Occupancy Agreement

THIS OCCUPANCY AGREEMENT (the “Agreement”) is made by and between the renter (“Occupant”); and C’mon Inn LLC, a New York limited liability company, with a mailing address of  38 Whitestone Lane, Rochester, New York 14618 (“Owner”).

WHEREAS, Owner and Occupant have entered into an agreement whereby Occupant wishes to obtain, and Owner has agreed to permit Occupant to have, possession of 93 Locust Grove, situate in the Town of Benton, County of Yates, State of New York (“Property”) upon the terms and conditions hereinafter described.

NOW THEREFORE, for good and valuable consideration, Owner and Occupant covenant and agree as follows:

  1. No Landlord-Tenant Relationship. This agreement does not create a Landlord-Tenant relationship between Owner and Occupant. Occupant does not have the rights of a tenant under New York State law, including but not limited to the Civil Practice Law and Rules, Executive Law, General Obligations Law, Real Property Law, and Real Property Actions and Proceedings Law (“RPAPL”).

  2. Possession. Upon full execution of this Agreement, Occupant shall be permitted to enter into possession of the Property as provided in paragraph 2(b) (“Possession”) from first reservation day at 3:00 P.M. (the “Possession Date”) until final reservation day at 10:00 A.M. (the “Termination Date”) unless sooner terminated by Owner in accordance with this Agreement. The period of time from the Possession Date until the Termination Date shall be referred to as the “Term”. Notwithstanding any booking or other agreement, nothing contained herein shall impose any duty on Owner, whether express or implied, to permit Occupant to remain in Possession after the Termination Date. Notwithstanding the foregoing, at least forty-eight (48) hours prior to the Termination Date, Occupant and Owner may agree in writing to extend the Term upon the same terms, covenants and conditions set forth herein (the “Extended Term”).

  3. Payment. Occupant shall pay Owner, as compensation, a fee for the Possession of the Property, at a rate indicated by lakehouseseneca.com/rates-and-availability. In the event Occupant vacates the Property prior to the Termination Date, no refund of the Rental Fee shall be given. All money payable by Occupant under this Agreement shall be paid by credit card (through Stripe), PayPal, or as otherwise agreed to in writing between the parties.

  4. Deposit. Occupant shall deposit fifty percent (50%) of the Rental Fee upon placing the reservation. The Deposit shall be eligible for a full refund only for 48 hours from the time of booking as determined by the Owner and only if cancelled at least fourteen (14) calendar days prior to check-in on the Possession Date (“Full Refund Policy”). The balance of the rental fee is due no later than fourteen (14) days prior to Possession Date. If Occupant cancels after the Full Refund Policy term has expired, but at least seven (7) calendar days prior to check-in on the Possession Date, the Deposit shall be non-refundable, however, the balance of the Rental Fee shall be refundable (“Partial Refund Policy”).  If Occupant cancels after the Partial Refund Policy term has expired, which is less than seven (7) calendar days prior to check-in on the Possession Date, then no refund whatsoever shall be issued, and the Owner shall be entitled to retain the Deposit and the balance due on the Rental Fee.

  5. Utilities, Taxes and Other Expenses Ordinary Maintenance and Repair.
    • Owner shall be responsible for and pay all utility charges and service contracts, including but not limited to all refuse collection, lawn, landscaping, pool and/or spa/hot tub maintenance (including applicable motors, filter systems, cleaning systems and heaters, if any), snow removal, gas, electricity, telephone, water and pure waters, propane and/or fuel oil use, and cable and security system charges. Owner shall not be liable for any loss or damage resulting from outages, interruptions or fluctuations in utilities after the Possession Date.
    • Occupant shall maintain the Property, including the smoke alarm and carbon monoxide detectors, in the same order and condition as of the Possession Date, reasonable wear and tear excepted. Occupant shall not make any alterations or changes to the Property during the Term.
    • Occupant shall promptly inform Owner as to any repairs needed. In the event of an emergency situation, Occupant must contact local emergency services immediately. Except for repairs necessitated by the intentional or negligent act of Owner, Owner’s agents, contractors, employees, invitees, guests and permitees, Occupant shall be responsible for the cost of all repairs necessitated by damage resulting from Occupant’s use or occupancy of the Property.

  6. Compliance with Laws. Occupant shall comply with the requirements of all laws, orders, ordinances and regulations of any competent authority imposing any duty on Occupant with respect to Occupant’s use or occupancy of the Property, including but not limited to the “Seneca Lakehouse Guidebook” provided by Owner. Occupant shall be responsible to pay all fines or violations levied against Occupant or the Property due to Occupant’s actions or conduct in violation of any covenants, restrictions, and/or rules and regulations imposed by Owner.

  7. Railway. Occupant is hereby advised that the Property is located adjacent to an active railway, which must be crossed at Milepost GL-22.85 (the “Crossing Point”), a private crossing the use of which is exclusive to the Owner. By use of the Crossing Point, Occupant accepts responsibility with full cognizance of the risk of loss of life, personal injury and property loss or damage that may be caused by railway operations at or in the vicinity of the Crossing Point. Occupant acknowledges and assumes this risk and Owner shall not have any responsibility whatever for any such loss, injury or damage. Occupant hereby indemnifies and holds harmless Owner from and against all liability, claims, loss, damage, expense (including attorneys’ fees) or costs for personal injuries (including death) and/or property damage occurring or arising in any manner from railway operations at or in the vicinity of the Crossing Point. The indemnity obligations imposed upon the Occupant by this paragraph shall be absolute and shall not be affected by negligence, either primary or contributory of the Owner or its officers, agents, contractors, employees, invitees, guests and permitees. In each instance when a vehicle approaches the Crossing Point, it shall stop and shall not proceed over the Crossing Point until the driver has ascertained that no train or other rail equipment of the railway is approaching the Crossing Point.  Nothing contained herein shall confer upon Occupant or any other party any assignment of Owner’s rights or permissive right to use the Crossing Point, nor be construed to grant any such privilege or right to Occupant.

  8. Use of Lake, Dock, and Tangible Personal Property. Occupant is hereby advised that the Property has waterfront access to Seneca Lake, which is accessible to the public and accessible via the Property and Owner’s dock. It is commonly known that Seneca Lake has active Cyanobacteria blooms. Cyanobacteria are microscopic organisms that occur naturally in New York lakes, ponds and streams. Cyanobacteria are sometimes called “blue-green algae” or “harmful algal blooms”, which can form at any time, but occur most often in late summer or early fall. These blooms may produce toxins that are harmful and dangerous to people, pets, and wildlife. Laboratory testing is the only reliable method for determining if a bloom contains toxins. Exposure can occur by touching, ingesting, or even breathing contaminated water or vapor and exposure may cause an allergic reaction, breathing difficulty, headache, rash, stomachache, vomiting, diarrhea and even possible liver or neurological damage. By use of the Property, Occupant accepts responsibility with full cognizance of the risk of loss of life, personal injury and property loss or damage that may be caused at or in the vicinity of Seneca Lake. Occupant acknowledges and assumes this risk and Owner shall not have any responsibility whatever for any such loss, injury or damage. Occupant acknowledges that there is no lifeguard on duty on the Property.  Occupant hereby indemnifies and holds harmless Owner from and against all liability, claims, loss, damage, expense (including attorneys’ fees) or costs for personal injuries (including death) and/or property damage occurring or arising in any manner from the use of the Property, Seneca Lake, the Owner’s dock, and any tangible personal property stored on site at the Property, including but not limited to kayaks, paddle boards, or other water flotation devices or toys, whether provided by the Owner or the Occupant.

  9. Insurance
    • Owner shall maintain existing homeowner’s insurance coverage on the Property.
    • During the Term, Occupant is not required to, but strongly encouraged to obtain a comprehensive personal liability insurance against bodily injury and property damage.
    • Occupant acknowledges that Occupant’s personal property and any personal liability against bodily injury and property damage is not insured under Owner’s insurance coverage and Occupant accepts full responsibility for any loss incurred.

  10. Indemnification. To the fullest extent permitted by applicable law, Occupant shall indemnify Owner from and against any and all liability and shall hold Owner harmless from and shall pay any claims, damages, loss, cost or expense (including without limitation, reasonable legal fees and disbursements, court costs, the cost of appellate proceedings and any other reasonable costs of litigation) which Occupant incurs arising out of or in connection bodily injury or property damage occurring to any person or persons, including but not limited to Occupant, members of Occupant’s immediate family, guests, licensees and invitees, occurring during the Term and within or on any portion of the Property, regardless of the cause, excepting only events of injury or damage caused by the willful misconduct or negligence of Owner, Owner’s agents, contractors, employees, invitees, guests and permitees.

  11. Risk of Casualty Loss. The risk of loss of bodily injury, including death, or of Occupant’s personal property, shall be borne by Occupant.

  12. Occupant’s Obligations. Occupant’s obligations hereunder shall continue until Occupant vacates the property. Occupant shall not change or add any locks, lock cylinders, or chain guards or similar devices on any doors or windows. Occupant agrees to pay reasonable locksmith frees for changing locks and/or copying keys if Occupant violates this section. If Occupant’s behavior results in law enforcement being called to the Property, regardless of source of the call or whether an incident report is filed, Owner may elect to terminate this Agreement and Occupant shall vacate the Property within twenty-four (24) hours of receipt of written notice from Owner. The Property has a maximum sleeping occupancy of 8 individuals, as such, Occupant shall be responsible for enforcing the maximum sleeping occupancy and limit the number of overnight guests accordingly.

  13. Owner’s Right of Inspection. Owner shall have the right to enter the Property at reasonable times and upon reasonable notice to inspect the Property and to perform necessary repairs and maintenance as needed.

  14. Notice of Video Monitoring. Owner will maintain cameras affixed to the exterior of the house for monitoring of the yard, driveway access and lakefront. At no time will interior cameras be used.

  15. Damages. The property will be inspected after the departure of each Occupant for any damages or abnormal wear and tear. Owners will notify Occupant in writing of such damages and are entitled to fair reimbursement for correction of such damages.

  16. Occupant’s Default.
    • Occupant shall be in default should Occupant fail to comply with any of the terms hereof. Any failure of performance by Occupant, caused by the act, omission or failure of performance of Owner, which would excuse Occupant’s performance under the Contract, will not constitute a default of this Agreement.
    • Upon Occupant’s default, Owner may give Occupant written notice of the default. If the default is not corrected by Occupant within twenty-four (24) hours of receipt of written notice of default from Owner, the Term of this Agreement shall terminate and Occupant shall vacate the Property within twenty-four (24) hours of receipt of the written notice of default from Owner.
    • Regardless of whether Occupant gives written notice of default under this Section, Owner may, upon Occupant’s default, proceed with summary eviction proceedings governed by the provisions of RPAPL Article 7, including but not limited to §713 relating to “grounds where no landlord-tenant relationship exists.” Occupant specifically authorizes delivery of a copy of the Notice of Petition and Petition pursuant to RPAPL §713 and §715 and acknowledges and agrees that such delivery shall be deemed good and sufficient service upon Occupant.
    • If Occupant fails to vacate the Property on or before the Termination Date, (i) Occupant shall pay Owner two hundred percent (200%) of the per diem Rental Fee pursuant to Section 3 above (the “Holdover Rental Fee”) for each day, or part of each day, until Occupant vacates the Property. The Holdover Rental Fee shall be deemed the fair value of the use and occupancy of the Property by Occupant. Should Owner institute any action or proceeding to recover possession of the Property, any Rental Fee or Holdover Rental Fee, or damages resulting from Occupant’s possession, Occupant shall pay Owner’s expenses (including, without limitation, reasonable attorney’s fees, disbursements, court costs, the costs of appellate proceedings, and any other reasonable costs of litigation).

  17. Owner’s Default. Owner shall be in default should Owner fail to comply with any of the terms hereof. Any failure of performance by Owner, caused by the act, omission, or failure of performance of Occupant, will not constitute a default of this Agreement.

  18. Notices. Notices under this Agreement shall be made as provided to Owner and Occupant as needed.

  19. Waiver of Jury Trial; No counterclaims or setoffs. The parties mutually waive trial by jury in any action or proceeding commenced by them concerning the terms of this Agreement. In any proceeding by Owner to obtain possession of the Property, Occupant shall have no right to assert any counterclaims or setoffs.

  20. Additional Provisions. (Provided under additional cover, if necessary)

  21. Miscellaneous
    • This Agreement represents the complete agreement of the parties concerning the granting of occupancy of the Property to Occupant. No oral agreements or promises will be binding. If any verbal terms and provisions conflict with any of the terms and provisions of the Agreement, the terms and conditions of this Agreement shall prevail, except that in the case of such a conflict as to the description of the Property or the identity of Occupant or Owner. If any of the terms or conditions of this Agreement are for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any of the other terms or conditions of this Agreement.
    • This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regards to principles of conflicts of laws. Any and all disputes, controversies or litigation that may arise between the parties, must be brought in the county where the Owner is located. No waiver by Owner or Occupant of any rights of the parties hereunder shall be deemed or construed to be a waiver of such rights with respect to other or future actions of the parties.
    • This Agreement shall inure to the benefit of the parties hereto and bind their respective heirs, successors and assigns, except as otherwise provided herein. The rights of possession hereunder are personal to Owner and Occupant and may not be assigned, nor may the Property be sublet. Any assignment shall be absolutely null and void and constitute a breach of this Agreement such that Owner shall, at Owner’s option, have the right to terminate this Agreement.
    • Occupant and Owner acknowledge and agree that if an attorney signs this Agreement on behalf of Owner and/or Occupant, the attorney affirmatively warrants that he has the authority to do so. Delivery of an executed copy of this Agreement to the attorney is delivered to his client.
    • This Agreement may be executed in one of more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be transmitted electronically and the parties intend that electronically or facsimile transmitted signatures constitute original signatures and are binding on the parties.