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HomeMy WebLinkAboutSUB202200190 Agreements 2022-11-08r DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered into as of August 2022, by and between HEAHMOR, LLC, a Virginia limited liability company ("Heahmor"), and MONTGOMERY RIDGE OWNERS ASSOCIATION, INC., Virginia non-profit nonstock corporation (the "Association"). Heahmor and the Association are sometimes referred to together as the "Parties" or individually as a "Party." RECITALS A. Heahmor is the fee simple owner of Albemarle County, Virginia (the "County") tax map parcel number 04600-00-00-02400 containing 14.01 acres, more or less (the "Heahmor Parcel"): B. The Association is the fee simple owner of County tax map parcel number 046D0-00-00-000A2 containing 0.26 acre, more or less (the "Association Parcel"); C. Heahmor desires to develop the Heahmor Parcel as Phase 4 of the Montgomery Ridge subdivision pursuant to the terms of this Agreement (the "Project"); D. To facilitate the Project and as contemplated by that certain Supplementary Declaration of Restrictions, Covenants and Conditions of the Montgomery Ridge Subdivision dated April 20, 2006, and recorded in the land records of the County in Deed Book 3201, pages 729-747, the Association is willing to dedicate the Association Parcel to public use as a roadway providing ingress and egress to the Project from Montgomery Ridge Road to Polo Grounds Road (the "Public Road Dedication") if the terms provided for herein are met; and E. Once the final subdivision plat for the Project is approved by the County (the "Subdivision Plat"), the Parties will enter into and record a Supplementary Declaration extending the provisions of the Declaration of Restrictions, Covenants and Conditions dated August 20, 2004, for Montgomery Ridge Subdivision, recorded in the land records of the County in Deed Book 2824, pages 461-488 (as amended or supplemented, the "Declaration") to the lots, common areas, roads and other matters shown on the Subdivision Plat. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Heahmor and the Association agree as follows: 1. Project Development. Heahmor agrees to limit the development of the Heahmor Parcel to a maximum of fifteen (15) lots, each to contain one single-family dwelling and any accessory structures permitted by the County, and agrees not to seek a rezoning of the Heahmor Parcel to a higher density zoning category. These limitations shall be specified and included in the Supplementary Declaration (as defined below) as applicable to the Heahmor Parcel. 2. Road Dedication. The Association agrees to proactively and diligently pursue the Public Road Dedication in cooperation with Heahmor, at no cost to the Association, and in 2N90176-6, 123X54-00001-03; I conjunction with the County's Project approval process. It is anticipated that the Public Road Dedication may take effect as part of the Subdivision Plat approval, in which case the Association agrees to execute the Subdivision Plat, if needed. The Public Road Dedication shall not be required prior to the execution of the Supplementary Declaration by Heahmor and the Association, which shall be held in escrow pending recordation by the Association's law firm Royer Caramanis PLC. If the County deems the Public Road Dedication to be effective prior to the recordation of the Supplementary Declaration, then Royer Caramanis PLC is authorized to record the Supplementary Declaration with the Subdivision Plat attached thereto. The County's Project approval may also require the issuance of a Special Exception allowing changes to existing sidewalk and planting strip requirements pertaining to the Montgomery Ridge subdivision plat. Any such changes shall be discussed with and approved by the Association's Board of Directors, which approval shall not be unreasonably withheld, conditioned, or delayed. Upon such approval, the Association agrees to support such an action, including if necessary, to execute any necessary application and related documents to affect issuance of the Special Exception. Heahmor agrees to construct and maintain the new road, which construction shall be bonded with the County, and to indemnify and hold harmless the Association from and against all claims arising out of such construction and maintenance, including attorney's fees and other litigation costs, until the new road is accepted into the secondary public road system. During the development of the Heahmor Parcel, the Association Parcel may only be used as a secondary construction access point on an as needed basis. 3. Sunnlementary Declaration. Once the Subdivision Plat has been approved by the County, if not already done before, the Parties agree to enter into and record a Supplementary Declaration, the form of which is attached hereto as Exhibit A, extending the provisions of the Declaration to the lots, common areas, roads and other matters shown on the Subdivision Plat (the "Supplementary Declaration"). 4. Term of Agreement. This Agreement shall be in effect as of that date hereof and shall continue in force until terminated as set forth herein. At any time prior to the recordation of the Subdivision Plat, should Heahmor determine in its sole discretion that the Project is not financially feasible, Heahmor may terminate this Agreement by delivering written notice to the Association. Unless earlier terminated, this Agreement shall terminate upon the recordation of the Subdivision Plat and the Supplementary Declaration, except for those provisions which explicitly survive. 5. Remedies. The Parties agree that a breach of the provisions of this Agreement will cause irreparable damage for which recovery of monetary damages would be inadequate. The non -breaching Party shall, therefore, be entitled to seek timely equitable relief, including injunction and specific performance, to protect its rights under this Agreement in additional to all other remedies available at law or equity, without the need to post a bond or other undertaking. In the event any litigation or proceeding is commenced between the Parties to enforce or interpret the terms or provisions of this Agreement, the substantially prevailing Party will be entitled to be reimbursed by the other Party for all reasonable attorneys' fees and court costs incurred, including on appeal. The determination of which Party is the substantially prevailing 12e90176-6, QW4-00001-03; 2 Party will be determined by the court, mediator or arbiter presiding over any such litigation or proceeding. 6. Limited Power of Attorney. The Association hereby constitutes and appoints Heahmor, with full power of substitution, its true and lawful attomey-in-fact in its name, place and stead to sign documents required by the County and other governmental authorities with jurisdiction over the Project, which the Association has agreed to sign pursuant to this Agreement. The power of attorney hereby granted shall be deemed to be coupled with an interest, shall be irrevocable and shall survive and shall not be affected by subsequent dissolution or revocation. Heahmor agrees to exercise this limited power of attorney only after commercially reasonable efforts have been made by Heahmor to obtain the Association's signature. 7. Successors in Interest. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns, and any reference to a Party shall also be a reference to a successor or assign. 8. Controlling Law, Amendment. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia without regard to conflicts of laws doctrines. This Agreement may not be amended, modified or supplemented except by written agreement of the Parties. 9. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by law, the Parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect. 10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original instrument and all of which together shall constitute a single instrument. Execution and delivery of this Agreement by electronic exchange bearing the copies of a Party's signature shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such electronic copies shall constitute enforceable original documents. 11. Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person other than the Parties, and their successors or assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, or result in such person being deemed a third party beneficiary of this Agreement. 12. Authonty. Each of the Party represents and warrants to the other Party that it has the power and authority and has taken all action necessary to execute, deliver and perform this Agreement and all other agreements and instruments executed or delivered to be executed or delivered in connection herewith and therewith and this Agreement and such other agreements and instruments constitute its valid, binding and enforceable obligations. 2%90176-6. 121,954-00001-03; 3 Witness the following signatures and seals. HEAHMOR, LLC, a Virginia limited liability company By: - John P. Duncan IV, Manager MONTGOMERY RIDGE OWNERS ASSOCIATION, INC., a Virginia non-profit nonstock corporation By: -y Name: Title: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF : to -wit, The foregoing instrument was acknowledged before me this day of to ur>i 2022, by John P. Duncan IV, as Manager of Heahmor. LLC, a Virginia limited liability company. Votary Public TIMOTHY I. KELSEY NOTARY PUBLIC M Commission Expires: Ot'?.✓, Z _ _ - Commonwealth of Virginia y P Registration No. 316244 Commission No.: q (074 My Commission Expires 2/2812023 COMMONWEALTH OF VIRGINIA CITY/COUNTY OF 6 ( RI ",VLi, to -wit, Thg foregoing instrument was acknowledged before me this L day of 2022, by i .' S D_ L X S as I A ; i;� , ,+ of Montgomery idge Owners Association, Irk., a Virginia non-profit nonstock corporation. �''''`��"'Uj(¢ Jv L - I L++ Notary Public My Commission Expires: Commission No.: 9 2990176-G, 12,954 00001-03; 4 Exhibit A See attached Supplementary Declaration. 2990176-6, 123854-00001-03