Lynch documents
(This is the html version of pdf file "lynch-docs12p")

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B&KBlankingship Keith
4020 University Drive
Suite 300
Fairfax,Virginia 22030
T: 703.691.1235
F: 703.691.3913

April 17, 2014
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
Mr, Anthony M. O'Connell
439 S. Vista Del Rio
Green Valley, Arizona 85614

Re: Fairfax County Property
Dear Mr. O'Connell:
In response to your request, we enclose copies of the following documents:
1. Order entered by the Circuit Court of Fairfax County, Virginia on January 25,
2013 which appointed Jean Nader as successor trustee under the Land Trust
Agreement dated October 16, 1992, and as trustee of the trust created under the
Last Will and Testament of Harold A. O'Connell;
2. Letter oflntent dated May 10,2013 between Long Branch Partners, L.L.C. and
Jean Nader, Successor Trustee, which by its terms was not a binding agreement;
3. Real Estate Sales Contract dated as of June 20, 2013 between Long Branch
Partners, L.L.C. and Jean Nader, Successor Trustee;
4. Amendment to Real Estates Sales Contract dated as of September 18,2013.
Best regards.
Yours truly,
Sarah E. Hall
SEH/jrj
Enclosures
cc: Jean Nader
Elizabeth V. C. Morrogh, Esquire
(w/o Enclosures)

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VIRGINIA:
IN THE CIRCUIT COURT OF FAIRFAX COUNTY
JEAN MARY O'CONNELL NADER,
Plaintiff, )
v.
ANTHONY MINER O'CONNELL,
Individually and in his capacity as
Trustee under a Land Trust Agreement
Dated October 16, 1992 and as
Trustee under the Last Will and
Testament of Harold A. O'Connell, et al.
Defendants.
Case No. 2012-13064

ORDER

THIS CAUSE eame on.to be heard upon the motion of the Plaintiff, Jean Mary
O'Connell Nader, by counsel, for summary judgment pursuant to Va. Sup. Ct. Rule 3:20; upon
the reply to the motion filed by Sheila Ann O'Connell, pro se; and upon the argument of counsel;
and
IT APPEARING TO THE COURT as follows:
1. The material facts set forth in the Complaint filed by Plaintiff in this action are
deemed to be admitted by Defendant Anthony M. O'Connelll'ursuant to Va. Sup. Ct. Rule
1:4(e);- based on the failure of Defendant Anthony M. O'Connell to deny such facts in the
responsive pleading filed by him, entitled "Response to Summons Served on September 8,
2012."
2. In her Answer to the Complaint and Reply to Motion for Summary Judgment, the
remaining party-in~interest, Defendant Sheila Aim O'Connell, agrees with the facts set forth in
the Complaint and the relief requested by Plaintiff.
3. Because there are no material facts in dispute in this action and the facts alleged
in the Complaint support the relief requested therein, summary judgment pursuant to Va. Sup.
Ct. Rule. 3:20 on all counts IUleged in Plaintiffs Complaint is appropriate.
IT IS THEREFORE ORDERED:
A. That judgment in favor of Plaintiff Jean Mary O'ConnellNader as to Count lof
the Complaint be, and hereby is, granted; that Anthony Miner O'Connell is hereby removed as
trustee under the Land Trust Agreement dated October 16, 1992, pursuant to Va. Code § ·64.21405
(formerly Va. Code § 26-48), effective immediately; and that all fees payable to Anthony
Minor O'Connell under the terms ofthe Land Trust Agreement, including'but not limited to, the
trustee's compensation under paragraph 9~01, and aU interest on advancements by the trustee to .
the trust for payment ofreal estate taxes pursuant to paragraph 9.03; are hereby disallowed and
deemed forfeited;
B. That judgment in favor ofPlaintiffJean Mary O'Connell Nader as to Count II of
the Complaint be, and hereby is,granted; that Anthony Minor O'Connell is hereby reD;1oved as
trustee of the trust created under the Last Will and Testament of Harold A. O'Connell, pursuant
to Va. Code § 64.2:-759 (formerly Va. Code § 55-547.06), effective immediately;
C. That judgment in favor ofPlaiIitiffas to Count III ofthe Complaint be, and
hereby is, granted; that PlaintiffJean Mary O'Connell Nader is he~by appointed as successor
trustee under the Land Trust Agreement and as trustee ofthe trust under the Last Will and
Testament ofHarold A. O'Connell; that the term ofthe Land Trust Agreementis hereby
continued until further Order of this Court or until the real property held under the Land Trust is
sold and final distribution of the net prbceedsis made to the trust's beneficiaries, whichever
occurs first; and that Plaintiff, as successor trustee Under the Land Trust Agreement, shall
proceed forthwith to sell the real property held by such trust as soon as reasonably practicable
upon such terms and conditions as she deems appropriate and consistent with her fiduciary
duties; and
D. That Plaintiff is hereby awarded wonable attorney's fees and costs in this
action in the amount of $ l7,504.12 , to be paid from the Land Trust at such time as funds
become available.
ENTERED this 25th day of January, 2013.

(seal) (Chief Judge Dennis J. Smith?)


I ASK FOR THIS:
BLANKINGSHIP & KEITH, P. C.·
4020 University Drive .
Suite 300
Fairfax, VA 22030
703~691-1235
FAX: 703-691-3913
By:
Elizabeth Chichester Morrogh, VSB No. 25112
BVMorrogh@bklawva.com
Jennifer L. McCammon, VSB No. 77034
lMcCammon@bklawva.com
Counsel for Plaintiff

A Copy Teste:
John T. Frey, Clerk
By (seal)
Deputy Clerk
Date: 1-25-2013
Original retained in the office of
the Clerk of the Circuit Court of
Fairfax County, Virginia

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LONG BRANCH PARTNERS, L.L.C.
6715 Little River Turnpike, Suite 100
Annandale, VA 22003

May 10, 2013
Ms, Sarah E. Hall
BIanldngship and Keith
4020 University Drive
Suite 300
Fairtiuc, VA 22030
RE:O'Co~IProperty
Dear Ms. Hall,
Please accept this correspondence as Long Branch Properties, LLC's ("Purchaser") Letter of Intent
to purohase approximmey l5 acres of land located at the terminus Thomas Grant Drive in
Springfield, Virginia, with Fairfax CountyTax ID Number 0904-0-0017 ("Property") and
currcmtly Zoned R-l (one dwelling unit per acre) in Fairfux County from Jean Nader, Successor
Trustee Under the Land Trust Agreement Dated: October 16, 1992 ("Seller") undcr the following
terms and conditions:

Minimum Purchase Price: $1,725,000.00
Final Purchase Price: To be increased by $57,500.00 for
each townhouse lot zoned and site plan approved
over 30.
Study Period: 90 Days
Settlement: Within 24 months after the expiration of the Study Period.
Deposit and Real Estate Taxes: $50,000.00 in the form of a promissoxy note to be
converted to cash at the expiration of the Study
Period. Within three days of the expiration of the
Study Period, Seller shall brIng ourrent the Real
Estate taxes en (be Property now in default with
Fairfax County. Purchaser will pay the Real estate taxes on the prroperty as they become due
until Purchaser terninates the Contract .in
accordance with its terms or closes on the
Property.
All Rea1 Estate taxes paid by Purchaser on the
Property shall be credited to the Purchase Price
at settlement.
In the event that Purchaser fails to achieve the
zoning and site pIan approvals for a minimum of
30 Townhouse lots by the Settlement Date and terminates the Contract, then the Real Estate
taxes paid by Purchaser shall become a lien on
the Property which shall be paid when the
Property is sold.

In the event that Purchaser defaults under the
terms of the Contract and fails to cure said
default, then the Deposit and all Real Estate
taxes paid by Purchaser shall be forfeited.

Contingency: Full and final settlement is contingent upon Purchaser's obtaining rezoning and
site plan approval for 30 or more townhouse
lots. Should it not do so by the Settlement Date,
Purchaser may terminate the Contract and
receive a refund of the Deposit.

This Letter of Intent is not a binding agreement; however, upon execution of this Letter of Intent.
Seller and Purchaser agree to enter into good faith negotiations to reach a final agreement
acceptable to both parties. Upon full execution by Seller and Purchaser, the final agreement will
be binding.
If you have any questions, or concerns, please give either Blll or me a call. We thank you for
your consideration and look forward to your rosponse.
Very truly yours,
(seal)
Andrew J. Somerville, III
For Long Branch Partners

Purchaser:
By: (seal)
Edwin W. Lynch, Jr, Manager

Seller: By: (seal)
Jean Nader, Successor Trustee
U:\Land Use & Developement\SEH\Nader 9273-0I\Letter Of Intent - O'Connell Property ( Clean 5-16-13) Doe


REAL ESTATE SALES CONTRACT

THIS REAL ESTATE SALES CONTRACT (the "Contract") is made and entered into as
of this 20th day of June, 2013, by and between JEAN MARY O'CONNELL NADER, Successor
Trustee under the Land Trust Agreement dated October 16, 1992 ("Seller"), and LONG
BRANCH PARTNERS, L.L.C., a Virginia limited liability company ("Purchaser").

RECITALS:
WHEREAS, Seller holds legal title to an approximately fifteen (15) acre parcel of land in
Fairfax County, Virginia, identified on the Tax Map as TM 90-4 «(1)) 17 (the "Property"); and

WHEREAS, Seller was appointed Successor Trustee under the Land Trust Agreement
dated October 16, 1992, recorded in Deed Book 8845, page 1449 among the land records of
Fairfax County, Virginia, by the Circuit Court of Fairfax County by Order entered January 25,
2013 (the "Order"), a copy of which is attached; and .

WHEREAS, Seller desires to sell the Property and Purchaser desires to purchase the
Property upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, for and in consideration ofthe foregoing, of the mutual promises
of the parties contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound,
hereby covenant and agree as follows:
1. Sale and Purchase of Real Property. Seller agrees to sell the Property to
Purchaser, and Purchaser agrees to purchase the Property from Seller, at the price and upon the
terms and conditions hereinafter set forth.
2. Purchase Price.
(a) The minimum purchase price for the Property shall be One Million Seven
Hundred Twenty-Five Thousand and 00/100 Dollars ($1,725,000). The Purchase Price to be
paid at Settlement shall be calculated as follows: $1,725,000 + ($57,500 x (number of
townhouse lots for which Purchaser obtains rezoning and site plan approval greater than 30)).
For purposes of calculating the purchase price, Purchaser shall not be required to pay Seller for
any townhouse lots that are required to be designated as Affordable Dwelling Units ("ADU")
by Fairfax County.
(b) Within two (2) business days after the Effective Date of this Contract, as
defined in Paragraph 26 below, Purchaser shall deliver to Stewart Title and Escrow, Inc.
("Escrow Agent" or "Title Company") at 10505 Judicial Drive, Suite 300, Fairfax, Virginia
22030, Attention: Mark Fitzgerald, a promissory note due on demand made payable to Seller in
the amount of$50,000 ("Promissory Note"). Escrow Agent shall hold the Promissory Note in
escrow and deliver it as provided herein.
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(c) Any dispute between Seller and Purchaser with respect to the entitlement
of either to receive the Promissory Note or the Deposit, as defined in Paragraph 6(b) below, shall
be limited solely to the amount of the Deposit and attorney's fees and other costs of collection,
should there be any.
(d) At Settlement, Purchaser shall pay the Purchase Price in cash or other
immediately available funds, and the Deposit shall be applied to the Purchase Price.
3. Time is of the Essence. TIME IS OF THE ESSENCE OF ALL ASPECTS OF
TIllS CONTRACT.
4. Title.
(a) Title to the Property shall be good of record and in fact, marketable and
insurable at standard rates by a title insurance company licensed to do business in Virginia. Any
monetary liens shall be satisfied out of settlement proceeds.
(b) Within fifteen (15) days after the Effective Date, Purchaser shall order a
title examination and commitment as to the status of title to the Property ("Purchaser's Title
Commitment"). Within sixty (60) days after the Effective Date, Purchaser shall deliver to Seller
copies of Purchaser's Title Commitment and, should Purchaser commission one, a survey and
shall advise Seller by written notice ("Title Objection Notice") of any objections that Purchaser
may have as to the matters reflected in Purchaser's Title Commitment or the survey ("Title
Objection(s)").
In the event it does not timely give a Title Objection Notice, Purchaser shall be
deemed to have accepted title as reflected in Purchaser's Title Commitment and, if one is
prepared, the survey, should Purchaser elect to proceed beyond the Feasibility Period under this
Contract. Within ten (l0) days after delivery of a Title Objection Notice to Seller, Seller shall
advise Purchaser by written notice ("Seller Title Notice") that Seller elects to either:
(i) immediately undertake at her expense and diligently pursue
corrective action and proceed to resolve the Title Objection(s)
by the Settlement Date as defined
in Paragraph 9(a); or
(ii) not remedy the Title Objection(s).
In the event Seller does not timely give a Seller Title Notice to Purchaser, Seller shall be deemed
to have elected to not remedy the Title Objection(s).
(c) In the event Purchaser advises Seller of Title Objection(s) and Seller elects
not to undertake corrective action, Purchaser may elect either to waive such Title Objection(s)
and proceed under this Contract or to terminate this Contract and have the Promissory Note
returned to it. Purchaser shall advise Seller as to its election prior to the expiration of the
Feasibility Period should Purchaser elect to proceed beyond the Feasibility Period under this
Contract.
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(d) Seller expressly acknowledges that Seller shall be required to cause to be
released at or prior to Settlement any mortgages, deeds of trust or monetary liens (including
without limitation mechanic's liens) to the extent that such monetary liens are not caused by
Purchaser's activities on the Property, and Purchaser shall not be required to list any such matters
as Title Objection(s). All matters disclosed by Purchaser's Title Commitment which are not the
subject of Title Objection(s) by Purchaser, other than monetary liens as described above, shall be
deemed to be Permitted Exceptions (as defined below). If Purchaser does not terminate this
Contract, all Title Objection(s) which Seller has elected not to cure shall be deemed Permitted
Exceptions. If Seller,with the exercise of reasonable diligence, is unable to cure any Title
Objection(s) which Seller has elected to cure within four (4) months following the receipt of
such Title Objection(s), Purchaser shall elect, within ten (10) days after the expiration of such
four-month period, by written notice to Seller, either (x) to terminate this Contract, in which
event the Deposit shall be returned to Purchaser and the parties shall have no further rights or
obligations hereunder (other than those which by their specific terms are to survive a termination
ofthis Contract), or (y) to waive such Title Objection(s) aild proceed in accordance with the
terms of this Contract, in which event such Title Objection(s) shall be deemed to be Permitted
Exceptions to title. The "Permitted Exceptions" shall mean (i) all matters disclosed by the
Purchaser's Title Commitment which are not the subject of Title Objection(s) by Purchaser, other
than monetary liens, (ii) all Title Objection(s) which Seller has elected not to cure (provided
Purchaser does not elect to terminate this Contract as set forth above), and (iii) all Title
Objection(s) which Seller has elected to cure but which Seller is unable to cure within four (4)
months following the receipt of such Title Objection(s) (provided Purchaser does not elect to
terminate this Contract as set forth above). The Purchaser's Title Commitment may be updated
by the Escrow Agent, at Purchaser's expense, prior to Settlement. Any title exception, other than
a Permitted Exception, which appears on such updated Purchaser's Title Commitment (a "New
Exception") shall be cured by Seller prior to Settlement, and the date for Settlement shall be
deferred for up to sixty (60) days to permit Seller to cure such New Exceptions.
(e) Subsequent to the Effective Date, Seller shall not mortgage or encumber
the Property or execute any easements, covenants, proffers, conditions or restrictions with
respect to the Property without Purchaser's prior written consent.
(f) Title to the Property shall be conveyed by Seller to Purchaser at
Settlement by Special Warranty Deed in recordable form subject only to the Permitted
Exceptions or those other exceptions waived by Purchaser and deemed Permitted Exceptions as
set forth above.
(g) In the event any matter which renders title to the Property to become
unmarketable or uninsurable at ordinary rates arises subsequent to the Effective Date and is not
disclosed in the Purchaser's Title Commitment, Seller shall cause same to be cured and the date
for Settlement shall be deferred for up to sixty (60) days to permit such cure.
(h) Purchaser shall have the right to have the Property surveyed by a surveyor
licensed by the Commonwealth of Virginia, chosen by Purchaser, prior to the expiration of the
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Feasibility Period. If the report of survey (the "Survey") shows any encroachment on the
Property or encroachments into the adjoining lands of others or other defects and Purchaser
objects to the same by written notice to Seller prior to the, the same shall be treated as a Title
Objection(s) in accordance with Paragraph 4(b).
(i) Seller and Purchaser agree that the issue of marketability of the title to the
Property or the curing or removal of a Title Objection shall be determined on the basis of
applicable standards adopted by the Title Company.
5. Entry onto Property.
Until Settlement hereunder or until such time as this Contract is terminated as
provided herein, Purchaser shall have the right, at its own risk and expense, to enter onto and
have its agents enter onto the Property to make engineering studies, conduct tests, including soil
borings, and to survey the Property. Prior to exercising its right of entry, Purchaser must have a
policy of comprehensive general liability insurance which reasonably covers the risks involved.
Purchaser shall indemnify and hold Seller harmless against any damages or claims which may
result from the activities of Purchaser or its agents on the Property, except for damages or claims
that result from the negligence or activities of Seller or her agents. In the event of termination of
this Contract under its terms, Purchaser shall return the Property substantially to its condition
before disturbance by Purchaser. Notwithstanding any other provision of this Contract, the
obligations of Purchaser set out in this Paragraph 5 shall survive termination ofthe Contract.
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6. Feasibility Period; Deposit.
(a) During the period which shall extend ninety (90) days after the Effective
Date ("the Feasibility Period") Purchaser shall determine in its sole discretion whether to
proceed under this Contract or to terminate it. Should Purchaser decide to terminate this
Contract, it shall so notify Seller on or before the last day of the Feasibility Period, and Escrow
Agent shall return the Promissory Note to Purchaser upon being notified by Seller that it has
received from Purchaser copies of all studies or tests relating to the Property commissioned by
Purchaser and that Purchaser has restored the Property to its pre-inspection state. Upon
Purchaser's receipt of the Promissory Note, the parties shall have no further rights or obligations
under this Contract. Purchaser's failure to terminate this Contract on or before the last day of the
Feasibility Period shall be deemed a decision by Purchaser to proceed under the Contract.

(b) If Purchaser elects to proceed under the Contract, within ten (l0) days
there of Purchaser shall substitute for the Promissory Note, which shall be returned to Purchaser,
the sum of $50,000 (the "Deposit") which, except for that portion of the Deposit which
Purchaser shall use to pay real estate taxes, interest and penalties as set forth below, Escrow
Agent shall hold in escrow and disburse as provided herein. The Deposit shall be paid by
Purchaser within that ten (10) day period as follows: (i) Purchaser shall bring current the real
estate taxes due on the Property, including interest and penalties (the "Delinquent Taxes"), which
amount shall be considered a portion of the Deposit; and (ii) Purchaser shall deliver the
difference between $50,000 and the Delinquent Taxes to the Escrow Agent.

(c) Thereafter, until Settlement hereunder or until such time as this Contract is
terminated in accordance with its terms, Escrow Agent shall, upon presentation of a bill issued
by Fairfax County for real estate taxes, make timely payment to Fairfax County of the real estate
taxes on the Property as they become due (the "Real Estate Taxes"). Payment of the Real Estate
Taxes shall be made by Escrow Agent from the balance of funds comprising the Deposit held by
Escrow Agent. All Real Estate Taxes paid from the balance of funds comprising the Deposit
shall be considered a portion of the Deposit. In the event the total Delinquent Taxes and the Real
Estate Taxes paid exceed $50,000, the amount by which $50,000 is exceeded shall be considered
additional Deposit, and this amount and the $50,000, together being the Deposit, shall be
credited against the Purchase Price at Settlement. After such time as all of the funds comprising
the Deposit held by Escrow Agent have been used to pay Real Estate Taxes, Purchaser shall be
responsible for making timely payment of real estate taxes to Fairfax County, subject to the
terms and conditions ofthis contract.
(d) The Deposit shall be nonrefundable except as otherwise provided herein.
(e) The repayment to Purchaser of the Delinquent Taxes and Real Estate
Taxes paid by Escrow Agent and Purchaser shall be secured by a non-recourse note (the "Note")
from Seller to Purchaser and a deed of trust (the "Deed of Trust") recorded against the Property,
the forms and terms and conditions of which shall be agreed upon by the Seller and Purchaser
during the Feasibility Period. Prior to the execution of the Note and Deed ofTrust by Seller,
Purchaser shall execute a Deed of Release or similar document (the "Release"), the form of
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which shall be agreed upon during the Feasibility Period. The Note and the Release shall be held
in escrow by Escrow Agent and delivered or, in the case of the Release, recorded as provided
herein.
(f) After the Effective Date Seller shall make no physical changes to the
Property without the prior written consent of Purchaser.

(g) Without making any representation as to its accuracy or completeness,
Seller has provided Purchaser with a copy of a Title Report on the Property issued by Walker
Title, LLC, effective July 15, 2012, prior to the entry of the Order. Purchaser acknowledges that
Seller is not in a position to provide it with any additional documentation regarding the Property.
Purchaser acknowledges that it compiled significant information regarding the Property several
years ago, when it had attempted to purchase the Property from the then Trustee under the Land
Trust Agreement dated October 16, 1992. Notwithstanding the foregoing, to the extent Seller
receives any documentation concerning or affecting the Property or becomes aware of any
information concerning or affecting the Property, Seller shall immediately deliver and/or provide
such documents and information to Purchaser.
(h) Except as provide in Paragraph 7(h), Seller makes no representation or
warranty as to the condition of the Property, which is being sold "as is". During the Feasibility
Period Purchaser shall satisfy itself as to the condition of the Property, including its
environmental condition.
7. Representations and Warranties of Seller. Seller makes the following
representations and warranties which are, to the best of her knowledge and belief, except as
otherwise stated below, true as of the date hereof and shall be true at Settlement:
(a) Seller has the right to sell and convey the Property to Purchaser and to
take all other actions necessary to consummate the transaction contemplated in this Contract, and
the signature of no other party is required to make this Contract enforceable against Seller.
(b) The execution and delivery of this Contract and the consummation of the
transaction herein contemplated will not conflict with or result in a breach of the terms of or
constitute a default under any document to which Seller is a party or by which Seller or the
Property is bound or any applicable judgment, order or decree of any court having jurisdiction
over Seller or the Property.
(c) Seller has received no written notice of violation of any ordinance,
regulation, law or statute of any governmental authority or agency pertaining to the Property; she
is, however, aware of the Delinquent Taxes.
(d) Seller has received no written notice ofany pending or proposed
condemnation regarding any portion ofthe Property or of any pending or proposed special tax or
assessment.
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(e) There are no attachments, executions, assignments for the benefit of
creditors, voluntary or involuntary proceedings in bankruptcy or under applicable debtor relief
laws involving either Seller or the Property.
(f) There are no cemeteries or other burial lot on the Property.
(g) Other than Fairfax County's engaging a collection agency to collect the
Delinquent Taxes, there are no actions, suits or other proceedings pending against Seller which
would have a material adverse effect on the Property or Seller's ability to enter into or perform
this Contract.
(h) To Seller's actual knowledge, no hazardous substances or hazardous
materials have been released, deposited, stored or placed in, on, under or above the Property
during Seller's ownership of the Property or prior to Seller's ownership thereof, and to Seller's
knowledge no such hazardous substances or hazardous materials currently exist in, on, under or
above the Property such that their existence would violate applicable laws, ordinances, statutes
and regulations. As used herein, all references to hazardous materials and raw materials,
products or waste of a toxic or hazardous nature shall mean and refer to hazardous waste as that
term is defined in the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901, et. seq.), the Comprehensive Environmental Response Compensation and Liability Act of
1980 (42 U.S.C. Section 9601, et. seq.), or under any other federal, state or local law, ordinance,
statute, rule or regulation, including, without limitation, any asbestos or asbestos-related products
and any oils or pesticides.

(i) All bills and claims for labor performed and materials furnished to or for
the benefit of the Property for all periods prior to the Effective Date have been (and on or prior to
the Settlement Date will be) paid in full, and on the Settlement Date there shall be no mechanics'
liens or materialmen's liens, whether or not perfected, on or affecting any portion of the Property,
and if there are any such liens, Seller shall obtain the release of the same on or before the
Settlement Date so that Purchaser's owner's policy of title insurance shall contain no exceptions
for such liens. However, any bills, claims or liens relating to or arising from Purchaser's preSettlement
activities on the Property are expressly excluded from the provisions ofthis
representation and warranty. Seller agrees, at Settlement, to execute any affidavits and/or
customary agreements which may be required by Purchaser's Title Company in order for
Purchaser to obtain from Title Company an owner's policy of title insurance covering the
Property without exception for mechanics' liens or rights ofparties in possession.
(j) There are no parties in possession of any portion of the Property as
lessees, tenants at will or at sufferance, or, to Seller's actual knowledge, trespassers or otherwise.
In the event any of these representations and warranties is untrue or incorrect as of
the Settlement Date, Seller shall be in default under this Contract, and Purchaser shall be entitled
to the remedies for such default as provided herein.
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Purchaser acknowledges that Seller is a resident of New Kensington,
Pennsylvania and does not visit the Property on a regular basis and has little knowledge of the
physical condition of the Property or any activity on it.
8. Rezoning of the Property and Technical Approval of Site Plan.
(a) Purchaser shall have twenty-four (24) months after the close of the
Feasibility Period ("Approval Period") within which to obtain from Fairfax County rezoning of
the Property to the R-3, R-4, PDH-3 or PDH-4 district, or such other district as the Purchaser
may elect in its sole discretion, and technical approval of a Site Plan for development of the
Property with at least thirty (30) townhouse lots (collectively "Zoning and Technical Approval").
The date Purchaser shall be deemed to have obtained Zoning and Technical Approval shall be
the date that the Site Plan is forwarded to the Bonds & Agreement Office of the Department of
Public Works and Environmental Services of Fairfax County. Obtaining Zoning and Technical
Approval shall not include bonding of the Site Plan.
(b) Purchaser shall diligently and in good faith pursue Zoning and Technical
Approval within the Approval Period, and it may, although it is not required to, begin to pursue
Zoning and Technical Approval during the Feasibility Period. Purchaser shall initially seek
approval of as many townhouse lots as it deems reasonably achievable. Seller acknowledges
that, prior to submitting a rezoning application, Purchaser may pursue a revision of the Resource
Protection Area as it affects the Property. Provided there is no expense to Seller, Seller shall
fully cooperate and join in the execution, filing and prosecution of all applications for the Zoning
and Technical Approval and any applications for other development approvals, including
proffers, affidavits and the like, required in order to induce the Zoning and Technical ApprovaL
If, at any time Purchaser reasonably concludes that it cannot obtain Zoning and Technical
Approval upon terms and conditions acceptable to Purchaser, Purchaser may notify Seller of this
fact and terminate this Contract, in which case the Deposit would be refunded to Purchaser as
provided in Paragraph 8(e), and, if so directed by Seller, Purchaser would execute the documents
necessary to permit Seller or its designee to continue to pursue approval of the rezoning
application and the site plan.

(c) In the event Purchaser has not obtained Zoning and Technical Approval
by the close of the Approval Period, Purchaser shall either terminate this Contract, in which case
the Deposit would be refunded to Purchaser; proceed to Settlement under this Contract; or extend
the Approval Period by 90 days by paying directly to Seller $30,000, which shall not be credited
against the Purchase Price at Settlement. In the event Purchaser has not obtained Zoning and
Technical Approval by the close of the Approval Period as extended under this provision, it shall
either terminate this Contract, in which case the Deposit would be refunded to Purchaser as
provided in Paragraph 8(e), or proceed to Settlement under this Contract. Should Purchaser elect
to proceed to Settlement under this provision after it has obtained the rezoning ofthe Property,
the number of lots used in determining the Purchase Price shall be the number approved with the
rezoning, excluding any ADU lots.
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(d) Purchaser's obligation to purchase the Property shall be contingent upon
its obtaining Zoning and Technical Approval for at least 30 townhouse lots. In the event that
Purchaser seeks and obtains approval of fewer than 30 townhouse lots, however, it shall be
deemed to have waived this contingency and be obligated to go to Settlement and to pay a
purchase price of $1,725,000.
(e) In the event Purchaser terminates this Contract in accordance with
Paragraph 8(b) or 8(c), the portion of the Deposit which Escrow Agent still holds will be
refunded to Purchaser, and the portion of the Deposit represented by the amount of the
Delinquent Taxes and Real Estate Taxes which Escrow Agent and Purchaser have paid will
remain secured by the Deed of Trust and shall be paid to Purchaser on the earlier of the due date
set out in the Note or the sale of the Property to a third party. Upon such termination of this
Contract, Escrow Agent shall deliver the Note to Purchaser.
9. Settlement.
(a) Settlement on the Property ("Settlement") shall take place at the office of
Escrow Agent, which shall act as Settlement Agent. Settlement shall take place fifteen (15) days
after Zoning and Technical Approval ("Settlement Date"). In no event, however, shall
Settlement occur later than twenty-five (25) months after the last day of the Feasibility Period or,
in the event of an extension of the Approval Period under Paragraph 8(c) above, twenty-eight
(28) months after the last day ofthe Feasibility Period.
(b) At Settlement, Seller shall pay the cost of the preparation of the Deed, the
grantor tax, and Seller's attorney's fees.
(c) At Settlement, Purchaser shall pay the cost of examination of title, title
insurance, all remaining recording fees and taxes, Purchaser's attorney's fees, and all other costs
of settlement.
(d) Real estate taxes shall be adjusted as of the Settlement Date, and
Purchaser shall receive a credit against the Purchase Price for all Delinquent Taxes and Real
Estate Taxes paid prior to the Settlement Date through full credit of the Deposit.
(e) At Settlement, Seller shall execute all documents reasonably requested by
Purchaser, Purchaser's title insurance company, or the Settlement Agent, including certification
that Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue
Code of 1986, as amended, and an affidavit that no mechanic's liens have or may be filed against
the Property.
(f) Deposit with Settlement Agent of the Purchase Price, the Deed,
and such other documents and funds as are required of either party by the terms of this Contract
for settlement shall be deemed good and sufficient tender of performance of the terms of this
Contract with respect to Settlement.
9

(g) Possession shall be given to Purchaser at Settlement.
(h) At Settlement the Note shall be returned to Seller and the Release
recorded.
10. Default.
(a) In the event Purchaser fails to perform its obligation to settle on the
Property as required by the terms and conditions of this Contract and does not so perform within
ten (l0) days of receiying notice of such failure from Seller, Purchaser shall be in default, and
Seller's sole remedy shalJ be to terminate this Contract and receive the Deposit as liquidated
damages and not as a penalty, the parties agreeing that actual damages would be difficult to
calculate precisely. In such event the Escrow Agent shall deliver to Seller the balance of the
funds comprising the Deposit held by Escrow Agent, Purchaser shall forfeit the Delinquent
Taxes and Real Estate Taxes paid comprising the remainder of the Deposit, and Escrow Agent
shall return the Note to Seller and record the Release. .
(g) In the event Seller fails to settle on the Property as required by the terms
and conditions of this Contract and does not do so within ten (l0) days of receiving notice of
such failure from Purchaser, Seller shall be in default, and Purchaser shall have the right to
terminate this Contract and receive a refund of the Deposit and the delivery of the Note from
Escrow Agent or to institute against Seller a suit at law or in equity, including a suit for specific
performance.
11. Risk of Loss. Until recordation of the Deed, the risk of loss or damage to the
Property is assumed by Seller.
12. Condemnation. If, at or prior to Settlement, the Property or any material portion
thereof shall be condemned or taken pursuant to any governmental or other power of eminent
domain, or if written notice of any such taking or condemnation is issued, or proceedings
instituted by any authority having the power of eminent domain, then and in any such event,
Seller shall so notify Purchaser and Purchaser shall have the option, within ten (10) days after
being given notice, of either:' (i) terminating this Contract and having the Deposit refunded to
Purchaser in accordance with Paragraph 8(e), or (ii) proceeding to settlement as provided in this
Contract with no reduction in the Purchase Price, in which event Purchaser shall receive at
Settlement all condemnation awards paid to Seller subsequent to the Effective Date for any part
of the Property, together with an absolute assignment of Seller's right and interest as an owner in
any unpaid condemnation award to be made with respect to the Property.
13. Notices. Unless otherwise provided herein, all notices and other communications
under this Contract shall be in writing and shall be either mailed by certified mail, return receipt
requested, or delivered by a nationally recognized overnight carrier service such as FedEx or
Overnight Mail, as follows:

Seller: Jean Nader
10

350 4th Avenue
New Kensington, Pennsylvania 15068-6614

with copy to:
Sarah E. Hall, Esquire
Blankingship & Keith, P.C.
4020 University Drive
Suite 300
Fairfax, Virginia 22030

Purchaser: Long Branch Partners, L.L.C.
6715 Little River Turnpike
Suite 100
Annandale, Virginia 23226
Attention: Andy Somerville

with copy to:
Bryan H. Guidash, Esquire
Walsh, Colucci, Lubeley, Emrich & Walsh, P.C.
4310 Prince William Parkway, Suite 300
Prince William, VA 22192

Escrow Agent:
Title and Escrow, Inc.
10505 Judicial Drive, Suite 300
Fairfax, VA 22030
Attn: Mark Fitzgerald

A notice shall be deemed given (a) two (2) business days after the date of posting with the U.S.
mail, if sent by certified mail, or (b) one (1) business day after deposit with an overnight courier.
The parties shall be responsible for notifying each other as provided in this Paragraph 13
of any change in address.
14. Assignability. This Contract may be assigned by Purchaser only with the prior
written consent of Seller, which consent Seller may grant or deny in her sole discretion;
however, Purchaser may assign this Contract to an affiliated entity without receiving the prior
written consent of Seller.
15. Interpretation. The paragraph headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof. Wherever herein reference is
made to "days" the same shall mean "calendar days" unless "business days", as defined in
Paragraph 21 below, is specified.
16. Partial Invalidity. If any term, covenant or condition of this Contract or the
application thereofto any person or circumstances shall be held to be invalid or unenforceable,
the remainder of this Contract, or the application of such term or provisions to persons or
11

circumstances other than those to which it is held invalid or unenforceable, shall not be affected
thereby, and each term shall be valid and enforceable to the fullest extent permitted by law.

17. Governing Law. It is the intention of the parties hereto that this Contract and the
rights and liabilities of the parties hereunder shall be governed by the laws of Virginia.
18. Binding Effect. Subject to the provisions of Paragraph 14 above, all of the
covenants, conditions and obligations contained in this Contract shall be binding upon and inure
to the benefit of the respective heirs, legal representatives, successors and assigns of Seller and
Purchaser.
19. Real Estate Commission. Each party warrants to the other that no real estate
agent or broker has acted for it in connection with this Contract. Each party agrees to indemnify
and hold the other harmless against any and all claims for broker's or fmder's fees or
commissions asserted by any broker or fmder claiming through that party.
20. Relationship between Parties. Notwithstanding any other provision of this
Contract, nothing contained herein shall be construed as making the parties hereto partners or
joint venturers or rendering either liable for any of the debts or obligations of the other. It is the
intent of this Contract to create simply the relationship of seller and purchaser with respect to the
Property.
21. Weekends and Holidays. Any date specified in this Contract for the performance
of an obligation or expiration of a time period which is not a business day shall be extended to
the first regular business day thereafter. A business day is defined as any day other than
Saturday, Sunday, or a holiday on which the banks in Fairfax County are closed.
22. Recitals. The Recitals to this Contract are hereby made a substantive part hereof.
23. Entire Agreement. This Contract contains the entire agreement between the
parties. There are no promises, agreements, conditions, undertakings, warranties, or
representations, oral or written, express or implied, between them, other than as herein set forth.
This Contract is intended by the parties to be an integration of all prior or contemporaneous
promises, agreements, conditions, negotiations, and undertakings between the parties. This
Contract may not be modified orally or in any manner other than by an agreement in writing
signed by both the parties or their respective successors in interest.
24. Waivers. Purchaser and Seller each reserve the right to waive any of the terms
and conditions of this Contract which benefit the party waiving the same and to purchase and sell
the Property in accordance with the terms and conditions of this Contract which have not been so
waived. Any such waiver must be in writing signed by the waiving party.
25. CounterParts and Electronic Signatures. This Contract may be executed in several
counterparts, each of which shall be an original, but all of which shall constitute one and the
same instrument. This Contract may be signed by facsimile or other electronic transmission of a
12

party's signature, e.g. by pdf file, and both parties agree such electronic signatures shall be as
legally binding on the transmitting party as an original signature.
26. Effective Date. The date upon which the last of the two parties hereto shall
execute this Contract shall be referred to herein as the "Effective Date." This date shall be
inserted in the heading of this Contract.
WIlNESS the following signatures and seals:

SELLER:
Date
(Seal) [Not signed]
JJEAN MARY O'CONNELL,
SUCCESSOR TRUSTEE UNDER THE LAND TRUST
Agreement dated October 16, 1992

PURCHASER
LONG BRANCH PARTNERS. L,L,C,.
a Virginia limited liability company
6//20/2013
Date
By: (Seal)
Edwin W. Lynch, Manager

6//20/2013
Date
By: (Seal)
Andrew I Somervillie, III, Manager

{PO341174.DOC/ Long Branch PartnersO'Connell. Franconia Properties Contract (06-19-13) 008109 000002}
U:\Land Use & Developement \SEH\Nader 9273-01\Real Estate Sales Contract Clean (6-17-13).Doc

13

(The following page is the same as page 13 except Jean Mary O'Connell Nader signed it as "Seller:" and there are no signatures for "Purchaser:"

party's signature, e.g. by pdf file, and both parties agree such electronic signatures shall be as
legally binding on the transmitting party as an original signature.
26. Effective Date. The date upon which the last of the two parties hereto shall
execute this Contract shall be referred to herein as the "Effective Date." This date shall be
inserted in the heading of this Contract.
WIlNESS the following signatures and seals:

SELLER:
Date
(Seal)
JJEAN MARY O'CONNELL,
SUCCESSOR TRUSTEE UNDER THE LAND TRUST
Agreement dated October 16, 1992

PURCHASER
LONG BRANCH PARTNERS. L,L,C,.
a Virginia limited liability company
6//20/2013
Date
By: (Seal)  [Not signed]
Edwin W. Lynch, Manager

6//20/2013
Date
By: (Seal)  [Not signed]
Andrew I Somervillie, III, Manager

{PO341174.DOC/ Long Branch PartnersO'Connell. Franconia Properties Contract (06-19-13) 008109 000002}
U:\Land Use & Developement \SEH\Nader 9273-01\Real Estate Sales Contract Clean (6-17-13).Doc

[13]


AMENDMENT
TO
REAL ESTATE SALES CONTRACT


THIS AMENDMENT ("Amendment") to Real Estate Sales Contract is made and entered
into as of this .18th day of September, 2013, by and between JEAN MARY O'CONNELL
NADER, Successor Trustee under the Land Trust Agreement dated October 16, 1992 ("Seller"),
and LONG BRANCH PARTNERS, L.L.C., a Virginia limited liability company ("Purchaser").
WITNESSETH:
WHEREAS, by Real Estate Sales Contract dated June 20, 2013 (the "Contract"), Seller
agreed to sell and Purchaser agreed to purchase real property in Fairfax County, Virginia, more
particularly described therein (the "Property"), subject to the terms and conditions set out in the
Contract; and
WHEREAS, by this Amendment Seller and Purchaser desire to amend the Contract.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), cash
in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree that the Contract shall be amended as follows:
1. Paragraph 2(a) of the Contract is revised to state in its entirety as follows:
The minimum purchase price for the Property shall be One Million
Two' Hundred Fifty Thousand and 00/100 Dollars ($1,250,000).
The Purchase Price to be paid at Settlement shall be calculated as
follows: $1,250,000 + ($50,000 x (number of townhouse lots for
which Purchaser obtains rezoning and site plan approval greater
than 25)). For purposes of calculating the purchase price,
Purchaser shall not be required to pay Seller for any townhouse
lots that are required to be designated as Affordable Dwelling
Units ("ADU") by Fairfax County.
2. The first sentence of Paragraph 8(a) for the Contract is revised to state as follows:
Purchase shall have twenty-four (24) months after the close of the
Feasibility Period ("Approval Period") within which to obtain
from Fairfax County rezoning of the Property to the R-3, R-4,
PDH-3 or PDH-4 district, or such other district as the Purchaser
may elect in its sole discretion, and technical approval of a Site
Plan for development of the Property with at least twenty-five (25)
townhouse lots (collectively "Zoning and Technical Approval").
[1]

3. The last sentence of Paragraph 8(b) of the Contract is revised to state as follows:
If at any time Purchaser reasonably concludes that it cannot obtain
Zoning and Technical Approval and/or appropriate off-site
temporary construction and grading easements and permanent
slope easements for the construction of a road within the dedicated
Thomas Grant Drive between TM 90-4((1.1)) L and Z, all upon
terms and conditions acceptable to Purchaser, Purchaser may
notify Seller of this fact and terminate this Contract, in which case
the Deposit would be refunded to Purchaser as provided in
Paragraph 8(e), and, if so directed by Seller, Purchaser would
execute the documents necessary to permit Seller or its designee to
continue to pursue approval of the rezoning application and the site
plan.
4. Paragraph 8(d) of the Contract is revised to state in its entirety as follows:
Purchaser's obligation to purchase the Property shall be contingent
upon its obtaining Zoning and Technical Approval for at least 25
townhouse lots. In the event that Purchaser seeks and obtains
approval of fewer than 25 townhouse lots, however, it shall be
deemed to have waived this contingency and be obligated to go to
Settlement and to pay a purchase price of $1 ,250,000.
5. The following sentence shall be added at the end of Paragraph 14 of the Contract:
Without in any way limiting the rights of Seller in the preceding
sentence, Seller agrees that it shall convey the Property at
Settlement to such party as Purchaser may direct.
6. Except as otherwise provided in this Amendment, the Contract shall remam
unchanged and in full force and effect.
WITNESS the following signatures and seals:
2

SELLER:
Sept 18, 2013
Date
Jean Mary O'Connell (Seal)
JEAN MARY O'CONNELL NADER
Successor Trustee under the Land Trust
Agreement
dated October 16, 1992

PURCHASER:
LONG BRANCH PARTNERS. L.L.C,
a Virginia limited liability company
2013 (Seal) (Not signed)
Date
By:
Edwin I. Lynch, Jr., Manager
2013 (Seal) (Not signed)
Date
By:
Andrew J. Somerville, III, Manager
2

PURCHASER:
LONG BRANCH PARTNERS. L.L.C,
a Virginia limited liability company
9/18, 2013
Date
By: Edwin W. Lynch [SEAL]
Edwin W. Lynch Manager
9/18, 2013
Date
By: AIS (?) [Seal]
Andrew J. Somerville, III, Manager
3

 

 

 

2
( .1..
~)~A...
..
fSFAIl
DRle
.,.
r~Ft\I.1
,2013
" __.• 2013
SEl.lLE'R:
('~
----i., Q~ ~1'l"'1 O~SEALI
.lEAN ARY O'('(;NELL NADER
Successor Trustee under the Land Trust
dated October 16, 1992
PlJRCHASER:
LONG BRAN("H PARTNERS, L.L.C.,
a Virginia limited liability company
'By:
Edwin L. Lynch. Jr., Manager
By:
Andrew J. Somerville. flI. Manager
2
[3]

 

25

PURCHASER:
LONG BRANCH PARlNERS, L.L.C.,
a Virginia limited liability company
__tf-lL--I-/-t:;-et-~-,2013
Date OJ
---Q---,/f,--'<-J!'l~-- ,2013
Date
By:
By:
3
----40____."""""'++--=---'---- [SEAL]
erville, III, Manager
3
[4]