Addendum-1-26-13-C-AHC Agreements - Page 1 EASEMENT AGREEMENT This EASEMENT AGREEMENT ( Agreement ) is entered into as of this day of November, 2012, by AHC LIMITED PARTNERSHIP-23, a Virginia limited partnership, its successors and assigns ("AHC"), and CP II WINDSOR, LLC, a Virginia limited liability company, its successors and assigns ("Adjoining Owner"). RECITALS R-1. R-2. R-3. R-4. R-5. R-6. AHC is the sole owner of certain real property located in Arlington, Virginia, commonly known as 5511 Columbia Pike and, as more fully described on Exhibit A-1 hereto (the "AHC Property"); and An affiliate of AHC is the owner of certain real property located in Arlington, Virginia, commonly known as, as more fully described on Exhibit A-2 hereto (the "Harvey Hall Property"); and AHC intends to resubdivide the AHC Property to include a portion of the Harvey Hall Property, as shown on Exhibit A-2 and in connection therewith, such portion of the Harvey Hall Property will be conveyed to AHC; and Adjoining Owner is the sole owner of certain real property located adjacent to the AHC Property and Harvey Hall Property in Arlington, Virginia, commonly known as 5519 Columbia Pike/8 th Rd S., as more fully described on Exhibit A-3 and (the "Adjoining Property"); AHC, itself and by and through its affiliates, contractors, employees and agents ( AHC Parties ) intends to perform excavation, foundation work, and the construction of below grade and above grade improvements on the AHC Property and the Harvey Hall Property (the Project ) and in connection therewith, AHC from time to time must access a twenty (20) foot portion of the Adjoining Property running adjacent to the Harvey Hall Property, as described on Exhibit B, entitled and attached hereto and incorporated herein, as well as subsurface access on the Adjoining Property, as described herein, in connection with the Tieback Easement described herein;(the "Easement Area") for purposes of completing the Work; and All work to be performed by AHC under this Agreement shall be in accordance within AHC's approved Arlington County Form Based Code Plan entitled Columbia Pike and South Greenbrier Street Preliminary Administrative Regulation 4.1.2 Submission #3 (the "Site Plan"). R-7. AHC and Adjoining Owner desire to set forth their agreement with respect to certain rights pertaining to the access to complete the construction of the Project (collectively, the Development Work ), including in connection with granting certain easements for underpinning, tieback, sheeting, shoring and brackets work that may be performed by AHC in connection with the Project as set forth herein. Page 1
Addendum-1-26-13-C-AHC Agreements - Page 2 NOW, THEREFORE, in consideration of the mutual covenants and benefits herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows. 1. Subject to the terms and conditions of this Agreement, Adjoining Owner hereby further grants a temporary easement (the "Tieback Easement") to the AHC Parties for the purpose of entering upon the Easement Area and performing and installing the following: (i) underpinning work, (ii) the placement of tieback rods, (iii) the placement of sheeting and shoring and brackets, and (iv) the maintenance, inspection, repair and replacement of any of the foregoing, all as deemed necessary by AHC to secure the foundations and/or structural components of the Project required by and shown on the Site Plan (the "Work"). At least 10 days prior to commencing the Work, AHC will deliver plans and specifications for the Work to the Adjoining Property Owner, which plans and specifications shall be in accordance with the Site Plan. The Adjoining Property Owner will respond with any objections to those plans in the event they are not consistent with the Site Plan within seven (7) working days after delivery to the Adjoining Property Owner or such objection right shall be deemed waived. The Work shall be performed in accordance with plans and specifications that have been provided to Adjoining Owner. Should changes in the Work become necessary which would materially affect or alter the scope of Work from that contemplated in the Site Plan, then AHC shall inform the Adjoining Property Owner in writing and shall receive written approval from the Adjoining Property Owner, which approval shall not be unreasonably withheld, conditioned or delayed, prior to making such changes. Such written approval shall be deemed given if not withheld, in writing, by the Adjoining Property Owner, within seven (7) days of request therefor. 2. Adjoining Owner hereby grants permission to the AHC Parties, to utilize the air rights over the Adjoining Property for the swing of the unloaded boom of a tower crane or cranes to the extent required in connection with the construction of the Project (the Crane Swing Easement ). Any work performed by AHC while utilizing the Crane Swing Easement is hereinafter deemed to be included as part of the Work. Notwithstanding anything to the contrary herein, a loaded boom shall not be permitted to swing over any portion of the Adjoining Property other than the surface portion of the Easement Area. 3. In the event AHC shall perform the Work, it shall do so in a safe and workmanlike manner and in accordance with the generally accepted standards and practices of the construction industry, in compliance with all applicable governmental laws and regulations, and in such a manner as to reasonably avoid interruption of any activities conducted on the Adjoining Property, including but not limited to parking. 4. The Tieback Easement and the Crane Swing Easement shall automatically terminate upon the earlier of (a) the substantial completion of the construction of the Project as evidenced by issuance of a permanent certificate of occupancy for the occupancy of the Project by tenants by the appropriate authorities with Arlington County, or (b) 36 months after the date hereof. Upon such termination, all aboveground protective measures shall be removed by AHC and any damage to the Adjoining Page 2
Addendum-1-26-13-C-AHC Agreements - Page 3 Property improvements promptly restored to prior condition. Any below grade work performed shall remain in and about the Adjoining Property after the expiration or termination of the Tieback Easement and AHC shall not be obligated to remove any underpinning work, tieback rods, sheeting, shoring and brackets placed in and about the Adjoining Property (collectively the "Tie Back System"). Notwithstanding the foregoing, following the completion of the foundation stage of the construction of the Project, Adjoining Property Owner may (at its own expense and upon at least five (5) business days prior written notice to AHC) cut the Tie Back System at the Adjoining Property line and remove the portion of the Tie Back System within the Adjoining Property. 5. AHC agrees to maintain, or cause its general contractor to maintain, Two Million and 00/100 Dollars ($2,000,000.00) combined single limit commercial general liability insurance (including contractual liability coverage) in connection with the Project, including the performance of the Work and naming the Adjoining Owner and (if requested) its lender(s) as additional insureds. AHC shall provide Adjoining Owner certificates evidencing the coverages required herein upon Adjoining Owner's request from time to time. AHC's liability under this Agreement shall in no way be limited by the amount of insurance recovery or the amount of insurance in force or available or required by any provisions of this Agreement. 6. AHC shall indemnify and hold harmless Adjoining Owner and its officers, directors, trustees, partners, members, employees, successors, and assigns (collectively, the "Indemnified Parties") from and against all claims, loss, liability, damage, and expense resulting from bodily injuries (or death resulting therefrom) sustained by any person, and any injury to or destruction of any tangible property, solely to the extent caused by, resulting from, or arising out of any act or omission in the performance of the Work by the AHC Parties. 7. AHC agrees that no mechanics liens shall attach to the Adjoining Property by virtue of AHC and its contractors, subcontractors and materials suppliers work on the Project, including any clean-up of the Project. Should such a mechanics lien be filed, with or without cause, AHC agrees to indemnify, defend and hold the Adjoining Owner harmless for all of its costs relating thereto including all attorneys fees. AHC agrees to bond off any such mechanics lien within thirty (30) days of its attachment. 8. AHC shall give the Adjoining Owner at least ten (10) days prior written notice of commencement of activities for the Work within the Easement Area (and AHC s need for access to the Easement Area pursuant to this Agreement. AHC represents and warrants that it will obtain all licenses and approvals necessary for the activities it intends to conduct on the Easement Area and provide copies of the same to Adjoining Owner prior to conducting such activities and that it will comply with all laws, rules, and regulations applicable to such activities. In the event any such licenses and/or approvals shall lapse or be terminated prior to completion of any Work requiring such license and/or approval, then the relevant portion of the easements granted herein may be terminated immediately by Adjoining Owner by written notice to AHC. Page 3
Addendum-1-26-13-C-AHC Agreements - Page 4 9. In performing work in connection with the Project, AHC agrees (i) to protect, support, and maintain, and not to undertake any activity that could undermine the structural integrity of the improvements located within the Adjoining Property. AHC shall use its commercially reasonable efforts to minimize damage to the Adjoining Property and in any event shall repair such damage. 10. As further consideration for the Adjoining Owner granting the easements set forth herein and in order to assist the Adjoining Owner, its successors and assigns in the future development of the Adjoining Property, AHC agrees to grant to the Adjoining Owner, its successors and assigns, upon written request development easements including but not limited to (i) access to the parapet running along the Adjoining Property s property line for temporary construction; (ii) sheeting and shoring; and (iii) crane swing easements. These easements shall be reasonably approved by AHC or it successors and assigns and any mortgagee of AHC s, provided they do not unreasonably interfere with AHC s use of the AHC Property or the structural integrity of the AHC buildings and/or improvements. These easements shall be granted in a separate agreement and grant of easements in substantially and materially the same form as this Agreement with the appropriate exhibits attached, as approved by the parties which approval shall not be unreasonably withheld, conditioned or delayed. Furthermore, AHC hereby agrees that, at no cost to AHC, it shall cooperate with Adjoining Owner in Adjoining Owner s efforts in obtaining the various entitlements and permits required from Arlington County in connection with Adjoining Owner's future development of the Adjoining Property, by providing any consents to applications made in connection therewith, provided that Adjoining Owner s development does not unreasonably interfere with the use of AHC s Property or the structural integrity of the AHC buildings and/or improvements. The parties hereto agree that Adjoining Owner, its successors, assigns or subsequent owners of the Adjoining Property may seek specific performance of the covenants, duties and obligations provided in this paragraph in a court of competent jurisdiction in the event of a default of any of the covenants, duties or obligations provided in this paragraph. 11. AHC hereby agrees upon Adjoining Owner's request to execute a release or similar document upon the expiration or earlier termination of this Agreement in accordance with its terms that acknowledges such termination, in a form reasonably agreed to by the parties. 12. The Agreement inures to the benefit of and binds AHC and Adjoining Owner and their successors and assigns as owners of the AHC Property and the Adjoining Property, respectively, and constitutes a covenant running with the land. None of the members, shareholders, partners, officers, directors and employees of AHC and Adjoining Owner shall have any personal liability hereunder. Adjoining Owner shall look solely to the assets of AHC for satisfaction of the obligations hereunder. The parties hereunder waive any and all consequential damages arising out of this Agreement. 13. This Agreement shall be interpreted pursuant to the laws of the Commonwealth of Virginia without regard to conflicts of laws principles. Page 4
Addendum-1-26-13-C-AHC Agreements - Page 5 14. All headings, captions and titles contained in this Agreement are intended for convenience of reference only and are to be deemed or interpreted as a summary of the provisions to which they pertain or as a construction thereof. 15. Any notice required or permitted to be given under this Agreement shall be in writing and shall be hand-delivered or delivered by overnight courier (with receipt acknowledged to the parties at their respective addresses set forth below, or at such other addresses of which either party shall notify the other party in accordance with this Paragraph 12, and shall be deemed given as of the time of receipt or refused of receipt: If to AHC: AHC Limited Partnership 23 c/o AHC, Inc. 2230 North Fairfax Drive, Suite 100 Arlington, Virginia 22201 Attn: John Welsh with a copy to: If to Adjoining Owner: and to: with a copy to: Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 12505 Park Potomac Avenue, Sixth Floor Potomac, Maryland 20854 Attention: Howard J. Ross, Esq. CP II WINDSOR LLC c/o Carmel Partners LLC 1000 Sansome Street, Suite 180 San Francisco, CA 94111 Attn: Frank Striegl CP II WINDSOR LLC c/o 1111 14 th Street, 6 th Floor Washington, DC 20005 Attn: Terry Busby Walsh, Colucci, Lubeley, Emrich & Walsh, P.C. 2200 Clarendon Blvd., Suite 1300 Arlington, VA 22201 Attn: Thomas J. Colucci, Esquire Upon the written request from Adjoining Owner, AHC shall also send copies of notices to Adjoining Owner's lender(s). 16. If any provision of this Agreement shall be deemed invalid or unenforceable under applicable law, said provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining provisions of this Agreement, which shall be construed as if such invalid parts or provisions had not been inserted. 17. Upon written notice to Adjoining Property Owner, AHC shall have the absolute right to assign this Agreement and all rights granted to it hereunder to any Page 5
Addendum-1-26-13-C-AHC Agreements - Page 6 future owner of title to the AHC Property and/or any lender for the Project. Upon written notice to AHC, Adjoining Owner shall have the absolute right to assign this Agreement and all rights granted to it hereunder to any future owner of title to the Adjoining Property. Upon such assignments, the assigning party shall not be released from its obligations hereunder without the express written consent thereto by the non-assigning party. 18. Modification, waivers and consents regarding this Agreement shall only be binding if in writing and signed by the party against whom such modification, waiver or consent is sought to be enforced. 19. If either party brings suit or any other action to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney s fees and costs, and costs of enforcement. In addition, with respect to any actions arising under this agreement, AHC and Adjoining Owner, for themselves and their successors and assigns, hereby mutually waive the right to request a trial by jury in any such action or proceeding. 20. Each party hereby covenants and warrants to the other that the person signing this Agreement has the full right and authority to enter into this Agreement according to the terms hereof. 21. This Agreement constitutes the entire agreement of the parties hereto and supersedes any other agreements or understandings, written or oral, with respect to the subject matter thereof. 22. The recitals are incorporated herein as fully set forth above. IN WITNESS WHEREOF, the parties hereto have signed and delivered this agreement as their own free act and deed as of the date and year first hereinabove written. SIGNATURES APPEAR ON THE FOLLOWING PAGES Page 6
Addendum-1-26-13-C-AHC Agreements - Page 7 DEVELOPER: AHC LIMITED PARTNERSHIP-23, a Virginia limited partnership By: The Shell Housing Corporation, a Virginia corporation, its general partner By: Name: Title: State of ) ss: County of ) I HEREBY CERTIFY that on this day of, 2012, before me, the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared in said jurisdiction, personally well known to me (or satisfactorily proven) to be the person who executed the foregoing instrument as the of The Shell Housing Corporation, General Partner of AHC Limited Partnership-23, and did acknowledge the foregoing instrument to be the act and deed of the company and that the same was executed for the purposes therein contained, and that the same was delivered as such. WITNESS my hand and Notarial Seal. My Commission Expires: Notary Public Page 7
Addendum-1-26-13-C-AHC Agreements - Page 8 State of ) ss: County of ) ADJOINING OWNER: CP II WINDSOR LLC By: Name: Title: I HEREBY CERTIFY that on this day of, 2012, before me, the subscriber, a Notary Public in and for the jurisdiction aforesaid, personally appeared in said jurisdiction, personally well known to me (or satisfactorily proven) to be the person who executed the foregoing instrument as the of CP II Windsor LLC, and did acknowledge the foregoing instrument to be the act and deed of the company and that the same was executed for the purposes therein contained, and that the same was delivered as such. WITNESS my hand and Notarial Seal. My Commission Expires: Notary Public Page 8
Addendum-1-26-13-C-AHC Agreements - Page 9 CONSENT AND SUBORDINATION OF LENDER FOR AHC LP-23 In consideration of Ten and No/100 Dollars ($10.00) and other valuable consideration in hand paid to the undersigned, the receipt and sufficiency whereof being hereby acknowledged, the undersigned, as Beneficiary and Trustees of that certain Deed of Trust, Assignment of Rents and Leases and Security Agreement ("Deed of Trust") from AHC LIMITED PARTNERSHIP-23 to JULIE MASSIE and CAROL MCCOSKRIE, TRUSTEES ("Trustees" securing THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA ("Beneficiary") dated July 26, 2012, and recorded in Deed Book 4585 at page 943, Arlington County, Virginia land records, (i) do hereby consent to the grant by AHC LIMITED PARTNERSHIP-23 to CP II WINDSOR, LLC the rights as contained in the foregoing Easement Agreement; and (ii) do hereby agree that any foreclosure or sale under power of sale pursuant to said Deed of Trust shall be subject and subordinate to the rights of the parties and their successors and successors-in-title under the Easement Agreement. This Consent and Subordination may be signed in any number of counterparts. This day of, 2012. THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA COMMONWEALTH OF VIRGINIA COUNTY OF ARLINGTON, to-wit: By: Name: Title: Subscribed and sworn to before me, the undersigned Notary Public, this day of, 2012, by, of THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA. My Commission Expires: Virginia Notary Registration #: Notary Public Page 9
Addendum-1-26-13-C-AHC Agreements - Page 10 COMMONWEALTH OF VIRGINIA: COUNTY OF : to-wit: JULIE MASSIE, TRUSTEE The foregoing instrument was acknowledged before me this day of, 2012, by JULIE MASSIE, TRUSTEE. My Commission Expires: Virginia Notary Registration #: Notary Public CAROL MCCOSKRIE, TRUSTEE COMMONWEALTH OF VIRGINIA: COUNTY OF : to-wit: The foregoing instrument was acknowledged before me this day of, 2012, by CAROL MCCOSKRIE, TRUSTEE. My Commission Expires: Virginia Notary Registration #: Notary Public Page 10
Addendum-1-26-13-C-AHC Agreements - Page 11 CONSENT AND SUBORDINATION OF LENDER FOR CP II WINDSOR, LLC In consideration of Ten and No/100 Dollars ($10.00) and other valuable consideration in hand paid to the undersigned, the receipt and sufficiency whereof being hereby acknowledged, the undersigned, as Beneficiary and Trustees of that certain Deed of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing ("Deed of Trust") from CP II WINDSOR, LLC to STANLEY J. WROBEL, TRUSTEE ("Trustee") securing ALLSTATE LIFE INSURANCE COMPANY ("Beneficiary") dated February 12, 2007, and recorded in Deed Book 4068 at page 1405, Arlington County, Virginia land records, (i) do hereby consent to the grant by CP II WINDSOR, LLC to AHC LIMITED PARTNERSHP-23 the rights as contained in the foregoing Easement Agreement; and (ii) do hereby agree that any foreclosure or sale under power of sale pursuant to said Deed of Trust shall be subject and subordinate to the rights of the parties and their successors and successors-in-title under the Easement Agreement. This Consent and Subordination may be signed in any number of counterparts. This day of, 2012. ALLSTATE LIFE INSURANCE COMPANY By: Name: Title: STATE OF COUNTY/CITY OF to-wit: Subscribed and sworn to before me, the undersigned Notary Public, this day of, 2012 by, of ALLSTATE LIFE INSURANCE COMPANY. My Commission Expires: Notary Registration No. Notary Public Page 11
Addendum-1-26-13-C-AHC Agreements - Page 12 COMMONWEALTH OF VIRGINIA COUNTY OF : to-wit: STANLEY J. WROBEL, TRUSTEE The foregoing instrument was acknowledged before me this day of, 2012, by STANLEY J. WROBEL, TRUSTEE. My Commission Expires: Virginia Notary Registration # Notary Public Page 12
Addendum-1-26-13-C-AHC Agreements - Page 13 Exhibit A-1 AHC Property (original portion)
Addendum-1-26-13-C-AHC Agreements - Page 14 Exhibit A-2 AHC Property (Harvey Hall Portion)
Addendum-1-26-13-C-AHC Agreements - Page 15 Exhibit A-3 Adjoining Property
Addendum-1-26-13-C-AHC Agreements - Page 16 Exhibit B Construction Easement Area