STATE OF SOUTH CAROLINA
COUNTY OF AIKEN
THIS DEVELOPMENT AGREEMENT (hereinafter this “Agreement”) is made and entered into this 24th day October, 2000, by and between WOODSIDE PLANTATION PROPERTY OWNERS’ ASSOCIATION (“Association”) and WOODSIDE DEVELOPMENT, L.P. (“Developer”), Association and Developer herein sometimes collectively referred to as the “Parties” for the purposes and according to the terms set forth herein.
WHEREAS, Association, pursuant to its authority under the Declaration of Covenants and Restrictions of Woodside Plantation Property Owners Association, Inc. and Woodside Development Company of Aiken, Inc., dated September 6, 1986 and recorded in the RMC Office of Aiken County, South Carolina, in Miscellaneous Book 451 at Page 93 last amended in Book 1025 at Page 67, and as hereby amended (“Covenants”) represents the interests of the owners of lots in Woodside Plantation; and
WHEREAS, Developer owns additional property contiguous with Woodside Plantation which by virtue of the Covenants is eligible to be annexed into Woodside Plantation upon Developer’s election to do so (“Additional Property”); and
WHEREAS, Association is desirous of obtaining certain Agreements from Developer about some aspects of the development in the Additional Property; and
WHEREAS, Developer wishes to confirm certain assurances on the part of the Association with regard to future development of the Additional Property and with regard to maintenance and upkeep of certain portions of the existing Common Property within Woodside Plantation; and
WHEREAS, Association and Developer recognize that significant benefits will be realized by both Parties through the annexation and development of the Additional Property and the performance by each of them of the agreements and understandings sought to be exchanged; and
WHEREAS, Association and Developer desire to confirm the terms and conditions, pursuant to which the Additional Property will be annexed and developed as well as to confirm the responsibilities on the part of the Association with regard to certain aspects of the existing Common Property within the Woodside Plantation and with regard to the turnover of control from Developer to Association of the phases of Additional Property to be annexed into Woodside Plantation.
THEREFORE, in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree as follows:
- The recitals above are incorporated herein and are deemed to be material and not mere recital.
- Developer will develop residential lots and homes within the Additional Property which will consist of attached or detached single-family dwellings and related multi-family dwellings.
- Developer will annex portions of the Additional Property into Woodside Plantation in multiple phases with each phase containing varying numbers of lots or dwelling units together with associated infrastructure and amenities.
- Developer, at its cost and expense, will cause to be constructed and installed in each phase of the Additional Property necessary utilities sufficient to provide service to the residential lots in each newly annexed phase. The Association agrees that Developer shall have the right to tie into existing water lines, sewer lines, gas lines, electrical lines, telephone lines, cable lines, etc. as necessary to provide such service. Provided, however, that such tie-ins do not over burden the existing service. If any enlargement or changes are required by such tie-ins, then the Developer shall be fully responsible.
- Developer, at its cost and expense, will cause roadways to be constructed in each phase of annexed property which are sufficient to allow vehicular access within each phase which will be fully integrated into the existing access systems of Woodside Plantation. Roadways constructed within each phase of the Additional Property will be constructed and installed in accordance with the existing Covenants.
- Developer will design and construct an drainage system within the Additional Property to meet all prevailing requirements of the City of Aiken. The Association agrees that Developer shall have the right to connect the newly constructed drainage systems within annexed phases into the existing overall drainage system for Woodside Plantation in such a manner as may be approved by the Association, such approval not to be unreasonably withheld. The drainage system for the Additional Property shall be constructed, installed and expanded by Developer in phases as development of the Additional Property dictates.
- All utilities construction in the Additional Property will be either located within the road right-of-ways within each phase or within easement areas established by Developer to the satisfaction of the appropriate provider of such utility service. Developer will be responsible for any bonds and other requirements for proper acceptance of such roadways and utilities.
- Developer represents that it plans to design and construct and 18-hole golf course and related facilities within the Additional Property. Developer, at its sole cost and expense, will cause the golf course to be constructed in a good and workman like manner consistent with the plans and specifications prepared by its selected golf course designer and approved by the Developer.
- Association agrees that Developer shall have all the necessary nonexclusive access easements for the purposes of construction access. Developer will be responsible for any damage to paved roads, grade of roadbeds or any other property of the Association or any property of individuals which might be caused by use of said access easement by Developer, its agents or contractors. Developer shall also have such easements as are required for installation, use, maintenance and development of the Additional Property, including, but not limited to, utilities and drainage systems. Association likewise covenants and agrees to work in good faith with Developer in the development of the Additional Property and will not interfere with or attempt to harass Developer or its Contractors, subcontractors or other agents or employees in connection with the development of the Additional Property.
- Association and Developer acknowledge and agree that the Covenants, in their current form, shall become applicable to the Additional Property upon its annexation into Woodside Plantation, subject to such additions or modifications by Developer and the Association as permitted by the Covenants and as agreed upon herein. Developer shall maintain Declarant Rights granted by the Covenants as to each phase or section of lots within the Additional Property until turnover of each platted phase of lots as described herein below. In that regard, Developer shall have the right to control the Architectural Review Board and the ARB review process for each platted phase within the Additional Property that is annexed into Woodside Plantation and made subject to the Covenants by amendment until such nine as sixty-five percent (65%) of the lots within each such phase have received Certificates of Occupancy for dwellings constructed thereon.
- Developer agrees to cause the golf course property, when completed, to be operated and maintained in a professional manner. Association agrees that the golf course shall enjoy at least the same rights and privileges granted to the existing golf course at Woodside Plantation that is currently operated by Club Corporation of America.
- Developer intends to develop recreational amenities within the Additional Property. Association and Developer agree to work together and explore what amenities are to be constructed and cost/membership structures- in order to maximize the benefit to the Woodside community. Developer also reserves the right to develop or to construct certain improvements primarily for the benefit of neighborhoods within portions of the Additional Property. The final decision regarding amenities to be constructed, if any, fee structures and availability shall be at the Developers’ sole discretion. The Association shall have the power to refuse to accept such amenities based on current Covenant Guidelines.
- The Association agrees to maintain all the common areas in the existing development, including roadways, street lights, landscaping and lakes in accordance with the Covenants in the manner expected of a high-end private golf community, and to undertake whatever steps necessary to bring any current conditions up to that standard. Specifically, the Association agrees to complete, to the same level of quality as described above, the irrigation and seeding of roadsides bordering Woodside Plantation Drive in Sections 1 and 2 no later than June 30, 2002, unless a delay is agreed to by the Developer.
- Association agrees not to establish any new fees or increase any fees that Developer is currently paying a rate in excess of that for residential lots or homes within Woodside Plantation. Further, both the Association and the Developer agrees not to attempt to alter or decrease any rights of either party under the Covenants and any Amendments thereto without the other’s approval.
As it relates to the manner of development in the Additional Property, Developer agrees to the following provisions:
(a) Overall residential density of future development shall not exceed 1.7 dwelling units per acre;
(b) The square footage requirements for dwellings as currently provided in the Covenants will be adhered to;
(c) The Building Guidelines of Woodside Plantation, as last revised July 6, 1998 (“Building Guidelines”), shall be adhered to;
(d) Subject to market acceptance, sections of the new development will be planned to include a variety of unit types, sizes and price ranges, consistent with the provisions of the Covenants and the Building Guidelines;
(e) Prefabricated or pre-manufactured dwelling units shall not be allowed, it being understood, however, that this is not intended to preclude the use of building components (i.e., trusses, etc.) which are assembled off site from being used in home construction;
(f) No residential structures or dwelling units will be allowed which are higher than three (3) stories, excluding basement or foundation areas;
(g) Where there are neighborhoods within the Additional Property that have an established style, look and design, Developer agrees that it will not use its ARB approval rights to permit structures to be built in those neighborhoods which are significantly incongruous with and visibly incompatible with the already established style and look of the surrounding homes in that neighborhood.
Prior to turnover of phases or sections within the Additional Property, Developer agrees to landscape and, where appropriate, irrigate common areas. Such common areas shall not be turned over to the Association nor shall any expense relating thereto be assumed by the Association until such time as sixty-five percent (65%) of all platted lots within such phase or section within the Additional Property are transferred to Purchasers by Developer, As to extensions of Woodside Plantation Drive constructed within the Additional Property, however, those portions of Woodside Plantation Drive shall be turned over to the Association upon completion in accordance with the Covenants. The Developer may not turn over such common areas until all improvements meet the existing requirements of the Covenants.
Developer agrees to install suitable perimeter fencing (i.e., five (5) feet, no-climb) where applicable, as each platted phase is completed.
Developer agrees to give the Association at least thirty (30) days courtesy notice prior to any change in ownership, zoning or proposed construction of the eight (8) acre parcel owned by it at the intersection of Woodside Plantation Drive with Silver Bluff Road.
Association acknowledges and agrees that Developer has the right to use the name “Woodside” and “Woodside Plantation” or similar derivatives thereof in the course of its sales, marketing and operations as a means of identifying the Woodside Plantation community. Further, Developer may also use the logo or trademark for Woodside Plantation in the marketing and promotion of its property in Woodside Plantation.
Failure to observe or perform any term, condition or undertakings in this Agreement shall constitute an event of default.
In the event of a default or breach of the terms of this Agreement, the non-breach or non-defaulting party shall provide to the breaching or defaulting party written demand for cure providing a date, not less than thirty (’30) days from the date of such notice, to provide an appropriate response or cure such default or breach.
If any duty or obligation of Developer or Association is delayed by labor disputes, fire, transportation, strikes or delays, unavoidable casualties or severe weather conditions not reasonably anticipated, then the time for performance of the duties and obligations so delayed by any such causes beyond the control of the Parties shall be extended for a reasonable period of time. Developer or Association shall give the other party written notice of any such unforeseen circumstance which it anticipates will cause such a delay within ten (10) days of the occurrence of such unforeseen circumstance and if no such notice is given, an extension of time a result of such unforeseen circumstance shall be deemed waived. No such delay shall entitle the Parties to recover damages or additional costs from the other party.
Any and all notices required or permitted hereunder shall be given in writing, personally delivered or delivered by commercial courier service or sent by registered or certified mail, return receipt requested, postage pre-paid addressed as follows:
1419 Silver Bluff Road
Aiken, South Carolina 29803
Attn: William MacKay
With A Copy To:
Bethea, Jordan & Griffin, P.A.
P.O. Drawer 3
Hilton Head Island, SC 29938
Attn: William L. Bethea, Jr.
With A Copy To:
Woodside Plantation Property Owners’ Association
1411 Silver Bluff Road
Aiken, South Carolina 29803
With A Copy To:
Arthur W. Rich, Attorney
205 Barnwell Ave.
Aiken, South Carolina 29801
Attn: Buzz Rich
Any such notice or communication shall be deemed to have been given as of the date of delivery, if hand delivered, or as of the date of receipt.
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina. The Parties acknowledge that they have each participated in the negotiation of this Agreement with the assistance of their counsel and therefore, no provision of this Agreement shall be construed against, or interpreted to the disadvantage of, either party by reason of such party have structured, dictated, or drafted any provision hereof.
Nothing contained in this Agreement shall constitute or be construed to be, or. create, a partnership, or a joint venture between the Parties.
All provisions of this Agreement are exclusively intended for the benefit of the Parties and no other party shall be entitled to enforce the terms of this Agreement or be deemed a beneficiary of any provisions herein contained.
If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Agreement shall be valid and inbreed to the fullest extent permitted by law.
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and any other previous agreements or understandings, oral or written, are merged herein. The existing covenants and existing amendments are to remain fully in force.
This Agreement cannot be changed, modified, amended, terminated, or any provision hereof waived, except by instrument in writing signed by both of the Parties hereto.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same Instrument.