ARLINGTON COUNTY, VIRGINIA

Transcription

1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of April 16, 2005 DATE: April 11, 2005 SUBJECT: Enactment of an Ordinance to Vacate a Portion of North Veitch Street Adjacent to Lots 4 through 7, Block 10, Courtlands, and to Vacate a Portion of an Easement for Public Purposes Adjacent to North Fairfax Drive and Arlington Boulevard, at 1190 N. Courthouse Rd., Courthouse Quality Inn Hotel (RPC # ), with Conditions. C. M. RECOMMENDATIONS: 1. Enact an Ordinance to Vacate a Portion of North Veitch Street Adjacent to Lots 4 through 7, Block 10, Courtlands, and to Vacate a Portion of an Easement for Public Purposes Adjacent to North Fairfax Drive and Arlington Boulevard, at 1190 N. Courthouse Rd., Courthouse Quality Inn Hotel (RPC # ), with Conditions. 2. Authorize the Director of Engineering and Capital Projects, Department of Environmental Services to execute, on behalf of the County Board, the Deed of Vacation, the Agreement of Sale, and other related documents, and to accept all required Deeds, and related documents necessary to convey property interests to the County required by conditions of the Ordinance, subject to approval as to form by the County Attorney. ISSUE: None SUMMARY: The Applicant, First Choice Properties Corporation, owner of the Courthouse Quality Inn Hotel Property, has requested the vacation of a portion of North Veitch Street, and vacation of a portion of an Easement for Public Purposes adjacent to North Fairfax Drive and Arlington Boulevard (shown on the attached Exhibit B), in conjunction with a Site Plan Amendment proposal for Abingdon Heights (Site Plan #75), to facilitate redevelopment of the site. Applicant has proposed, as compensation for the vacations, to convey to the County a triangular parcel of property bounded by Fairfax Drive, Arlington Boulevard and the land of Lee Gardens Housing Corporation, RPC # (designated as Parcel 2 on the attached Exhibit B), for public purposes, including the potential future relocation of Fairfax Drive. County Manager: County Attorney: Staff: Tim O Hora, Real Estate Specialist, DES

2 With enactment of the Ordinance of Vacation, and upon satisfaction by the Applicant of the conditions and recordation of the Deed of Vacation by the Applicant before the expiration date of the Ordinance, the County s interest in the vacated portion of North Veitch Street and the vacated portion of the Easement for Public Purposes will be extinguished. BACKGROUND: The proposed Abingdon Heights Site Plan (Site Plan #75) amendment proposal would include removal of two smaller existing hotel buildings and construction of a total of 252 new residential units. Of these, 213 would be provided in an 11-story building located at the southernmost portion of the existing site, at the intersection of North Courthouse Road and Fairfax Drive. An additional 31 four-story townhouse-style condominium units and eight (8) stacked townhouse condominium units would be located on the remainder of the site, along Fairfax Drive to the west of the proposed high-rise, and along the northern edge of the site, adjacent to Courtland Towers and the Colin Place townhouses. The application for the proposed vacations resulted from a staff request to move the footprint of the planned buildings to address County streetscape issues. Legal Description: The portions of the North Veitch Street public right-of-way and the Easement for Public Purposes that the Applicant request to be vacated are more specifically described below: 1. A portion of the North Veitch Street right-of-way adjacent to Lots 4 through 7, Block 10, Courtlands, established by recordation of a subdivision plat showing the dedication of Courtlands in Deed Book 120, at Page 242. The portion of the North Veitch Street rightof-way to be vacated is 2,038 square feet, as shown on a plat attached to this report on page 2 of 3 of Exhibit B entitled Plat Showing Proposed Vacation of a Portion of North Veitch Street. 2. A portion of the Easement for Public Purposes adjacent to North Fairfax Drive and Arlington Boulevard, granted to the County by Deed of Easement recorded in Deed Book 1399, Page 311. The portion of the Easement for Public Purposes to be vacated is 16,996 square feet, as shown on a plat attached to this report on page 3 of 3 of Exhibit B entitled Plat Showing the Vacation of a Portion of 100 Easement for Public Purposes on the Property of First Choice Properties Corporation. The existing right of way and existing easement are shown on Exhibit A. Public Notice: Public notice was given in accordance with of the Code of Virginia. Notices were placed in the March 21, 2005 and March 28, 2005 issues of the Examiner. Washington for the County Planning Commission Meeting of April 4, 2005, and the County Board meeting of April 16, DISCUSSION: The Applicant, through its attorney, Jonathan C. Kinney, Attorney, of Bean, Kinney & Korman, PC, has requested vacation of a portion of an Easement for Public Purposes on the southern portion of the existing site plan, over which a portion of the proposed high rise building would extend. The Applicant has also requested the vacation of a small, unused, L- shaped portion of the North Veitch Street right-of-way that lies adjacent to the northern portion - 2

3 of the applicant s property. While the L-shaped parcel is not physically required for the construction of the buildings included in the proposed site plan, the vacation and incorporation of the parcel into the site would enable the Applicant to provide better garage access to some of the planned townhouse-style units. The proposed right-of-way vacation is a remnant portion of North Veitch Street adjacent to Lots 4 through 7, Block 10, Courtlands that was isolated by the prior vacations of adjoining portions of the right-of way. The portion of North Veitch Street immediately to the south was vacated in The portion of the North Veitch Street immediately to the north was vacated in The remaining, unimproved area of the right of way is atop of a steep hill that forms the northern boundary of the site. The area of the proposed right-of-way vacation is 2,038 square feet, as depicted on page 2 of 3 of Exhibit B entitled Plat Showing Proposed Vacation of a Portion of North Veitch Street. The Easement for Public Purposes adjacent to North Fairfax Drive and Arlington Boulevard is 19,096 square feet in its entirety, as described and platted in Deed Book 1399, Page 311. The portion of the Easement for Public Purposes to be vacated is 16,996 square feet, as depicted on page 3 of 3 of Exhibit B entitled Plat Showing the Vacation of a Portion of 100 Easement for Public Purposes on the Property of First Choice Properties Corporation, leaving a 2,100 square foot area in place for present or future public use. As part of the related Site Plan #75, as amended, the Applicant proposes to relocate certain public utilities from their current location within the existing Easement for Public Purposes proposed to be vacated. The existing utilities are a public sanitary sewer line and storm sewer box culvert as shown on the attached Exhibit A. Staff recommends that the Ordinance require the Applicant to develop a utilities relocation plan approved by the Department of Environmental Services, in accordance with the Site Plan #75 conditions, as amended. Compensation: In accordance with Virginia Code Section , the County Board is authorized to charge as compensation for vacations no greater than the property s fair market value or the contributory value of the abutting property, which ever is greater, or the amount agreed upon by the parties. The 2,038 square foot portion of North Veitch Street to be vacated would provide sufficient land area to allow the Applicant three additional units, per the maximum density (72 units/acre) allowed by the General Land Use Plan (GLUP). The reasonable fair market land value for these three additional units is estimated to be $290,000 in an appraisal report with an effective date of March 5, 2005, prepared by an independent state certified Real Estate Appraiser (the Appraisal Report ). While the vacation of the 16,996 square foot portion of the Easement for Public Purposes is not necessary for density to build the apartment building tower and garage as planned, the area proposed to be vacated will add value by allowing an increase in the average size of an apartment unit or by providing additional surface or garage parking spaces. The reasonable fair market value of vacation of the portion of the Easement for Public Purposes is estimated by the Appraisal Report to be $620,000, taking into account its reduced value as an easement interest. - 3

4 The Applicant has agreed to convey to the County approximately 19,521 square feet of land designated as Parcel 2 on page 1 of 3 of Exhibit B, as compensation for the proposed areas to be vacated. The County would utilize Parcel 2 for public purposes, including the potential future relocation of Fairfax Drive. The County agrees to accept conveyance of Parcel 2 subject to the existence, as of the date of settlement, of a 66-inch public storm sewer line, lying and running generally along the western boundary of Parcel 2 contiguous to the property of Lee Gardens Housing Corporation, and connecting to a public storm sewer running through the Parcel 2 from the western boundary of the property toward Arlington Boulevard. The Appraisal Report estimates the reasonable fair market value of Parcel 2 to be $1,520,000. Staff recommends that the conveyance of Parcel 2 to the County would appropriately compensate the County for the areas proposed to be vacated, and that the requested vacations be approved subject to the conditions listed in the attached Ordinance of Vacation. FISCAL IMPACT: The conveyance of Parcel 2 by the Applicant to the County, as a condition of the vacations, will provide appropriate compensation of equal or greater value than the vacations requested. CONCLUSION: It is recommended that the County Board enact the attached (Attachment 1) Ordinance to Vacate a Portion of North Veitch Street Adjacent to Lots 4 through 7, Block 10, Courtlands, and to Vacate a Portion of an Easement for Public Purposes Adjacent to North Fairfax Drive and Arlington Boulevard, at 1190 N. Courthouse Rd., Courthouse Quality Inn Hotel (RPC # ), subject to the following Conditions: 1. The Applicant/Property Owner shall convey to the County fee simple title to the triangular parcel of property bounded by Fairfax Drive, Arlington Boulevard and the land of Lee Gardens Housing Corporation, being approximately 19,521 square feet of land and designated as Parcel 2 (RPC # ) on the attached plat entitled Exhibit B Showing the Vacations of a Portion of North Veitch Street and a Portion of 100 Easement for Public Purposes Abingdon Heights prepared by VIKA Engineering, dated January 24, Notwithstanding anything herein to the contrary, the Applicant/Property Owner shall satisfy Condition #76 of Site Plan #75. The County Board hereby approves the Agreement of Sale for Parcel 2 attached to this Ordinance as Exhibit A, and the Lease Agreement attached thereto as Exhibit A to the Agreement of Sale. 2. Consistent with Condition #24 of Site Plan # 75, the Applicant shall submit to the Department of Environmental Services, a Utility Relocation Plan (the Plan ) and design, consistent with the Arlington County Department of Environmental Services Construction Standards and Specifications, which shall be approved by the Director of the Department of Environmental Services, or his designee, for the relocation of all public utilities facilities, in whole or in part, within the portion of the Easement for Public Purposes to be vacated. The Applicant shall provide to the County a bond or other satisfactory form of security, as determined by the County Manager or his designee, acceptable to the Director of Environmental Services or his designee, for the construction of all utility facilities to be relocated pursuant to the Plan. - 4

5 3. The Applicant/Property Owner shall prepare and submit to the County a Deed of Vacation, a Special Warranty Deed, all required plats, and other necessary documents, subject to the approval of the County Manager, or his designee, and approval as to form by the County Attorney. 4. The Applicant/Property Owner shall record all plats and the Deed of Vacation. 5. The Applicant shall pay all fees, including the fees for review, approval and recording of the required documents associated with the Ordinance of Vacation. 6. All conditions of the Ordinance of Vacation must be met by noon on April 16, 2008, or the Ordinance of Vacation shall become null and void, without further action by the County Board. - 5

6 ATTACHMENT 1 AN ORDINANCE TO VACATE A PORTION OF NORTH VEITCH STREET ADJACENT TO LOTS 4 THROUGH 7, BLOCK 10, COURTLANDS, AND TO VACATE A PORTION OF AN EASEMENT FOR PUBLIC PURPOSES ADJACENT TO NORTH FAIRFAX DIVE AND ARLINGTON BOULEVARD, AT 1190 NORTH COURTHOUSE ROAD, COURTHOUSE QUALITY INN HOTEL (RPC # ), WITH CONDITIONS: BE IT ORDAINED that, pursuant to a request by the Applicant on file in the offices of the Department of Environmental Services, a Portion of North Veitch Street, approximately 2,038 square feet adjacent to Lots 4 through 7, Block 10, Courtlands created by recordation of a subdivision plat showing the dedication of Courtlands in Deed Book 120, at Page 242, and a portion of the Easement for Public Purposes adjacent to Fairfax Drive and Arlington Boulevard, approximately 16,996 square feet, created by plat recorded with a Deed of Vacation recorded at Deed Book 1399, Page 311, as both are shown on a plat attached to the County Manager s April 16, 2005 report, are hereby vacated subject to the following conditions: 1. The Applicant/Property Owner shall convey to the County fee simple title to the triangular parcel of property bounded by Fairfax Drive, Arlington Boulevard and the land of Lee Gardens Housing Corporation, being approximately 19,521 square feet of land and designated as Parcel 2 (RPC # ) on the attached plat entitled Exhibit B Showing the Vacations of a Portion of North Veitch Street and a Portion of 100 Easement for Public Purposes Abingdon Heights prepared by VIKA Engineering, dated January 24, Notwithstanding anything herein to the contrary, the Applicant/Property Owner shall satisfy Condition #76 of Site Plan #75. The County Board hereby approves the Agreement of Sale for Parcel 2 attached to this Ordinance as Exhibit A, and the Lease Agreement attached thereto as Exhibit A to the Agreement of Sale. 2. Consistent with Condition #24 of Site Plan # 75, the Applicant shall submit to the Department of Environmental Services, a Utility Relocation Plan (the Plan ) and design, consistent with the Arlington County Department of Environmental Services Construction Standards and Specifications, which shall be approved by the Director of the Department of Environmental Services, or his designee, for the relocation of all public utilities facilities, in whole or in part, within the portion of the Easement for Public Purposes to be vacated. The Applicant shall provide to the County a bond or other satisfactory form of security, as determined by the County Manager or his designee, acceptable to the Director of Environmental Services or his designee, for the construction of all utility facilities to be relocated pursuant to the Plan. 3. The Applicant/Property Owner shall prepare and submit to the County a Deed of Vacation, a Special Warranty Deed, all required plats, and other necessary documents, subject to the approval of the County Manager, or his designee, and approval as to form by the County Attorney. 4. The Applicant/Property Owner shall record all plats and the Deed of Vacation. - 6

7 5. The Applicant shall pay all fees, including the fees for review, approval and recording of the required documents associated with the Ordinance of Vacation. 6. All conditions of the Ordinance of Vacation must be met by noon on April 16, 2008, or the Ordinance of Vacation shall become null and void, without further action by the County Board. - 7

8 Exhibit A to Ordinance of Vacation AGREEMENT OF SALE This AGREEMENT OF SALE (the Agreement ) is made on, 200 by and between FIRST CHOICE PROPERTIES CORP., a Delaware corporation, ( Seller ), and THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body corporate ( Purchaser ). In consideration of $10.00 cash in hand paid and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in further consideration of the mutual benefits to be received by the parties, Seller agrees to sell, and Purchaser agrees to buy pursuant to the terms and conditions of this Agreement, in fee simple absolute, all that land, together with the improvements thereon, situate, lying and being in Arlington County, Virginia, and being more particularly described in Paragraph 1 below: 1. THE PROPERTY: Beginning at a point being a common corner with the land of Lee Gardens Housing Corporation, said point lying along the southerly right-of-way line of Fairfax Drive (width varies); Thence running with the southerly right-of-way line of Fairfax Drive with a curve to the left of radius feet having a central angle of , chord of feet, chord bearing of E and an arc length of feet to the intersection with the northwesterly right-of-way line of Arlington Boulevard (width varies); Thence running with the northwesterly right-of-way line of Arlington Boulevard with a curve to the left of radius 1, feet having a central angle of , chord of feet, chord bearing of S W and an arc length of feet to a point; Thence leaving Arlington Boulevard and running with the line of the land of Lee Gardens Housing Corporation N W feet to the point and place of beginning and containing acres of land more or less, RPC # (the Property ). 2. PRICE: The Property shall be conveyed to the Purchaser in exchange for the Purchaser s vacation of the following real property interests, and other good and valuable consideration, pursuant to Purchaser s approval of an amendment to Site Plan #75: a. A portion of the North Veitch Street right-of-way adjacent to Lots 4 through 7, Block 10, Courtlands, established by recordation of a subdivision plat showing the dedication of Courtlands in Deed Book 120, at Page 242. The portion of the North Veitch Street right-of-way to be vacated is 2,038 square feet, as shown on a plat attached hereto as Exhibit B, entitled Exhibit B Showing Vacations of a Portion of North Veitch Street and a Portion of 100 Easement for Public Purposes Abingdon Heights, prepared by VIKA Incorporated, dated January 24, Abingdon Heights SP #75 1

9 Exhibit A to Ordinance of Vacation b. A portion of the Easement for Public Purposes adjacent to North Fairfax Drive and Arlington Boulevard, granted to the County by Deed of Easement recorded in Deed Book 1399, Page 311. The portion of the Easement for Public Purposes to be vacated is 16,996 square feet, as shown on a plat attached hereto as Exhibit B, entitled Exhibit B Showing Vacations of a Portion of North Veitch Street and a Portion of 100 Easement for Public Purposes Abingdon Heights, prepared by VIKA Incorporated, dated January 24, SETTLEMENT: a. The settlement of the sale of the Property in accordance with this Agreement (the Settlement or Settlement Date ) shall take place on or before March 16, 2008 provided; (i) Seller has met all the conditions of the Ordinance of Vacation for vacation of the Purchaser s property interests listed in paragraph 2 above; (ii) that the requirements of paragraph 10 (Hazardous Materials) have been completed; and, (iii) unless extended to meet the conditions and requirements of paragraph 5 (Title), paragraph 11 (Survey), or as provided in paragraph 3b. b. The Settlement Date may be extended by the Purchaser in the event Seller has not met its obligations as set out in 3a. above. The Director of Engineering & Capital Projects for Arlington County is authorized to act on behalf of the Purchaser for this purpose. c. Settlement shall take place in the offices of Brooks, Suiters & Sattler, P.C., 2000 N. 14th Street, #210, Arlington, Virginia or at such other location as the Purchaser may designate (the Settlement Attorneys ). d. On or before Settlement, Purchaser shall deliver to the Settlement Attorneys a Deed of Vacation for the above-described property interests to be vacated. The Deed of Vacation shall be recorded upon the completion of the bringdown of title and recording of the deed of conveyance for the Property. e. Seller represents and warrants to Purchaser that Seller and Seller s beneficiaries are not foreign persons as defined by 1445 of the Internal Revenue Code, and are residents of Virginia. At the time of Settlement, Seller shall execute an affidavit stating the same under penalty of perjury and providing Seller s true and correct United States Taxpayer Identification Number for a proper 1099 Internal Revenue Service Form. Seller and Purchaser shall also execute such other settlement documents as are reasonably required by the Settlement Attorneys. f. Seller warrants and represents that it has the full legal right and authority to execute this Agreement of Sale and to convey the Property to Purchaser and to execute any and all other documents necessary or desirable to effectuate Seller s Abingdon Heights SP #75 2

10 Exhibit A to Ordinance of Vacation obligations under this Agreement of Sale. If additional signatures, authority or documentation is required by the title insurance company or the Settlement Attorneys, Seller shall promptly and at their own cost supply the same. If the Seller is a legal entity such as a corporation, partnership, limited liability company or is a fiduciary, such as a trustee, executor or administrator, then the Seller warrants and represents that it has the authority to execute this Agreement on behalf of Seller, and to bind Seller to the terms of this Agreement. g. DISCLOSURES: a. Choice of Settlement Agent: You have the right to select a settlement agent to handle the closing of this transaction. The settlement agent s role in closing your transaction involves the coordination of numerous administrative and clerical functions relating to the collection of documents and the collection and disbursement of funds required to carry out the terms of the contract between the parties. If part of the purchase price is financed, your lender will instruct the settlement agent as to the signing and recording of loan documents and the disbursement of loan proceeds. No settlement agent can provide legal advice to any party to the transaction except a settlement attorney who is engaged in the private practice of law in Virginia and who has been retained or engaged by a party to the transaction for the purpose of providing legal services to that party. h. ESCROW, CLOSING, AND SETTLEMENT GUIDELINES: The Virginia State Bar issues guidelines to help settlement agents avoid and prevent the unauthorized practice of law in connection with furnishing escrow, settlement, or closing services. As a party to a real estate transaction, you are entitled to receive a copy of these guidelines from your settlement agent, upon request, in accordance with the provisions of the Consumer Real Estate Settlement Protection Act. (1997, c.716.) 4. ENCUMBRANCES: Seller shall not, either by commission or by omission, cause the Property to be encumbered in any way after Seller s execution of this Agreement. 5. TITLE: Seller agrees to execute and deliver a good and sufficient Special Warranty deed to Purchaser at Settlement. The Property shall be conveyed free and clear of all deeds of trust, judgments, liens, indebtedness or encumbrances, and without restrictions, easements, rights of way, covenants of record, title and survey exceptions, or leases, which, in the sole opinion of Purchaser, restrict or adversely affect the use of the Property by Purchaser for public purposes (together Title Exceptions ), provided, however, that the exceptions numbered Abingdon Heights SP #75 3

11 Exhibit A to Ordinance of Vacation 3, 4, 6, and 22, as they appear on Schedule B, Exceptions from Coverage, of an Owner s Policy of Title Insurance No. AR962601C, issued to First Choice Properties Corp, a Delaware Corporation, by Commonwealth Land Title Insurance Company, dated April 29, 1997 at 1:56 P.M, as they apply to the Property, are deemed acceptable to the Purchaser. A copy of such exceptions is attached hereto as Exhibit C. In addition, title shall be marketable and fully insurable at usual and normal rates by a highly reliable national title insurance company licensed to do business in the Commonwealth of Virginia and approved by Purchaser, and free of Title Exceptions, or this Agreement shall be voidable at the option of Purchaser, subject to the provisions set forth below. Purchaser shall furnish Seller with a list of Title Exceptions or matters affecting the marketability or insurability ("Marketability") of the Property prior to Settlement. Seller shall, at its sole expense, remove any such Title Exceptions or objectionable Marketability matters prior to Settlement. So long as Seller is actively pursuing the removal of such Title Exceptions or objectionable Marketability matters in good faith, the Settlement Date shall be extended until such Title Exceptions and objectionable Marketability matters are corrected, at the sole option of Purchaser. If at any time Purchaser concludes that such Title Exceptions or objectionable Marketability matters cannot be removed in a timely and satisfactory fashion, the Purchaser may declare this Agreement void, and neither party will have further rights or responsibilities hereunder. Notwithstanding any provision herein to the contrary, the Purchaser agrees to purchase the Property subject to the existence, as of the Settlement Date, of a 66-inch public storm sewer line, lying and situate generally along the western boundary of the Property contiguous to the property of Lee Gardens Housing Corporation, and connecting to a public storm sewer running through the Property from the western boundary of the Property to Arlington Boulevard. 6. CHARGES: Examination of title, notary fees, State and local recording taxes (except the Virginia grantor tax), if any such taxes are applicable to this transaction, and Purchaser's attorney's fees are to be the cost of Purchaser. Seller shall pay for its own attorney s fees and costs, the preparation of the deed of conveyance, the Virginia grantor tax, the release of any liens or encumbrances against the Property, and the costs and attorney's fees to cure or remove any Title Exceptions or objectionable Marketability matters. Real estate taxes, water, sewer, utility and all other charges are to be pro-rated to the Settlement Date. 7. WAIVER OF RELOCATION ASSISTANCE: Seller hereby waives all rights or claims for relocation assistance under the Federal, State, or local relocation assistance programs. 8. DAMAGE PRIOR TO POSSESSION: Risk of loss shall be on Seller until the recordation of the deed. Seller shall maintain fire and casualty insurance on the Property in a face amount of not less than the Purchase Price until delivery of possession to Purchaser. If, Abingdon Heights SP #75 4

12 Exhibit A to Ordinance of Vacation prior to delivery of possession, the Property is damaged by fire or other casualty, Purchaser may, at Purchaser s sole option, terminate this Agreement. If Purchaser does not terminate this Agreement, Seller shall, at Settlement, assign to Purchaser all claims against insurers or other third parties, and Seller shall also cooperate with Purchaser in every respect in making and supporting a proof of loss and affecting the collection of insurance. This provision shall survive conveyance of the Property to Purchaser. 9. POSSESSION AT SETTLEMENT: Except as provided in the Lease Agreement attached hereto as Exhibit A, Seller agrees to give possession of the Property at Settlement free and clear of all persons in possession. By approval of this Agreement, after a public hearing, the Lease Agreement is hereby approved by the County Board. The Director of Engineering and Capital Projects, Department of Environmental Services is hereby authorized to execute the Lease Agreement on behalf of the County, subject to approval as to form by the County Attorney. Without limiting the foregoing, Seller, prior to settlement, shall cause to be extinguished any and all tenancies and tenant s rights in the Property. 10. HAZARDOUS MATERIALS: a. Seller represents that, to the best of Seller s knowledge: (i) neither Seller, nor its predecessors in title, have disposed of, released, or deposited hazardous or toxic wastes or substances, including asbestos, regulated by the most stringent applicable Federal, State or Local environmental, health, and safety laws, regulations, ordinances, or standards ( Hazardous Materials ) on or within any part of the Property; and (ii) Seller has no actual knowledge of any such disposal, release, or deposit of Hazardous Materials on or within any part of the Property. Seller further warrants that Seller has not disposed of, released, or deposited any Hazardous Materials originating on the Property, except as provided by law at a site or facility approved by Federal, or State or Local regulatory agencies for the disposal of such materials. These representations and warranties in this paragraph shall survive Settlement. b. Seller has provided Purchaser with a Phase I environmental survey regarding the Property dated March 29, Based on the Phase I environmental survey report, the Property, as of March 29, 2005, is in an acceptable environmental condition to the Purchaser, as described in the report. Purchaser shall have the right, at any time prior to Settlement, and/or prior to the termination or expiration of the Lease Agreement attached hereto as Exhibit A, to obtain its own environmental survey(s) of the Property. The aforesaid Phase I environmental survey, together with any subsequent report, opinion, or investigation of the Property for Hazardous Materials shall be referred to as the Inspection Report. Abingdon Heights SP #75 5

13 Exhibit A to Ordinance of Vacation If it is determined by any Inspection Report obtained by the Seller or Purchaser that hazardous or toxic materials are present in actionable amounts (amounts requiring remediation under applicable law) on the Property to be conveyed to the County, then the Seller agrees to remediate the property of such hazardous or toxic materials to a standard that is consistent with the then applicable law, requirements, and guidelines (including, but not limited to, VDOT requirements and guidelines) for the use of the conveyed property for public street, park, open space and all other purposes authorized by the County Board. The Seller shall also be responsible for remediation of all environmental contamination which appears or arises on or within the Property during the term of the Lease attached hereto as Exhibit A. c. A closing letter or no action letter from the Virginia Department of Environmental Quality specifically applicable to hazardous or toxic materials, as indicated the Inspection Report, shall be prima facie evidence of compliance with applicable standards. Such letter(s) shall not limit the rights, obligations, or liabilities of the developer or the County. e. If Purchaser is satisfied, in its sole discretion, that the Property is free of Hazardous Materials, or that the amount of such materials is not sufficient to prevent purchase of the Property, or that the Seller has provided to the Purchaser a bond, letter of credit, or other financial assurance, acceptable to the County Manager, in a form approved by the County Attorney, covering one hundred twenty-five percent (125%) of the costs of clean up and removal of any Hazardous Materials, as estimated by a reputable, licensed, mutually agreeable environmental remediation contractor, then Purchaser shall proceed with the purchase of the Property and Settlement shall take place in accordance with the terms and conditions of this Agreement. f. Notwithstanding any provision herein to the contrary, the Purchaser shall have no liability whatsoever to the Seller, or to third parties, for the failure of Settlement to occur prior to the expiration of Site Plan #75 or the expiration of the Ordinance of Vacation referred to in subparagraph 3a(i) of this Agreement. 11. SURVEY: The boundaries and acreage of the Property to be conveyed may be determined and depicted by a survey prepared by a registered land surveyor or engineer, conducted at the direction and expense of Purchaser. The survey shall locate and depict all improvements, easements, rights of way, set backs, encroachments, flood plain and flood fringe areas and any other particulars which may be required by Purchaser. Purchaser shall furnish Seller with a copy of the survey and, with a list of any matters which, in Purchaser s sole Abingdon Heights SP #75 6

14 Exhibit A to Ordinance of Vacation discretion restrict or adversely affect Purchaser s intended use of the Property, encumber the Property, or otherwise adversely affect the Marketability, use or enjoyment of the Property (all of the aforesaid being referred to as Survey Exceptions ). Seller shall, at its own expense, remove any such Survey Exceptions prior to Settlement. Notwithstanding the foregoing, so long as Seller is actively pursuing the removal of Survey Exceptions in good faith, the Settlement Date shall be extended until such Survey Exceptions are corrected, at the option of Purchaser. If at any time Purchaser concludes that the Survey Exceptions cannot be removed in a timely and satisfactory fashion, the Purchaser may declare this Agreement void, and neither party will have further rights or responsibilities hereunder. 12. INSPECTION OF PREMISES: Sellers will permit the agents, designees and employees of Purchaser access to the Property at all reasonable times for the purpose of making the inspections necessary in connection with paragraph 10 (Hazardous or Toxic Materials), a property or building condition survey, and the survey pursuant to paragraph 11 (Survey). 13. NOTICES: All notices, demands, and requests which may be given, or are required to be given by either party to the other shall be in writing, and shall be either hand delivered or be sent by United States registered or certified mail, return receipt requested, with proper first class postage prepaid, and properly addressed. If to Seller: If to Purchaser: First Choice Properties Corp. c/o Pamela Williams, General Counsel Columbia Pike Silver Spring, Maryland Department of Environmental Services Director of Engineering & Capital Projects Real Estate Section 2100 Clarendon Boulevard, Suite 900 Arlington, Virginia Attn: Real Estate Supervisor Any party may, by like notice given at least fifteen (15) days before such change becomes effective, designate a new address to which such notices shall be sent. Notice shall be deemed effective when personally delivered, or received if said notice is by mail. An acknowledgment signed by the party getting notice shall constitute conclusive evidence that the notice has been received. 14. COMMISSIONS: Seller and Purchaser represent and warrant to each other that neither has dealt with any real estate broker, agent or finder with respect to the transaction contemplated by this Agreement. Seller shall indemnify, defend and hold Purchaser, its elected and appointed officials, officers and employees, harmless of, from and against any demand, suit, Abingdon Heights SP #75 7

15 Exhibit A to Ordinance of Vacation claim or liability, for any broker's, agent's or finder's fee asserted by any person or entity claiming to be engaged by or on behalf of Seller. 15. DAMAGES: In the event Seller fails or refuses to perform its obligations under this Agreement, including but not limited to its obligation to convey the Property, Purchaser shall be entitled to recover all of its costs and expenses incurred in connection with this Agreement, any breach of this Agreement, or the enforcement of this Agreement, including but not limited to its costs for the preparation of this Agreement, for all inspections, studies and surveys performed or contracted for in connection with this Agreement, and all of its attorney s fees and court costs incurred pursuant to this paragraph. In addition to the foregoing, Purchaser shall be entitled to all other damages it has suffered, in accordance with law. Without limiting or waiving the foregoing, Purchaser may also seek all remedies to which it is entitled in equity, including the right to an injunction or restraining order and the right to seek specific performance. 16. PURCHASER APPROVAL REQUIRED: The execution of this Agreement by the Seller constitutes an offer to sell the Property to the Purchaser. This offer shall become null and void if the County Board of Arlington County, Virginia does not approve the Agreement within forty-five (45) days after the Agreement is executed by the Seller and delivered to the Purchaser. 17. BINDING AGREEMENT: The parties to this Agreement mutually agree that it shall be binding upon them, and each of the respective heirs, executors, administrators, successors and assigns; that the provisions hereof shall survive the execution and delivery of the deed aforesaid and shall not be merged therein except as specifically provided herein; that this Agreement contains the final and entire agreement between the parties hereto; and that they shall not be bound by any terms conditions, statements, warranties or representations, oral or written, not contained herein. 18. APPLICABLE LAW: This Agreement shall be construed, interpreted and applied according to the laws of the Commonwealth of Virginia. All legal actions brought by either Purchaser or Seller concerning this Agreement shall be brought in the Arlington County Circuit Court. WITNESS the following signatures: SELLER: FIRST CHOICE PROPERTIES CORP. By: Name: Title: Abingdon Heights SP #75 8

16 Exhibit A to Ordinance of Vacation COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing agreement was acknowledged before me this day of, 200, by on behalf of. Notary Public My Commission expires: PURCHASER: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By: Name: Title: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing agreement was acknowledged before me this day of, 200, by on behalf of the County Board of Arlington County My Commission expires: Notary Public Approved as to Form: County Attorney Abingdon Heights SP #75 9

17 Exhibit A to Agreement of Sale LEASE AGREEMENT This LEASE AGREEMENT ( Lease") is made this, 200, by and between THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body corporate ("Lessor"), and FIRST CHOICE PROPERTIES CORP., a Delaware corporation, ("Lessee"). RECITALS 1. WHEREAS, Lessor is the owner of certain real property located in Arlington County, Virginia and more particularly described below (the Leased Premises"); and 2. WHEREAS, Lessor acquired the Leased Premises from Lessee in an exchange of certain property interests pursuant to Lessor s approval of an amendment to Lessee s Site Plan #75, Abingdon Heights and the vacation of portion of North Veitch Street adjacent to Lots 4 through 7, Block 10, Courtlands and portion of an easement for public purposes adjacent to North Fairfax Drive and Arlington Boulevard, pursuant to an Ordinance of Vacation enacted by the County Board of Arlington County, Virginia on April 16, 2005; and 3. WHEREAS, Lessor agrees to lease the Leased Premises to Lessee for parking and staging related to construction of the improvements authorized by Site Plan #75, for a period not to exceed five (5) years; and 4. WHEREAS, Lessee is to commence construction of buildings and appurtenances authorized by Site Plan #75, Abingdon Heights in the vicinity of the Leased Premises, and wishes to utilize all or a portion of the Leased Premises for purposes described in this Lease. AGREEMENT NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual covenants provided herein, Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Lessor, that certain parcel of real estate, lying and situate in Arlington County, Virginia, and being more particularly described as: Beginning at a point being a common corner with the land of Lee Gardens Housing Corporation, said point lying along the southerly right-of-way line of Fairfax Drive (width varies); Thence running with the southerly right-of-way line of Fairfax Drive with a curve to the left of radius feet having a central angle of , chord of feet, chord bearing of E and an arc length of feet to the intersection with the northwesterly right-of-way line of Arlington Boulevard (width varies); Thence running with the northwesterly right-of-way line of Arlington Boulevard with a curve to the left of radius 1, feet having a central angle of , chord of feet, chord bearing of S W and an arc length of feet to a point; Thence Abingdon Heights SP #75 1

18 Exhibit A to Agreement of Sale leaving Arlington Boulevard and running with the line of the land of Lee Gardens Housing Corporation N W feet to the point and place of beginning and containing acres of land more or less, RPC # (the Leased Premises ). THIS LEASE is subject to the following terms and conditions: 1) TERM. The initial term of this Lease shall be for a period of one month, beginning on, 200 (the "Commencement Date"). The Lease shall continue thereafter, under a month-to-month tenancy, until the Lease is terminated by the parties hereto, as provided herein. If not earlier terminated, the Lease shall automatically expire five (5) years from the Commencement Date (the Expiration Date ). (as aggregated, the Lease Term ). 2) RENEWALS AND HOLDOVERS. a) Renewal. Pursuant to Virginia Code this Lease shall not be renewed if the Leased Premises is required for any of the purposes mentioned in Virginia Code Upon the termination or expiration of this Lease, all improvements erected on the Leased Premises shall, at the Lessor's option, be removed promptly by Lessee, at its sole expense, or revert to the Lessor free and clear of all encumbrances at the time of such reversion. b) Holdover. No holdover shall be permitted. Tenant shall have no rights to possession of the Leased Premises after the Lease is terminated or expires. 3) RENT. The Rent for the Leased Premises for the entire Lease Term shall be One Dollar ($1.00) per month, due and payable by the Lessee to the Lessor, in advance. 4) USE OF PROPERTY. a) Lessee may use the Leased Premises only for the location of temporary construction trailers, parking and storage of equipment and materials to be used solely for the construction of buildings authorized to be constructed by Site Plan #75 Abingdon Heights located adjacent to the Property, provided however, that Lessee not shall be permitted, nor shall Lessee permit others, to store, use or bring Hazardous Materials onto the Leased Premises during the Lease Term. Lessee shall be responsible, at its sole cost and expense, to remediate any and all environmental contamination which appears or arises on or within the Leased Premises during the Lease Term. b) This Lease, the Lease Term, and all Lessee s rights hereunder, including Lessee s rights to use the Lease Premises for construction staging and parking, shall be subject to any written determination by the Virginia Department of Transportation (VDOT) that it is necessary for VDOT to enter onto and/or use the Leased Premises (or any portion thereof) for construction of a revised intersection for Fairfax Drive at its entrance to Arlington Boulevard and sidewalk improvements to Fairfax Drive. Nothing herein shall be deemed to grant VDOT any rights to use the Leased Premises for general construction storage or staging, it being the intent to allow VDOT use of Abingdon Heights SP #75 2

19 Exhibit A to Agreement of Sale the Leased Premises only to the extent necessary to construct a revised intersection for Fairfax Drive at its entrance to Arlington Boulevard. 5) TERMINATION. a) Upon any default or breach of any condition herein, this Lease may be immediately terminated at Lessor's sole but reasonable discretion. Prior to termination under this paragraph, Lessor will notify Lessee in writing of any default or breach, and give Lessee a minimum of ten (10) days or such reasonable time, as the Lessor determines to be necessary to remedy, or begin actions sufficient to remedy, such default or breach. b) Notwithstanding any provision herein to the contrary, Lessee may terminate this Lease, for any reason, at any time, and without any liability whatsoever, upon thirty (30) days prior written notice to the Lessor. Except as otherwise specifically provided herein, including, but not limited to, paragraphs 2a, 4a, 4b, 5a, and 14, or as mutually agreed by the parties, Lessor shall not terminate this Lease prior to the Expiration Date. c) Upon termination or expiration of this Lease, Lessee shall pay Lessor any outstanding payments due hereunder, including any outstanding remediation costs, and, at Lessee s sole expense, complete the restoration of the Leased Premises, as set forth in paragraph 7(c) of this Lease. 6) UTILITIES. Lessee shall be responsible for payment of all service charges for existing utilities, installation costs for all new utilities, and payment of charges for all new utilities, including telephone, installed for the Lessee's use of the Leased Premises. 7) MAINTENANCE, REPAIRS, AND RESTORATION. a) During the Lease Term, Lessee shall be responsible for maintenance of the Leased Premises and the improvements thereon. b) During the Lease Term, Lessee shall be responsible for insuring that all of Lessee's activities, and all installation, operation and storage of Lessee's equipment, fixtures, and supplies, are at all times in compliance with applicable ordinances and codes, and that all maintenance of the Leased Premises is done in accordance with said ordinances and codes. Violation of any applicable ordinance or code provision shall be a default of this Lease. Lessee shall keep the Leased Premises free from trash, garbage and debris, and keep construction materials placed or stored on the Leased Premises. c) Upon the expiration or termination of this Lease, whichever occurs first, or upon completion of Lessee's use of the Leased Premises, Lessee, at its sole expense, shall remove all of the Lessee s improvements located on the Leased Premises, and promptly restore the Leased Premises, as nearly as practicable, to its grade and condition immediately prior to the Commencement Date of this Lease, provided however, that the Lessee shall, as part of its restoration of the Premises, and at its sole Abingdon Heights SP #75 3

20 Exhibit A to Agreement of Sale cost and expense, remove the existing asphalt and all other appurtenances and install sod over the entire area of the Leased Premises. The restoration of the Leased Premises shall be performed as soon as practicable after this Lease expires or is terminated, and the Lessee s obligation to restore the Lease Premises shall specifically continue after expiration and/or termination of the Lease. 8) INSURANCE. a) Throughout the Lease Term, Lessee shall obtain and maintain at its own expense, and with a company rated A+ or higher by the A.M. Best Company, comprehensive or commercial general liability insurance covering claims for damages because of bodily injury, sickness or disease or death of any person, claims for personal injury damages, and claims for property damage arising out of Lessee's maintenance, use, or occupancy of the Leased Premises. Such coverage shall have a limit of liability of at least $1,000,000 per occurrence and $1,000,000 aggregate on a combined single limit basis for bodily injury and property damage. An aggregate limit of at least $1,000,000 is to apply for personal injury. Prior to occupying the Leased Premises, Lessee shall provide Lessor with a current Certificate of Insurance naming Lessor its elected and appointed officials, officers, employees and agents as "additional insureds" on all such policies described herein. Renewal Certificates of Insurance shall be provided at least ten days before the expiration of any existing Certificate. All certificates of insurance shall provide for thirty day written notice to the Lessor of cancellation or change in coverage. In the event of a claim, Lessee shall pay all deductibles. b) All policies of insurance will provide by endorsement that any loss shall be payable to Lessor or Lessee as their respective interests may appear. Lessee will furnish to Lessor such evidence of insurance coverage for the Lease Term prior to entering the Leased Premises. 9) INDEMNIFICATION OF LESSOR. Lessee covenants to save, defend, hold harmless and indemnify Lessor its elected and appointed officials, officers, employees and agents from and against all claims, loss, damage, injury, costs (including court costs and attorneys' fees), charges, liability or exposure, however caused, resulting from, arising out of, or in any way connected with this Lease, Lessee's, entry upon, occupation and use of the Leased Premises. 10) ALTERATIONS AND IMPROVEMENTS. Alterations, improvements, additions, or changes to the Leased Premises made by Lessee will be done only with specific written approval of Lessor, and in accordance with applicable codes and ordinances. All improvements made to the Leased Premises shall, at the expiration or termination of this Lease, be removed by Lessee, unless otherwise specifically provided herein. 11) ASSIGNMENT OR SUBLEASE. Except as set out herein, Lessee shall neither assign this Lease nor sublet all or any portion of the Leased Premises. Notwithstanding this provision, Lessee s contractors, subcontractors and current tenant (AHC/Lee Gardens Abingdon Heights SP #75 4

21 Exhibit A to Agreement of Sale Housing Corporation) may use the Leased Premises under the direction and authority of Lessee and solely for the purposes stated in this Lease Agreement. 12) NOTICES. All notices, demands, and requests which may be given, or are required to be given by either party to the other shall be in writing, and shall be either hand delivered or be sent by United States registered or certified mail, return receipt requested, with proper first class postage prepaid, and properly addressed. If to Seller: If to Purchaser: First Choice Properties Corp. c/o Pamela Williams, General Counsel Columbia Pike Silver Spring, Maryland Department of Environmental Services Director of Engineering & Capital Projects Real Estate Section 2100 Clarendon Boulevard, Suite 900 Arlington, Virginia Attn: Real Estate Supervisor Any party may, by like notice given at least fifteen (15) days before such change becomes effective, designate a new address to which such notices shall be sent. Notice shall be deemed effective when personally delivered, or received if said notice is by mail. An acknowledgment signed by the party getting notice shall constitute conclusive evidence that the notice has been received. 13) DAMAGE OR DESTRUCTION OF PROPERTY. In the event the Leased Premises becomes untenantable or unusable by Lessee due to fire or other casualty, then this Lease will terminate. The Lessor will have no liability for any loss or inconvenience suffered as the result of conditions described by this paragraph. 14) CONDEMNATION. This Lease shall terminate automatically, on the date of transfer, if Lessor conveys the Leased Premises to an entity which has the power or authority to acquire it by the authority of eminent domain. Lessee shall not be entitled to any of the proceeds of such a sale or award if the property is sold, conveyed, or taken pursuant to this paragraph. 15) APPROVAL. This Lease is contingent upon approval by the Arlington County Board of Arlington County, Virginia. 16) BINDING AGREEMENT. The parties to this Lease mutually agree that it shall be binding upon them, and each of the respective heirs, executors, administrators, successors and assigns; and that this Lease embodies the entire agreement and understanding between the parties respecting this Lease and the Leased Premises and supersedes all prior negotiations, agreements and understandings between the parties, all of which are merged herein. No provision of this Lease may be modified, waived or discharged Abingdon Heights SP #75 5

22 Exhibit A to Agreement of Sale except by an instrument in writing signed by the party against which enforcement of such modification, waiver or discharge is sought. 17) MISCELLANEOUS. a) It is not intended by the parties hereto that any of the provisions of this Lease create in the public, or any member thereof, rights as a third party beneficiary hereunder or to authorize anyone not a party hereto to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Lease. b) This Lease shall be construed in accordance with the laws of the Commonwealth of Virginia. c) The Recitals are incorporated into this Lease. WITNESS the following signatures: LESSEE: FIRST CHOICE PROPERTIES CORP. By: Name: Title: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing agreement was acknowledged before me this day of, 200, by on behalf of. My Commission expires: Notary Public LESSOR: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By: Name: Title: Abingdon Heights SP #75 6

23 Exhibit A to Agreement of Sale COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing agreement was acknowledged before me this day of, 200, by on behalf of the County Board of Arlington County My Commission expires: Notary Public Approved as to Form: County Attorney Abingdon Heights SP #75 7

24 ATTACHMENT 2 VICINITY MAP VACATIONS FOR ABINGDON HEIGHTS SP #75 North Veitch Street Area to be Vacated (2,038 sq. ft.) Easement for Public Purposes Area to be Vacated (16,996 sq. ft.) Parcel 2 to be Conveyed to County Board (19,521 sq. ft.) Abingdon Heights SP #75