "Lord's Creek", for which only three (3) school allocation(s) are needed for thesubdivision lots consisting of a total of 14.20 +/- acres.

5. The Charles County Planning Staff has reviewed the proposed major subdivisionthrough case number XPN030002 (the "Preliminary Plan") and approved the same subject to theattainment of three (3) school allocations. Indeed in or about March, 2005 the Developer appliedfor, paid and received the required three (3) school allocations. These school allocations,however expired before the subdivision plats could be recorded. In approving the PreliminaryPlan the Planning staff found that the proposed development was consistent with the applicabledevelopment regulations and the comprehensive plan.

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6. On the _ day of , 200_, the County Commissioners held a publichearing on this Agreement, notice of which has been published in accordance with §297-502 ofthe County.

NOW, THEREFORE, in consideration of the foregoing recitals, which are not merelyprefatory but are hereby incorporated into and made a part of this Agreement, and the mutualcovenants and agreements set forth below, and other good and valuable consideration, the receiptand sufficiency of which the parties hereby acknowledged, the County Commissioners and theDeveloper hereby agree as follows:

The County Commissioners and the Developer hereby enter into this Agreement for thepurposes of permitting the Developer to (i) pay to the County a total of $49,500.00 ($16,500.00x three (3) school allocations) (the "School Allocation Fee") which shall be payable within two(2) years of approval of this DRRA in order to have the County (a) issue School Allocation to theDeveloper simultaneously with said payment (b) allow the Developer the opportunity to performroad engineering and other work to comply with County requirements on the Preliminary Plan;and (c) agree to not change the rules and/or regulations, including any fees and/or otherassessments of any type pertaining to the development of the Subject Property from those ineffect when this Agreement was executed.

ARTICLE IDEFINITIONS

1.1 Definitions. The following words, when used in this Agreement, shall have thefollowing 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 theEffective Date of this Agreement.

(c) "County Commissioners" mean the County Commissioners of Charles County,Maryland, a body politic.

(d) "Department" means the Charles County Department of Planning and GrowthManagement.

(e) "Development Approval" means final governmental approval of Subdivision Platand Site Planes) for each respective phase ofthe project that has been obtained and all conditionsof said approval that have been satisfied, and all applicable appeal periods have expired withoutthe filing of any appeal, or if an appeal(s) was filed, the appeal has been defeated beyond thepossibility or existence of further appeal of any kind.

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(f) "Developer" means LeRoy C. Wagner and Diane S. Wagner f/k/a Diane S.Wilder, individuals residing in the State of Colorado, and their successors and assigns inownership of the Subject Property.

(g) "Effective Date of this Agreement" means the date the last party executes thisAgreement.

(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 thePreliminary Plan Approval.

(i)Maryland.

"Planning Commission" means the Planning Commission for Charles County

G) "School Allocation" means an allotment of school capacity with 1 allocationrequired for recordation of each single family detached lot on the Subject Property, unlessotherwise provided for by local or state rules, laws, ordinances or regulations.

(k) "Subdivision Plat" means a final plates) of subdivision for Lots , or anyPhase thereof, prepared in accordance with the County Code and approved by the PlanningCommission.

(1)hereto.

"Subject Property" means all of the real property described in Exhibit 1 attached

ARTICLE IILIMITATIONS. PERMITS AND PLAN CONSISTENCY

2.1 Development Limitations. Many development limitations have been establishedon the Preliminary Plan, and when the same can be clearly ascertained therefrom (such assetbacks, building heights and buffer requirements) the same limitations are not repeated hereinin this Article II. If a limitation or restriction contained herein conflicts with that shown on thePreliminary Plan, the more restrictive shall apply.

(a) The permissible users on the Subject Property are those permitted in theComprehensive Land Use Plan of Charles County, Maryland for the area within which theSubject Property is located and those permitted in the Preliminary Plan. Specifically, theDeveloper intends to and is currently in the process of developing a single family detachedresidential lot community. Any modifications to the permissible users must be approved by thePlanning Commission as an amendment to the Preliminary Plan, and the County Commissionersas an amendment to this Agreement.

(b) The density or intensity of uses on the Subject Property shall be thatdepicted on the Preliminary Plan.

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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 the proposedSubdivision development are those set forth on Exhibit 3, attached hereto and made a parthereof.

2.3 Regulation and Plan Consistency. The Planning Commission has determined thatthe proposed development as depicted on the approved Preliminary Plan is consistent with theComprehensive Land Use Plan of Charles County, Maryland.

ARTICLE IIIDEVELOPMENT REVIEW

3.1 Timely Development Review. The County and Developer recognize that but forthe 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 realizedby the community. Additionally, it is recognized that the project has, to date, gone throughextensive and comprehensive design and environmental review and approval including thePreliminary Plan and the other permit and plan approvals listed on Exhibit 3. Accordingly, theCounty agrees to use its best efforts to ensure that all remaining development reviews, includingbut not limited to, preliminary subdivision, final subdivision and final development plan revieware performed in a succinct, timely manner, without undue delay, not inconsistent with theCounty's current development review process.

ARTICLE IVSURVIVAL AND TRANSFER OF OBLIGATION

4.1 Nature, Survival, and Transfer of Obligations. The Developer agrees that allobligations assumed by it under this Agreement shall be binding upon it, its successors andassigns (except owners of an individual lot and/or dwelling purchased solely for use as a privateresidence), and upon any and all successor owners of record of all or any portion of the SubjectProperty (except owners of an individual lot and/or dwelling purchased solely for use as a privateresidence). To assure that all such successors, assigns, and successor owners have notice of thisAgreement and the obligations created by it, the Developer agrees that it shall:

(a) Have this Agreement recorded among the Land Records of CharlesCounty within 20 days after the effective date of this Agreement.

(b) Incorporate, by reference, this Agreement into any and all real estate salescontracts entered into after the effective date of this Agreement for the sale of all or any portionof the Subject Property, other than a contract of sale for the sale of an individual lot and/ordwelling solely for use as a private residence; and

4

(c) Prior to the transfer of all or any portion of the Subject Property (otherthan the transfer of an individual lot and/or dwelling purchased solely for use as a privateresidence and/or a sale of lots not constituting a transfer of all or substantially all of the lots atanyone time), or any legal or equitable interest therein, require the transferee of said portion ofthe Subject Property to execute an enforceable written agreement, in a form reasonablysatisfactory 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 abilityof such transferee to meet those obligations as the County reasonably may require.

4.2 Responsibilities of Developer Upon Transfer to a Successor. The County agreesthat upon a successor becoming bound to the obligation created herein in the manner providedherein and providing the financial assurances required herein, the liability of the Developer shallbe released to the extent of the transferee's assumption of such liability. The Developer agreesto notify the County, in writing, at least 30 days prior to any date upon which the Developertransfers a legal or beneficial interest in any portion of the Subject Property, other than individuallots and/or dwellings purchased solely for use as a private residence and/or a sale of lots notconstituting a transfer of all or substantially all of the lots at anyone time.

4.3 Binding Upon Successors and Assigns of the County. The County agrees that allobligations assumed by it under this Agreement shall be binding on it, its agencies, governmentalunits, the Planning Commission and its and their respective successors and assigns.

ARTICLE VBREACH AND REMEDIES

5.1 In the event Developer shall fail to pay any installment of the School AllocationFee to the County as and when provided in this Agreement, and then fails to cure such default bypaying the full amount of the delinquent installment of the School Allocation Fee within ten (10)business days after receipt of written notice of such default from the County, the County shallhave 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 competentjurisdiction, enjoining the Developer from any further violation of thisAgreement and/or mandating that the Developer pay the delinquentSchool Allocation Fees in compliance with this Agreement; and

(c) without the need for resort to any court or administrative proceedings forhearing, the right to suspend and/or revoke, in the County's solediscretion, any and all development permits, development servicespermits, grading permits, building permits and/or other permits issued bythe County with respect to the Property. Upon any cure of the default

5

under this section, the County will reinstate and/or reissue any permitsuspended or revoked under this clause (c).

5.2 In the event that any default under this Agreement by the Developer, theCounty shall have all rights and remedies, at law or in equity. Without limitation to theforegoing, the Developer recognizes that in the event of a default hereunder by theDeveloper, the County may not have an adequate remedy at law, and that therefore, theCounty shall have the right to seek an injunction to be issued by a court of competentjurisdiction, enjoining the Developer from any further violation of this Agreement and/ormandating that the Developer comply with this Agreement. In addition to all other rightsand remedies that Developer shall be responsible for all costs incurred by the County inenforcing this Agreement, including, but not limited to, reasonable attorneys fees.Jurisdiction and venue for any proceedings brought with respect to this waive trial by juryin 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 itsobligations as required, then after thirty (30) days written notice provided to the Countyby the Developer indicating the nature of said default and if the County has not curedsaid default, the Developer may seek and obtain equitable relief to enforce the terms andconditions of this Agreement either through a decree for specific performance or aninjunction, and further the Developer shall be entitled to bring a legal action for damagesor other redress.

5.4 Costs and Attorneys' Fees. In the event of a judicial proceeding broughtby one party to this Agreement against the other party to this Agreement, for theenforcement or breach of any provision of this Agreement, the prevailing party in suchjurisdiction proceeding shall be entitled to reimbursement from the unsuccessful party ofall costs and expenses, including reasonable attorney's fees incurred in connection withsuch judicial proceeding.

ARTICLE VIEFFECT OF DEVELOPMENT REGULATIONS

6.1 Effective Agreement:

(a) Except as otherwise provided in this Agreement, 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, growthmanagement (i.e. growth rate controls including, but not limited to, County limitations or"caps" on the issuance of building permits or School Allocations), school allocation fees,impact fees, water, sewer, stormwater management, environmental protection, landplanning and design, adequate public facilities laws and architecture, (hereaftercollectively the "Development Laws") shall be the laws, rules, regulations and policies, ifany, in force on the Effective Date of the Agreement.

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(b) The County hereby agrees that during the term of this Agreementand provided that Developer is not in default hereof beyond all applicable notice and cureperiods, then the Preliminary Plan, as amended, shall remain in full force and effect.

6.2 Developer's Reliance. The County Commissioners understand that but fortheir commitment to "freeze" County Development Laws for purposes of this Agreementto the maximum extent permitted by law as they apply to the development, to thoseCounty Development Laws in effect upon the execution of this Agreement, theDeveloper would not make the considerations to the County contained herein.

ARTICLE VIIMISCELLANEOUS

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

7.2 Terms. This Agreement shall run with and bind the Subject Property solong as the development is under construction and development, but in an event thisAgreement shall be void 20 years after the effective date of this Agreement.

7.3 Notices. All notices and other communications in connection withthis 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 thethird 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, returnreceipt requested, at the address set forth below, or upon receipt if sent by telecopier tothe telecopier numbers set forth below.

Notices and communications to the Developer shall be addressed to, and deliveredat, the following address:

LeRoy C. WagnerDiane S. Wilder419 Saber Creek DriveMonument, CO 80132

With a copy to:

Robert I. Damalouji, Esq.Davis, Upton, Palumbo & Keffler, LLC132 Main StreetPrince Frederick, Maryland 20678

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Telephone: 410-535-1780/301-855-1522Fax: 301-855-1916

Notices and communications to the County Commissioners shall be addressed to,and delivered at, the following address:

The County Commissioners for Charles CountyP.O. Box 2150LaPlata, Maryland 20646Attn: Melvin C. Beall, Jr., DirectorDepartment of Planning and Growth ManagementTelephone: 301-645-0627

With a copy to:

Roger L. Fink, Esq.County AttorneyP.O. Box 2150LaPlata, Maryland 20646Telephone: 301-645-0582

By notice complying with the requirements of this Section, each party shall havethe right to change the address or addressee or both for all future notices andcommunications to such party, but no notice of a change of address shall be effectiveuntil actually received.

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

7.5 Authority to Execute. The County Commissioners and the Developerhereby acknowledge and agree that all required notices, meetings, and hearings have beenproperly given and held by the county with respect to the approval of this Agreement adagree not to challenge this Agreement or any of the obligations created by it on thegrounds of any procedural infirmity or any denial of any procedural right. The CountyCommissioners hereby warrant and represent to the Developer that the persons executingthis Agreement on their behalf have been properly authorized to do so. The Developerhereby 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 ofthis Agreement have been taken.

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7.6 Governing Law. This Agreement shall be governed by and construed inaccordance with the laws of the State of Maryland.

7.7 Consent to Jurisdiction. The parties irrevocably consent to the jurisdictionof the Circuit Court of Charles County, Maryland or any federal court sitting in theDistrict of Maryland.

7.8 Remedies Cumulative. Each right, power and remedy of a party providedfor herein, or any other agreement between the parties, now or hereafter exiting, shall becumulative and concurrent and in addition to every other right, power or remedy providedfor in this Agreement or any other agreement between the parties, now or hereinafterexiting.

7.9 Severability. In case anyone or more of the provisions contained in thisAgreement 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 each invalid, illegal or unenforceableprovision had never been contained herein.

IN WITNESS WHEREOF, the parties have hereunto set their hands on the datefirst above written.

WITNESS:

LEROY C. WAGNER

DIANE S. WAGNER f/k/aDIANE S. WILDER

COUNTY COMMISSIONERS OFCHARLES COUNTY, MARYLAND

By:Name:Title:

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STATE OF MARYLAND, COUNTY OF CHARLES, to wit:

I HEREBY CERTIFY that on this _ day of ,2009, before me, thesubscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared

, who acknowledged himself to be the of, a Maryland corporation, known to me (or satisfactorily

proven) to be the person whose name is subscribed to the within instrument, andacknowledged that he executed the same for the purpose therein contained as the dulyauthorized Manage of said company.

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

NOTARY PUBLICMy Commission Expires:

STATE OF MARYLAND, COUNTY OF CHARLES, to wit:

I HEREBY CERTIFY that on this _ day of ,2009, before me, thesubscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared

, who acknowledged himself to be the of, of the County Commissioners of Charles County,

Maryland, a body corporate and politic, known to me (or satisfactorily proven) to be theperson whose name is subscribed to the within instrument, and acknowledged that heexecuted the same for the purpose therein contained as the duly authorized Manage ofsaid company.

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

NOTARY PUBLICMy Commission Expires:

Approved for Acceptance: Approved as to Legal Sufficiency:

Director, Planning and GrowthManagement

County Attorney

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ATTORNEY'S CERTIFICATION

THIS IS TO CERTIFY that the undersigned is a Member, in good standing, of the Barof the Court of Appeals of Maryland, and that the within instrument was prepared by him orunder his supervision and to further certify that the Developer listed in the foregoing instrumenthas both a legal and equitable interest in the Subject Property.

Robert I. Damalouji

Upon Recording Please Return to:

Robert 1.Damalouji, Esq.Davis, Upton, Palumbo & Keffler, LLC132 Main StreetPrince Frederick, Maryland 20678

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EXHIBIT 1

LEGAL DESCRIPTION

The residue of all those lots, tracts, or parcels of land situate and being in the 8thElectionDistrict of Charles County, Maryland, conveyed to Mary Catherine Gross (later known as MaryCatherine Dorsey) and William Thomas Gross from Maria E. Gross by Deed recorded in Liber55, Folio 189; and Liber 59, Folio 688 (further referenced as being land described in Deed toJames G. Gross, Liber 36, Folio 18) and by Mary Catherine Gross from Edelen and Mitchell,Trustees, by Deed recorded in Liber 58, Folio 508.

SAVING AND EXCEPTING THEREFROM all those outsales of parcels of landpreviously conveyed, including the following possible outsales: (1) Liber 61, Folio 609; (2)Liber 120, Folio 536; (3) Liber 208, Folio 687; (4) Liber 322, Folio 38. The residue intended tobe conveyed is assessed in the Charles County tax records as Parcel 31, Grid 7, Map 46, TaxAccount Number 08-018405.

NOW KNOWN AS LOT FIVE (5) IN THE SUBDIVISION KNOWN AS "LORD'SCREEK:, AS PER RECORDED PLAT IN LIBER 53 AT FQLIO 210, among the Land Recordof Charles County, Maryland.

EXHIBIT 2

LEGAL AND EQUITABLE INTEREST HODLERSIN THE SUBJECT PROPERTY

1. Leroy and Diane Wagner419 Saber Creek DriveMonument, CO 80132

2. Alan J. Hyatt, Trusteef/b/o Severn Springs Bank, FSBHyatt & Weber, P.A.200 Westgate CircleSuite 500Annapolis, MD 21401

EXHUUT3

PERMITS AND APPROVALSREQUIRED AND/OR APPLICABLE TO

THE SUBJECT PROPERTY

Permits and Approvals Granted

Preliminary Subdivision Plan XPN-03-0002Amended Forest Conservation Plan for Lord's Creek, Lots 5A through 5D FC#03-361

Future Permits and Approvals Required

Final PlatRoad Engineering Plan at intersection of Oliver Shop Road and Grosstown Road