Draft Boundary Line Adjustment Agreement

June 6, 2022
BOUNDARY LINE ADJUSTMENT AGREEMENT
BY AND BETWEEN THE COUNTY OF RAPPAHANNOCK, VIRGINIA AND
THE TOWN OF WASHINGTON, VIRGINIA

This Boundary Line Adjustment Agreement (“Agreement”), dated as of

_______________, 2022, is made by and between The Board of Supervisors of
Rappahannock County, Virginia, a political subdivision of the Commonwealth of
Virginia (the “County”) and The Town of Washington, Virginia, a political
subdivision of the Commonwealth of Virginia (the “Town”). The County and the
Town are herein each a “Party” and collectively, the “Parties.”

RECITALS

R-1. The Parties have been approached by Black Kettle LLC (“Black
Kettle”), owner of certain property comprising 9.0984 acres, more or less, of which
5.8005 acres, more or less, are situated in the County and subject to its jurisdiction,
and 3.2979 acres, more or less, are situated in the Town and subject to its
jurisdiction, with a proposal to make productive use of that property ( “Rush River
Commons”). Black Kettle or a subsequent Developer proposes to construct structures
to house community serving uses and other uses that the Parties find to be in their
mutual interests.

R-2. The Town and the County have been asked by Black Kettle to consider
a voluntary Boundary Line Adjustment under the authority of Va. Code Ann. §§
15.2-3106 through -3109, which would bring that portion of the Black Kettle
Property presently subject to the County’s jurisdiction into the Town’s boundaries in
order that it might process development plans pursuant to a single Zoning and
Subdivision Ordinance and development processes, and have access to public
utilities that are essential to the development of the Rush River Commons Property.

R-3. The Parties have agreed to give due consideration to this request and
directed their counsel and other members of staff to discuss a potential Boundary
Line Adjustment Agreement and Boundary Line Adjustment with representatives
of each jurisdiction and Black Kettle. Town and County representatives have
presented each governing body this proposed Agreement for the purpose.

R-4. The Town and the County have jointly advertised their intention to
consider such an Agreement at least once a week for two successive weeks in a
newspaper having general circulation in both localities, such notice having included
a descriptive summary of the proposed Agreement and describing the new boundary,
together with a statement that a copy of the Agreement has been on file in the office
of the clerk of both the Town Council and the County Board of Supervisors.

R-5. The Town Council having held a public hearing on the adoption of the
Agreement on \, and the Board of Supervisors having held a public hearing on the
adoption of the Agreement on \, both pursuant to Va. Code Ann. § 15.2-3107, and
upon due consideration of the matter both governing bodies have given their formal
consent to the Agreement by Resolutions identified as \ adopted on those dates,
Boundary Line Adjustment Agreement

copies of which are attached hereto and incorporated herein by reference as

Exhibits\ and \.

NOW, THEREFORE, pursuant to Title 15.2, Subtitle III, Chapter 31, Article
2 of the Code of Virginia, intending to be legally bound hereby and in consideration
of the mutual covenants contained herein, the receipt and sufficiency of which are
hereby conclusively acknowledged, the Parties do hereby agree as follows:

AGREEMENT

The foregoing Recitals are incorporated herein by reference.

DEFINITIONS

“Adjusted Property” means the property adjusted into the Town by virtue of this
Agreement and the Order of the Court entered in accordance herewith.

“Boundary Line Adjustment” means an alteration in the presently understood

and existing boundary between the Town of Washington and Rappahannock County
voluntarily, formally, and legally altered by agreement of the two jurisdictions with
the approval of the Circuit Court of Rappahannock County as provided by Virginia
law.

“Court” means the Circuit Court of Rappahannock County, Virginia.

“Developer” means any party who undertakes to develop the Adjusted Property in
accordance with this Agreement.

“Easements” means those Easements recorded in the land records of

Rappahannock County at Deed Book 179 Page 745, and Deed Book 175 Page 298.

“Effective Date” means that date upon which the last of the two Parties executes
this Agreement.

“Order” means the unappealable Final Order entered by the Circuit Court of
Rappahannock County effectuating the Boundary Line Adjustment, and
incorporating this Agreement.

ARTICLE I

Agreements between the Town and County

1. Boundary Line Adjustment.

The Parties hereby agree that upon the approval of the Circuit Court of
Rappahannock County as further provided herein with respect to the presentation
of a Petition therefor, the Boundary Line between the Town and the County will be
P a g e 2 | 13
Boundary Line Adjustment Agreement

adjusted to the new Boundary as depicted on Exhibit A hereto, that certain Plat of
Boundary Line Adjustment dated \, prepared by Bowman Consulting.

2. Use and Development of the Property Adjusted into the

Town.

a. The development of Rush River Commons shall be in general

conformance with the Conceptual Development Plan that is attached hereto and
incorporated herein by reference as Exhibit \, provided, however, that the
Developer thereof may make such reasonable adjustments as are necessary to
accommodate final engineering of infrastructure, building foundations and
locations, tenant concessions or improvements, soil conditions, and stormwater
management or regulatory requirements as may be required by third party
review agencies, subject to the subject to the reasonable discretion of the Town
Zoning Administrator or the County Building Official, whichever is appropriate.

b. The following uses shall be prohibited at Rush River Commons:

i. No use permitted by right, by special permit, or by special

exception in the Rappahannock County Zoning Ordinance, in the CG
(Commercial General) Zoning District, except for those uses listed here:

1. Dwellings; provided, however, that a Developer may

construct not more than \ dwelling units on the Adjusted Property after \ years
from the date of the entry of the Order.

2. Parking associated with otherwise permitted uses

3. Offices, professional, including clinics

4. Offices, business

5. Flea market

6. Off-site directional signs

c. The following uses shall be permitted at Rush River Commons:

i. Conferences

ii. Community gathering spaces for public and private

purposes, including, without limitation, meetings of the governing bodies of the
Town and County, subject to reasonable provisions regarding availability
established by the Developer, owner, or manager of structures constructed on
the Adjusted Property capable of providing such spaces.

iii. Library

P a g e 3 | 13
Boundary Line Adjustment Agreement

iv. Coworking spaces1

v. Maker spaces2

vi. Outdoor amphitheater

vii. General Retail

viii. Residential units subject to the provisions of Paragraph

2(b)(i)(1), above.

d. An Owner or Developer of the Adjusted Property shall not seek,

and the Town shall not approve, uses of the Adjusted Property that are not
otherwise permitted herein.

e. All lighting constructed by a Developer will be downward

directed and will employ cutoff feature to prevent off-site light pollution. Outdoor
lighting fixtures will meet the IDA Dark Sky Friendly lighting standards.

f. The County shall have a right independent of the Town to enforce

the provisions of this Paragraph 2 by an action in the Circuit Court of
Rappahannock County.

3. Release of Certain Restrictive Covenants.

a. The Town and the County have previously engaged in certain real
estate transactions that are here identified as:

(i) the sale and purchase between The Town of

Washington, Virginia, Grantor, and the County of
Rappahannock, Virginia, Grantee, of those properties
identified as Parcels 1 and 2 in that certain Deed of
Bargain and Sale recorded in the Land Records of
Rappahannock County, Virginia at Deed Book 179,

1For the purposes of this Agreement, “coworking” is an arrangement in which

workers of different agencies or organizations share an office space, and agree to the
use of common infrastructure, such as equipment, utilities, receptionist and
custodial services, and parcel acceptance services.
2 For the purposes of this Agreement “makerspace” is a collaborative work
space inside a library or separate structure for making, learning, exploring and
sharing that uses high technology to no technology tools, open to any user, with a
variety of maker equipment that may include, among other things, 3D printers, laser
cutters, computer numerical control machines, soldering irons, sewing machines,
and similar devices and equipment.

P a g e 4 | 13
Boundary Line Adjustment Agreement

Page 744, Parcel 1 comprising the former Washington

United Methodist Church, and Parcel 2 comprising an
additional 3474 square feet, and

(ii) the sale and purchase between the County of

Rappahannock, Virginia, the Board of Trustees of the
Free Public Library System of Rappahannock County,
Grantors, and the Town of Washington, Virginia,
Grantee, of that parcel of Property known as the
Eastern one-half of the Presbyterian Church Lot, by
that certain Deed of Bargain and Sale recorded in the
Land Records of Rappahannock County, Virginia, at
Deed Book 175, Page 298.

b. In connection with the first of these transactions, the parties

imposed certain restrictive covenants upon the structures then in place as
follows:

(i) Any building now existing (the Town Hall) on the

property hereby conveyed shall be used only for public
purposes. “Public purposes” is defined as being any
activity a county is authorized to undertake by the Code
of Virginia, to include, but not be limited to a Town Hall,
a public meeting hall, courtrooms, offices for public
officials and governmental services, and storage and
maintenance of public records. In the event any question
arises as to whether a use is for public purposes, the
owner may request a written opinion from the Town, and
if the Town determines the use to be for public purposes,
then it shall be conclusively deemed to be so. Nothing
herein shall restrict the alienation of the property, but
only its use.

(ii) No change shall be made to the exterior appearance of the

front (facing Gay Street) or either side of the building in
front (facing Gay Street) or either side of the building now
located on the subject property (the Town Hall); provided,
necessary changes in physical appearance may be made
to the front of the building to comply with laws
concerning handicapped access to public facilities. This
restriction shall not apply to the rear of the building or
the interior. Maintenance, to include painting,
treatment, and replacement of rotted, decayed, or broken
materials, fixtures, or parts of the building may be
performed, but such maintenance shall maintain the

P a g e 5 | 13
Boundary Line Adjustment Agreement

present (1989) exterior appearance of the building to the

extent possible.

(iii) The property owner shall not construct any buildings or

other structures on the portion of Jett Street hereby
conveyed; provided this shall not restrict the owner from
constructing sidewalks. parking facilities (on grade only),
plantings, below ground septic systems, lighting or
fences.

(iv) Violation of any restriction contained in sub-paragraph

a), b), or c),3 immediately above, may be enjoined by the
Town in the Circuit Court of Rappahannock County.
Should violation occur, the Town shall give notice of said
violation in writing to the attorney for the County at said
attorney’s normal place of business, and in said notice a
demand shall be made that the violation be ceased, and if
need be, corrected, within sixty (60) days of the notice.
Should the violation not be ceased and, if need be,
corrected, within said sixty (60) day period, then the
Town may apply to the Circuit Court of Rappahannock
County for an injunction ordering the requested action.
Provided however nothing herein shall prevent the
Town from seeking an immediate injunction upon proof
of imminent irrevocable damage or injury to the property.
The prevailing party in said proceeding shall be entitled
to the payment of its attorney’s fees and court costs
incurred in said injunctive proceeding. Other than the
injunction and the attorney’s fees and court costs, the
parties agree that no other damages shall be paid from
the losing party to the prevailing party. In the case of a
transfer of the property, then the notices shall be directed
to the then-owner, and the duties imposed herein shall be
the duties of the then-owner.

(v) In the event the Town Hall is more than fifty percent
destroyed (as determined by an insurance adjustor or by
an appraiser) by fire or other cause, the restrictions
contained in paragraphs a) and b), above shall become

3 The lettering of the subparagraphs is taken directly from the language in

the Deeds of Easement, and the numbering of the paragraphs in this Agreement is
for the convenience of the parties.

P a g e 6 | 13
Boundary Line Adjustment Agreement

forever void.

(vi) Any or all of the foregoing restrictions may be waived by

the Town on either a case by case basis, or the entire
restriction may be forever waived and rendered void by
majority vote of the Town Council of the Town of
Washington, Virginia, after a duly advertised public
hearing, provided any such waiver shall be reduced to
writing and placed of record in the Clerk's Office. Further
the right to enforce any restrictive covenant in this deed
must be exercised by filing the appropriate action in court
within one year of the occurrence of the event which
violates the restriction, or that violation shall be deemed
forever waived. No waiver, however, shall exempt any
owner from complying with any applicable Town
Ordinances.

These Restrictions are referred to herein as the “Town Covenants.”

c. In connection with the second of these transactions, the parties

imposed certain restrictive covenants upon the structures then in place as
follows:

(i) Any building now existing (the Library Building) on the

property hereby conveyed shall be used only for public
purposes. “Public purposes” is defined as being any
activity a municipality is authorized to undertake by the
Code of Virginia, to include, but not be limited to: a Town
Hall. a public meeting hall, offices for public officials and
governmental services, and storage and maintenance of
public records. In the event any question arises as to
whether a use is for public purposes, the owner may
request a written opinion from the County, and if the
County determines the use to be for public purposes, then
it shall be deemed conclusively to be so. Nothing herein
shall restrict the alienation of the property, but only its
use.

(ii) No change shall be made to the exterior appearance of the

Library Building. This restriction shall not apply to the
building's interior. Maintenance, to include painting,
treatment. and replacement of rotted, decayed, or broken
materials, fixtures, or parts of the building may be
performed. but such maintenance shall maintain the
present (1989) physical appearance of the building to the

P a g e 7 | 13
Boundary Line Adjustment Agreement

extent possible.

(iii) Violation of any restriction contained in sub-paragraph a)

or b),4 immediately above, may be enjoined by the County
in the Circuit Court of Rappahannock County. Should
violation occur, the County shall give notice of said
violation in writing to the attorney for the Town at said
attorney's normal place of business, and in said notice a
demand shall be made that the violation be ceased, and if
need be, corrected, within sixty (60) days of the notice.
Should the violation not be ceased and, if need be,
corrected, within said sixty (60) day period, then the
County may apply to the Circuit Court of Rappahannock
County for an injunction ordering the requested action.
Provided however nothing herein shall prevent the
County from seeking an immediate injunction upon proof
of imminent irrevocable damage or injury to the property.
The prevailing party in said proceeding shall be entitled
to the payment of its attorney's fees and court costs
incurred in said injunctive proceeding. Other than the
injunction and the attorney’s fees and court costs, the
parties agree that no other damages shall be paid from
the losing party to the prevailing party. In the case of a
transfer of the property, then the notices shall be directed
to the then-owner, and the duties imposed herein shall be
the duties or the then-owner.

(iv) In the event the Library Building is more than fifty

percent destroyed (as determined by an insurance
adjustor or by an appraiser) by fire or other cause, the
restrictions contained in paragraphs a) and b), above,
shall become forever void.

(v) Any or all of the foregoing restrictions may be waived by

the County on either a case by case basis, or the entire
restriction may be forever waived and rendered void by
majority vote of the Board of Supervisors of
Rappahannock County after a duly advertised public
hearing provided any such waiver shall be reduced to
writing and placed of record in the Clerk’s Office.
Further, the right to enforce any restrictive covenant in
this deed must be exercised by filing the appropriate

4 See note 1, above.

P a g e 8 | 13
Boundary Line Adjustment Agreement

action in court within one year of the occurrence of the

event which violates the restriction, or that violation
shall be deemed forever waived.

These restrictions are referred to herein as the “County Covenants.”

d. The parties each having conducted a public hearing upon this

Agreement, and having fully considered whether it is in the interests of the
public or either jurisdiction to retain the aforesaid Town and County Covenants,
and acknowledging that structures in the Town remain subject to the Town’s
Historic District Ordinance, do hereby mutually agree that within two (2)
calendar months of the entry of the Order, each Party will execute such
documents as may be necessary, and as approved by their respective Town and
County Attorneys, to effect the complete release of both the Town and County
Covenants each as against the other jurisdiction.

4. Meals and Lodging Tax. If any use permitted on the Adjusted

Property generates meals and lodging tax pursuant to the Town’s Ordinances
and state law providing therefor, the revenues generated thereby will be divided
equally between the Town and the County. Such revenues shall be collected by
the Town as they are due, and payment shall be made to the County not later
than 60 days following the end of the County’s Fiscal Year.

5. Extension of Public Sewer to the Washington Volunteer Fire

and Rescue Company. The Town shall permit the Washington Volunteer Fire
and Rescue Company to connect, at the Company’s sole cost and expense, to the
Town’s public sanitary sewer system at such time as the Company advises the
Town in writing that it is prepared to do so. Such connection shall be made at
the western side of Warren Avenue, to the system extension constructed in
connection with the development of the project known as Rush River Commons.
Nothing herein shall relieve the Company from the obligation to pay such
connection fees, or other charges, costs, and fees, as may be required of any user
of the said system, or from obtaining any easement(s) that may prove necessary
to effectuate such connection.

6. Limitation on Future Boundary Line Adjustments and

Annexations. The Town shall not initiate, nor shall it support, a petition or
application filed by any party for any further Boundary Line Adjustments or
Annexations seeking to add territory to the Town, for a period of \ years from
the date of the entry of the Order; provided however that this shall not preclude
the voluntary adjustment of boundary lines of parcels lying partially in both
jurisdictions, either upon application of a property owner, or on motion of either
party, or for properties that require annexation in order to provide Town water
and/or sewer because of failing well and/or septic systems.

P a g e 9 | 13
Boundary Line Adjustment Agreement

ARTICLE II

Default

1. Default. In the event of a default under this Agreement, consisting of

a failure of either party to perform an obligation or to refrain therefrom as set forth
in this Agreement, including an attempted revocation of consent hereto, if a Party
has not cured an asserted default within sixty (60) calendar days of receiving written
notice of the said default from the non-defaulting Party, the non-defaulting Party
will have the right to seek any judicial remedy that may be available to it in law or
equity, including the right to specific performance.

2. Extension of cure periods by the Parties. In the event of a breach

and the appropriate notice thereof by the defaulting Party, the cure period noted
above may be extended at the sole discretion of the non-defaulting Party.

3. Attorneys’ fees. If either Party files a lawsuit, counterclaim, or cross-

claim to enforce any provision of this Agreement, the prevailing Party is entitled to
all reasonable attorneys’ fees, litigation expenses, and court costs.

ARTICLE III

Termination of Agreement in the Event that Development does not Occur

If the Adjusted Property is not developed as contemplated by this Agreement

within 15 calendar years from the date of the entry of the Order, then either party
may petition the Court to revoke the Boundary Line Adjustment otherwise
authorized herein by the filing of an appropriate proceeding pursuant to applicable
provisions of Virginia law as they may then exist.

ARTICLE IV

Miscellaneous Terms

1. Mutual Covenants and Cooperation. The Parties agree that they

will cooperate with each other in processing any documents, applications, or
petitions that may be required to effectuate the Boundary Line Adjustment, that
consent thereto will not be unreasonably withheld, and that should there be a third-
party challenge to the validity of the Boundary Line Adjustment they will each use
their best good faith efforts to defend the matter at the trial court and upon appeal.
The Parties covenant that so long as neither is in breach of this Agreement neither
will seek to invalidate this Agreement, or otherwise take a position adverse to the
purpose or validity hereof.

2. Third Party Beneficiaries. This Agreement is binding on and solely

for the benefit of the Parties hereto and their respective successors and permitted
assigns, and no other person will have any right, benefit, priority, or interest in,

P a g e 10 | 13
Boundary Line Adjustment Agreement

under, or because of the existence of, this Agreement.

3. Construction. This Agreement was drafted with input by the Town

and the County, and no presumption arising from draftsmanship will exist against
either Party.

4. Counterparts; Electronic Signatures. This Agreement can be

executed simultaneously in any number of counterparts, each of which is to be
deemed an original, and all of which will constitute but one and the same
instrument. A signed copy of this Agreement delivered by facsimile, e-mail/PDF, or
other means of electronic transmission has the same legal effect as delivery of an
original signed copy of this Agreement.

ARTICLE V

PRESENTATION OF THE PETITION TO THE CIRCUIT COURT.

1. As soon as practicable after the adoption of the Agreement by both

Parties hereto, the County Attorney and the Town Attorney, or their designees, will
Petition the Circuit Court of Rappahannock County to approve this Boundary Line
Adjustment Agreement and enter an appropriate Order to that effect. The Petition
will set forth the facts pertaining to the desire to relocate or change the boundary
line between the localities, this Agreement, and will have attached to it the Plat of
Boundary Line Adjustment attached hereto as Exhibit A, and this Agreement, which
shall be incorporated into the Court’s Order.

2. Upon entry of the Order, that Order will be entered in the land records
of the Circuit Court of Rappahannock County and indexed in the names of both the
Town and the County, and certified copies of the Order will be provided to the Mayor
of the Town and the Chairman of the Board of Supervisors.

[Signature pages follows]

P a g e 11 | 13
Boundary Line Adjustment Agreement

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement

to be executed by the officers whose names appear below as of the Effective Date
first set forth above.

The Board of Supervisors of

Rappahannock County, Virginia

By:

Name:

Title: Chairman of the Board

Approved as to form:

By: __________________________
County Attorney

P a g e 12 | 13
Boundary Line Adjustment Agreement

The Town of Washington, Virginia

By:

Name:

Title: Mayor

Approved as to form:

By: __________________________
Town Attorney

P a g e 13 | 13