This Post-Settlement Occupancy Agreement ("Occupancy Agreement") is made this day of

Transcription

1 POST-SETTLEMENT OCCUPANCY AGREEMENT This Post-Settlement Occupancy Agreement ("Occupancy Agreement") is made this day of 2017, pursuant to the terms of that certain Agreement of Sale ("Agreement of Sale") by and between THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body corporate and politic ("Purchaser" or "County") and ROBERT ALLEN BELAND and AMANDA MACKAYE, husband and wife ("Sellers") dated for the purchase and sale of the real property, including improvements and fixtures thereon, and appurtenances thereto, located at 2215 N. Culpeper Street, Arlington, Virginia, RPC # , and more particularly described as: All of Lots numbered Twenty-Nine (29), of the Subdivision known as Cottage Park, in accordance with the plat thereof recorded in Deed Book 111 at Page 246 of the land records of Arlington County, Virginia ("Property"). The Purchaser and Sellers are sometimes jointly hereinafter referred to as the "Parties". In consideration of the terms of the Agreement of Sale, the mutual agreements of the Parties set forth in this Occupancy Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Purchaser hereby permits the Seller to continue to occupy the Property after the time of settlement and delivery of the deed to the Property from the Sellers to the Purchaser ("Settlement"), subject to the following terms and conditions: 1. Term : The term ("Term") of this Occupancy Agreement shall commence on the date of Settlement, and shall continue until the earlier to occur of: i) the date that is three (3) days after the date the Sellers close on the acquisition of a new primary residence; or ii) June 1, 2018 ("Expiration Date"), unless sooner terminated pursuant to any provision of this Occupancy Agreement. 2. No Occupancy Fee : The Sellers continued occupancy of the Property under this Occupancy Agreement is additional consideration to the Sellers for conveyance of the Property to the Purchaser under the terms of the Agreement of Sale. No fee will be charged to the Sellers for post-settlement occupancy during the Term. The Parties agree that this Occupancy Agreement is not a lease, but rather a temporary right of occupancy/use not subject to Landlord Tenant law. 3. Use of Propert y : Sellers shall use the Property during the Term only as their primary residence, and for no other purpose. If the Sellers cease to use the Property as Sellers' primary residence, then, notwithstanding any provision herein to the contrary, this Occupancy Agreement shall immediately terminate without further notice required from the Purchaser to the Sellers. Sellers shall comply with all applicable laws, ordinances and codes relating to the 1

2 occupancy and use of the Property and Sellers shall keep the Property in a neat and clean conditi on, properly disposing of all trash and debris. 4. Utilities: Sellers shall pay and be liable for all utilities and services provided to the Property during the Term, including, but not limited to water, sewage, gas, garbage collec tion, electricity, heating, air conditioning, and cable and telecommunication services. Sellers shall keep all such utilities and services in their own names during the Term of this Occup ancy Agreement. 5. Taxes: Sellers shall pay all real estate taxes, if any, and all special assessments, if any, assessed against the Property and attributed to the Term of this Occupancy Agreement. 6. Equipment, Maintenance and Condition: Sellers shall pay for all maintenance of the Property, including any fixtures and equipment therein, during the term of this Occupancy Agreement. The Purchaser is permitting the Sellers to occupy the Property in an "As Is" condition. The Purchaser makes no representations or warranties as to the habitability of the Property and is not responsible for any maintenance or upkeep of the Property during the Term. 7. Delivery of Possession : Upon the Expiration Date or earlier termination of this Occupancy Agreement, Sellers shall vacate the Property and surrender possession to the Purchaser. At the end of the term of this Occupancy Agreement the Property shall be in the same general condition as it is at Settlement, excepting normal wear and tear. Sellers shall remove all trash and debris, and personalty and possessions, from the Property on or before the Expiration Date or earlier termination of this Occupancy Agreement. As long as any holes or trenches resulting from removal are backfilled and any uti lities that may be connected to the exterior shed are properly disconnected and capped, Sellers shall have the right, but not the obligation, to remove the following improvements from the Property upon surrender of the Property to the Purchaser: a) the existing exterior shed; and b) any shrubbery. 8. Security Deposit: Seller agrees that, at Settlement, Walker Title, LLC, as Purchaser's agent ("Deposit Agent"), shall retain, in an interest bearing account, from the settlement proceeds, five thousand dollars ($5,000.00) as Purchaser's security deposit ("Security Deposit") for the post-settlement occupancy. The Purchaser may, without prejudicing any other legal rights and remedies it may have, use all or any part of the security deposit to defray any costs incurred by Purchaser because of the Sellers' non-compliance with the terms of this Occupancy Agreement ("Deficiencies"). The Purchaser shall conduct a post occupancy inspection of the Property within thirty (30) days after the Expiration Date, or earlier termination of this Occupancy Agreement, and shall deliver to the Deposit Agent an itemized list of all Deficiencies, with the estimated cost to cure such Deficiencies. Upon receipt of the itemized list, the Deposit Agent immediately shall pay to the Purchaser the amount of money requested by Purchaser to cure such Deficiencies. Any amount of the Security Deposit remaining after such payment to Purchaser shall be released by the Deposit Agent to the Sellers at the same time as N y ^

3 payment to the Purchaser. If there are no Deficiencies, then the Purchaser shall send written notice to the Deposit Agent authorizing release of the Security Deposit to the Sellers. 9. Access : Sellers shall permit the County, and/or its agents, employees or contractors, reasonable access to the Property. The County, or its designees, shall attempt to give reasonable notice to the Sellers prior to such access and such access shall occur at reasonable times. Such access shall include access for any and all inspections, measurements and testing related to the design and construction of a new Fire Station #8 or fuel island related thereto. 10. Default: If the Sellers fail or neglect to keep and perform any of their obligations under this Occupancy Agreement, then Sellers shall be in default of this Occupancy Agreement. Upon any default by Sellers, the Purchaser shall send a written notice of such default to the Sellers. Sellers shall have ten (10) days after receipt of such written notice to cure such default. If the Sellers fail to cure such a default within the ten (10) day cure period provided by this paragraph, then the Purchaser may terminate this Occupancy Agreement upon ten (10) days prior written notice to Sellers. 11. Risk of Loss/Damage or Destruction of Property : All personal property kept on the Property, shall be kept on the Property at the Sellers' sole risk. 12. Damage or Destruction of Propert y : If the Property becomes uninhabitable or unusable by the Sellers due to fire or other casualty, then this Occupancy Agreement shall immediately terminate, without further obligation on the part of either the Sellers or the Purchaser, and the Sellers agree that the Purchaser shall have no liability for any loss or inconvenience suffered as the result of any damage or destruction. 13. Insurance : During the term of this Occupancy Agreement, Sellers shall obtain and carry, at Sellers' expense, a renter's policy to include $300, in personal liability coverage and a comprehensive general liability insurance policy (umbrella policy) on the Property, in an amount not less than $1,000, per occurrence, for all property loss claims and/or personal injury claims. The County Board of Arlington County, Virginia shall be named as an "Additional Insured" on the general liability insurance policy. The following language must be included in the Certificate of Insurance: "Arlington County (including its elected and appointed official, agents and employees) is added as an additional insured with respect to (name of policy). Coverage afforded under this policy shall be primary to all other insurance with respect to Arlington County (including its elected and appointed officials, agents and employees)." The County Board should be identified in the policy as "The County Board of Arlington County VA, c/o Office of Risk Management, Human Resources Department, Suite 511, 2100 Clarendon Blvd., Arlington VA " Proof of such insurance shall be delivered by the Sellers to the Purchaser prior to commencement of the term of this Occupancy Agreement. 14. Indemnification of Count y : Sellers agree that the County shall not be responsible for any injury or death to person, or loss or damage to property, real or personal, which may be suffered or sustained by Sellers, or by other persons at the Property, whether such loss, injury, 3

4 death or damage is caused by, or in any way results from, or arises out of any act, omission or negligence of the Sellers, or of any occupant, visitor or user of the Property, or results from or is caused by any other matter. In addition, Sellers covenant to save, defend, hold harmless and indemnify Purchaser and its elected and appointed officials, officers, employees, agents and contractors from and against all claims, loss, damage, injury, cost (including court costs and attorneys' fees), charges, liability or exposure, resulting from, arising out of, or in any way connected with Sellers' use or occupation of the Property. This indemnification shall not apply to an injury, death, loss or damage that is solely the result of any act, omission or gross negligence of the Purchaser and its elected and appointed officials, officers, employees, agents or contractors. 15. Notices: All notices, demands, and requests which may be given, or are required to be given by either party to the other shall be in writing, and shall be either hand delivered, sent by Federal Express or sent by United States certified mail, return receipt requested, with proper first class postage prepaid, properly and fully addressed: If to Sellers: Robert Allen Beland Amanda MacKaye 2215 N. Culpeper Street Arlington, Virginia With a copy, which shall not constitute notice, to: John A. Borsari, Esq Wilson Boulevard, #700 Arlington, Virginia If to Purchaser: Real Estate Bureau Chief Department of Environmental Services Arlington County 2100 Clarendon Blvd, Suite 800 Arlington, Virginia Notices shall be deemed effective upon delivery. Any party may, by like notice given at least seven (7) days before such change becomes effective, designate a new address to which such notices shall be sent. 16. Assignment/Occupancy: Sellers agree that this Occupancy Agreement shall not be assignable. The Sellers shall not permit any persons other than their immediate family to reside on the Property or any portion thereof. 17. Binding Agreement : The Sellers and the Purchaser mutually agree that this Occupancy Agreement shall be and is binding upon them and each of their respective successors; that this Occupancy Agreement contains the final and entire agreement between the Sellers and the Purchaser; and that the Sellers and the Purchaser shall not be bound by, any terms, conditions, statements, warranties or representations, oral or written, not contained herein. ` I, 4

5 18. Applicable Law : This Occupancy Agreement shall be construed, interpreted and applied according to the law of the Commonwealth of Virginia. All legal actions brought by the Sellers or the Purchaser concerning, arising out of, or pursuant to the Occupancy Agreement shall be brought in the Arlington County Circuit Court. 19. Effective Date : This Occupancy Agreement shall not become effective until executed the Sellers and the Purchaser. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] 5

6 WITNESS the following signatures: SELLER: ROBERT AL N D STATE OF 1 4 j eo w I A Q{ FY'COUNTY OF U JAr' i M& The foregoing instrument was acknowled ed before me this 4_ S - day of 2017, by ROBERT ALLEN BELAND. My Commission expires:.' L ^ 2D r7 Notary Public. L REGI1 mon No W COMM. E%FlREs! 12/31/2W7 SELLER: AMANDA MACKAYE STATE OF 0 2' l ic/ / 4- QI /COUNTY OF The foregoing instrument was acknowledged before me this Zsn day of 2017, by AMANDA MACKAYE. My Commission expires: / L /ti'(7 Notary Public ^ ``011111nnll/,,I,, S REC+IEIRAUCN NO MtiCOMM. EXPIRES; 12/31/2017 n nl 6

7 PURCHASER: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By: Name: Title: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing instrument was acknowledged before me this 2017, by day of Notary Public My Commission expires: Approved as to form: County Attorney 7