EXECUTIVE SUMMARY

MAYOR AND BOARD OF A LDERMEN

Submitted By: Bob Smith, Deputy Director for Parks and Recreation Date: November 7, 2017 Meeting Dates

Workshop: November 15, 2017 Public Meeting: N/A

Agenda Item: Memorandum of Understanding with WVS Renn Farm, LLC, to provide for park

improvements along Carroll Creek Linear Park adjacent to City owned lots J and K.

Background Information: The MOU provides the owner with the ability to fund and construct park improvements along Carroll Creek Linear Park that would benefit both property and public interests. Park improvements would be made at the election of WVS Renn, LLC in accordance with the MOU and Exhibit B. Park improvements would include a 10’ foot wide shared use path, roadway crossings, park/path lighting, creek wall restoration, and various park amenities. Design and construction of the park improvements would not exceed $500,000 per the MOU. Should said improvements exceed $500,000 the City will have the option to revise the design or provide funding for the excess amount. Fiscal Impact: N/A Recommendation: Item to be discussed at Parks and Recreation Commission meeting on November 14, 2017. Supporting Documentation: MOU

Director: _________________________________________________________ Date: ________________________ Concurrence Needed: Initials Date Email

☐ Legal: __________ __________ ☐

☐ Budget: __________ __________ ☐

☐ Finance: __________ __________ ☐

☐ Purchasing: __________ __________ ☐

☐ Public Works Operations: __________ __________ ☐

☐ Engineering: __________ __________ ☐

Item 1

☐ Parks and Recreation: __________ __________ ☐

☐ Planning: __________ __________ ☐

☐ Police: __________ __________ ☐

☐ Human Resources: __________ __________ ☐

☐ Economic Development: __________ __________ ☐

Draft 10/30/17

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MEMORANDUM OF UNDERSTANDING

This Memorandum of Understanding (“Memorandum”) is made this ______ day of

____________________, 2017 (the “Effective Date”), by and among WVS RENN FARM, LLC,

a Maryland limited liability company, including its successors and assigns (“Owner”) and THE

CITY OF FREDERICK, a municipal corporation of the State of Maryland (“City”).

WHEREAS, Owner is the owner of certain real property located in the City of Frederick

and described in a deed dated October 8, 2015 from Renn Family Investments, LLC to Owner,

recorded among the Land Records of Frederick County, Maryland in Liber 10804, folio 215

(“Property”); and

WHEREAS, by Ordinance No. G-15-22 passed by the Mayor and Board of Aldermen of

the City of Frederick (“Mayor and Board”) on October 1, 2015 (“Ordinance”), the Property was

rezoned to the MU-2 zone; and

WHEREAS, by Resolution No. 15-23 adopted and approved October 1, 2015

(“Resolution”), a Master Plan for the development of the Property was approved by the Mayor

and Board; and

WHEREAS, the Owner intends to develop the Property into a mixed use development in

accordance with its MU zoning; and

WHEREAS, the Owner and the City have agreed that both the development intended for

the Property, and the public, would benefit by the construction of certain park improvements and

amenities upon certain property owned by the City, which property is adjacent to the Property,

and which such property owned by the City is that property described as “CARROLL CREEK

LINEAR PARK PROJECT, PB 37, PAGE 20 & L. 5382 F. 162,” such property hereinafter

referred to as the “Park Property.” The park improvements and amenities, which may be

constructed by the Owner through the Park Property and which are the subject of this

Memorandum, are sometimes hereinafter referred to as the “Park Improvements;” and

WHEREAS, neither the Resolution nor the Ordinance requires the Owner to construct the

Park Improvements in conjunction with the Owner’s intended mixed use development on the

Property, and therefore construction of the Park Improvements by the Owner, should the Owner

elect to construct them, is purely voluntary on the part of the Owner; and

WHEREAS, the parties have agreed to enter into this Memorandum to set forth the terms

and conditions under which the Park Improvements will be constructed should the Owner elect

to construct them, and set forth the various agreements and obligations of each of the parties

hereto to facilitate construction of the Park Improvements by the Owner.

NOW, THEREFORE, for no monetary consideration but in consideration of the

foregoing recitals, which are fully incorporated herein below by this reference, and for other

good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,

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the parties hereto for themselves, their respective successors and assigns, do hereby agree as

follows:

1. Election to Construct Park Improvements. In the event the Owner elects to

construct the Park Improvements through the Park Property, Owner shall notify the City in

writing of such election. Such notice of election to proceed with construction of the Park

Improvements is hereinafter referred to as the “Improvement Election.” The Owner shall have

five (5) years from the Effective Date to make the Improvement Election, and if Owner does not

make the Improvement Election within that timeframe, this Memorandum shall be null and void.

The parties agree that the Park Improvements will be generally located in the area on the Park

Property as shown on Exhibit A attached hereto, and designated as “Proposed Park

Improvements.” The final and exact location of the Park Improvements on the Park Property

shall be determined during final design of the Park Improvements, and the location may vary or

shift somewhat from that which is shown on Exhibit A. The parties shall work in good faith to

agree on the final location of the Park Improvements.

2. Extent of Park Improvements. The Park Improvements shall consist of all the

improvements as identified on Exhibit B attached hereto and incorporated herein by reference.

Should the City, during the design phase of the Park Improvements, desire that improvements in

addition to those improvements shown on Exhibit B be constructed by the Owner during

construction of the Park Improvements, the City shall give notice to the Owner in ample time to

allow the Owner to include such additional improvements without delaying the Owner’s

construction schedule, and the City shall bear the cost of such additional improvements. In such

event, the parties shall work in good faith to agree on a process for adding such additional

improvements to the Park Improvements and further for the process to guarantee payment and/or

reimbursement by the City to the Owner for the cost of such additional improvements.

Furthermore, the parties agree that the maximum amount Owner will spend on design and

construction of the Park Improvements is Five Hundred Thousand Dollars ($500,000.00). Owner

shall submit to the City an engineer’s cost estimate for construction, prior to proceeding with

bidding, as an initial notice of the anticipated construction cost.

A. The Owner shall provide the chosen design and construction bid to City

for City’s review. If the bid is greater than Five Hundred Thousand Dollars ($500,000), the City

may elect to either scale back the Park Improvements or reimburse the Owner for all costs in

excess of Five Hundred Thousand Dollars ($500,000), by way of the following processes:

i. If the City elects to scale back the Park Improvements, then the

City Engineer shall identify to Owner the specific items to be modified or deleted from the Park

Improvements.

ii. If the City elects to reimburse Owner for costs in excess of Five

Hundred Thousand Dollars ($500,000), then the Mayor shall provide such notice, in accordance

with the City’s applicable purchasing policies and subject to City budgetary approvals.

3. Cost of Design and Construction. Should the Owner elect to construct the Park

Improvements, the design and construction shall be at the sole and complete cost of the Owner.

Improvement plans for the construction of the Park Improvements shall be reviewed by the City

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Engineer and other agencies with jurisdiction over the plans, in the ordinary course of business.

The Owner will enter into a public works agreement and provide the required surety for the

construction of the Park Improvements, in the ordinary course of business. Should the Owner

elect to construct the Park Improvements, the Park Improvements will be constructed during the

development of the Property, at a time and in phases as elected by the Owner in its sole

discretion, subject, however to the requirement that upon receipt by Owner of all permits

necessary to construct the Park Improvements (the “Final Permit Date”), Owner shall complete

construction of the Park Improvements within one hundred and eighty (180) days of the Final

Permit Date. If due to circumstances beyond Owner’s control Owner may not be able to

complete construction of the Park Improvements within the stated timeframe, Owner may (by

providing notice to the City) take an additional ninety (90) days to complete construction of the

Park Improvements. The parties agree that after the Owner makes the Improvement Election, the

Owner shall have two (2) years from the Improvement Election to commence construction of the

Park Improvements, otherwise this Memorandum shall be null and void. Notwithstanding

anything elsewhere herein, and even after the Owner gives the Improvement Election to the City,

and if the Owner has not commenced construction of the Park Improvements, the Owner shall

have the right to withdraw the Improvement Election and not construct the Park Improvements,

and upon such election the parties shall have no further obligation to the other by reason of this

Memorandum. Should the Owner go forward with construction of the Park Improvements, upon

notice from the Owner that construction will commence within thirty (30) days, the City shall

cause all areas on the Park Property on which Park Improvements are to be constructed to be

cleared of any and all personal property and/or debris. The parties hereby expressly

acknowledge and agree that the Owner will design and construct the Park Improvements only in

conjunction with the construction of a road through the City property known as Huskey Park,

which such road is the subject of that certain Memorandum of Understanding between the Owner

and the City dated July 25, 2017. If the Owner does not elect to proceed with the road through

Huskey Park as referenced in the July 25, 2017 Memorandum of Understanding, the Owner will

not make the Improvement Election as defined herein, and the Owner shall not have any

responsibility or obligation with regard to the proposed Park Improvements. Notwithstanding

the above, the Owner shall continue to have the option to construct the road through Huskey

Park as referenced herein, with or without making the Improvement Election referenced in this

Memorandum, the decision as to whether to construct the Park Improvements in conjunction

with the road through Huskey Park being with the sole and absolute discretion of the Owner.

4. Stormwater Management. Should any other areas located on the Park Property, or

on property adjacent thereto commonly known as “Sites J and K,” outside of the area of

construction of the Park Improvements, be required to handle stormwater management by reason

of the construction of the Park Improvements, the City shall make such areas available for

stormwater management, and the City shall execute any easements or other documents required

in conjunction with such stormwater management.

5. Permits/Access. The City agrees that upon receipt of the Improvement Election,

and upon the request of the Owner, the City shall apply for and be the applicant on any and all

governmental permits required for the construction of the Park Improvements, including but not

limited to City and State permits. The Owner shall, at its expense prepare any necessary

document for the City’s use in making applications for permits. The City hereby agrees that the

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Owner shall not be charged any permit application fees, review fees, water/sewer connection

charges, or any other City fee or charge by reason of the Owner applying for and obtaining any

and all permits for construction of the Park Improvements. To the extent that any such fees are

required by any other governmental jurisdiction, such fees shall be the responsibility of the City,

and payment of such fees shall be a precondition of the Owner commencing construction of the

Park Improvements. During construction of the Park Improvements, the Owner will have access

to that property owned by the City, located adjacent to the Park Property, and commonly known

as Sites J and K, such access for purpose of accessing the Park Property, and for other temporary

use deemed necessary by Owner to facilitate construction of the Park Improvements. Such right

of access shall terminate upon completion of the Park Improvements and acceptance thereof by

the City. The City further hereby represents and warrants unto the Owner that it is the owner in

fee simple of the Park Property, and also of the adjoining property commonly known as Sites J

and K, and that the Owner shall have full and complete access to all such property at such times

and for such duration as necessary to complete the Park Improvements.

6. Breach of Memorandum.

6.1 By Owner. If Owner shall fail or refuse to perform its obligations as

required under this Memorandum, then after thirty (30) days written notice provided to Owner

by City indicating the nature of said default and if Owner has not cured said default, City may

seek and obtain equitable relief to enforce the terms and conditions of this Memorandum either

through a decree for specific performance or an injunction, and further City shall be entitled to

bring a legal action for damages or other redress or terminate this Memorandum with respect to

further construction and installation activities.

6.2 By City. If City shall fail or refuse to perform its obligations as required

under this Memorandum, then after thirty (30) days written notice provided to City by Owner

indicating the nature of said default and if City has not cured said default, Owner may seek and

obtain equitable relief to enforce the terms and conditions of this Memorandum either through a

decree for specific performance or an injunction, and further Owner shall be entitled to bring a

legal action for damages or other redress, or terminate this Memorandum with respect to further

construction and installation activities.

6.3 Costs and Attorneys’ Fees. In the event of a judicial proceeding brought

by one party of this Memorandum against the other party to this Memorandum, for the

enforcement or breach of any provision of this Memorandum, 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. The parties agree that any action, arising out of this Memorandum, shall take place

in Frederick County, Maryland.

7. Miscellaneous Provisions.

7.1 This Memorandum contains the entire agreement between the parties and

may not be amended unless in writing and signed by both parties.

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7.2 The paragraph headings are for convenience only and shall not be utilized

in interpreting this Memorandum.

7.3 This Memorandum may not be assigned by the parties without the express

written consent of the other party, which consent shall not be unreasonably withheld or delayed.

7.4 This Memorandum created hereby shall become effective on and only on

its execution by the parties hereto.

7.5 This Memorandum shall be given effect and construed by application of

the law of Maryland, and any action or proceeding arising hereunder shall be brought in the

courts of Maryland.

7.6 This Memorandum is binding upon, and inures to the benefit of the parties

hereto and their respective heirs, personal representatives, agents, employees, invitees,

successors and assigns. Each and every matter, term, provision, condition and/or obligation set

forth herein shall run with the land described herein.

7.7 Each party shall execute such further assurances thereof as the other party

may request that may be necessary to carry out the intent of this Memorandum.

7.8 Nothing in the provisions of this Memorandum shall be deemed to

obligate the Owner to construct the Park Improvements, either in conjunction with the

development of the Property, or as a separate project, it being expressly agreed that the decision

of whether or not to construct the Park Improvements is solely within the discretion of the

Owner, and the terms and provisions set forth in this Memorandum shall take effect only upon

the Owner sending the Improvement Election to the City. Furthermore, subsequent to the Owner

delivering the Improvement Election to the City, and if the Owner has not commenced

construction of the Park Improvements, should the Owner change its plans and no longer wish to

construct the Park Improvements, the Owner shall have the right to rescind the Improvement

Election, and upon such rescission the Owner shall have no further obligation to construct the

Park Improvements, and neither of the parties shall have any further obligation to the other by

reason of the terms and provisions of this Memorandum.

7.9 This Memorandum shall not be recorded.

7.10 Each of the matters set forth in the "Whereas" clauses above are hereby

incorporated into the body of this Memorandum as if same were fully reprinted herein.

7.11 All notices, demands, submissions or requests required or permitted to be given

under the terms of this Memorandum shall be in writing, and said notices, demands or requests

shall be delivered to the respective addresses of the parties either by hand-delivery or by

registered or certified mail, return receipt requested, deposited in the United States mail with

postage thereon fully prepaid and addressed to the parties so to be served, which shall be, in the

case of Owner:

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WVS Renn Farm, LLC

4600 Wedgewood Boulevard, Suite A

Frederick, Maryland 21703

ATTN: Karl A. Morris

and in the case of City:

The City of Frederick The City of Frederick

101 North Court Street 140 West Patrick Street

Frederick, Maryland 21701 Frederick, Maryland 21701

ATTN: City Attorney ATTN: Director of Public Works

Service of any such notice or demand so made by mail shall be deemed complete on the day of

actual delivery as shown by the addressee’s registry or certification receipt or at the expiration of

the third (3rd

) business day after the date of mailing, if no date is shown on the receipt. Any of

the parties may from time to time, by notice in writing served upon the others, designate a

different mailing address or a different or additional person to which all such notices or demands

or copies thereof are thereafter to be addressed

IN WITNESS WHEREOF, the parties hereto have caused these presents to be

signed and sealed all on the date first above written.

(SIGNATURES ON THE FOLLOWING PAGES)

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WITNESS: WVS RENN FARM, LLC

a Maryland limited liability company

By: Westview South Holdings, LLC,

a Maryland limited liability company,

Manager

By: Wedgewood Investment Management, LLC,

a Maryland limited liability company,

Manager

_________________________ By:__________________________(Seal)

Mark C. Matan

Manager

STATE OF MARYLAND, COUNTY OF FREDERICK, TO WIT:

I hereby certify that on this ______ day of ____________________, 2017, before me, the

subscriber, a Notary Public in and for the State of Maryland, personally appeared Mark C.

Matan, Manager of Wedgewood Investment Management, LLC, Manager of Westview South

Holdings, LLC, Manager of WVS Renn Farm, LLC, 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 he executed the same as the duly Manager of Wedgewood

Investment Management, LLC, Manager of Westview South Holdings, LLC, Manager of WVS

Renn Farm, LLC, for purposes therein contained.

Witness my hand and Notarial Seal.

____________________________________

Notary Public

My commission expires:______________________

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WITNESS: THE CITY OF FREDERICK, a municipal

Corporation of the State of Maryland

_________________________ By:___________________________________(Seal)

Randy McClement, Mayor

STATE OF MARYLAND, COUNTY OF FREDERICK, TO WIT:

I hereby certify that on this ____ day of ____________, 2017, before me, the

subscriber, a Notary Public in and for the State and County aforesaid, personally appeared Randy

McClement, who acknowledged himself to be the Mayor of the The City of Frederick, a municipal

corporation of the State of Maryland, and that he, as such Mayor, being authorized so to do,

executed the aforegoing instrument for the purposes therein contained.

WITNESS my hand and Notarial Seal.

_______________________________

Notary Public

My Commission Expires:

Reviewed and Approved for Legal Sufficiency:

__________________________________

City Attorney

Exhibit B

10’ foot wide dyed red concrete multi-use (pedestrian/bike) path with appropriate sub

base installed per City standards/specifications

Install roadway crossings at East Patrick Street and Highland Street per City

standards/specifications

Adequate Park Lighting using City approved lighting fixtures and lighting

standards/specifications

Creek wall stone facia repair/upgrade as needed and wall cap stones

Minimum of two public water drinking fountains (one with pet drinking accessory)

Landscaping and plantings with appropriate irrigation system per City

standards/specifications

Park furniture – benches, trash cans, dog waste disposal dispensers, and other similar

public amenities as per City standards/specifications