City of Fairfax, Virginia City Council Regular Meeting

City of Fairfax, Virginia City Council Regular Meeting Agenda Item # City Council Meeting 7a 5/24/2016 TO: FROM: SUBJECT: ISSUE(S): SUMMARY: Honorable Mayor and Members of City Council Robert Sisson, City Manager Consideration of The Enclave Condominium By-Laws & the Reciprocal Easement and Upkeep Agreement Approval of The Enclave Condominium By-Laws and the Reciprocal Easement and Upkeep Agreement Per the standards of the CPD District, the developer shall establish an organization or other legal entity for the perpetual ownership and maintenance of any common areas. For the existing developed portions of the Mantua Professional Center, that organization has been the Mantua Commercial Condominium Owners Association. In order to facilitate development of a revised ownership and maintenance document with the introduction of The Enclave, this Commercial Condominium Association will be terminated, and maintenance and ownership of common areas be re-instituted under the attached Reciprocal Easement and Upkeep Agreement. This document assigns maintenance responsibilities for Silver King Court (the private accessway) and the common open space area located between the proposed residential condominium (The Enclave) and the offices of Mantua Professional Center to the landowner of the offices, with maintenance costs to be shared by the respective landowners. The Enclave Condominium (residential) will maintain the common residential elements. As required by proffer #12, Sec. 3.1(17) of the By-Laws provides for granting of easements by the Board and not by majority vote of the condominium owners by reference to the specific State Code section stating this. Per the CPD District requirements, these legal documents shall be subject to approval by the City Council and City Attorney. FISCAL IMPACT: RECOMMENDATION: ALTERNATIVE COURSE OF ACTION: RESPONSIBLE STAFF/POC: COORDINATION: ATTACHMENT: At the time of the General Development Plan and proffer amendments, this project was estimated to provide a net annual fiscal benefit to the City of approximately $176,855. Approval of the attached agreement will allow the project to proceed. Approve the Reciprocal Easement and Upkeep Agreement and the By-Laws of The Enclave Condominium City Council may request modifications to these documents. Nancy Jo Cranmer, Deputy Zoning Administrator Plans Review Community Development & Planning, City Attorney, Real Estate Reciprocal Easement and Upkeep Agreement, By-Laws of The Enclave Condominium, Sample Motion

ENCLAVE/MANTUA RECIPROCAL EASEMENT AND UPKEEP AGREEMENT THIS RECIPROCAL EASEMENT AND UPKEEP AGREEMENT ( Agreement ) is made as of, 2016, by and among POTTER URQUHART, LLC, a Virginia limited liability company ( Potter ); RJL ASSOCIATES, INC., a Virginia corporation ( Associates ) and ENCLAVE DEVELOPMENT, LLC, a Virginia limited liability company ( Enclave ). R E C I T A L S: R-1. Potter is the owner of Parcel 1B, Associates is the owner of Parcel 1A and Enclave is the owner of Parcel 1C, all being parcels of land located in the City of Fairfax, Fairfax County, Virginia ( County ) and shown on a plat entitled Subdivision Plat The Enclave prepared by christopher consultants, dated March 2, 2015, revised through April, 2016 and recorded with a Deed of Subdivision ( Deed of Subdivision ) on, 2016 in the County land records ( Land Records ) in Deed Book at Page (collectively, such parcels constitute the Property ). R-2. Associates previously granted certain easements related to the Property, including without limitation those easements set forth in the (1) Deed of Easement dated November 19, 1980 and recorded in Deed Book 5498 at Page 1351, (2) Deed of Easement dated November 12, 1981 and recorded in Deed Book 5610 at Page 0057, (3) Deed of Easement dated April 23, 1986 and recorded in Deed Book 6359 at Page 1214, (4) Deed of Subdivision, Easement and Vacation dated June 15, 2004 and recorded in Deed Book 16199 at Page 1155 and (5) Deed of Sign Easement Agreement recorded in Deed Book 16245 at Page 0710 (collectively Existing Easements ). R-3. The parties wish to grant to each other (1) a reciprocal and non-exclusive crosseasement across the private roadway known as Silver King Court as created by the Existing Easements (1) through (4) and shown on the Deed of Subdivision, (2) a shared parking area (shown on the attached plat) and (3) the open space area (shown on the attached plat). The private roadway, shared parking area and open space area together constitute the Common Area within their respective parcels. The parties also wish to provide for the uniform operation and maintenance of the Common Area, all as specified herein. R-4. Associates wishes to assume primary responsibility for the operation and maintenance of the Common Area provided that Potter and Enclave share the costs of such operation and maintenance as provided in this Agreement. R-5. The parties may encumber their respective parcels from time to time with one or more deeds of trust securing one or more lenders (each a Lender ), and such Lenders shall be required to subordinate their liens to this Agreement in return for which such Lenders shall be entitled to certain notice and consent rights under this Agreement. 1

A G R E E M E N T: In consideration of the premises and the mutual covenants, conditions and obligations contained herein, the parties hereby subject their respective parcels to the following provisions of this Agreement which, except as otherwise set forth herein, shall run with the Property for all purposes and shall be binding upon, inure to the benefit of, and be enforceable by the owners of such Property, all of their respective successors and assigns and any condominium unit owners associations created with respect to such Property. Section 1. (a) Easement for Use of Common Area. Grant of Easements. (1) In lieu of and in substitution for the Existing Easements (1) through (4) which are hereby terminated, each owner and each person lawfully occupying any portion of the Property is hereby granted a non-exclusive easement for access to and ingress and egress across the private roadway constituting a portion of the Common Area of the Property. Except as provided in Paragraphs (2), (3) and (4), each party shall use only the parking spaces located on such party s own parcel. (2) Any tenant occupying 9451 Silver King Court shall have the nonexclusive right to use up to two parking spaces located on Parcel 1A in the row of parking spaces to the south of 9451 Silver King Court between the two handicap accessible parking spaces on the east and the dumpster pad on the west, the easternmost nine of which are located on Parcel 1A and the westernmost three of which are located on Parcel 1C. (3) Enclave (and any occupants of dwelling units on Parcel 1C) shall have the non-exclusive right to park in thirty-two of the seventy-three parking spaces serving commercial uses in Parcel 1A (in the area shown on the attached plat) during the hours of 6:00 p.m. to 8:00 a.m. on Monday through Friday and at all times on weekends and federal holidays. The owner of Parcel 1A shall designate the parking spaces serving the commercial uses to which such right applies. (4) The occupants of both Parcels 1A and 1B shall have the non-exclusive right to use the open space area on the southeastern portion of Parcel 1C adjacent to Parcel 1A (as shown on the attached plat) constituting the remaining portion of the Common Area. The occupants of Parcel 1B shall have the non-exclusive right for pedestrian access across the parking area on Parcel 1C to access the open space area. The occupants of Parcels 1A and 1C shall have the non-exclusive right for vehicular access to the handicap accessible parking spaces on the southwest portion of Parcel 1A to access the open space area. (5) The occupants of both Parcels 1A and 1B shall jointly have the exclusive right to use the dumpster on the eastern side of Parcel 1C nearest to 9451 Silver King Court and shall share the cost of the dumpster equally; provided, however, if either Parcel 1A or Parcel 1B ceases to use the dumpster, then the entire cost shall be paid by the party continuing to use the dumpster. 2

(b) Extent of Easement. The easement includes the right of each party to install and maintain the utilities serving the Property and the right for governmental and other emergency vehicle ingress and egress through, under, over and across the Common Area. (c) to the following: Limitations on Easement. The easements created hereby shall be subject (1) the right of each party to grant and reserve easements and rightsof-way through, under, over and across the Common Area on such party s Parcel for the installation, maintenance and inspection of the lines and appurtenances for public or private water, sewer, drainage, gas, electricity, telephone, television reception and other utilities; and (2) the right of the parties acting by majority vote to adopt uniform rules and regulations governing the use of the Common Area on the Property; provided, however, that such rules and regulations are reasonable and do not adversely affect any party without that party s prior written consent. (d) Delegation of Use. Any person having the right to use the Common Area may delegate such right to such person's employees, tenants who occupy the Property and to such other persons as may be permitted by a majority of the parties. (e) Rights to Use. Each person having the right to use the Common Area and each person to whom such right has been delegated shall comply with the rules and regulations regarding such use, as such rules and regulations may be established and amended from time to time. (f) Assessments. Because Associates will operate and maintain the Common Area, Potter and Enclave will pay an annual assessment to Associates levied exclusively for a proportionate share of the costs for the management, operation, repair, replacement and maintenance of the Common Area. If Associates charges a management fee, such fee shall not exceed ten percent of the costs incurred by Associates to operate and maintain the Common Area. Section 2. Maintenance. Associates shall operate and maintain the Common Area in good repair and in safe, sound condition, sightly in appearance, and in conformity with all governmental laws, ordinances and regulations and in a condition at least commensurate with similarly located facilities. Such maintenance shall include, but not be limited to, the furnishing of and/or payment for snow and ice removal, lighting, cleaning, policing, repairing, repaving and anything else necessary for the everyday maintenance and administration of the Common Area. Associates shall also install and maintain at all times adequate exit, entrance, and other traffic control signs to direct traffic in and out of the Common Area, and shall re-stripe and replace markings and repave the surface of all parking areas and travel lanes within the Common Area whenever reasonably necessary. (a) Cost Allocation. The costs to perform all such upkeep and administration shall be shared equally by the owners of the three parcels (one-third each). If the parcels are further subdivided, the owners of the subdivided parcels shall allocate that original parcel s share of the costs on the basis of the ratio of the number of gross square feet of enclosed space on each 3

parcel. At least thirty days prior to each January 1 st, the parties shall mutually agree in good faith on an annual upkeep and administration budget for the Common Area and on each party s pro rata share of such expenses. In the absence of an agreement, the budget shall be based on the amount of actual costs incurred for the prior calendar year. Commencing on the applicable January 1 st, Potter and Enclave shall pay monthly to Associates its estimated proportionate share of the expenses for such calendar year. On or before March 1 of each calendar year based on the budget, Associates shall furnish Potter and Enclave with a written, detailed and itemized statement setting forth the total actual amount of the upkeep and administrative expenses and each party s proportionate share of such expenses for the preceding calendar year. If any such statement shall show an overpayment or underpayment of any party s proportionate share of such expenses for the preceding calendar year, then (1) any overpayment shall be refunded to such party within thirty days; or (2) any underpayment shall be paid to Associates on the first day of the calendar month at least thirty days after the date such statement is received by Potter or Enclave. (b) Shared Parking Cost Allocation. In addition to the cost allocation in Subsection 2(a), Enclave shall pay to Associates that percentage of the maintenance cost for the parking spaces Enclave is entitled to use on Parcel 1A calculated by dividing the number of spaces Enclave is entitled to use by the total number of parking spaces serving commercial uses on Parcel 1A and multiplying the quotient by 50%. For example, if Enclave can use 32 spaces out of a total of 73, then Enclave would pay 22% of the cost of maintenance (32/73 * 50%). (c) Upkeep Easement. Potter and Enclave do hereby create and establish for the benefit of Associates, its successors and assigns, an exclusive, limited right, privilege and easement over their respective parcels for the purposes of maintaining the Common Area in accordance with this Agreement. (d) Lien Right. If Potter or Enclave fails to reimburse Associates for costs to maintain the Common Area within thirty days after receipt of Associate s invoice: (1) the party failing to make such payment shall be in default under this Agreement; (2) any amount due shall accrue interest at the rate then being charged by the United States Internal Revenue Service (or any successor agency) on delinquent income taxes; and (3) Associates shall have the right to place a lien on the defaulting party s parcel. Section 3. Insurance. All insurance obtained pursuant to this section shall be with financially responsible insurers approved to do business in the Commonwealth of Virginia. Each party shall each name the other parties as additional insureds. Upon request, certificates of insurance evidencing the valid existence of such insurance coverage shall be provided to the requesting owner. (a) Property Insurance. Each party shall obtain and maintain on their respective property a property insurance policy written on a Special Covered Causes of Loss Form, including without limitation fire damage, vandalism, malicious mischief, sprinkler leakage (if applicable), cost of demolition, debris removal and water damage coverage, insuring any improvements in an amount equal to one hundred percent of the then current full insurable replacement cost of the Common Area located on such party s parcel, without deduction for depreciation (such amount to be redetermined periodically with the assistance of the insurance company affording such coverage). 4

(b) Liability Insurance. Each party shall maintain at all times with respect to the Common Area commercial general liability insurance against claims for bodily injury, death or property damage occurring on, in or about any portion of the Common Area with a combined single limit of at least Three Million Dollars ($3,000,000). Section 4. Additional Covenants. (a) Obligations. Each party shall: (i) refrain from using the Common Area for any purposes other than the purposes for which the same were constructed; (ii) not erect barriers in or otherwise impede vehicular or pedestrian traffic in or on the Common Area, except as necessary to protect public safety; (iii) not make any changes or alterations in or to the Common Area, except as provided herein; (iv) execute such documents in recordable form as may be necessary to effectuate the provisions of this Agreement, including without limitation any documents granting easements, licenses, assignments and similar rights or certifying or confirming to any governmental authority the existence of the rights granted hereunder; (v) discharge (or bond off and be properly contesting) all mechanic s, materialmen s and similar liens against its respective parcel, or any portion thereof; and (vi) maintain its respective parcel and all improvements thereon, including all travelways, sidewalks, walkways, lighting, entrances and exits, landscaping, easements and parking areas, except those maintained in accord with Section 2 of this Agreement, in good repair and in safe, sound condition, sightly in appearance, and in conformity with all governmental laws, ordinances, and regulations. No party shall install or maintain any exit, entrance or other traffic control signs to direct traffic which would materially diminish ingress and egress from any other party s parcel. (b) License. Associates shall have a temporary license to use such portions of the Property as may be reasonably necessary to permit Associates to exercise its rights and obligations under the provisions of this Agreement. Associates and its successors, assignees and agents shall: (i) perform its work with due diligence and in conformance with all governmental laws, ordinances and regulations; (ii) take all safety measures reasonably required to protect persons and property; (iii) perform such work so as to avoid, to the extent practical, interference with business operations on the property on which entry is made; and (iv) after the work is completed, restore such property to the condition existing prior to such work. Section 5. Rights Reserved. (a) Granting Easements. Nothing contained in this Agreement shall be deemed to prohibit or limit the right of any party to grant easements over its parcel to any public body or utility company for the installation, operation, maintenance, repair, relocation, modification and alteration of sanitary and storm water sewers, storm water drains and detention facilities, water and gas lines and mains, electric power lines, telephone, cable and communication lines and other utility lines, or to transfer or assign to any public body or utility company any such easements. (b) Relocation; Closing. All of the rights, privileges and easements herein created and established shall apply and be limited, at any given time, to those areas actually improved for, constructed and maintained as Common Area and such rights, privileges and easements shall not be construed to prohibit or limit the right of any party to build and construct improvements on its parcel. Any party shall have the right, upon at least thirty days prior written notice to the other parties, to move and relocate (once or more often) facilities located on its 5

parcel, to such place(s) on its parcel as it shall designate, or to temporarily close all or any portion of such facilities located on such owner s parcel to prevent any dedication thereof or to make and permit to be made changes in and to such owner s parcel. Such relocation or temporary closing, and any changes in or to any parcel, (i) shall be made at the sole cost and expense of such owner; (ii) shall not unreasonably interrupt access or parking; (iii) shall not unreasonably interfere with the conduct or operation of the business of the other owners, its lessees, licensees, occupants and users; (iv) shall be permitted and approved by the applicable governmental authorities with jurisdiction therefor, if such approval is required; and (v) shall be in compliance with all other provisions of this Agreement. (c) Redevelopment. Nothing contained in this Agreement shall be deemed to prohibit or limit the right of any party to redevelop a Parcel, including without limitation temporary changes to access and parking to facilitate construction. Section 6. Indemnification; Waiver of Right of Recovery. (a) Indemnification. Each owner shall indemnify, defend and hold harmless the other owners from and against all liabilities, losses, damages, costs, expenses (including reasonable attorneys fees and expenses), demands or judgments of any nature for any injury to or death of persons or loss of or damage to property (subject to the mutual waiver of subrogation contained herein) occurring on or about their respective parcels, or arising out of any use of the Common Area, that result from the actions of the officers, partners, employees, authorized representatives, agents or contractors of such owner, whether or not such actions are negligent or otherwise culpable, except to the extent caused by the negligence of the owner. (b) Waiver. No owner shall be liable to the other owners or to any insurance company (by way of subrogation or otherwise) insuring the other owners for any claim, cost, loss or damage covered by insurance required to be maintained hereunder. Section 7. Runs with Land. All covenants, conditions, restrictions and agreements contained herein shall, as to the owner of each parcel, its heirs, successors and assigns, including without limitation any condominium unit owners associations created with respect to such property, operate as covenants running with the land, for the benefit of the other owners. Section 8. Condemnation. Upon the condemnation of all or any portion of any parcel or the buildings located thereon, that portion of the award attributable to the value of any land or improvement within a parcel so taken shall be payable only to the owner of the portion condemned. Unless the remaining land of such owner is rendered unusable by such condemnation, the owner shall, subject to the rights of any lender secured by a first lien on the affected parcel, hold such amount of the award in trust as shall be necessary to restore to the extent practical, with due diligence, the remaining Common Area, as necessary, on such owner s parcel to an integrated whole, so that the same may be continued to be used for their designed purposes as provided herein. Notwithstanding the foregoing, after any such condemnation, the owner of the parcel being taken shall restore the improvements on its parcel to the extent necessary to provide the easements granted under Section 1. No claim on such award shall be made by the owners of the other parcels; provided, however, that the other owners may file collateral claims with the condemning authority, over and above the value of the land within the parcel so taken, to the extent of any damage suffered to their respective improvements resulting from the severance of the appurtenant facilities so taken. 6

Section 9. Destruction. Upon any damage to or destruction of any portion of the Common Area occasioned by fire, flood, earthquake or other casualty, the owner of the affected parcel shall restore or repair the damaged or destroyed area to the extent of insurance proceeds applicable thereto with due diligence, so that the same may be continued to be used for their designed purposes as herein provided, subject to any limitations in any mortgage, deed of trust or condominium instruments encumbering such property. Notwithstanding the foregoing, after any such damage or destruction, the owner of the parcel damaged or destroyed shall restore improvements on its parcel to the extent necessary to provide the easements granted under Section 1. Section 10. Amendment and Termination. This Agreement may be amended or terminated by a written document signed by all of the parties, their respective representatives, successors or assigns, and if a condominium association governs a portion of the property, by an authorized officer of such condominium association. In addition, any amendment or termination of this Agreement shall become effective only at such time as it is signed by any lender holding a first mortgage on a parcel. Notwithstanding the foregoing, Paragraph (3) of Subsection 1(a) may be amended by only the owner of Parcel 1A and the owner of Parcel 1C (or a condominium association governing Parcel 1C) with the consent of any lender holding a first mortgage on Parcel 1A. Section 11. Enforcement. Unless expressly stated otherwise herein, any violation or breach of any restriction or obligation herein contained, which violation or breach continues for twenty days after written notice of such violation or breach is given, if no emergency exists, or in an emergency situation, immediately or as soon as appropriate with such notice as is reasonable under the circumstances (not to exceed twenty days), shall give any non-breaching party the right (at its sole option) to: (i) cure such default, and to the extent necessary, enter upon the defaulting party's parcel and perform such work as may be reasonably necessary in connection therewith; and/or (ii) pursue any and all remedies available to such party. If the non-defaulting party chooses to cure such default, then the defaulting party shall reimburse the non-defaulting party the reasonable cost of cure by such party, together with an administrative fee of ten percent of such costs within ten days after its receipt of notice from the curing party setting forth in reasonable detail the amount of such costs. The failure of either owner to enforce any provision herein contained shall not be a waiver of such owner s right to do so thereafter nor of the right to enforce any other restriction. Any monetary judgment recoverable hereunder shall include interest at the rate then being charged by the United States Internal Revenue Service (or any successor agency) on delinquent income taxes from the earlier of the date such sum should have been paid or the date such judgment is entered until paid. No violation, default or breach by any party hereunder shall result in the termination, extinguishment, divestiture or forfeiture of any easement granted hereunder. Section 12. Governing Law. The provisions of this Agreement shall be governed by the laws of the Commonwealth of Virginia. Section 13. Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of any other provision of this Agreement, and there shall be substituted for the affected provision a valid and enforceable provision as similar as possible to the affected provision. 7

Section 14. Non-Merger. The reciprocal rights, obligations, covenants and easements set forth herein shall continue in existence notwithstanding any common ownership of the parcels and such common ownership shall not result in the application of the doctrine of merger or the termination of any such rights, obligations, covenants or easements. Section 15. Notice. All notices, demands and requests regarding this Agreement must be in writing and shall be deemed to have been properly given if sent by hand delivery, national overnight express delivery service or United States registered or certified mail, return receipt requested, postage prepaid, at such addresses identified by the parties, as follows: For Potter: With a copy to: For Enclave: For Associates: Potter Urquhart, LLC 9431 Silver King Court Fairfax, Virginia 22031 Attn: John H. Potter Hirschel Savitz Parker & Hollman, P.C. 177 Kentlands Boulevard, Suite 200 Gaithersburg, Maryland 20878 Attn: Kenneth A. Gelfarb, Esquire Enclave Development, LLC 1700 N. Moore Street, Suite 2020 Arlington, Virginia 22209 Attn: Enrico Cecchi RJL Associates, Inc. 35246 Harry Byrd Highway, Suite 200 Round Hill, Virginia 20141 Attn: Robert Lewis In addition, a copy of any notice required to be sent to any party under this Agreement shall also be sent to such addresses as may be designated by any lender secured by a parcel. Any party may designate a change of address from time to time by written notice to the others. Section 16. Approval or Consent. Unless provision is made for a specific time period, each response to a request for approval or consent required to be considered pursuant to this Agreement shall be given by the owner to whom directed within thirty days after receipt. Each disapproval shall be in writing and the reasons shall be clearly stated. If a response is not given within the required time period, the requested owner shall be deemed to have given its approval if the original notice stated in capitalized letters that failure to respond within the applicable time period will be deemed an approval. Section 17. No Gift or Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of a parcel, including without limitation the Common Area thereon, to the general public, or for the general public or for any public purpose whatsoever, it being the intention of the owners that this Agreement shall be strictly limited to the purpose herein expressed. 8

Section 18. Estoppel Certificates. The parties shall, at any time and from time to time, within thirty days following receipt of a written request by the other owner, execute, acknowledge and deliver to the owner requesting the same a statement certifying: (i) that this Agreement is unamended, unsupplemented and unmodified and in full force and effect (or if there are any such amendments, supplements or modifications, specifying the same); (ii) that to the best of the signer s knowledge there are no defaults in the performance of any provisions contained in this Agreement (or specifying each default of which the signer may have knowledge); and (iii) such other information as may reasonably be requested. Any estoppel certificate delivered pursuant to this section may be relied upon by any prospective transferee, mortgagee, contract purchaser or institutional lender of the owner requesting such statement or by any prospective assignee of this Agreement. Notwithstanding the foregoing, if the requested owner fails to deliver such statement within thirty days following such request, the requesting owner may hereby provide such statement on the requested owner's behalf. Section 19. Further Assurances. The easements granted herein shall exist by virtue of this Agreement without the necessity of confirmation by any other document; and likewise (except as provided in Section 10 regarding the amendment and termination of this Agreement), upon the extinguishment, expiration or termination of any easement, in whole or in part, the same shall be extinguished or released or deemed to have expired or terminated without the necessity of confirmation by any other document. The parties shall execute and deliver such further documentation, provide such further information or do such further acts as the other parties may reasonably require to effect the easements and agreements described herein. Section 20. Expenses. In the event of a dispute hereunder, the prevailing party shall be entitled to recover its reasonable out of pocket expenses from the non-prevailing party, including without limitation reasonable attorney s fees and all costs and expenses of enforcement. Section 21. Interpretation. If there is a conflict between the terms of this Agreement and the provisions of any condominium instruments recorded against any parcel, the provisions of this Agreement shall control over the terms of the condominium instruments except to the extent that the parties hereto have mutually agreed in writing that the provisions of the condominium instruments (or specific provisions thereof) shall amend and supersede this Agreement. Section 22. Entire Agreement. This Agreement supersedes any and all prior understandings and agreements between the parties and constitutes the entire agreement between them except for the Existing Easements (to the extent not superseded by this Agreement) and any other matters of record which shall remain in full force and effect. No representations, warranties, conditions or statements, oral or written, not contained herein shall be considered a part hereof. [Signatures begin on next page.] 9

IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above. POTTER URQUHART, LLC a Virginia limited liability company By: Name: Title: COMMONWEALTH OF VIRGINIA) ) SS: OF ) I, the undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby certify that,, of Potter Urquhart, LLC, personally well known to me or proven to be the person who signed the foregoing Reciprocal Easement and Upkeep Agreement, has acknowledged the same before me in the aforesaid jurisdiction on behalf of the company. GIVEN under my hand and seal on, 20. Notary Public [SEAL] My commission expires: My notary registration No. 10

ENCLAVE DEVELOPMENT, LLC a Virginia limited liability company By: By: IDI Mantua, L.C., its Manager IDI Manager, L.C., its Manager By: Name: Title: COMMONWEALTH OF VIRGINIA) ) SS: OF ) I, the undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby certify that,, Manager of IDI Manager, L.C., Manager of IDI Mantua, L.C., Manager of Enclave Development, LLC, personally well known to me or proven to be the person who signed the foregoing Reciprocal Easement and Upkeep Agreement, has acknowledged the same before me in the aforesaid jurisdiction on behalf of the company. GIVEN under my hand and seal on, 20. Notary Public [SEAL] My commission expires: My notary registration No. 11

RJL ASSOCIATES, INC. a Virginia corporation By: Name: Title: COMMONWEALTH OF VIRGINIA) ) SS: OF ) I, the undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby certify that,, President of RJL Associates, Inc., personally well known to me or proven to be the person who signed the foregoing Reciprocal Easement and Upkeep Agreement, has acknowledged the same before me in the aforesaid jurisdiction on behalf of the corporation. GIVEN under my hand and seal on, 20. Notary Public [SEAL] My commission expires: My notary registration No. 12

CONSENT OF MORTGAGEE TO RECIPROCAL EASEMENT AND UPKEEP AGREEMENT THIS CONSENT OF MORTGAGEE is made as of, 2016, by BRANCH BANKING AND TRUST COMPANY, a ( Mortgagee ) and BB&T-VA COLLATERAL SERVICE CORPORATION, a Virginia corporation, sole acting Trustee, ( Trustee ). W I T N E S S E T H: The undersigned Mortgagee is the beneficiary under: (1) a certain Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing dated June 18, 2012 and recorded among the Land Records in Deed Book 22377 at Page 0165; (2) a certain Additional Security Second Deed of Trust dated March 24, 2006 and recorded among the Land Records in Deed Book 18334 at Page 1563; and (3) a certain Additional Security Second Deed of Trust dated March 24, 2006 and recorded among the Land Records in Deed Book 18334 at Page 1547; all as amended or supplemented from time to time (collectively, the Deeds of Trust ), hereby consents to: (1) the execution and recordation of the Reciprocal Easement and Upkeep Agreement ( Agreement ) among the Land Records; and (2) the subordination of the Deeds of Trust to the covenants and easements set forth in the Agreement. For such purposes, the Mortgagee hereby directs the trustee under the Deeds of Trust to join in the execution and delivery of this Consent. All notices to be sent in accordance with Section 15 of the Agreement shall be addressed as follows: Mortgagee s Address for Notices: Branch Banking and Trust Company Attn: Telephone: Telecopier: Electronic Mail: With a copy to:, Esquire Telephone: Telecopier: Electronic Mail: 13

IN WITNESS WHEREOF, the undersigned BRANCH BANKING AND TRUST COMPANY has caused this Consent of Mortgagee to be executed pursuant to due and proper authority as of, 2016. MORTGAGEE: BRANCH BANKING AND TRUST COMPANY a By: Name: Title: COMMONWEALTH OF ) ) ss: COUNTY/CITY OF ) I, the undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby certify that, as of BRANCH BANKING AND TRUST COMPANY, a, personally well known to me or proven to be the person who signed the foregoing Consent of Mortgagee, has acknowledged the same before me in the aforesaid jurisdiction as an authorized officer of the corporation. GIVEN under my hand and seal on, 2016. My commission expires: My notary registration No.: [SEAL] Notary Public 14

The undersigned Trustee joins in at the request of the Mortgagee as evidenced by its signature above, without liability or obligation, for the sole purpose of consenting to the terms of the foregoing Consent of Mortgagee. BB&T-VA COLLATERAL SERVICES CORPORATION, INC., TRUSTEE By: COMMONWEALTH OF ) ) ss: COUNTY/CITY OF ) The foregoing instrument was acknowledged before me in the aforesaid jurisdiction on, 2016, by, of BB&T-VA COLLATERAL SERVICES CORPORATION, INC., personally well known to me or proven to be the person who signed the foregoing Consent of Mortgagee as TRUSTEE. [SEAL] Notary Public My commission expires: My notary registration No.: 15

CONSENT OF MORTGAGEE TO RECIPROCAL EASEMENT AND UPKEEP AGREEMENT THIS CONSENT OF MORTGAGEE is made as of, 2016, by ACCESS NATIONAL BANK, a ( Mortgagee ) and MICHAEL W. CLARKE and PATRICIA J. FISHER, TRUSTEES, either of whom may act ( Trustee ). W I T N E S S E T H: The undersigned Mortgagee is the beneficiary under: (1) a certain Deed of Trust dated December 23, 2013 and recorded among the Land Records in Deed Book 23510 at Page 1298, as amended or supplemented from time to time ( Deed of Trust ), hereby consents to: (1) the execution and recordation of the Reciprocal Easement and Upkeep Agreement ( Agreement ) among the Land Records; and (2) the subordination of the Deed of Trust to the covenants and easements set forth in the Agreement. For such purposes, the Mortgagee hereby directs the trustee under the Deed of Trust to join in the execution and delivery of this Consent. All notices to be sent in accordance with Section 15 of the Agreement shall be addressed as follows: Mortgagee s Address for Notices: With a copy to: Access National Bank 1800 Robert Fulton Drive, Suite 310 Reston, Virginia 20191 Attn: Telephone: Telecopier: Electronic Mail:, Esquire Telephone: Telecopier: Electronic Mail: IN WITNESS WHEREOF, the undersigned ACCESS NATIONAL BANK has caused this Consent of Mortgagee to be executed pursuant to due and proper authority as of, 2016. MORTGAGEE: ACCESS NATIONAL BANK a By: Name: Title: 16

COMMONWEALTH OF ) ) ss: COUNTY/CITY OF ) I, the undersigned, a Notary Public in and for the jurisdiction aforesaid, do hereby certify that, as of ACCESS NATIONAL BANK, a, personally well known to me or proven to be the person who signed the foregoing Consent of Mortgagee, has acknowledged the same before me in the aforesaid jurisdiction as an authorized officer of the corporation. GIVEN under my hand and seal on, 2016. My commission expires: My notary registration No.: [SEAL] Notary Public 17

The undersigned Trustee joins in at the request of the Mortgagee as evidenced by its signature above, without liability or obligation, for the sole purpose of consenting to the terms of the foregoing Consent of Mortgagee. COMMONWEALTH OF ) ) ss: COUNTY/CITY OF ) The foregoing instrument was acknowledged before me in the aforesaid jurisdiction on, 2016, by, personally well known to me or proven to be the person who signed the foregoing Consent of Mortgagee as sole acting trustee. My commission expires: My notary registration No.: [SEAL] Notary Public 18

Exhibit A PLAT SHOWING EASEMENTS ACROSS SILVER KING COURT AND OPEN SPACE PRESERVE US_ACTIVE-121595478.17 19

P:\Projects\03034\00900\SURVEYS\Plats\Exhibit\106810 Shared Parking Exhibit.dwg, 4/8/2016 10:42:39 AM, richardherrman, 1:1, christopher consultants, ltd.

Exhibit B to the Declaration BYLAWS OF THE ENCLAVE CONDOMINIUM TABLE OF CONTENTS Article Section Page Number Number Number 1 GENERAL PROVISIONS...4 1.1. Name...4 1.2. Office...4 1.3. Definitions...4 2 UNIT OWNERS ASSOCIATION...5 2.1. Composition...5 2.2. Annual Meetings...5 2.3. Place of Meetings...6 2.4. Special Meetings...6 2.5. Notice of Meetings...6 2.6. Quorum and Adjournment of Meetings...6 2.7. Order of Business...7 2.8. Conduct of Meetings...7 2.9. Voting...7 2.10. Proxies...8 3 BOARD OF DIRECTORS...9 3.1. Powers and Duties...9 3.2. Managing Agent...11 3.3. Number and Term of Office...13 3.4. Election of Directors...13 3.5. Removal or Resignation of Directors...14 3.6. Vacancies...15 3.7. Meetings of Directors...15 3.8. Action Without Meeting...16 3.9. Compensation...16 3.10. Board of Directors as Agent...16 3.11. Liability of the Board of Directors, Officers, Unit Owners and Unit Owners Association...17 3.12. Common or Interested Directors...18 3.13. Covenants Committee...18 US_ACTIVE-124373577.2

4 OFFICERS...19 4.1. Designation and Duties...19 4.2. Election of Officers...20 4.3. Removal or Resignation of Officers...20 4.4. President...20 4.5. Vice President...20 4.6. Secretary...20 4.7. Treasurer...20 4.8. Execution of Documents...21 4.9. Compensation of Officers...21 5 OPERATION OF THE PROPERTY...21 5.1. Determination of Common Expenses and Assessments Against Unit Owners...21 5.2. Payment of Common Expenses...24 5.3. Collection of Assessments...24 5.4. Statement of Common Expenses...25 5.5. Maintenance, Repair, Replacement and Other Common Expenses...25 5.6. Additions, Alterations or Improvements by the Board of Directors...26 5.7. Additions, Alterations or Improvements by the Unit Owners...26 5.8. Restrictions on Use of Units and Common Elements; Rules and Regulations...27 5.9. Right of Access...30 5.10. Utility Charges; User Fees...30 5.11. Parking Spaces...30 5.12. Storage; Disclaimer of Bailee Liability...31 6 INSURANCE...31 6.1. General Provisions...31 6.2. Property Insurance...32 6.3. Liability Insurance...34 6.4. Other Insurance...34 6.5. Unit Owner Insurance...35 6.6. Insurance Trustee...36 7 REPAIR AND RECONSTRUCTION AFTER FIRE OR OTHER CASUALTY...36 7.1. When Repair and Reconstruction are Required...36 7.2. Procedure for Reconstruction and Repair...36 7.3. Disbursements of Construction Funds...37 7.4. When Reconstruction Is Not Required...38 8 MORTGAGES...38 8.1. Notice to Board of Directors...38 8.2. Notice of Default, Casualty or Condemnation...38 8.3. Notice of Amendment of Condominium Instruments...38 8.4. Notice of Change in Managing Agent...38 2

8.5. Mortgagees' Approvals...39 8.6. Other Rights of Mortgagees...39 9 COMPLIANCE AND DEFAULT...40 9.1. Relief...40 9.2. Lien for Assessments...42 9.3. Supplemental Enforcement of the Lien...42 9.4. Subordination and Mortgage Protection...43 10 AMENDMENTS TO BYLAWS...43 10.1. Amendments...43 10.2. Approval of Mortgagees...43 11 MISCELLANEOUS...43 11.1. Notices...43 11.2. Captions...44 11.3. Gender...44 11.4. Construction...44 11.5. Use of New Technology...44 12 ALTERNATIVE DISPUTE RESOLUTION...45 12.1. Direct Communication...45 12.2. Mediation...45 12.3. Arbitration...45 12.4. Location...46 12.5. Sole Remedy; Waiver of Judicial Rights...46 12.6. Disputes Requiring Emergency Relief...46 3

Exhibit B to the Declaration BYLAWS ARTICLE 1 General Provisions Section 1.1. Name. These Bylaws provide for the governance of the Condominium by the Unit Owners Association pursuant to the requirements of Article 3 of the Condominium Act. The name of the Unit Owners Association is the name of the Condominium followed by the words Unit Owners Association. Section 1.2. Office. The office of the Condominium, the Unit Owners Association and the Board of Directors shall be located at the Property or at such other place as may be designated from time to time by the Board of Directors. Section 1.3. Definitions. Terms used without definition have the meanings specified for such terms in the Declaration to which these Bylaws are attached as Exhibit B, or if not defined in the Declaration, the meanings specified for such terms in section 55-79.41 of the Condominium Act. The following terms have the following meanings in the condominium instruments: (1) Board of Directors or Board means the executive organ established pursuant to Article 3. (2) Common Element Interest means the number assigned to each unit by Exhibit C to the Declaration which establishes each unit's undivided interest in the common elements, common expenses and surplus and votes in the Unit Owners Association. (3) Declarant Control Period means the period prior to the earliest of (i) the date on which units to which seventy-five percent or more of the aggregate Common Element Interests appertain have been conveyed to unit owners other than the Declarant; (ii) five years after the date of the first conveyance of a condominium unit to a unit owner other than the Declarant (the maximum time period permitted by subsection 55-79.74A of the Condominium Act); or (iii) the date specified by the Declarant in a notice to the Unit Owners Association that the Declarant Control Period is to terminate on that date. For the purposes of the preceding sentence, the calculation of Common Element Interests shall be based, at any given time, on the Common Element Interests to be assigned to all units then registered with the Virginia Common Interest Community Board. (4) Limited Common Expenses means expenses separately assessed against one or more but less than all of the condominium units generally in accordance with the use of the services, as permitted by section 55-79.83 of the Condominium Act and Section 5.1 of these Bylaws. Except where the context requires otherwise, common expenses shall include Limited Common Expenses. 4

(5) Majority Vote means a simple majority (more than fifty percent) of the votes actually cast in person or by proxy at a duly held meeting at which a quorum is present. Any specified percentage vote means that percentage vote with respect to the votes actually cast in person or by proxy at a duly held meeting at which a quorum is present. Any specified percentage approval or vote of the Mortgagees means approval or a vote by the Mortgagees of condominium units to which such percentage of the total number of votes appertain. (6) Mortgagee means an institutional lender holding a first mortgage or first deed of trust ( Mortgage ) encumbering a condominium unit in the Condominium which has notified the Unit Owners Association of its status and has requested all rights under the condominium instruments. For the purposes of Article 8, when any right is to be given to a Mortgagee, the Board of Directors shall also give such right to the Federal Home Loan Mortgage Corporation, Fannie Mae (formerly the Federal National Mortgage Association), the Department of Veterans Affairs, the Federal Housing Administration, the Farmer's Home Administration, the Government National Mortgage Association and any other public or private secondary mortgage market entity participating in purchasing or guarantying Mortgages if the Board has notice of such participation. (7) Officer means any person holding office pursuant to Article 4, but contrary to section 55-79.41 of the Condominium Act, shall not mean members of the Board of Directors unless such directors are also Officers pursuant to Article 4. (8) Reserved Common Element means a common element in which the Board of Directors has granted a revocable license for exclusive use by less than all of the unit owners. (9) Unit Owners Association or Association means the unincorporated, non-profit association of all the unit owners owning condominium units in the Condominium. ARTICLE 2 Unit Owners Association Section 2.1. Composition. The Unit Owners Association consists of all of the unit owners. For all purposes the Association acts merely as an agent for the unit owners as a group. The Association has the responsibility of administering the Condominium, establishing the means and methods of collecting assessments and charges, arranging for the management of the Condominium and performing all of the other acts that may be required or permitted to be performed by the Association by the Condominium Act and the Declaration. Except as to those matters which the Condominium Act specifically requires to be decided by the vote of the Association, the foregoing responsibilities shall be performed by the Board of Directors or managing agent as more particularly set forth in Article 3. Section 2.2. Annual Meetings. The annual meetings of the Unit Owners Association shall be held on weekdays (other than legal holidays) at least forty-five days before the 5

beginning of each fiscal year. The first meeting of the Association shall be held within one year after there is a unit owner other than the Declarant. Section 2.3. Place of Meetings. Meetings of the Unit Owners Association shall be held at the principal office of the Association or at such other suitable place convenient to the unit owners as may be designated by the Board of Directors. Section 2.4. Special Meetings. (a) Generally. The President shall call a special meeting of the Unit Owners Association: (i) if so directed by resolution of the Board of Directors; (ii) after the termination of the Declarant Control Period, upon a petition signed and presented to the Secretary by unit owners of units to which not less than twenty-five percent of the total Common Element Interest appertains; or (iii) during the Declarant Control Period, upon request of the Declarant. The signatures on a petition requesting a special meeting shall be valid for a period of one hundred-eighty days after the date of the first such signature. Such resolution, petition or request must (1) specify the time and place at which meeting is to be held, (2) either specify a date on which the meeting is to be held which will permit the Secretary to comply with Section 2.5, or else specify that the Secretary shall designate the date of the meeting, (3) specify the purposes for which the meeting is to be held, and (4) be delivered to the Secretary. The notice of any special meeting shall state the time, place and purpose thereof. No business shall be transacted at a special meeting except as stated in the notice. (b) Transition Meeting. Not later than the termination of the Declarant Control Period, a special meeting of the Association shall be held at which a majority of the directors shall be elected by the unit owners, including the Declarant if the Declarant owns any units, to serve terms as provided in Section 3.3. If such election is held prior to the time required by this section, the directors elected at such election shall not take office until the earlier of the time such election is required to be held or resignation of a director appointed by the Declarant without appointment of a replacement within ten days. The elected directors shall assume office in the order of the highest number of votes received. Any remaining directors shall continue to serve until their terms expire; provided, however, that no more than two such directors may serve until the first annual meeting after the special meeting held pursuant to this subsection and no more than one such director may serve until the second annual meeting after the special meeting held pursuant to this subsection. Section 2.5. Notice of Meetings. The Secretary shall notify each unit owner of each annual or regularly scheduled meeting of the unit owners at least twenty-one but not more than thirty days, and of each special meeting of the unit owners at least seven but not more than thirty days, prior to such meeting, stating the time, place and purpose thereof. The giving of a notice of meeting in the manner provided in this section and Section 11.1 constitutes service of notice. Section 2.6. Quorum and Adjournment of Meetings. Except as otherwise provided in these Bylaws, the presence in person or by proxy of unit owners owning units to which twenty-five percent or more of the total Common Element Interest appertains constitutes a quorum at all meetings of the Unit Owners Association. If at any meeting of the Association a 6