DEED OF TEMPORARY EASEMENT

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Augustine Phelps
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1 DEED OF TEMPORARY EASEMENT This DEED OF TEMPORARY EASEMENT ( Agreement ) is made this day of, 2005 by THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body corporate ( Grantor ), and LEE GARDENS HOUSING CORPORATION, a Virginia corporation ("Grantee"). For and in consideration of the sum of Ten Dollars ($10.00) and the mutual benefits to be derived by the parties hereto, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby grants and conveys unto Grantee a temporary easement for the use of a portion of Grantor s property, containing 5, square feet of land (the Temporary Easement ) shown on the plat attached hereto and made a part hereof entitled Rocky Run Park-Storm Sewer, dated March 2, 2005 (the "Plat"), said Temporary Easement being a portion Rocky Run Playground at 1121 North Barton Street ( Property ), situated in Arlington County, Virginia, to construct a storm sewer and for such other purposes as are incidental and related thereto, as described in the plans entitled Final Engineering Site Plan, Woodbury Park dated December 2, 2004 and approved by Arlington County December 17, 2004 ( Project ). 1. The Agreement shall begin upon the full execution and delivery of the Agreement by the parties hereto and shall expire upon the completion of the Project, which shall be no later than one hundred and twenty (120) days after execution of this Agreement on behalf of the Grantor. The expiration date may be extended by the Arlington County Engineering Chief, on behalf of the Grantor, for not more than an additional ninety (90) days. 2. Prior to the commencement of construction in the Temporary Easement, Grantee shall protect three trees within the Temporary Easement in accordance with County standards, policies and guidelines. If in the opinion of County s Urban Forester, the construction of the Project adversely affects any of the said trees and any of said trees dies within two years of the completion of the Project, the affected tree or trees shall be replaced by Grantee in accordance with the County s Tree Replacement Guidelines. 3. Grantee shall construct the Project in accordance with the County s Public Works Construction Standards and Specifications and all applicable federal, state, and local laws, orders, ordinances, codes, rules, regulations and policies. Grantee shall pay all costs in connection therewith. 4. Grantee shall install and maintain construction fencing around the excavated area at all times when there is no construction activity occurring within the Temporary Easement. 5. Grantee shall maintain the Project in good condition so as not to endanger the general public, cause damage to the adjacent Property or unreasonably interfere with Grantor s 1

2 use of the Property as a public park. 6. Grantee shall fill all excavated areas with soil and six (6) inches of topsoil. If the excavated area settles within two (2) years and County determines the settlement hazardous to users of the Property, then Grantee shall fill, grade and resod the excavated area. 7. Grantee shall promptly restore all portions of the Property damaged by Grantee. 8. Grantee agrees that at the completion of construction of the Project, Grantee will, at no cost to Grantor: (1) restore the disturbed area on and adjacent to the Temporary Easement as nearly as practicable to its original condition; (2) grade, reseed or resod, at the option of Grantor, all damaged grass areas within or adjacent to the Temporary Easement; (3) reset or replace with nursery stock all damaged or destroyed plants, shrubbery and hedges within or adjacent to the Temporary Easement; and (4) guarantee reset plants for one year against damage from the date they are reset, and nursery stock for one year from the date of planting. 9. If Grantee fails to perform any of its obligations pursuant to this Agreement, then Grantor may perform Grantee s obligations, and the costs thereof shall be paid by Grantee to Grantor within thirty (30) days after evidence of the costs incurred by the Grantor is provided to the Grantee. 10. The rights or privileges herein granted to Grantee are subject to all rights or interests held by others in the Temporary Easement and the Property. 11. All personal property of Grantee, its employees, agents, contractors, business invitees and licensees in and on the Temporary Easement shall be and remain at the sole risk of the above described persons and entities. Grantor shall not be liable to any such person or entity for any damage to or loss of personal property. 12. Grantee hereby agrees to defend, indemnify and hold harmless Grantor, and its elected and appointed officials, officers, employees, contractors, agents, successors and assigns, from and against all claims, causes of action, liabilities, losses, costs and expenses arising from, or in connection with, any death, injury or damage to any person or property which occurs in the Temporary Easement or the Property; and is caused by negligence or willful misconduct of Grantee, its agents, contractors, employees, customers, and invitees in connection with the entry and use of the Temporary Easement or Property by the Grantee, its agents, contractors, employees, customers, and invitees. The indemnification in this section shall survive the expiration of this Agreement. 13. At all times during Grantee s use of the Temporary Easement, Grantee shall carry and maintain, in full force and effect, a comprehensive general liability insurance policy in the amount of One Million Dollars ($1,000,000) combined single limit, with Two Million Dollars ($2,000,000) general aggregate, covering the Temporary Easement. The 2

3 Grantor, its elected and appointed officers, officials, employees and agents shall be named as additional insureds on the insurance policy. Grantee shall provide evidence of insurance coverage in the form of a certificate of insurance to Grantor prior to Grantee s use of the Temporary Easement. The insurance policy shall (1) require the insurance carrier to give at least thirty (30) days prior written notice to all named insureds in the event of any material change in coverage, cancellation, or non-renewal and (2) be issued by an insurer licensed to do business in the Commonwealth of Virginia with an A rating or better by A. M. Best or a comparable insurance rating company. 14. All notices or other communications hereunder shall be in writing and shall be given to the other party by hand delivery or by certified mail, return receipt requested, at the following addresses or such other addresses as hereafter provided by notice to the other party: If to Grantor: Arlington County, Virginia Department of Environmental Services, Engineering and Capital Projects Division Real Estate Section 2100 Clarendon Blvd., Suite 900 Arlington, VA Attn: Real Estate Coordinator To Grantee: c/o AHC Inc South 9 th Street, Suite 200 Arlington, VA Attn: Senior Project Manager With a copy to: Bush Construction Corporation 2000 Clarendon Boulevard, Suite 100 Arlington, VA Attn: Vice President of Development Notices shall be effective upon receipt. 15. This Agreement relates to Grantee s right to use the Temporary Easement to construct a storm sewer and for such other purposes as are incidental and related thereto 3

4 and not to all obligations of Grantee to construct the storm sewer. 16. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof. All representations, inducements, or agreements, oral or otherwise, between the parties not contained in this Agreement shall be of no force and effect. This Agreement shall not be modified, changed or terminated, in whole or in part, in any manner other than by an agreement in writing signed by duly authorized representatives of the Grantor and Grantee. 17. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia. The courts of Arlington County, Virginia shall be the proper forum for any disputes arising hereunder. 18. This Agreement covers all agreements between the parties hereto. No representations or statements have been made which would modify, add to or change the terms of this Agreement. 19. The foregoing recitals are fully incorporated into this Agreement by this reference. WITNESS the following signature(s): GRANTOR: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By: Title: Date: COMMONWEALTH OF VIRGINIA COUNTY OF ARLINGTON, to-wit: The foregoing instrument was acknowledged before me by, on behalf of THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body corporate, this day of, Notary Public My Commission expires: 4

5 GRANTEE: LEE GARDENS HOUSING CORPORATION By: Title: Date: STATE:, COUNTY: : The foregoing instrument was acknowledged before me on this day of, 2005 by. Notary Public: My Commission Expires: APPROVED as to form: COUNTY ATTORNEY 5

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DEED OF EASEMENTS PREPARED BY, AND WHEN RECORDED RETURN TO:

DEED OF EASEMENTS PREPARED BY, AND WHEN RECORDED RETURN TO: Addendum-12-14-13-C1-4736 Lee Highway Easements - Page 1 PREPARED BY, AND WHEN RECORDED RETURN TO: Real Estate Bureau Chief Department of Environmental Services Arlington County Government 2100 Clarendon