-TCB Vienna Metro LLC v. Pulte Home Corporation, No. 1:2010cv00502 - Document 198 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION AND FINAL JUDGMENT ORDER holding that plaintiff Vienna Metro LLC is entitled to specific performance from defendant Pulte Home Corporation because (1) there is no adequate remedy at law, (2) the Parties contracted for this remedy, and (3) the balance of equities weigh in its favor (see Memorandum Opinion and Final Judgment Order for details). /s/ by District Judge Gerald Bruce Lee on 5/25/11. (tbul, ) (Additional attachment(s) added on 5/26/2011: # 1 Exhibit Attachment to memopn) (tbul, ). (Additional attachment(s) added on 5/26/2011: # 2 Exhibit Part 2 of exhibit to memopn) (tbul, ).
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EXHIBIT C Proffer Responsibility Schedule Proffer Personal | Responsibilities of I Personal Responsibilities ofthe Owner(s) of the Pulte the Owner(s) of Obliga Property and Restrictions and/or Riqhts on the Pulte tion of the Clark Property tion of Pulte Home and Restrictions and/or Riqhts on Vienna Property Corp. 1.a. CDP/FDP Obliqa- the Clark Property LLC Comply with proffer 1.a. on Pulte's Property. Metro Comply with proffer La. on Clark's Property. 1.b. Right of Way Vacation of right of way of Vacation Maple Dr and Fairlee Dr. * Except for "two over two" multi-family units, the multifamily dwelling units on Pulte's Property will generally range 3.a. Maximum Dwelling Units ("DUs") on Application Property * The multi-family dwelling units on Clark's Property will generally range from 1,000 to 2,000 sf of GFA per unit, except that Clark reserves the right to develop the one (1) multi-family building with an average dwelling unit size that exceeds 2,500 sf of GFA per dwelling unit. from 1,000 to 2,000 sf of gross floor area ("GFA") per unit. *No more than 1,348 residential dwelling units inclusive of affordable dwelling units ("ADUs") shall be constructed on the Pulte Property. *No more than 900 residential dwelling units shall be constructed on the Clark Property. 3. Maximum Of the maximum GFA that is Density allowed in the Core Area, Pulte b. Core Area Ofthe maximum GFA that is allowed shall have no more than in the Core Area, 1,348,169 sf of GFA. Clark shall have no more than 1,485,300 sf of GFA. 5.b. Timing of High-Rise Construction Prior to the satisfaction of Prior to the Proffer 5b.(v), may only request RUPs for a) the age restricted satisfaction of proffer 5b.(v), may ! DUs (buildings 2,3,4,5) and b) only request RUPs C-1 400409725v3 7* Exhibit 1 VIENNA 00014526 Personal Responsibilities ofthe Owner(s) ofthe Pulte Proffer Obliqa- Property and Restrictions Responsibilities of the Owner(s) of Personal Obliqation of Vienna Home the Clark Property and Restrictions and/or Riqhts on Corp. the Clark Property LLC tion of Pulte and/or Riqhts on the Pulte Property up to 500 residential DUs of any other product type on the Pulte Property. Once Proffer 5b.(v) has been satisfied, may request RUPs for for up to 600 the balance ofthe DUs on the may request RUPs Pulte Property. for the balance of the DUs on the * Of the 55,000 square feet of GFA cited in Proffer 5.c.(iii).(d), 10,000 sf shall be allocated to the Pulte Property. * If required, compliance with proffer 5.c.(iii).(e) "quick service * Ofthe 55,000 food store". Metro Property. * If required, compliance with residential DUs on the Clark Property. Once Proffer 5b.(v) has been satisfied, Clark Property. 5.C. Core Area (PRM) Secondary Uses (iii) NonResidential, NonOffice Uses within the Core Area (PRM) (b) Design/Con square feet of GFA cited in Proffer 5.c.(iii).(d), 45,000 sf shall be allocated to the Clark struction. proffer 5.c.(iii).(e) "quick service food (c) Use/Occupa *Undertake a ncy targeted marketing (d) effort for a Additional pharmacy on site per proffer 5.c.(iii).(c).(A) store". Non- Residential, Non-Office Use (e) [quick service foodstore] 5.C. Core Area Minimum of (PRM) Secondary 125,000 sf of GFA and a maximum of Uses 300,000 sf of GFA. (iv) Office 5.c. Core Area * Minimum of one child care (PRM) Secondary center with an outdoor play area to be designed and Uses C-2 4004G9725v3 gj\ Exhibit 1 VIENNA 00014527 Proffer Responsibilities ofthe Owner(s) ofthe Pulte Personal Responsibilities of the Owner(s) of (v) Child Care and Restrictions Vienna and/or Riqhts on Metro Corp. Property the Clark Property Pulte Home Property and Restrictions and/or Riqhts on the Pulte Personal Obliga tion of the Clark Property LLC Obliga tion of constructed within Buildings 16, 17 or 18. 5.c. Core Area (PRM) Secondary Uses (vi) Business Center * Comply with Proffer 5,c(v). * Provide space and fit out a business center (min. 600 sf) for use by all project residents in the ground floor of one of buildings 14,15,16,17 or 18. * Comply with rest of proffer 5.c.(vi). 5.c. Core Area (PRM) Secondary Proffer 5.c.(viii) shall be satisfied on Uses the Clark Property. (viii) Seasonal skating and public recreation facility 5.e. Non-Core Prior to the issuance of the first West(PDH-16) Secondary Uses RUP for buildings 2, 3, 4 and 5, Pulte will establish a prescription drug pick-up program. 6.a Transportation, Shall comply with Proffer 6.a.(i) Rezoning Analysis/ within nine (9) months of Proffered Zoning Approval. Improvements (i) Dedication 6.a Transportation, Complete the Proffer 6a (ii) Rezoning Analysis/ within 18 months of Zoning Proffered Approval. Improvements (ii) Vaden Drive Yes Yes Clark to contribute Share of Project Costs definition in Section 4 of Exhibit D. Extended 6.a Transportation, Complete Proffer 6.a.(iii Rezoning Analysis/ Yes per the Clark's Yes Clark to contribute per the Proffered Clark's Share of Improvements (iii) Bus Shelter Yes Project Costs definition in Section 4 of Exhibit D. C-3 4004C9725v3 1® Exhibit 1 VIENNA 00014528 Personal Personal the Owner(s) of the Clark Property tion of and Restrictions Vienna Home and/or Riqhts on Metro CprP_ Property and Restrictions and/or Riqhts on the Pulte Property Responsibilities of Obliga tion of Pulte Responsibilities ofthe Owner(s) ofthe Pulte Proffer the Clark Property LLC Clark to contribute Yes Complete Proffer 6.a.(iv). Yes 6.a Transportation, Complete Proffer 6.a.(v). Rezoning Analysis/ Yes Obliga- 6.a Transportation, Rezoning Analysis/ Proffered Improvements (iv) Truck Restrictions on Vaden Drive Extended per the Clark's Share of Project Proffered Costs definition in Improvements (v) Saintsbury Drive -1-66 Ramp Section 4 of Exhibit D. Connection 6.a Transportation, Complete Proffer 6.a.(vi) Rezoning Analysis/ Clark to contribute Yes Yes per the Clark's Share of Project Proffered Costs definition in Section 4 of Exhibit Improvements (vi) Eastbound I66 Ramp Widening 6.a Transportation, Complete Proffer 6.a.(vii) Rezoning Analysis/ D. Clark to contribute Yes Proffered Improvements (vii) Lee Section 4 of Exhibit Highway/Nutley Yes per the Clark's Share of Project D. Costs definition in Street Improvements Complete Proffer 6.a Transportation, Complete Proffer 6.a.(viii) for Rezoning Analysis/ the Pulte Property. 6.a.(viii) for the Clark Property. Proffered Improvements (viii) Private Roads 6.a Transportation, Rezoning Analysis/ Complete Proffer 6.a(ix). Yes Proffered Improvements C-4 4004C9725v3 II Exhibit 1 VIENNA 00014529 Responsibilities ofthe Qwner(s) ofthe Pulte Proffer Personal Responsibilities of the Owner(s) of Obliga the Clark Property tion of and Restrictions Vienna Personal Property and Restrictions and/or Riqhts on the Pulte Obliga tion of Pulte Property Home and/or Riqhts on Metro Corp. the Clark Property LLC Clark to contribute Yes (ix) WMATA Study 6.a Transportation, Complete Proffer 6.a.(x). Rezoning Analysis/ Yes per the Clark's Share of Project Proffered Improvements (x) Traffic Costs definition in Section 4 of Exhibit D. Signals 6.a Transportation, Rezoning Analysis/ Complete Proffer 6.a.(xi). Yes Clark to contribute Proffered Improvements (xi) Signal Timing Yes per the Clark's Share of Project Costs definition in Section 4 of Exhibit D. Modifications 6.a Transportation, Complete Proffer 6.a.(xii) within Rezoning Analysis/ 18 months of Zoning Approval. Yes Clark to contribute Yes per the Clark's Share of Project Proffered Improvements (xii) Sainstbury Costs definition in Section 4 of Exhibit D. Drive and Metro Station 6.a Transportation, Complete Proffer 6.a.(xiii). Rezoning Analysis/ Yes Proffered Improvements (xiii) Circle Woods Drive Terminus 6.a Transportation, Complete Proffer 6.a.(xiv). Rezoning Analysis/ Yes Proffered Improvements (xiv) Off-Site Right of Way/Easements 6.b Transportation, Complete Proffer 6.b. Yes Subsequent C-5 400409725v3 3> Exhibit 1 VIENNA 00014530 Proffer Responsibilities ofthe Owner(s) ofthe Pulte Personal Analysis 7. Transportation Demand Management c. Transportation Evaluate candidates and hire a Obliqa- tion of the Clark Property Pulte and Restrictions tion of Vienna Home Property Personal the Owner(s) of Corp. Property and Restrictions and/or Riqhts on the Pulte Responsibilities of Obliqa- and/or Riqhts on the Clark Property LLC Yes Clark shall have Yes Transportation Coordinator within 90 days of approval of the Zoning Application. Metro reasonable approval rights. Coordination 7. Transportation Complete Proffer 7.d. Clark shall have Yes Demand Management d. TDM Budget 7. Transportation approval rights of the TDM Budget. Complete Proffer 7.e, except Demand fund 50% ofthe initial amount Yes reasonable Within 90 days of Yes e. TDM Account (i.e. $100,000) and replenish 50% of all funds when due and fund 50% ofthe payable. Management Yes approval ofthe Zoning Application, initial amount (i.e. $100,000) and replenish 50% of all funds when due and payable. 7. Transportation Complete Proffer 7f except Demand fund 50% ofthe one time Management contribution amount (i.e. $150,000) f. TDM Incentives 7. Transportation Demand Management g. Monitoring and Reporting Yes Fund 50% ofthe Yes onetime contribution amount (i.e. $150,000). Comply with Proffers 7.g.(i) and 7.g.(ii). Pay 50% ofthe cost of the surveys and the trip generation analyses. * Pay 50% of the cost of the surveys Yes Yes and the trip generation analyses. * Clark to have review and reasonable approval rights of the report before its submission to the 7. Transportation Demand Comply with Proffer 7.h. and pay 50% of the cost of its County. Pay 50% of the cost Yes of compliance for Yes C-6 400409725v3 13 Exhibit 1 *> VIENNA 00014531 Proffer Responsibilities ofthe Personal Obliqation of Responsibilities of Personal the Owner(s) of the Clark Property tion of and/or Riqhts on the Pulte Pulte and Restrictions Vienna Property Home and/or Riqhts on Metro Corp. the Clark Property Proffer 7.h. LLC Comply with Proffer 7.L and pay 50% of the cost of its compliance Yes Pay 50% of the cost of compliance for Yes Comply with Proffer 7.j.(i). and Yes Pay 50% of the cost of compliance for Proffer 7.j.(i). Yes Yes * Pay and/or guarantee 50% of Yes Owner(s) of the Pulte Property and Restrictions Management compliance Obliqa- h. Evaluation and Adjustment 7. Transportation Demand Management i. Subsequent Monitoring and Reporting 7. Transportation Demand Management j. TDM Remedy Proffer 7.i. pay 50% of the cost of its compliance Fund and TDM Penalty Fund (i) TDM Remedy Fund 7. Transportation Demand Management j. TDM Remedy Fund and TDM Penalty Fund (ii) TDM Penalty Fund * Comply with Proffer 7j(ii) and pay and/or guarantee 50% of the cost of its compliance. The the cost of guarantee to the County will be a several, not a joint obligation to the County and, if drawn, will compliance for Proffer 7j(ii). The guarantee to the County will be a several, not a joint obligation to the County and, if drawn, will be be funded 50/50 with the owner ofthe Clark Property. * When funds are released from the TDM Penalty Fund they will be split 50/50 between Clark and Pulte. funded 50/50 with the owner of the Pulte Property. * When funds are released from the TDM Penalty Fund they will be split 50/50 between Clark and Pulte. C-7 400409725v3 -3 Exhibit 1 VIENNA 00014532 Personal Responsibilities ofthe Owner(s) of the Pulte Property and Restrictions Proffer Responsibilities of ! Personal Obliga the Owner(s) of Obliga tion of the Clark Property and Restrictions tion of Metro Corp. and/or Riqhts on the Clark Property LLC Yes Comply with Proffer Yes Pulte and/or Riqhts on the Pulte Property Home 7. Transportation Comply with Proffer 7.k. for the Demand -> Pulte Property Vienna 7.k. for the Clark Property. Management k. Notice to Owners 7. Transportation Comply with Proffer 7.1., until Demand the UOA takes over. Assist Pulte in Yes Management 1. Enforcement 8. Pedestrian Improvements UOA takes over. Complete Proffer 8.a within 18 months of Zoning Approval. Clark to contribute Yes Costs definition in Section 4 of Exhibit D. Clark to contribute Extended Trail Complete Proffer 8.b. Yes per the Clark's Share of Project a. Vaden Drive 8. Pedestrian Yes complying with proffer 7.1, until the Yes Improvements b City of Fairfax per the Clark's Share of Project Connector Trail Yes Costs definition in Section 4 of Exhibit D. 8. Pedestrian Complete Proffer 8.c. Clark to contribute Yes Yes per the Clark's Share of Project Improvements c. Pedestrian Costs definition in Section 4 of Exhibit Access to Metro During Build Out D. 8. Pedestrian Complete Proffer 8.d. Yes Complete Proffer 8.e. Yes Improvements d. Pedestrian Connection to Blake Tree Manor 8. Pedestrian Improvements e. Pedestrian Connection to Circle Woods and C-8 400409725v3 35' Exhibit 1 VIENNA 00014533 Proffer Responsibilities ofthe Personal Responsibilities of Owner(s) ofthe Pulte Property and Restrictions and/or Riqhts on the Pulte Property Obliqation of the Owner(s) of the Clark Property Pulte and Restrictions tion of Vienna Home and/or Riqhts on the Clark Property LLC Corp. Personal Obliqa- Metro Hunters Branch 8. Pedestrian Improvements Comply with Proffer 8.f. on the Pulte Property Comply with Proffer 8.f. on the Clark f. Internal Sidewalks Property. Improvements g. Crosswalks Comply with Proffer 8.g. for all crosswalks, except for Comply with Proffer 8.g. on all crosswalks on the Clark crosswalks located Property. 8. Pedestrian on the Clark Property. 8. Pedestrian Complete Proffer 8.1i. Yes Improvements h. Lee Highway Sidewalk 9. Open Space and Landscaping Comply with the open space areas shown on the approved CDP/FDP on the Pulte Property and otherwise comply with open space areas shown on the Proffer 9 on the Pulte Property. on the Clark Comply with the approved CDP/FDP Property and otherwise comply with Proffer 9 on 10. Recreation Comply with Proffer 10, items Facilities, items a, b, cand d. the Clark Property. Comply with Proffer 10, items a, b, c and d, on the Clark Property. a,b,c and d, on the Pulte Property. 10. Recreation Comply with Proffer 10.e. and Pay $309,691 of Facilities e. Field Turf pay $440,309 of the cost. the cost. 11. Circle Woods Buffer Complete Proffer 11 within 18 months of Zoning Approval Yes Clark to contribute Yes per the Clark's Share of Project Costs definition in Section 4 of Exhibit D. 12. Hunters Branch Complete Proffer 12 Yes C-9 40040972Sv3 1C Exhibit 1 VIENNA 00014534 Responsibilities ofthe Owner(s) ofthe Pulte Property and Restrictions Personal Obliqation of Responsibilities of the Owner(s) of tion of Pulte and Restrictions Vienna Home and/or Riqhts on the Clark Property 1 Obliqa- the Clark Property and/or Riqhts on the Pulte Proffer Metro Property Corp. Personal LLC Condominium Buffer Comply with Proffer 13 on the Comply with Proffer Pulte Property. 13. Parking 13, on the Clark Property. 14. Stormwater * Complete Proffer 14.a, b and Management c within 18 months of Zoning * Clark to contribute Yes Yes per the Clark's Share of Project Approval for all the improvements on the Applicant Property. * Complete Proffer 14.d and e. Costs definition in Section 4 of Exhibit Dfor proffer 14.a, b, c, d and e. * Comply with any LID requirements on Clark's Site. 15. Noise Attenuation * Comply with * Comply with Proffer 15.a. (as to Building 5 only). * Comply with Proffer 15.b. 1 Proffer 15.a. 16. Tree Preservation Plan Comply with Proffer 16, except for Proffers 16.J. and 16.k. on the Clark Property. Yes 17. Signage Comply with the Signage Plan per Section 2 of Exhibit D. Yes (except as to Building 5). Comply with Proffer 16.j. and 16.k. on the Clark Property. Yes Comply with the Yes Signage Plan per Section 2 of Exhibit D. 18. Homeowners' Associations * Comply with Proffer 18.a. * Comply with Proffer 18, items b, c, d, e and f, for all buildings Yes * Pulte and Clark Yes will jointly lead the process of creating on Pulte's Site. the UOA. * Pay for 50% of the costs to * Comply with create the UOA. Proffer 18.a. * Pulte and Clark will jointly lead the process of creating the * Comply with Proffer 18, items b, c, d, e and f, for all UOA. C-10 40040972Sv3 77 Exhibit 1 VIENNA 00014535 Proffer Responsibilities ofthe Responsibilities of Personal the Owner(s) of Obliqa- Property and Restrictions Personal Obliqation of and/or Riqhts on the Pulte Pulte and Restrictions Property Home and/or Riqhts on Corp. the Clark Property I LLC Owner(s) ofthe Pulte the Clark Prooertv * Pulte will abide the proffer Vienna jMetro buildings on Clark's requirements for notices to be provided in sales contracts on tion of Site. * Pay for 50% of the Pulte Property. costs to create the UOA. * Clark will abide the proffer requirements for notices to be provided in sales contracts on the 19. Energy Conservation Clark Property. Comply with Proffer 19 for all buildings on Clark's Property Comply with Proffer 19 for all buildings on Pulte's Property included in Proffer 19. included in Proffer 19. 20. Smart Building Comply with Proffer 20 for all buildings on Pulte's Property. 21. Architectural Comply with Proffer 21 for all Design buildings on Pulte's Property. 22. Lighting Comply with Proffer 22 for all areas/buildings on Pulte's Property. 23. Comply with Proffer 22 for all areas/buildings on Clark's Property. Comply with Proffer 23 for all buildings on Clark's Property. The Clark Property and Clark Project Comply with Proffer 23 for all Telecommunicatio Comply with Proffer 20 for all buildings on Clark's Property. Comply with Proffer 21 for all buildings on Clark's Property. buildings on Pulte's Property. ns Equipment 24. Affordable * Comply with Proffer 24. Dwelling Units * All ADU's will be located in 25. Fairfax County buildings that are on the Pulte Property. Complete Proffer 25.and pay Park $5,321,969 of the cost. Yes Yes will have no ADU obligations. Pay $678,031 of Yes the cost, as the Authority/Public funds are required C-11 400409725v3 % Exhibit 1 VIENNA 00014536 Personal I Responsibilities of Personal Obliqathe Owner(s) of Responsibilities ofthe Owner(s) of the Pulte Property and Restrictions Proffer and/or Riqhts on the Pulte Obliqation of Pulte Property Home Corp. the Clark Property tion of and Restrictions and/or Riqhts on the Clark Property Vienna Metro LLC by Pulte per Proffer Facilities 25. 26. Additional Complete Proffer 26, and pay Public Facilities Pay $12,278 ofthe $57,722 of the cost. 27. School Contribution Yes cost. ; Complete Proffer 27 and pay $1,132,500 of its cost. Pay $637,500 of Yes the cost. Comply with Proffer 28.a, b, c, d, e, f and g for any Comply with Proffer 28.items a, b, g and construction on the Pulte 28. Construction Yes f, for any construction on Property and Pulte's Work Clark's Property not part of Pulte's Work. The term "Personal Obligation" in columns three and five above shall mean that the original Party to this Agreement (i.e., Pulte Home Corporation or Vienna Metro LLC, as applicable) is not released from such obligation by transferring its portion of the Project Property to another Party. In addition, all obligations under this Exhibit C shall run with the land and be binding on successors and assigns of the Parties hereto. C-12 4OO409725v3 J[ Exhibit 1 VIENNA 00014537 EXHIBIT D Post Closing Obligations Pulte (in its individual capacity) and each Pulte Property Owner shall bejointly and severally liable for the payment and performance of Pulte's obligations under this Exhibit P. Clark (in its individual capacity) and each Clark Property Owner shall be jointly and severally liable for the payment and performance ofClark's obligations under this Exhibit P. The obligations in this Exhibit P shall run with the land, but neither Pulte nor Clark shall be released from such obligations, as applicable, as between such entities, due to any transfer ofthe Project Property; provided, however, the obligations under this Exhibit P shall terminate automatically and shall be of no further force or effect on the later of (i) release of all public improvement bonds for bonded improvements, (ii) the final completion of other improvements described herein and (Iii) payment of all "Cost Sharing" sums required to be paid under this Exhibit P. 1. Subdivision. Promptly after the Effective Pate, Pulte shall use commercially reasonable, diligent efforts to obtain final, unappealable subdivision approval and to record a boundary line adjustment ofthe property line between the Clark Property and the balance ofthe Project Property to be in strict conformance with the boundary line described on Exhibit P-2 to this Declaration ("BLA/Subdivision Approval"), so that the Clark Property is a separate subdivided lot and separate tax parcel from the remainder of the Project Property. Pulte shall prepare at its cost and expense, and submit to Clark for its review and written approval, prior to submission to any governmental agency, the legal description ofthe Clark Property and all plats, plans, studies, easements, deed's, Proffers and other documents, and all amendments thereto, relating to the boundary line adjustment and/or subdivision of the Clark Property. Clark and Pulte shall cooperate with each other and convey to each other such property as is reasonably necessary to obtain BLA/Subdivision Approval. In the event Pulte has not obtained the BLA/Subdivision Approval within six (6) months after the Effective Date, then Clark shall have the right to pursue such approval and Pulte hereby consents to, and agrees to cooperate with Clark in connection with, such subdivision and boundary line adjustment efforts by Clark. Within ten (10) business days after Pulte's receipt of BLA/Subdivision Approval, Pulte shall deliver written notice of such approval to Clark, together with a copy ofany documentation from applicable governmental authorities reflecting such approval, including a copy of the recorded boundary line adjustment documents, subdivision plat and subdivision deed. Promptly upon approval ofthe BLA/Subdivision Approval and concurrently with its recordation, Pulte and Clark shall record an amendment to this Declaration, which shall be effective retroactively to the date hereof, to revise the legal descriptions attached as Exhibit A and Exhibit B to reflect the new legal descriptions established by the BLA/Subdivision Approval. 2. Signage Plan. Within ninety (90) days afterthe Effective Date, Clark shall provide Pulte with information regarding signage requirements for the Clark Project. Pulte shall develop a sign plan in conformance with Proffer 17 for, and granteasements to Clark so thatClark may, at Clark's expense, place permanent and temporary signage P-1 4004C9725v3 qo Exhibit 1 VIENNA 00014538 on the Clark Property and Pulte Property during lease-up and operation ofany part of the Clark Project. All such signage easements shall be provided at no additional cost to Clark. The parties have agreed thatthreeofthe locations for such signs shall be at the intersection of(a) Vaden Prive and Sainstsbury, (b) Route 29 and Vaden Drive and (c) Vaden Drive and Main Street, and Pulte shall cooperate reasonably with Clark to grant future signage easements requested by Clark. 3. Pulte's Work. In addition to all other obligations and covenants of Pulte under this Declaration, Pulte covenants and agrees that itshall commence promptly following the Effective Date, and proceed diligently without interruption (subject to Force Majeure delays permitted in Section 1.11) to complete, and shall complete, the following (collectively, "Pulte's Work"), at Pulte's sole cost and expense, except as provided below: (a) Required Roads. Within twelve (12) months after the Effective Date, Pulte shall design, permit, bond and, for VDOT roads, dedicate to the County and/or VPOT the necessary right of way, and for private roads, grant ingress/egress easements for public access for those roadways in a size and capacity sufficient to serve the Clark Project and that will provide vehicular ingress and egress to and from (i) the Clark Property and Lee Highway, and (ii) to and from the Clark Property and Vaden Bridge in the approximate location shown on Exhibit D-1, together with (iii) those roads required by the Proffers or other governmental requirements offof the Clark Property in order to develop, occupy and operate the Clark Project, including but not limited to Proffer 6a(i), 6a(ii) and 6a (xii) (collectively, the "Required Roads Phase I"). The Required Roads Phase I, together with the transportation improvements specified in Proffers 6a(iii), 6a(v), 6a(vi), 6a(vii), 6a(x), 6a(xi), 8a, 8b, 8c, 11 and the Interim Replacement Facilities are herein collectively the "Required Roads". At the option of Clark, Pulte shall leave the Interim Replacement Facilities on the Clark Property upon termination ofthe easement referenced in Section 3.1.1. (b) Utilities. (i) Within twelve (12) months afterthe Effective Date, Pulte shall design, permit, bond and record all wet utilities (to the Clark Property line) and corresponding easements required on the Pulte Property for Clark's development of the Clark Property, including, but not limited to, water, sanitary sewer, and storm sewers and in sufficient capacity to serve the Clark Project ("Wet Utilities"). (ii) Pulte shall, within six (6) months afterwritten notice from Clark to Pulte (the "Dry Utility Notice"), (a) cause to be designed the electric, gas, telephone, and cable utilities for the Clark Project (to the Clark Property line) in accordance with the Capacity Specifications (as defined below) to serve the Clark Project (the "Dry Utilities") and (b) provide corresponding easements required off ofthe Clark Property. D-2 400409725v3 m Exhibit 1 VIENNA 00014539 (iii) Clark shall provide Pulte preliminary applicable load information for the Dry Utilities within sixty (60) days after the Effective Date. The Dry Utility Notice shall (a) specify the load specifications reasonably requested by Clark for the Clark Project and (b) attach an acknowledgment by the MEP, with the help ifneeded from an electrical consultant such as Richter &Associates or Helpcomm, for the Clark Project that such request is reasonable given the planned development on the Clark Project (the "Capacity Specifications"). (iv) The Wet Utilities and Dry Utilities are collectively deemed the Utilities. (c) Stormwater Vaults. Within twelve (12) months after the Effective Date, Pulte shall design, permit, bond and record the stormwater management vaults(s) required for Clark'sdevelopmentof the Clark Property and in sufficient capacity to serve the Clark Project and as required by Proffer 14 ("Stormwater Vaults"). (d) Intentionally Omitted. (e) Grading Plans. (1) Overall Grading Plan. Pulte shall prepare an intermediate grading plan for the Project Property which plan may be in multiple parts (singularly or collectively the "Overall Grading Plan") and use best efforts to ensure that the Overall Grading Plan provides for a fully balanced development, ofthe Clark Property and Pulte Property. That is, Pulte shall use best efforts to ensure that the total earthwork on the Project Property, and the earthwork for each phase of the Clark Property and Pulte Property, will not require any export of soils material from the Project Property, or any import of soils material to the Project Property. The scope of the Overall Grading Plan shall not include excavating utility trenches, basements, pools and below grade parking garages, but Pulte shall use best efforts to design the Overall Grading Plan so that, with the excavation ofsuch items and the re-spreading of soil material generated bythese improvements, a balanced condition is achieved. The Overall Grading Plan shall be prepared by Pulte and delivered to Clark for its review and approval, in accordance with this Section within thirty (30) days after the Effective Date. (2) Grading Permits and Approvals. Within twelve (12) months after the Effective Date, Pulte shall use commercially reasonable, diligent efforts to obtain all necessary permits and approvals for implementation of the Overall Grading Plan on the Project Property. Including posting all bonds, fees and escrows with the County in order to secure a grading permit (0 Continuous Access. Pulte shall maintain and provide Clark with (i) continuous construction access to and from the Clark Property from the Effective Date until the date that is eighteen (18) months after the Effective Date, and (iii) continuous vehicular and construction access to and from the Clark Property over final, base paved D-3 400409725v3 Exhibit 1 VIENNA 00014540 Required Roads Phase Iand other roads within the Pulte Project from and after the date that is eighteen (18) months after the Effective Date. (g) Required Roads. Within eighteen (18) months after the Effective Date, Pulte shall construct (through base paving) and place the Required Roads Phase I in service for vehicular use. Pulte shall keep the Required Roads open at all times, from and after opening such roads. (h) Utilities. Within eighteen (18) months after the Effective Date, Pulte shall construct, bring to the Clark Property line and make available for Clark's use all Wet Utilities. Within twelve (12) months after receiving written notice from Clark requesting Dry Utilities, Pulte shall construct, bring to the Clark Property line and make available for Clark's use all Dry Utilities. (i) Stormwater Vaults. Within eighteen (18) months after the Effective Date, Pulte shall construct the Stormwater Vaults and make such vaults(s) available for Clark's use. (j) Performance of Grading Work/Cost Sharing. (1) Project Property. Within eighteen (18) months after the Effective Date, Pulte shall permit, bond and perform or cause to be performed all work shown on the Overall Grading Plan on the Project Property (the "Rough Grading Work"). (2) Clark Property. Pulte and its agents and contractors shall be permitted access over and across the Clark Property for purposes of perfoming the Rough Grading Work. (3) Cost Sharing. Pulte shall incur the actual, reasonable, third party, outof-pocket costs ofthe Rough Grading Work for the Project Property (including, without limitation, the cost of stripping, disposing of top soil, blasting to achieve the grades on the Overall Grading Plan, and retaining walls specified in such plans, removing excess or unsuitable soil and/or rock from the Project Property or bringing suitable soil to the Project Property, and the movement and placement of soil material to the grades shown on the Overall Grading Plan). Soil excavation for below grade garages, basements, utility trenches and pools, shall be handled separately and at the sole cost ofthe party performing such excavation. The parties shall allocate the cost between the parties so that 17.54% is Clark's share ("Clark's Share of Project Costs") and 82.46% is Pulte's share ("Pulte's Share of Project Costs"). Each party shall promptly pay its share of Rough Grading Work, but shall not be required to pay more often than monthly. Pulte and Clark shall fully cooperate with each otherand provide cost information to each other regarding the Rough Grading Work. All Rough Grading Work shall be competitively bid to multiple contractors to minimize cost. (4) Certain Blasting and Excavation. Notwithstanding the foregoing, Clark shall, at its cost, blast and excavate all utility trenches, basements, below grade garages and its pool pad on the Clark Property, and Pulte shall, at its cost, blast all D-4 400409725v3 *0 Exhibit 1 VIENNA 00014541 Exhibit 1 U> o o o VIENNA 00014550 gjgu&f D-l R*$o)r<c{ Ro«Js (C/^/oC) ¢ B ? ? *r C i (A . : r a. PULTE/ 8g " a i z i s ib s i l z . 1i i i i ; i i i i j I f = i M Ifife METRO WEST i CONCEPTUAtjTlNAL DEVELOPMENT PLAN RZ 2C034>FK>22 j; i ¢Is tfiii g ¢ iS r £\ <3& xhimitl VIENNA 00014549 EXHIBIT F Interim Replacement Facilities [To be attached] F-1 400409725v3 Exhibit 1 $3r VIENNA 00014548 EXHIBIT E Addresses of Parties to Receive Notice (a) If to Pulte: Pulte Home Corporation 10600 Arrowhead Drive, Suite 225 Fairfax, VA 22030 Attn: Stan Settle With a copy to: Haight, Tramonte, Siciliano, Flask, Yeonas &Roberts, P.C. 8221 Old Courthouse Road, Suite 300 Vienna, Virginia 22182 Attn: Jill J. Roberts, Esq. (b) If to Clark: Vienna Metro LLC c/o Clark Realty Capital, L.L.C. Two Bethesda Metro Center, Suite 250 Bethesda, Maryland 20814 Attention: Jay Sotos With a copy to: Clark Realty Capital, L.L.C. Two Bethesda Metro Center, Suite 250 Bethesda, Maryland 20814 Attention: David Brody, Esq. With a copy to: Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037 Attention: Lee C. Carter, Esq. E-1 400409725v3 Exhibit 1 VIENNA 00014547 EXHIBIT D-2 Boundary Line Adjustment Plan [To be attached] \xS D-2 400409725v3 Exhibit 1 VIENNA 00014546 EXHIBIT D-1 Required Roads [To be attached] D-1 400409725v3 Exhibit 1 VIENNA 00014545 (d) Once the matter is agreed upon by the Parties, each Party shall use reasonable efforts to cooperate with the other Party to implement all actions reasonably necessary to take the actions agreed upon by the Parties with respect to the matter. r D-7 400409725v3 Exhibit 1 VIENNA 00014544 6. Site Damage. During the course of its construction within the Project Property, Clark and Pulte shall take reasonable and customary measures to avoid or minimize damage to adjacent roads, anyimprovements constructed by the other, including as well as improvements constructed by Clark, sidewalks, driveways and landscaping. Each Party shall repair any damage done to any improvements caused by it or its contractors in a timely manner. Neither Party shall block vehicle traffic after base paving the Required Roads within the Pulte Project. 7. Standards. (a) All improvements constructed by Pulte, as well as Pulte's construction activities, are to be completed in a workmanlike manner by Pulte at its own cost and expense, except as provided above in this Exhibit D, and are to conform to all applicable laws, codes, ordinances, regulations, covenants, Clark's approved construction plans and budgets, and all applicable building permits. (b) Clark shall have the right to connect to all roads, stormwater pipes, sanitary sewer pipes, and other utilities constructed by or on behalf of Pulte in the Pulte Project to service the Clark Property. Moreover, subject to County approval, the parties agree and consent to Clark developing a vehicular road connection between the private roads on the Clark Property and the Main Street as shown on the Proffers on the Pulte Property. (c) Roadways placed into service shall remain open for traffic and in service at all times and shall be maintained by Pulte in good condition and clear of debris. 8. Decision Making Process. Notwithstanding anything to the contrary herein, Clark and Pulte shall consult with each other with respect to Pulte's Work, as follows: (a) All requests for approvals by a Party under this Declaration relating to Pulte's Work shall be submitted in duplicate, and all approvals or disapprovals shall be in writing. Each Party shall approve or disapprove requests for approvals within ten (10) business days of receipt, subject to reasonable extensions. If no approval or disapproval is communicated within said ten (10) business days, requests are to be deemed approved. Reasons will be stated for any disapprovals. (b) Once an approval is granted or deemed granted by Clark or Pulte, the Party who received such approval shall not vary in any material respect from that approval without the prior written consent ofthe approving party, which consent will not be unreasonably withheld, conditioned or delayed. (c) Ifa matter is disapproved, the Parties shall use reasonable efforts to agree on the applicable matter as expeditiously as possible. D-6 400409725v3 Exhibit 1 ^ VIENNA 00014543 utility trenches, basements, below grade garages and pools on the Project Property (excluding the Clark Property), and such cost shall not be shared by the parties. (k) Plans. Specifications. Budget and Schedule. Foreach phase of Pulte's obligations ofthe Post Closing Obligations (including, without limitation, the Rough Grading Work and Utilities), Pulte shall, prior to commencing anywork, submit to Clark for its written approval the relevant development and concept plans, plans and specifications, engineering designs and plans, bids submitted by third party contractors and suppliers, completion schedule for such work, and detailed line-item budgets therefore. Pulte shall also submit to Clark for its prior written approval, any changes to any of the foregoing submissions. The approved schedule is referred to herein as the "Schedule" and the approved budget is referred to herein as the "Budget." Pulte shall perform all work under this Exhibit D in accordance with the approved plans, specifications, Budget and Schedule, subject to Force Majeure delays permitted in the Declaration. All work shall be competitively bid to multiple contractors to minimize cost. 4. Cost Sharing for Pulte's Work. (a) Clark's Share of Project Costs. In addition to the cost sharing for the Rough Grading Work, Clark will reimburse Pulte, as provided herein, for Clark's pro rata share ofthe actual, reasonable third party costs for that part of Pulte's Work arising out of construction ofthe Required Roads, trunk Utility lines, and StormwaterVaults, provided all of the foregoing work has been performed strictly in accordance with the plans, specifications and budget(s), and performed by the contractors, approved by Clark. Clark shall pay Clark's Share of the Project Cost, (i.e., 17.54%) multiplied by the cost of the applicable work, as reflected by the invoices, contracts, completion certificates from contractors and civil engineers, lien releases and other evidence of Pulte's documented direct, out-of-pocket, third-party costs ofthe applicable work, as may be reasonably requested by Clark. (b) Reguest for Payment. Prior to demanding any payments for Clark's Share of Project Costs as provided above, Pulte shall submit to Clark a written request for paymentcertifying that all provisions of this Exhibit D relating to Pulte's Work have been fully satisfied with respect to the work performed and shall include with such request all invoices, contracts, completion certificates from contractors and civil engineers, lien releases for all work performed, assignments of claims and warranties relating to the work evidencing that Clark is a third party beneficiary of contracts and warranties, and other evidence of Pulte's documented direct, out-of-pocket, third-party costs, as may be reasonably requested by Clark. (c) Inspection. Clark shall have a right to inspect Pulte's Work with Pulte before Pulte shall be entitled to payment for any portion of Pulte's Work. Pulte shall diligently and promptly perform any punch-list work reasonably required by Clark after such inspection. 5. Intentionally Deleted D-5 400409725v3 Exhibit 1 VIENNA 00014542
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