HomeMy WebLinkAboutZIP Peconic Wells, LLC MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro@ town.southold.ny.us
Telephone (631) 765-571 l
Facsimile (63 I) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
To:
From:
Date:
Re:
RECEIVED
Elizabeth A. Neville
Town Clerk
SE? 1 7
10
Melanie Doroski
Sr. Administrative Assistant
'~outhold Town Cle~
September 16, 2010
ZIP PECONIC WELLS, LLC to TOWN OF SOUTHOLD
Development Rights Easement
SCTM #1000-86.-1-10.2
Location: 2350 Wells Road, Peconic
Betty:
Enclosed for safekeeping in your office, please find the following documents:
· Suffolk County Clerk Records Office Recording Page
· Suffolk County Recording & Endorsement Page
· Original Grant of Development Rights Easement dated August 3, 3010, between ZIP
Peconic Wells, LLC and the Town of Southold, recorded in the Suffolk County Clerk's
office on 8/16/2010, in Liber D00012634 at Page 587
· Title insurance policy #O-8911-544232 issued by Stewart Title Insurance Company on
August 3, 3010 in the insured amount of $2,410,535.80 (title no. ST0-801136)
· Closing Statement
Thank you.
Melanie
encs.
cc: Assessors w/copy of recorded easement & survey map
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
T~pe of Instrument: EASEMENT
Number of Pages: 30
Receipt Number : 10-0095798
TRANSFER TAX NUMBER: 10-01192
District:
1000
Deed Amount:
Section: Block:
086.00 01.00
EXAMINED AND CHARGED AS FOLLOWS
$2,410,535.80
Recorded:
At:
LIBER:
PAGE:
Lot:
Received the Following Fees For Above Instrument
Exempt
Page/Filing $150.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $37.50 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER:
10-01192
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
08/16/2010
01:19:27 PM
D00012634
587
010.012
Exempt
$20.00 NO
$15.00 NO
$0.00 NO
$30.00 NO
$0.00 NO
$262.50
SEP 1 5 20t0
DEPT. OF LAND
PRESERVATION
Number of pages
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
Deed / Mortgage Instrument
,I
Deed / Mortgage Tax Stamp
FEES
Reco[ding / Filing Stamps
Page / Filing Fee
Handling 20. 00
TP-584
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed. 5. 00
Affidavit
NYS Surcharge 15. 00
Other
4 ] Dist./ti~ Sectic
Real Pmperty
Tax Service
Agency
Verification
6
Sub Total
Sub Total
Grand Total ~,F~, 5'~O
10017836 ~.ooo oeeoo o~.oo o~.oo~.2
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
~o,~x
~~, ~ V 1/¢71
Mail to: Judith A. Pascale, Suffolk County Clerk
310 Center Drive, Riverhead, NY 11901
www. suffolkcountyny, gov/clerk
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County__
Held for Appoin~.~nt
Transfer Tax
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
If NO, see appropriate tax clause on
page # of-this instrumm~t.
Community Preservation Fund
2onsideration Amount ~,. 4/~ ~J~'-,~
~.PF Tax Due $
.?
Improved
Vacant Land`/
TD
TD
]i~ IN~a Title Company Information
me~7'~"~r' 77r3~
Suffolk County Recording & Endorsement Page
This page [?orms part of the attached
TO
(SPECIFY TYPE OF INSTRUMENT)
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
made by:
In the TOWN of
In the VILLAGE
or HAMLET of
BOXES 6 THI~II 8 MUST BE TYPED OR PRINTED IN BLACK INK ONI.Y PRIOR TO RECORDING OR FILING.
IMI"OI(TAN T NOTICI~.
If the document you've just recorded is your SATISFACTION OF MORTGAGF, please be aware of
the following: '
If a portion of your monthly mortgage payment included your property taxes, *you will now need to
contact your local Town Tax Receiver so that you may be billed dlrectlv for all future orooe~ tV
statements.
Local property taxes are payable twice a year: on or before January 10~ and on or before May 31'~.
Failure t0 make paymefii& in a timely fashion could result in a penalty.
Please contact your local Town Tax Receiver with any question8 regarding property tax
Payment.
BabylonTown Reqel~er of Taxes
200 East Sunrlsi~ Highway
North Llndenhursi, N.Y. 11757
(631) 957-3004
Riverhead Town Receiver of Tl~xes
200 Howell Avenue
Riverhead, N.Y. 11901
(631) 727-3200
Brookhaven Town Receiver of Taxes
One Independence Hill
Farmingvllle, N.Y. 11738
(631) 451-9009
Shelter Island Town Receiver of Taxes
Shelter Island Town Hall
Shelter Island, N.Y. 11964
(631) 749-3338
East Hampton Town Receiver of Taxes
300 Pantigo Place
East Hampton, N.Y. 11937
(631) 324-2770
Smlthtown Town Receiver of Taxes
99 West Main Street
Smithtown, N.Y. 11787
(631) 360-7610
Huntington Town Receiver of Taxes
100 Main Street
Huntington, N.Y. 11743
(631) 351-3217
Southampton Town Receiver of Taxes
116 Hampton Road
Southampton, N.Y. 11968
{631) 283-6514
Islip Town Receiver of Taxes
40 Nassau Avenue
Isllp, N.Y. 11751
(631) 224-5580
Southold Town Receiver of Taxes
53095 Main Street
Southold, N.Y. 11971
(631) 765-1803
Sincerely,
Judith A. Pascale
Suffolk County Clerk
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the ,.~--*~ day of August, 2010, at Southold, New York. The parties are
ZIP PECONIC WELLS LLC, c/o Lloyd P. Zuckerberg, 717 Fifth Avenue,
19TM floor, New York, NY 10022 (herein called "Grantor"), and the
TOWN OF SOUTHOLD, a municipal corporation, having its principal
office at 53095 Main Road, P.O. Box 1179, Southold, New York 11971
(herein called "Grantee" or "Local Grantee") and to the UNITED
STATES OF AMERICA,~(herein called the "United States"), by and
through the United States Department of Agriculture, Natural
Resources Conservation Service, acting on behalf of the Commodity
Credit Corporation (herein called the "United States"). The Local
Grantee and the United States are collectively referred to as the
"Grantees", The Grantors and Grantees are collectively referred to as
the "Parties". ~ 'c/o ~/s,~,,) -,u~,, ~Vl ~ 54Un~, ~4-
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real
property located in the Town of Southold, Suffolk County, New York,
identified as part of SCTM #1000-86-1-10.9 more fully described in
SCHEDULE "A" attached hereto and made a part hereof and
hereinafter referred to as the "Property" and shown on the survey
prepared by Howard W. Young, Licensed Land Surveyor, for Young &
Young, dated February 1, 2010, and last revised July 19, 2010 (a
reduced copy of which is attached hereto and made a part hereof and
hereinafter referred to as the "Survey"); and
WHEREAS, the Property is located in the R-80 Zoning District of
the Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and
Class II worthy of conservation as identified by the United States
Department of Agriculture, Natural Resources Conservation Service's
(formerly the Soil Conservation Service) Soil Survey of Suffolk County,
New York; and
WHEREAS, The Federal Farm and Ranch Lands Protection
Program's purpose is to purchase conservation easements ' o0 land
with prime, unique, or other productive soil for the purpose of
protecting topsoil from conversion to nonagricultural uses (16 U.S.C.
3838h and 3838i). Under the authority of the Farm and Ranch Lands
Protection Program, the United States Department of Agriculture
Natural Resources Conservation Service (hereinafter the "United
States" or "NRCS") acting on behalf of the Commodity Credit
Corporation has provided $990,000.00 to the Grantee for the
acquisition of this Easement, entitling the United States to the rights
identified herein.
WHEREAS, the Property is part of the New York State
Agricultural District #1, and the Grantor wishes to continue using the
Property for agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used as sod crop in rotation
with other specialty crops; and
WHEREAS, it is the policy of the Town of Southold (the "Town"),
as articulated in the Town's Master Plan of 1973, amended in 1986 and
:~989 as adopted by the Town Board, Town of Southold, and §272-a of
the New York State Town Law ("Town Law") to protect environmentally
sensitive areas, preserve prime agricultural soils, to protect the scenic,
open space character of the Town and to protect the Town's resort and
agricultural economy; and
WHEREAS, the Property in its present scenic and agricultural
condition has substantial and significant value as an aesthetic and
agricultural resource since it has not been subject to any substantial
development; and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor
and Grantee have, in common, the purpose and objective of protecting
and conserving the present state and inherent, tangible and intangible
values of the Property as an aesthetic, natural, scenic and agricultural
resource; and
WHEREAS, Grantee has determined it to be desirable and
beneficial and has requested Grantor, for itself and its successors and
assigns, to grant a Development Rights Easement to Grantee in order
to restrict the further development of the Property while permitting
compatible uses thereof;
NOW THEREFORE, in consideration of Two Million Four Hundred
Ten Thousand Five Hundred Thirty-Five and 80/100 DOLLARS
2
($2,410,535.80) and other good and valuable consideration paid to the
Grantor, the receipt of which is hereby acknowledged, the Grantor
does hereby grant, transfer, bargain, sell and convey to the Grantee a
Development Rights Easement, in gross, which shall be binding upon
and shall restrict the premises shown and designated as the Property
herein, more particularly bounded and described on Schedule "A"
annexed hereto and made a part of this instrument.
TO HAVEAND TO HOLD said Development Rights Easement and
the rights and interests in connection with it and as hereinafter set
forth with respect to the Property unto the Grantee, its successors and
assigns forever, reserving, however, for the direct use and benefit of
the Grantor, its legal representatives, successors and assigns, the
exclusive right of occupancy and of use of the Property, subject to the
limitations, condition, covenants, agreements, provisions and use
restriction hereinafter set forth, which shall constitute and shall be
servitudes upon and with respect to the Property.
The Grantor, for itself, and for and on behalf of its legal
representatives, successors and assigns, hereby covenants and agrees
as follows:
0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is
the owner of the Property described in Schedule A, free of any
mortgages or liens, as set forth in Stewart Title Insurance Company
Title Report ST0-801136 and possesses the right to grant this
easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the
State of New York State and is authorized under {}64 of Town Law and
{}247 of the New York State General Municipal Law ("General Municipal
Law") to acquire fee title or lesser interests in land, including
development rights, easements, covenants, and other contractual
rights which may be necessary or desirable for the preservation and
retention of agricultural lands, open spaces and natural or scenic
resources.
0.03 Purpose
The parties recognize the environmental, natural, scenic and
agricultural values of the Property and have the common purpose of
preserving these values by limiting nonagricultural uses of the
Property. This instrument is intended to convey a Development Rights
Easement on the Property by Grantor to Grantee, exclusively for the
purpose of preserving its character in perpetuity for its environmental,
scenic, agricultural and natural values by preventing the use or
development of the Property for any purpose or in any manner
contrary to the provisions hereof, in furtherance of federal, New York
State and local conservation policies.
0.04 Governmental Recognition
New York State has recognized the importance of private efforts
to preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law
§247. Similar recognition by the federal government includes §170(h)
of the Tnternal Revenue Code (":IRC") and other federal statutes.
0.05 Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. ~[n order to aid in identifying and
documenting the present condition of the Property's natural, ~cenic,
agricultural, and aesthetic resources and otherwise to aid in identifying
and documenting the Property's agricultural values as of the date
hereof, to assist Grantor and Grantee with monitoring the uses and
activities on the Property and ensuring compliance with the terms
hereof, Grantee has prepared, with Grantor's cooperation, an
inventory of the Property's relevant features and conditions (the
"Baseline Documentation"). This Baseline Document includes, but
need not be limited to, a survey dated February 1, 2010 last revised
.luly 19, 2010 prepared by Howard W. Young, Licensed Land Surveyor,
for Young & Young, a Phase 1 Environmental Site Assessment dated
August 22, 2008 by Nelson, Pope & Voorhis, LLC, and a letter dated
November 26, 2008 from the New York State Department of
Environmental Conservation to Nelson, Pope & Voorhis, LLC.
4
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the
Grantor's uses of the Property or its physical condition as of the date
hereof, the parties shall not be foreclosed from utilizing any other
relevant or material documents, surveys, reports, photographs or
other evidence to assist in the resolution of the controversy.
0.06 Recitation
Tn consideration of the previously recited facts, mutual
promises, undertakings, and forbearances contained in this
Development Rights Easement, the parties agree upon its provisions,
intending to be bound by it.
ARTICLE ONE
THE EASENENT
1.01 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall
include any and all of those limitations, covenants, use restrictions,
rights, terms and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest
and right to prohibit or restrict the use of the Property for uses or
purposes consistent with the terms of this Easement, including
agricultural production as that term is presently referenced in §247 of
the General Municipal Law and/or defined in Chapter 70 of the Town
Code of the Town of Southold (the "Town Code" or "Code") and
including the production of crops, livestock and livestock products as
defined in Section 301(2)(a)-(j) of the New York State Agriculture and
Markets Law ("Agriculture and Markets Law"), now or as such laws
and/or Code may be amended. No future restrictions in said laws
and/or Code or limitation in the definitions set forth in said laws and/or
Code shall preclude a use that is permitted under the current law
and/or Code.
5
"Improvement" shall mean any addition to raw land, such as
structures, fences, wells or drainage.
"Riding Academy" shall mean a business use of a lot for any of
the following purposes: the letting of horses for hire to individuals or
groups whether supervised or unsupervised, horseback riding
instruction or the holding of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or
under the ground or upon another structure or building, including
walkways. Structures shall not include trellis, posts and wiring, farm
irrigation systems, nursery mats, or fencing necessary for agricultural
operations or to mark the boundaries of the Property, including
without limitation fencing to keep out predator animals, including deer.
Approvals for those items listed in the preceding sentence shall be as
required by applicable provisions of the Town Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property
in perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal
interest in the Property, and shall extend to and be binding upon
Grantor, Grantor's agents, tenants, occupants, heirs, personal
representatives, successors and assigns, and all other individuals and
entities and provides Grantee with the right to administer, manage
and enforce the Easement as provided herein. The word "Grantor"
when used herein shall include all of those persons or entities. Any
rights, obligations, and interests herein granted to Grantor and/or
Grantee shall also be deemed granted to each and every one of its
subsequent agents, successors, and assigns, and the word "Grantor
and/or Grantee" when used herein shall include all of those persons or
entities.
ARTICLE TWO
SALE
6
GRANTOR, for Two Million Four Hundred Ten Thousand Five
Hundred Thirty-Five and 80/100 ($ 2,410,535.80) good and valuable
consideration, hereby grants, releases, and conveys to Grantee this
Easement, in perpetuity, together with all rights to enforce it. Grantee
hereby accepts this Easement in perpetuity, and undertakes to enforce
it against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts,
uses and practices shall be prohibited forever upon or within the
Property:
3.0i Structures
No structures may be erected or constructed on the Property
except as permitted by the Southold Town Land Preservation
Committee ("Land Preservation Committee") and other applicable
provisions of the Town Code and 1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining
The excavating or filling of the Property, except as may be
necessary to construct and maintain permitted structures and
improvements on the Property or in connection with necessary
drainage or soil conservation programs, shall be prohibited, without
the prior written consent of Grantee. Mineral exploitation, and
extraction by any method, surface or subsurface, is prohibited. The
removal of topsoil, sand, or other materials shall not take place, nor
shall the topography of the Property be changed, except to construct
and maintain the permitted structures and improvements on the
Property and for purposes of erosion control and soil management, or
in connection with normal agricultural/horticultural activities, without
the prior written consent of Grantee.
3.03 Subdivision
Except as provided in this Section 3.03, the Property may not be
further subdivided pursuant to Town Law §§265, 276 or 277 or § 335
of the Real Property Law, as they may be amended, or any other
applicable State or local law. "Subdivision" shall include the division of
the portion of the Property from which the development rights are
acquired into two or more parcels, in whole or in part.
Grantor may, subject to approval by the Planning Board of the
Town of Southold and as otherwise required by applicable law,
subdivide the property, provided that all resulting parcels contain at
least 10 acres of preserved agricultural land subject to a development
rights easement.
Notwithstanding this Section 3.03, upon the death of Grantor,
the underlying fee interest may be divided by conveyance of parts
thereof to Grantor's executor, trustee, heirs or next of kin by will or
operation of law.
The United States Secretary of Agriculture shall be notified prior
to such division or conveyance.
3.04 Dumpinq
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or
chemical waste on the Property shall be prohibited. This prohibition
shall exclude materials used in the normal course of sound agricultural
practices on the Property, including fertilization, composting and crop
removal.
3.05 Signs
The display of signs, billboards, or advertisements shall be
prohibited, except signs whose placement, number, and design do not
significantly diminish the scenic character of the Property and only for
any of the following purposes: (a) to state the name of the Property
and the names and addresses of the occupants and the character of
the business conducted thereon, (b) to temporarily advertise the
Property or any portion thereof for sale or rent, (c) to post the
Property to control unauthorized entry or use, or (d) with the consent
of the Grantor, to announce Grantee's easement. Signs are subject to
regulatory requirements of the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines,
utility poles, wires, pipes, wells or drainage systems ("utilities") on the
g
Property to service structures approved pursuant to Section 4.06 shall
be prohibited without the prior written consent of the Grantee.
Underground utilities must, to the extent possible, be constructed
within 30 feet of the centerline of any roads or driveways, and may be
used solely to service the permitted structures on the Property. The
Property may not be used for the creation or placement of utilities to
service any other properties.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use
of the Property or structures on it for any residential, commercial or
industrial uses, permanent or temporary, including but not limited to a
riding academy, shall be prohibited. For the purposes of this section,
agricultural production, as that term is presently referenced in {}247 of
the General Municipal Law and/or defined in Chapter 70 of the Town
Code, and including the production of crops, livestock and livestock
products as defined in Section 301(2)(a)-(j) of the Agriculture and
Markets Law, now or as such laws and/or Code may be amended, shall
not be considered a commercial use.
Uses, improvements and activities permitted by the Town Code
now or in the future on agricultural lands protected by a development
rights easement or other instrument, including but not limited to
farmstands, shall not be considered a commercial use. No
improvements, uses or activities inconsistent with current or future
agricultural production shall be permitted on the Property. Under no
circumstances shall athletic fields, golf courses or ranges, commercial
airstrips and helicopter pads, motorcross biking, or any other
improvements or activity inconsistent with current or future
agricultural production be permitted on the Property.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil
degradation or erosion or pollution of any surface or subsurface waters
shall be prohibited. This prohibition shall not be construed as
extending to agricultural operations and practices (including, without
limitation, the use of agrochemicals such as fertilizers, pesticides,
herbicides, and fungicides) that are in accordance with sound
agricultural management practices of the NRCS.
3.09 Conservation Plan
9
All agricultural operations on the Property shall be conducted in
a manner consistent with a resource management system (RMS)
Conservation Plan (the "Conservation Plan") prepared by the NRCS
utilizing the standards and specifications of the NRCS Field Office
Technical Guide, 7 CFR part 12 and approved by the Suffolk County
Soil and Water Conservation District. All lands enrolled in the Farm
and Ranch Lands Protection Program will be subject to the
Conservation Plan. The resource management system for cropland,
prescribed in the Conservation Plan for all cropland enrolled in FRPP
will assure that selected conservation practice alternatives will prevent
sheet and rill erosion from exceeding the current published soil loss
tolerance level.
Grantor shall give Grantee copies of the Conservation Plan upon
request and advise Grantee of amendments thereto so as to enable
Grantee to keep its records current.
3.10 Conservation Compliance Provisions of the Conservation Plan
As required by Section 1238! of the Food Security Act of 1985,
as amended, the Grantor, his/her heirs, successors, or assigns, shall
conduct all agricultural operations on the Property in a manner
consistent with a conservation plan (the "Conservation Plan") prepared
in consultation with NRCS and approved by the Suffolk County Soil and
Water Conservation District. This Conservation Plan shall be developed
using the standards and specifications of the NRC$ Field Office
Technical Guide (FOTG) and 7 CFR Part 12 that are in effect on August
3, 2010. However, the Grantor may develop and implement a
conservation plan that proposes a higher level of conservation and is
consistent with the NRCS Field Office Technical Guide standards and
specifications. NRCS shall have the right to enter upon the Property,
with advance notice to the Grantor, in order to monitor compliance
with the Conservation Plan.
!n the event of noncompliance with the Conservation Plan, NRCS
shall work with the Grantor to explore methods of compliance and give
the Grantor a reasonable amount of time, not to exceed twelve
months, to take corrective action. If the Grantor does not comply with
the Conservation Plan, NRC$ will inform Grantee of the Grantor's
noncompliance. The Grantee shall take all reasonable steps (including
efforts at securing voluntary compliance and, if necessary, appropriate
legal action) to secure compliance with the Conservation Plan following
written notification from NRCS that (a) there is a substantial, ongoing
event or circumstance of non-compliance with the Conservation Plan,
10
(b) NRCS has worked with the Grantor to correct such noncompliance,
and (c) Grantor has exhausted its appeal rights under applicable NRCS
regulations.
If the NRCS standards and specifications for highly erodible land
are revised after the date of this Grant based on an Act of Congress,
NRCS will work cooperatively with the Grantor to develop and
implement a revised conservation plan. The provisions of this section
apply to the highly erodible land conservation requirements of the
Farm and Ranch Lands Protection Program and are not intended to
affect any other natural resources conservation requirements to which
the Grantor may be or become subject.
3,11 Drainaqe
The use of the Property for a leaching or sewage disposal field
shall be prohibited. The use of the Property for a drainage basin or
sump shall be prohibited, except in accordance with sound agricultural
management practices and the Conservation Plan and in order to
control flooding or soil erosion on the Property.
3.12 Development Rights
The use of the acreage of this Property for purposes of
calculating lot yield on any other Property shall be prohibited. Grantor
hereby grants to Grantee all existing development rights (and any
further development rights that may be created through a rezoning of
the Property) on the Property, except for the right to construct,
maintain and replace any pre-existing structures, and to construct new
structures, as such rights may be provided in Section 4.06, and the
parties agree that any other such development rights shall be
terminated and extinguished and may not be used or transferred to
any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain
all other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession
of the Property.
4.03 Use
Grantor shall have the right to use the Property in any manner
and for any purpose consistent with and not prohibited by this
Easement, as well as applicable local, State, or federal law. Grantor
shall have the right to use the Property for uses, improvements and
activities permitted by the Town Code, now or in the future, on
agricultural lands protected by a development rights easement or
other instrument, including, but not limited to farmstands and for
educational or training programs related to agricultural production or
activities.
Grantor shall also have the right to use the Property for
traditional private recreational uses, provided such recreational uses
are conducted for the personal enjoyment of Grantor, are compatible
with farming, and are otherwise consistent with and do not derogate
from or defeat the Purpose of this Easement or other applicable law.
These uses shall not be offered or provided for the commercial
purposes, including the commercial gain of Grantor or others.
4.04 Landscaping Activities
Grantor shall have the right to continue the current and/or
customary modes of landscaping, pruning and grounds maintenance
on the Property as evidenced by the documentation set forth in
Section 0.05. Grantor shall have the right to remove or restore trees,
shrubs, or other vegetation when dead, diseased, decayed or damaged
or interfering with agricultural production, to thin and prune trees to
maintain or improve the appearance of the property, and to mow the
property.
4.05 Aqricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is referenced in Section 247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, and
including the production of crops, livestock and livestock products as
defined in Section 301(2)(a)-(j) of the Agriculture and Markets Law,
12
now or as such laws and/or Code may be amended. No future
restriction in said laws and/or Code or limitation in the definitions set
forth in said laws and/or Code shall preclude a use that is permitted
under the current law and/or Code.
Grantor may offer "U-Pick" operations and/or the use of a corn
maze to the general public, provided that such activities are conducted
in conjunction with seasonal harvests, do not interfere with agricultural
production and are otherwise consistent with and do not derogate from
or defeat the Purpose of this Easement or other applicable laws.
Notwithstanding the definition of agricultural production in
Chapter 70 of the Town Code or any successor chapter, structures
shall be prohibited except as set forth in Section 4.06 herein and as
permitted by the Town Code now or in the future on agricultural lands
protected by a development rights easement or other instrument,
including but not limited to farmstands.
4.06 Structures
A. Allowable Tmprovements. Grantor shall have the right to
erect and maintain the following improvements on the Property, as
may be permitted by the Town Code and subject to the approval of the
Town of Southold Land Preservation Committee, provided the
improvements are consistent with and do not derogate from or defeat
the Purpose of this Easement or other applicable laws:
Underground facilities used to supply utilities solely
for the use and enjoyment of the Property;
(ii)
New construction, including drainage improvement
structures, provided such structures are necessary
for or accessory to agricultural production; any new
construction as permitted by this 4.06 is restricted to
the Agricultural Structure Area shown on the Survey,
described in Schedule "B" attached and made a part
hereof;
(ii)
Renovation, maintenance and repairs of any existing
structures or structures built or permitted pursuant
to this Section 4.06, provided the primary purpose of
the structure remains agricultural;
(iv) Lot coverage shall be limited to 2% of the Property.
B. Conditions. Any allowable improvements shall protect
prime agricultural soils, agricultural production, open space and scenic
vistas, and otherwise be consistent with the Purpose of this Easement.
No construction is permitted outside of the Agricultural Structure Area
described in this 4.06.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent
with the purposes intended herein, and construction of any such
improvement shall minimize disturbances to the environment. Grantor
shall employ erosion and sediment control measures to mitigate any
storm water runoff, including but not limited to minimal removal of
vegetation, minimal movement of earth and minimal clearance of
access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage
resulting from casualty loss to an extent which renders repair of any
existing improvements or improvements built or permitted pursuant to
this Section 4.06 impractical, erection of a structure of comparable
size, use, and general design to the damaged structure shall be
permitted in kind and within the same general location, subject, to the
review and written approval of Grantee, pursuant to applicable
provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction
of any permanent or temporary structures as permitted in Section
4.06 herein and shall file all necessary applications and obtain all
necessary approvals that may be required by this Easement or by the
Town Code, and shall provide documentation as may be required for
such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of
its remaining interest in the Property but only subject to this
Easement. Grantor shall promptly notify Grantee and the United
States Secretary of Agriculture of any conveyance of any interest in
the Property, including the full name and mailing address of any
transferee, and the individual principals thereof, under any such
conveyance. The instrument of any such conveyance shall specifically
14
set forth that the interest thereby conveyed is subject to this
Easement, without modification or amendment of the terms of this
Easement, and shall incorporate this Easement by reference,
specifically setting for the date, office, liber and page of the recording
hereof. The failure of any such instrument to comply with the
provisions hereof shall not affect Grantee's rights hereunder.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from
further restricting the use, improvements or structures on the
Property. Any such further restrictions shall be consistent with and in
furtherance of the general intent and purpose of this Easement as set
forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments
and other governmental or municipal charges, which may become a
lien on the Property, including any taxes or levies imposed to make
those payments subject, however, to Grantor's right to grieve or
contest such assessment. The failure of Grantor to pay all such taxes,
levies and assessments and other governmental or municipal charges
shall not cause an alienation of any rights or interests acquired herein
by Grantee.
5.02 Liability and Indemnification
Grantee and the United States have no obligations whatsoever,
express or implied, relating to the use, maintenance or operation of
the Property. Grantee's or the United States' exercise of, or failure to
exercise, any right conferred by this Easement shall not be deemed to
be management or control of the activities on the Property. Grantee
shall not be liable to Grantor for injuries or death to persons or
damage to property or any other harm in connection with Grantee's
administration and/or enforcement of this Easement, unless such harm
is due to the negligence of Grantee or its agents, in which case liability
shall be apportioned accordingly. Grantor shall indemnify and hold
harmless Grantee, and the United States of America, their employees,
agents and assigns from any and all costs, claims or liability, including
but not limited to reasonable attorneys fees arising from any personal
injury, accidents, negligence or damage relating to the Property, or
any claim thereof, unless due to the negligence of Grantee or its
agents, in which case liability shall be apportioned accordingly.
Grantor further agrees to indemnify and hold harmless Grantee, and
the United State of America, their employees, agents and assigns from
and against any and all claims, costs, expenses, fines, penalties,
assessments, citations, personal injury or death, and the like arising
from or out of the existence (actual or alleged) of any and all
environmentally hazardous or toxic substances or materials
whatsoever on or under the Property.
5.02A Environmental Warranty
"Environmental Law" or "Environmental Laws" means any and all
Federal, State, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, guidelines, policies or requirements of any
governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water,
solid waste, hazardous materials, worker and community right-to-
know, hazard communication, noise, radioactive material, resource
protection, subdivision, inland wetlands and watercourses, health
protection and similar environmental health, safety, building and land
use as may now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel
oil, waste oils, explosives, reactive materials, ignitable materials,
corrosive materials, hazardous chemicals, hazardous wastes,
hazardous substances, extremely hazardous substances, toxic
substances, toxic chemicals, radioactive materials, infectious materials
and any other element, compound, mixture, solution or substance
which may pose a present or potential hazard to human health or the
environment.
Grantor warrants that it is in compliance with and shall remain in
compliance with, all applicable Environmental Laws. Grantor warrants
that there are no notices by any governmental authority of any
violation or alleged violation of, non-compliance or alleged non-
compliance with or any liability under any Environmental Law relating
to the operations or conditions of the Property.
Grantor further warrants that it has no actual knowledge of a release
or threatened release of any Hazardous Materials on, at, beneath or
from the Property, as such substances and wastes are defined by
applicable Federal and State law. Moreover, Grantor hereby promises
to defend and indemnify the Grantee and hold harmless and indemnify
the United States against all litigation, claims, demands, penalties and
damages, including reasonable attorneys' fees, arising from or
connected with the release or threatened release of any Hazardous
Materials on, at, beneath or from the Property, or arising from or
connected with a violation of any Environmental Laws by Grantor or
any other prior owner of the Property. Grantor's indemnification
obligation shall not be affected by any authorizations provided by
Grantee or the United States to Grantor with respect to the Property or
any restoration activities carried out by Grantee at the Property;
provided, however, that Grantee shall be responsible for any
Hazardous Materials contributed after this date to the Property by
Grantee.
5.03 Grounds Maintenance Requirement
If Grantor leaves the Property open and does not engage in
agricultural production for two (2) consecutive years, then Grantor
shall implement a Natural Resources Conservation Plan (the "Plan")
approved by Grantee, including the Land Preservation Committee, to
maintain or restore the Property to the condition in which it existed on
the date of this Easement, as evidenced by the documentation referred
to in Section 0.05, in order to protect the environmental, natural,
scenic and agricultural values of the Property. In the event Grantor
fails to comply with the provisions of this section after reasonable
written notice is given to Grantor by Grantee, then, in addition to all
other remedies set forth herein, Grantee or its agents are hereby
authorized to enter upon the Property to implement the Plan, and to
recover the costs of such implementation from Grantor, as provided in
Section 6.03.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at
reasonable times, upon prior notice to Grantor, and in a manner that
will not interfere with Grantor's quiet use and enjoyment of the
Property, for the purpose of inspection to determine whether this
17
Easement and its purposes and provisions are being upheld.
Representatives of the United States Department of Agriculture shall
also have the right to enter the Property for monitoring conservation
plan implementation, upon prior notice to Grantor and not more
frequently than annually without Grantor's consent. Grantee shall not
have the right to enter upon the Property for any other purposes,
except as provided in Section 5.03 and 6.03, or to permit access upon
the Property by the public.
6.02 Restoration
In addition to Grantee's remedies under Section 5.03, Grantee
shall have the right to require the Grantor to restore the Property to
the condition required by this Easement and to enforce this right by
any action or proceeding that Grantee may reasonably deem
necessary. However, Grantor shall not be liable for any changes to the
Property resulting from causes beyond the Grantor's control, including,
without limitation, fire, flood, storm, earth movement, wind, weather
or from any prudent action taken by the Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to persons
or to the Property or crops, livestock or livestock products resulting
from such causes.
6.03 Enforcement Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at
law for any violation of this Easement may be inadequate. Therefore,
in addition to, and not as a limitation of, any other rights of Grantee
hereunder at law or in equity, in the event any breach, default or
violation of any term, provision, covenant or obligation on Grantor's
part to be observed or performed pursuant to this Easement is not
cured by Grantor within ten (10) days' notice thereof by Grantee
(which notice requirement is expressly waived by Grantor with respect
to any such breach, default or violation which, in Grantee's reasonable
judgment, requires immediate action to preserve and protect any of
the agricultural values or otherwise to further the purposes of this
Easement), Grantee shall have the right at Grantor's sole cost and
expense and at Grantee's election:
(i)
To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(i~)
To enter upon the Property and exercise reasonable efforts
to terminate or cure such breach, default or violation
and/or to cause the restoration of that portion of the
Property affected by such breach, default or violation to
the condition that existed prior thereto, or
To enforce any term, provision, covenant or obligation in
this Easement or to seek or enforce such other legal
and/or equitable relief or remedies as Grantee deems
necessary or desirable to ensure compliance with the
terms, conditions, covenants, obligations and purposes of
this Easement; provided, however, that any failure, delay
or election to so act by Grantee shall not be deemed to be
a waiver or a forfeiture of any right or available remedy on
Grantee's part with respect to such breach, default, or
violation or with respect to any other breach, default or
violation of any term, condition, covenant or obligation
under this Easement.
Grantor shall pay either directly or by reimbursement to Grantee
and/or to the United States of America, all reasonable attorneys' fees,
court costs and other expenses incurred by Grantee or the United
States of America (herein called "Legal Expenses") in connection with
any proceedings under this Section, as approved by the Court.
Under this Grant of Development Rights Easement, the United
States is granted the right of enforcement in order to protect the
public interest. The Secretary of the United States Department of
Agriculture (the Secretary) or his or her assigns, on behalf of the
United States, may exercise this right of enforcement under any
authority available under State or Federal Law if the Town of Southold
fails to enforce any of the terms of this instrument, as determined in
the sole discretion of the Secretary.
6.04 Notice
All notices required by this Easement must be written. Notices
shall be delivered by hand or by registered or certified mail, return
receipt requested, with sufficient prepaid postage affixed and with
return receipts requested. Mailed notice to Grantor shall be addressed
to Grantor's address as recited herein, or to such other address as
Grantor may designate by notice in accordance with this Section 6.04.
Mailed notice to Grantee shall be addressed to its principal office,
recited herein, marked to the attention of the Supervisor and the Town
Attorney, or to such other address as Grantee may designate by notice
in accordance with this Section 6.04. Notice shall be deemed given
and received as of the date of its manual delivery or three business
days after the date of its mailing. Where notice is required to the
United States of America or to the NRCS, such notice shall be delivered
to U.S. Department of Agriculture, NRCS, c/o Commodity Credit
Corporation, State Conservationist, The Galleries of Syracuse, 441
South Salina Street, Suite 354, Syracuse, New York 13202-2450.
Notice to the NRCS shall be deemed notice to the United States of
America.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE
STX shall not have the effect of waiving or limiting any other remedy or
relief, and the failure to exercise or delay in exercising any remedy
shall not constitute a waiver of any other remedy or relief or the use of
such other remedy or relief at any other time.
6.06 Extinquishment of Easement/Condemnation
At the mutual request of Grantor and Grantee and United States
of America, a court with jurisdiction may, if it determines that
conditions surrounding the Property have changed so much that it
becomes impossible to fulfill the Purpose of this Easement described in
Section 0.03, extinguish or modify this Easement in accordance with
applicable law. The mere cessation of farming on the Property shall
not be construed to be grounds for extinguishment of this Easement.
If at any time the Property or any portion thereof shall be taken
or condemned by eminent domain approved in advance by the United
States Department of Agriculture NRCS, by the Grantee or by any
other governmental entity, then this Easement shall terminate with
respect to the Property, or portions thereof so taken or condemned,
and the Property shall not be subject to the limitations and restrictions
of this Easement. :In such event, the Grantor, its successors or
assigns, shall not be required to pay any penalties, but the value of
the Property shall reflect the limitations of this Easement. Any
condemnation award payable to the Grantor shall be in proportion to
the value attributable to the residual agricultural value of the Property.
Tf the condemnation is undertaken by an entity other than the
Grantee, then the remaining portion of the condemnation award shall
be payable to the Grantee in proportion to the value attributable to the
2o
development rights transferred hereby, in accordance with Section
7.12 herein.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understandina
This Easement contains the entire understanding between its
parties concerning its subject matter. Any prior agreement between
the parties concerning its subject matter shall be merged into this
Easement and superseded by it.
7.02 Amendment
This Easement may be amended only with the written consent of
Grantee and current Grantor and with the approval of the Secretary of
the United States Department of Agriculture and in accordance with
any applicable State and local laws. Any such amendment shall be
consistent with the Purpose of this Easement and shall comply with the
Town Code and any regulations promulgated thereunder. Any such
amendment shall be duly recorded.
This Easement is made with the intention that it shall qualify as
a Conservation Easement in perpetuity under Internal Revenue Code
§170(h). The parties agree to amend the provisions of this Easement
if such amendment shall be necessary, to entitle Grantor to meet the
requirements of §170(h). Any such amendment shall apply
retroactively in the same manner as if such amendment or
amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be
alienated except pursuant to the provisions of Chapter 70 of the Town
Code, or any successor chapter and other applicable laws upon the
adoption of a local law authorizing the alienation of said rights and
interest, following a public hearing and, thereafter, ratified by a
mandatory referendum by the electors of the Town of Southold. No
subsequent amendment of the provisions of the Town Code shall alter
2]
the limitations placed upon the alienation of those property rights or
interests which were acquired by the Town prior to any such
amendment. The United States of America shall also consent to any
such alienation.
In addition to the limitations set forth above, Grantee shall have
the right, subject to the provisions of Section 7.11 (Contingent Rights
of United States of America) herein, to transfer all or part of this
Easement to any public agency, or private non-governmental
organization, that at the time of transfer is a "qualified organization"
under §170(h) of the Internal Revenue Code, provided that transferee
expressly agrees to assume the responsibility imposed on the Grantee
by this Easement.
Any easement transfer must be approved by the Grantor or any
subsequent owner, and the United States Department of Agriculture,
NRCS. If the Grantee ever ceases to exist, a court of competent
jurisdiction may transfer this Easement to another qualified public
agency that agrees to assume the responsibilities imposed by this
Easement. The United States Department of Agriculture, NRCS, will be
notified in writing in advance of such transfer. The NRCS State Office
must approve the choice of any new non-governmental organization in
advance of any transfer of this Easement.
7.04 Severability
Any provision of this Easement restricting Grantor's activities,
which is determined to be invalid or unenforceable by a court, shall not
be invalidated. Instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement that is determined to
be invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land
located within New York shall govern this Easement in all respects,
including validity, construction, interpretation, breach, violation and
performance.
7.06 Interpretation
22
Regardless of any contrary rule of construction, no provision of
this Easement shall be construed in favor of one of the parties because
it was drafted by the other party's attorney. No alleged ambiguity in
this Easement shall be construed against the party whose attorney
drafted it. Tf any provision of this Easement is ambiguous or shall be
subject to two or more interpretations, one of which would render that
provision invalid, then that provision shall be given such interpretation
as would render it valid and be consistent with the purposes of this
Easement. Any rule of strict construction designed to limit the breadth
of the restrictions on use of the Property shall not apply in the
construction or interpretation of this Easement, and this Easement
shall be interpreted broadly to effect the purposes of this Easement as
intended by the parties. The parties intend that this Easement, which
is by nature and character primarily negative in that Grantor has
restricted and limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate
its purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be
interpreted to grant, to the public, any right to enter upon the
Property, or to use images of the Property. Grantee may use images
of the Property only for non-commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recording
Grantee shall record this Easement in the land records of the
office of the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted
solely for convenient reference, and shall be ignored in its
construction.
23
7.11 Continqent Rights of the United States of America
l~n the event that Grantee fails to enforce any of the terms of this
Easement, as determined in the sole discretion of the Secretary of the
U.S. Department of Agriculture, the said Secretary of Agriculture and
his or her successor and assigns shall have the right to enforce the
terms of this Easement through any and all authorities available under
Federal or State law. Tn the event that Grantee attempts to terminate,
transfer or otherwise divest itself of any rights, title or interest of this
Easement without the prior consent of said Secretary and without
payment of consideration to the United States as provided herein,
then, at the option of such Secretary, all right, title and interest in this
Easement shall become vested in the United States of America.
7.12 Proceeds
The grant of this Easement gives rise to a property right,
immediately vested in Grantee, which, for purposes of calculating
proceeds from a sale or other disposition of the Property as
contemplated under Section 6.06 (Extinguishment of
Easement/Condemnation), shall have a value equal to a percentage of
the value of the Property unencumbered by this Easement (the
"Proportionate Share"). The Proportionate Share is determined by
dividing the value of this Easement, calculated as of the date hereof,
by the unencumbered value of the Property, as reflected in an
appraisal obtained by Grantee dated May 18, 2010, in which the
effective date of valuation is February 11, 2010. The Proportionate
Share is 30.53 percent. The Proportionate Share shall remain constant
(subject to reasonable adjustment to the extent permissible under
Section 170(h) of the Tnternal Revenue Code for any improvements
which may hereafter be made on the Property).
If any part or all of this Easement is extinguished pursuant to
Section 6.06, the proportional shares of the Grantee and the United
States of America are 58.93 percent, and 41.07 percent, respectively,
24
representing the proportion each party contributed to the purchase
price of the easement.
:IN W:ITNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Deed of Easement on the day
and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
ZIP PECONIC WELLS LLC, Grantor
BY'~ Z~rg, Managing Member
ACKNOWLEDGED AND ACCEPTED:
THE UNTTES STATES OF AMERTCA
BY: ~Conservationist
TOWN OF S.~HOLD, Grantee
BY: ~
Scott A. Russell
Supervisor
Acceptance of Property :Interest by the Natural Resources Conservation
Service The Natural Resources Conservation Service, an agency of the
United States Government, hereby accepts and approves the foregoing
conservation easement deed, and the rights conveyed therein, on
behalf of th~e United States of America.
A~t~'~ ~F YBO 0 ze r'---F~,- ,~
Stli~of New YoN(L)
Count-~f /2/f/¢Zc-Cz~/:~ ), ss:
25
On the ~' day of July in the year 2010 before me, the undersigned,
personally appeared Astor F, Boozer, personally known to me or proved
to me on the basi~of satisfactory evidence to be the individual (s)
whose name~subscribed to the within instrument and
acJ~nowledg(~d to me that~t~e_~she/they exe~cuted the same in
(f~)her/their capacity (ies~/and that b~her/their signature(s) on the
~nstr~'' ument, the individual(s), or the person upon behalf of which the~Nbl~'/~
~~~~d, executed the instrument.
Nota Public .
of M d on, Sta e of N.Y [ ffiCe' Or6dividual taking acknowledgement
/
YORK)
COU .... ) SS:
On this~O day of ~0 k~ in the year 2010 before me, the
undersigned, personally appeared Lloyd P. Zuckerberg personally
known to me or proved to me on the basis of satisfactory evidence to
be the individua~whose name~ is ~subsccibed to the within
instrument and acknowledged to me that he/shg/they executed the
same in his/~ capacity~ and that by his/~
signature~on the instrument, the individual~or the person upon
behalf of which the individual~acted, executed the instrument.
~ot&ry Public (/
..~v.
STATE OF NEW YORK)
COUN~ OF SUFFOLK) SS:
On this~'~-- day of ~,~rin the year 2010 before me, the
undersigned, personally appeared Scott A. Russell, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(les), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon
behalf of which the individual(s) acted, executed the instrument.
Notary Public
PATRICIA L FALLOf~
Notary Public, State Of NewYod[
No. 01FA4950146
Qua f ed n Suffolk County
Commission Expires Apri 24,
26
title insurance company
NEW YORK METRO
800-853-4803
212-922-1593 fax
stewartnewyork.com
SCHEDULE A - DESCRIPTION
Title No.: ST0-801136
AMENDED 7/28/2010
TOTAL AGRICULTURAL EASEMENT AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Southold, at
Peconic, County of Suffolk and State of New York, as shown on a survey made by Young & Young,
dated 2/1/2010 and last revised 7/19/2010 for the Town of S outhold known as Lot 3 of Property of Zip
Peeonic Wells LLC; said lot being more particularly bounded and described as follows:
BEGINNING at the coroer formed by the intersection of the southeasterly side of Main Road (N.Y.S.
Rte. 25) and the southwesterly side of Wells Road;
RUNNING THENCE from said beginning along the southwesterly side of Wells Road the following two
(2) courses and distances:
(1)
(2)
South 33 degrees 18 minutes 25 seconds East, 871.83 feet;
South 08 degrees 03 minutes 45 seconds East, 547.75 feet;
THENCE South 81 degrees 56 minutes 15 seconds West, 56.00 feet;
THENCE South 08 degrees 03 minutes 45 seconds East, 399.92 feet to land now or formerly of Zip
Peconic Wells LLC;
THENCE South 59 degrees 03 minutes 45 seconds West, 476.06 feet to land now or formerly of
Pelligrini Peconic LLC;
THENCE North 34 degrees 40 minutes 26 seconds West, 1,329.59 feet to a monument set on the
southerly side of Main Road (N.Y.S. Rte. 25);
THENCE from said monument along the southeasterly side of Main Road (N.Y.S. Rte. 25) the following
two (2) courses and distances:
(1)
(2)
North 35 degrees 20 minutes 45 seconds East, 820.12 feet;
North 40 degrees 28 minutes 45 seconds East, 206.55 feet to the corner first above
mentioned, the point or place of BEGINNING.
SCHEDULE B - DESCRIPTION
Title No.:
ST0-801136
AGRICULTURAL STRUCTURE AREA DESCRIPTION -
ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Southold, at
Peconic, County of Suffolk and State of New York, as shown on a survey made by Young & Young,
dated 2/1/2010 and last revised 7/19/2010 for the Town of Southold known as part of Lot 3 of Property
of Zip Peconic Wells LLC; said part of lot being more particularly bounded and described as follows:
BEGINNING at a point on the southeasterly side of Main Road (N.Y.S. Rte. 25) distant the following
two (2) courses and distances southwesterly from the comer formed by the intersection of the
southeasterly side of Main Rood (N.Y.S. Rte. 25) and the southwesterly side of Wells Road:
(1)
(2)
South 40 degrees 28 minutes 45 seconds West, 206.55 feet;
South 35 degrees 20 minutes 45 seconds West, 607.31 feet to the true point of beginning;
RUNNING THENCE South 34 degrees 40 minutes 26 seconds East, 254.16 feet;
THENCE South 55 degrees 19 minutes 34 seconds West, 200.00 feet to land now or formerly of
Pellegrini Peconic LLC;
THENCE North 34 degrees 40 minutes 26 seconds West, 181.44 feet to a monument set on the
southeasterly side of Main Road (N.Y.S. Rte. 25);
THENCE from said monument along said southeasterly side of Main Road (N.Y.S. Rte. 25) North 35
degrees 20 minutes 45 seconds East, 212.81 feet to the point or place of BEGINNING.
2
TIE-IN
ALTA Owner's Policy (6-17-06)
POLICY OF TITLE INSURANCE ISSUED BY
Any noUce of claim and any other notice or statement In writing required to be given the Company under this Policy must be
given to the Company st the addre.~ shown In Section 18 of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE S AND THE
CONDITIONS, STEWART TI'R.E INSURANCE COMPANY, a New York corporatlno, (tl~ "Company") insures, as of Date of Policy and, ~ the
extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not excesding the Amount of Insurance, sustained or
incurred by the insured by reason of:
1. Tiite being vested other than as stated in Schedule A.
2. Any defect in or lien or encumbrance on the Tdfe. This Covered Risk includes but is not limited to insurance agathst loss from
(a) A defect in the Title caused by
(i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation;
(ii) failure of any pamoa or Entity to have autbd~zed a transfer or conveyance;
(iii)a document affecting T'rile not pmpariy created, executed, witnessed, sealed, acknowledged, notarized, or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law
(v) a documant executed under a faisified, expirod, or otherwtse invaiid power of attorney
(vi) a document not properly filed, recorded, or indexed in the Public Records including failure to pedorm those acts by aiectmnic
means authorized by law; or
(vii) a defective judicial or adminlab'ative p~ceeding.
(b} The lien of real estate taxes or assessments imposed on the Title by a govemmentai authority due or payable, but unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse cimumstence affecting the Title that would be disclosed by an
accurate and complete land sun/ey of the Land. Ti3e t~/m 'encroachmanr' includes encroechmants of existing improvements located
on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land.
3. Unma~f~t~fe Title.
4. No right of access to and h'om the Land.
5. The violation or enforcement of any law, ordinance, pan'nit, or governmental regulation (including those relating to building and zoning)
restricting, raguts~ng, prohibiting, or relating to
(a) the occupancy, use, or enjoyment of the Land;
(b) the character, dimensions, or location of any improvement erected on the Land;
(c) the subdivision of land; or
(d) environmental protection
it a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to
the extent of ~e violation or enforcement r~en'ed to in that notice.
6. An enfomement action based on the exemtse of a govemmantel police power not covered by Covered Risk 5 if a notice of the
enforcement aciton, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred
to in that notice.
7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Rec~ds.
8. Any taking by a govemmentai body that has occurred and is binding on the Hghts of a porchase~ for vaiue without Knowiedge.
Countersigned:
Stewart Title Insurance Company
New York, New York
s~,~ No. O-8911-544232
If yoU want tntormatJon about coverage or need as~stance to resolve complaints, please call our toll free number: 1 ~00-433-0014. if you make a claim under your
pnticy, you must furnish written notice in accordance '~th Section 3 of the Conditions. Visit our Word-Wide Web site at httD ;//Www. Stewa r~NewyQrk.c,gm
File NO.: ST0-801136
ALTA OWNER'S POLICY (6417106)
SCHEDULE A
File No.: ST0-801136
Amount of
Insurance:
Date of
Policy:
1. Name of Insured:
Town of Southold
$2,410,535.80
August 3, 2010
Policy No.: O-8911-544232
Premium: $9,672.00
2. The estate or interest in the Land that is insured by this policy is:
Development Rights Easement
3. Title is vested in:
Development Rights Easement Agreement between ZIP Peconic WelIs,LLC dated 8/3/2010 to be duly
recorded in the Suffolk County Clerk' s/Registers Office.
4. The Land referred to in this policy is described as follows:
See Schedule A Description, attached hereto and made a part hereof.
Section: 086.00 Block: 01.00 Lot: 010.009
_stewar
title insurance company
NEW YORK METRO
80O-8,53-48O3
212-922~1593 fax
stewartnewyork.com
SCHEDULE A - DESCRIPTION
Title No.: ST0-801136
AMENDED 7/28/2010
TOTAL AGRICULTURAL F-~$EME~ AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Town of Southold, at
Peconic, County of Suffolk and State of New York, as shown on a survey made by Young & Young,
dated 2/1/2010 and last revised 7119/2010 for the Town of Southold known as Lot 3 of Property of Zip
Peconic Wells LLC; said lot being more pax'dcularly bounded and described as follows:
BEGINNING at the comer formed by the intersection of the southeasterly side of Main Road (N.Y.S.
Rte. 25) and the southwesterly side of Wells Road;
RUNNING THENCE from said be~nniqg aiORg the southwesterly side of Wells Road the following two
(2) courses and distances:
(l)
(2)
South 33 degrees 18 minutes 25 seconds East, 871.83 feet;
South 08 degrees 03 minutes 45 seconds East, 547.75 feet;
THENCE South 81 degrees 56 minutes 15 seconds West, 56.00 feet;
THENCE South 08 degrees 03 minutes 45 seconds East, 399.92 feet to land now or formerly of Zip
Peconic Wells LLC;
THENCE South 59 degrees 03 minutes 45 seconds West, 476.06 feet to land now or formerly of
Pelligrini Peconic LLC;
THENCE North 34 degrees 40 minutes 26 seconds West, 1,329.59 feet to a monument set on the
southerly side of Main Road (N.Y.S. Rte. 25);
THENCE from said monument along the southeasterly side of Main Road (N.Y.S. Rte. 25) the following
two (2) courses and distances:
(1)
(2)
North 35 degrees 20 minutes 45 seconds East, 820.12 feet;
North 40 degrees 28 minutes 45 seconds East, 206.55 feet to the comer fa'st above
mentioned, the point or place of BEGINNING.
SCHEDULE B - DESCRIPTION
Title No.: ST0-801136
AGRICULTURAL STRUCTURE AREA DESCRIPTION -
Al .I, that certain plot, piece or pan:el of land, situate, lying and being in the Town of Southold, at
Peconie, County of Suffolk and State of New York, as shown on a survey made by Young & Young,
dated 2/1/2010 and last revised 7/19/2010 for the Town of Southold known as part of Lot 3 of Property
of Zip Peconic Wells LLC; said part of lot being more particularly bounded and described as follows:
BEGINNING at a point on the southeasterly side of Main Road (N.Y.S. Rte. 25) distant the following
two (2) courses and distances southwesterly from the comer formed by the intersection of the
southeasterly side of Main Road (N.Y.S. Rte. 25) and the southwesterly side of Wells Road:
(1) South 40 degrees 28 minutes 45 seconds West, 206.55 feet;
(2) South 35 degrees 20 minutes 45 seconds West, 607.31 feet to the true point of beginning;
RUNNING THENCE South 34 degrees 40 minutes 26 seconds East, 254.16 feet;
THENCE South 55 degrees 19 minutes 34 seconds West, 200.00 feet to land now or formerly of
Pellegrini Peconic LLC;
THENCE North 34 degrees 40 minutes 26 seconds West, 181.44 feet to a monument set on the
southeasterly side of Main Road (N.Y.S. Rte. 25);
THENCE from said monument along said southeasterly side of Main Road (N.Y.S. Rte. 25) North 35
degrees 20 minutes 45 seconds East, 212.81 feet to the point or place of BEGINNING.
ALTA OWNER'S POLICY (6/17106)
SCHEDULE B
PART I
File No.: ST0-801136 Policy No.: O-8911-544232
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that
arise by reason of:
3.
4.
5.
Survey made by Young & Young, dated 2/1/2010 and last dated 7/19/2010, shows subject premises as cultivated
land. (a) Irrigation well and pump and line of cultivation shown in southerly part of premises. (b) Brush and wood
posts vary with southwesterly line. (c) Driveway up to 3.1 feet east of part of southwesterly line. (d) Granite mile
marker referenced at northwesterly line. (e) Culvert located at southwesterly line.
Rights of tenants or parties in possession, if any.
Policy will except water and sewer charges not entered and/or water and sewer charges entered subsequent to date of
last actual reading.
Policy will except the terms and conditions of the grant Development Rights Easement to be executed by the
grantor(s) and the Town of Southold.
Boundary Line Agreement made between Pelleg~ini Peconic LLC and ZIP Peconic Wells, LLC to be duly
recorded in the Suffolk County Clerk's/Registers Office.
STEWART TITLE
INSURANCE COMPANY
HEREIN CALLED THE COMPANY
STANDARD NEW YORK ENDORSEMENT
(Owner's Policy)
Title No.: ST0-801136 Date of Issue: August 3~ 2010
ATTACHED TO AND MADE A PART OF POLICY NUMBER O-8911-544232
1. The following is added as a Covered Risk:
"11. Any statutory lien for services, labor or materials furnished prior to the date hereof, and which has now gained or which may
hereafter gain priority over the estate or interest of the insured as shown in Schedule A of this policy."
2. Exclusion Number 5 is deleted, and the following is substituted:
Any lien on the Title for real estate taxes, assessments, water charges or sewer rents imposed by governmental authority and
created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public
Records that vests Tide as Shown in Schedule A.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of
the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent
a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement
controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
DATED: August 3, 2010
Countersigned By:
Authorized Office or Agent
STEWART TITLE
INSURANCE COMPAI~Y
Stewart Title Insurance Company
300 East 42nd St., 10th FI
New York, New York 10017
STANDARD NEW YORK ENDORSEMENT (11/1/08)
FOR USE WITH ALTA OWNER'S POLICY (6-17-06)
COVERED RISKS (Continued)
Title being vested other than as stated in Schedule A or being defective
ia) as a result of the avoidance in who~ or in part, or from a court order
(i) to be timely, or
(ii) to impart notice of its existence to a purchaser for value or to a
providing an altemative remedy, of a transfer of all or any part of the Judgment or lien creditor.
title to or any intarast in the Land occurriag pdor to the tranesction 10. AnydetastlnorlianorancumbranceontheTaleorothermattertnaluded
vesting Title as shown in Schedule A because that pda3r transfer in Covered Risks 1 through 9 that has been created or attached or has
constituted a fraudulent or preferential transfer under federal been filed or recorded in the Public Reoords subesquent to Date of Policy
bankruptcy, state insolvency, or similar cmclitors' rights laws; or and prior to the recording of the deed or other thstroment of transfer in the
because the instrument of transfer veshng T~le as shown in Public Rsuoofs that vests T'~le as shown in Schedule A.
Schedule A constitutes a prefe~renflai transfer under federal Ti~ Company ~11 also pay the costs, attorneys' fees, and expenses incanred in
bankruptcy, state insolvency, or similar creditors' rights laws by defense of any matter insured against by this Pdilcy, but only to the extent
reason of the failure of its recording in the Public Record~ provided tn the Conditions.
EXCLU~ONS FROM COVERAGE
The following matters ere expressly excluded from the coverage of thio pcticy,
and the Company wti~ not pay loss or damage, costs, atton3eys' fees, or
expenses that shas by reason of;
1. ia) Any taw, ordinance, permit, or governmental regulation (including
those relating to building and zoning) restricting, regulating, prohibiting, or
relating to
ii] the occupancy, uso, or enjoyment of the Land;
(ii) the character, dimensions, or location of any improvement
erected on the Land;
(iii) the subdiviolan of land; or
(iv) environmental protection;
or the effect of any violation of these ia*s, ordinances, or governmental
regulations. This Exciualon 1 ia) does not modify or limit the coverage provided
under Covered Rlek 5.
(b) Any govemmontsl police power. Thio Exclusio~ lib) does not
modify or limit the coverage pmvidod under Covered Risk 6.
2.
2. Rights of eminent domain. This Exclusion does not modify er limit the 5.
coverage provided under Covered Risk 7 or 8.
Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by the Insured C~aimant;
(b] not Known to the Company, not recorded in the Public Records at
Date of Psticy, Put Known to the Insured Claimant and not disuiosed
In writing to the company by the Insured Claimant prior to the date
the Insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
id) attaching or created subsequent to Date of Policy (however, this
does not modify or limit the coverage provided under covered Risk
9 and 10); or
(e) rosu[fing in less or damage that would not have been sustained If
the Insured Claimant had paid value for the Title.
Any r.~alm, by mason of the operation of federal bankruptcy, state
insolvency, or simtler creditors' rights laws, that the transaction vesting
the Title as show~ in Schedule A, is
ia) a fraudulent conveyance or fraudulent transfer; or
(b) a preferential transfer for any reason not stated in Covered Riok 9 of
Any lien on the Title for real estate taxes or assessments imposed by
govemmontal authority and created or attaching between Date of Policy
and the date of reoordlng of tho deed or other instrument of transfer in the
Public Records that vests Tibe as shown in Schedule A.
CONDmON~
DEfiNITION OF TERMS
The following terms when used in thio policy mean:
ia) 'Amount of Insurance': The amcont stated in Schedule
may be Incroasud or decreased by endorsement to this policy,
increased by Seotio~ 8(b), or decreased by Sections 10 and 11
of ~ Conditions.
(b) 'Date of Pallcy~: The date designated as 'Date of Policy' in
Schedule A.
(c) 'Entity': A corporation, partnership, trust, limited liability
company, or other simlier lagai entity.
(d) 'Insured': The Insured named in Schedule A.
(i) The tanm 'Insured' also includas
(A) successors to the Tale of tho Insured by operation of
law as distinguished from purchase, including heirs,
devisees, survivors, personal representatives, or
next of kin;
(B) successors to an insured by dissolution, merger,
consolidation, dis~buflon, or reorganization;
(C) sucoesas~ to an Insured by its conversion to another
kind of Entity;
(D} a grantee of an Insurod under a deed dalivered
without payment of actual vaiuable consideration
conveying the Title
(1) if the stock, shares, memberships, or o~er egeity
Interests of the grantee are wholly-ownsd by the
named Insured,
(2) if the grantee ~holly owns the named Insured,
(3) if the grantee is whctly-owoed by an affiliated
Entity of the named Insured, provided the affiliatad
Enflfy and the named Insured are both w~olly-ownod
bythe same pemon or EntKy, or
(4) if the grantee is a trustee er beneficiary of a trust
created by a written Instrument astabliohed by
Insured named in Schedule A for estate planning
Purlx)aes.
(It) With regard to (A), (B), (C), and iD) resen, ing, however, ail
rights and defenses as to any successor that the Company
would have had against any predecessor Insured.
(e) "Insured Claimant': An Insured claiming loss or damage.
if} 'Knowledge' o~ 'Known': Actual knowledge, not constructive
knowledge or notice that may be imputed to an Insurod by
reason of the Public Records or any other records that impart
constructive notice of matters affeoting the Title.
(g) 'Land': The land described in Schedule A, ~ affixed
improvements that by law constitute real p,,operty. The term
· Land' does not include any property beyond the lices of the
area described in Schedule A, nor any dght, title, interest,
estate, or easement in abutting streets, roa~s, avenues, alleys,
tsnas, ~ays, or watemrays, but this does not modify or limit the
extent that a right of access to and from the Land is insured by
this policy.
ih) "Mortgage': Mortgage, deed of trust, trust deed, or other
security instrument, including one evidenced by alectrenlc
means authorized by law.
(I) 'Public Records": Records established under state statutes at
Date of Policy for the putpoes of imparting constructive notice of
matters relating to real property to purchasers for value and
without Knowledge. Wi~t respect to Covered Risk 5id), "Public
Records" shstl also include environmental protection liens filed
in ~e records of the clerk of the United States District Court for
(j) 'Title': The estate or interest described in Schedule A.
(k) "Unmarketable Title': Title affected by an allaged or apparent
matter that would permit a prospective purchaser or lessee of
the Title or lender on the Title to be roleased from the obligation
to purchase, lease, or lend if there is a conf0actual condition
requiring the delivery of marketable fltie.
I Page 2 Sedal No.: O-8911-544232 II
I
File No.: ST0-801136
CONOmONS (Continued)
CONTINUATION OF INSURANCE
The coverage of this policy shall continue in force as of Date of Policy
in favor of an Insured, but only as long as the Insured retains an
estate or interest in the Land, or holds an obllgaUon secured by a
purchase money Mortgage given by a purchaser from the Insured, or
only co long as the Insured shall have liability by reason of warranhes
in any transfer or conveyance of the Title. This policy shall not
continue in force in favor of any purchaser from the Insured of althar
(i) an estate or interest in the Land, or (ii) an obligation secured by a
purchase money Mortgage given to the Insured.
NOllCE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The Insured shall notify the Company promptly in va'[ting (i) in case of
any litigation es set forth in Section 5(a) of these Conditions, (ii) in
case Knowledge shall come to an Insured hereunder of any claim of
title or interest that is adverse to the Tiffe, as insured, and that might
cause ~as or damage for which the Company may be liable by virtue
of this policy, or (iii) if the Title, as insured, is rejected as
Unmarketable'Rtie. If the Company is prejudiced by the feiture of the
Insured Claimant to provide prompt notice, the Company's liability to
the Insured Claimant under the policy shall be reduced to the extent
of the prejudice.
PROOF OF LOSS
In the event the Company is unable to determine the amount of lass
or damage, the Company may, at its option, require as a condition of
payment that the Insured Claimant furnish a signed proof of loss.
The proof of loss must describe the defect, lien, encumtsance, or
other matter insured against by this policy that constitutes the basis
of loss or damage and shall state, to the extent possible, the basle of
calculating the amount of the loss or damage.
DEFENSE AND PROSECUTION OF ACTIONS
(a) Upon written request by the Insured, and subject to the options
contained in Section 7 of these Conditions, the Company, at its
own cost and without unreasonable delay, shall provide for the
defense of an Insured in litigation in which any third parry
asserts a claim covered by this policy adverse to the Insured,
This obligation is limited to only those stated causes of action
ailagiag matters insured against by this policy. The Company
shall have the right to astsut counsel of its choice (subject to the
right of the Insured to object for reasonable cause) to represent
the Insured es to those stated causes of action. It shall not pa
liable for and will not pay the fees of any other co~ns~. The
Company will not pay any fees, costs, or expenses incurred by
the Insured in Um defense of those causes of action that allege
matters not insured against by this policy.
(b) The Co~npany shall have the right, in addition to the OflUons
contained in SanUon 7 of these Conditions, at Its o~ cost, to
institute and prosecute any action or proceeding or to do any
other act that in Its o~nlon may be necessary or desirable to
astablish the T'~IS, as insured, or to prevent or reduce ices or
damage ts the Insursd. The Company may take any
adpmpriste enrico under the trams of this policy, whether or not
it shall be liable to the Insured. The exercise of these rights
shall not be an admission of liability or waiver of any provision of
this policy. If the Company exercises its rights under this
subsection, it must do so diligently.
(c) Whenever the Company brings an action or asserts a defense
as required or permitted by this policy, the Company may
pursue the litigation to a final determination by a court of
competent joriedicUon, and it expressly reserves the right, in its
sole discretion, to appaai any adverse judgment or order.
DUTY OF INSURED CLAIMANT TO COOPERATE
(s) In ail cases where this policy permits or requires the Company
to prosecute or provide for the defense of any a~on or
proceeding and any appeals, the lasured shall secure to the
Company the dght ts as prosecute or provide defense tn the
action or proceeding, including the right to use, at its option, the
name of the Insured for this puq~ase. Whenever requested by
em Company, the Insured, at the Company's expense, shall
g;ve the Company all reasoneble aid (D in securing evidence,
(b)
obtaining witnesses, prosecuting or defending the esUon or
proceeding, or effec~ng sefflemant, and (ii) in any other lawful
act that in the opinidn of the Company may be neceasmy or
desirable to establish the Title or any other matter as insured, if
the Company ia preJudicert by the falturo of the Insured to
/umtsh the required cooperation, the Company's obligations to
the Insured under the policy shall terminate, including any
liability or obligation to defend, prosecute, or continue any
litigation, with regard to the matter or matters requi~ing such
cooperation.
The Company may roasonably require the Insured claimant to
submit to examinetlon under oath by any authorized
reprasentative of the Company and to produne for examination,
inspection, and copying, at such reasonable times and places
as may pa designated by the authorized representative of the
Company, ali records, in whatever medium maintained,
indiuding books, ledgers, checks, memoranda, corrasgendanne,
reports, e-malls, disks, tapes, and videos whethar bearing a
date before or after Date of Pblicy, that reasonably partain to
the less or damage. Further, if requested by any authedzed
representative of the Company, the insured Claimant shall grant
its permission, in writing, for any authorized representative of
the Company to examine, inspact, and copy all of these records
in the custody or control of a third party that roasonab~y pertain
to the loss or damage. Ail information designated as
cohtidenflai by the Insured Claimant provided to the Company
pursuant to this Section shall not be disctased to others unless,
in the reasonable judgment of the Cornpeny, it is neseasa~y in
the administredon of the blaim. Failure of the theurert Ctsimant
to submit for examination under oath, produce any reasonably
requested information, or grant pennisaion to secure reasonably
necessary information from third parties as required tn this
subsection, unless prohibited by law or governmental regulation,
shall terminate any liability of the Company under this pofiny es
to that claim.
OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS;
TERMINATION OF LIABILITY
In case of a claim under this policy, the Company shall have the
following edditional options:
(a} TO Pay or Tender Payment of the Amount of Insurance. To pay
or tender payment of the Amount of Insurance under this paticy
together with any costs, attorneys' fees, and expenses incurred
by the Insured claimant that ~re authorized by the Company
up to the time of payment or [~xler of payment and that ~he
Company is oUigated to pay. Upon the exercise by the
Company of this option, all liability end obligations of the
Company to the Insured under this policy, other than to make
the payment required in this subsection, shall tennlnata,
including any liability or obligation to defend, prosecute, or
continue any litigation.
(b) To Pay or Othanatse Settfe With Parties Other Then the Insured
or With the Insured claimant.
(i) To pay or otherwise settle with other parties for or tn the
name of an Insuro0 Claimant any claim insured against
under this policy. In abditlon, the Company will bay any
costs, attorneys' fees, and expenses incurred by the
insured Claimant that were authorized by the Company up
to the time of payment and that the Company is obligated
to pay; or
(ii) TO pay or othenvlas esUfe with the Insured Claimant the
loas or damage provided for under this policy, together
with any costs, attorneys' fees, and expenses incurred by
the Insured Claimant that were authorized by the Company
up to the time of payment and that the Company is
obligated to pay.
Upon the exercise by the Company of either of the options
provided for in subsections (b)(i) or (ii}, the Company's
or damage, other than the payments required to be mede, shall
terminate, including any liability or obligation to defend,
pmseouta, or continue any litigation.
File No.: ST0-801136
CONDITIONS (Continued)
8. DETERMINATION AND EXTENT OF LIABILITY
This policy is a contract of indemn~ against actual monetary loss or
damage sustained or incurred by the Insured Claimant who has
suffered loss or damage by reason of matters insured against by this
policy.
(a) The extent of liabil~J of the Company for loss or damage under
~his policy shall not exceed the lesser of
(i) the Amount of Insurance; or
(ii) the difference between the value of the Tcle as insured
and the vaice of the Titfo subject to the dsk insured
against by this policy,
(b) If the Company pursues its rights under Section 5 of these
CondilJons and is unsuccessful in establishing the Title, as
(i) the Amount of Insurance shall be increased by 10%, and
(ii) the Insured Claimant shall have the right to have the loss
or damage determined either as of the data the claim was
made by the thsured Claimant or as of the date it is settled
and paid,
(c) In eddtirin to the extent of liabili[y under {a) and (b), the
Company will also pay those costs, at~rnsys' foes, and
expenses incurred in accordance with Sections 5 and 7 of these
Conditions,
g. UMITATION OF UABIMTY
(a) If the Company establishes the Tcle, or removes the alleged
defect, lien, or encumbrance, or cures the lack of a dght of
Tcle, alt as insured, in a reasonably diligent manner by any
method, including litigation and the comptstlon of any appeals, it
shall have fully performed its obligations with respect ta that
matter and shall not be liable far any loss or damage caused to
the Insured.
(b) In the event of any litigation, including litigation by the
Company or wfth the Company's consent, the Company shall
have no liability for riss or damage until them has been a final
dstormirmtion by a court of competent juitsdloflon, and
disposition of ail appeals, adverse to the Title, as insured.
(c) The Company shall not be liable for loss or damage to the
insured for liability voluntarily assumed by the Insured in settling
any claim or suit without ~ prier written consent of the
Company.
10. REDUCTION OF INSURAflCE; REDUCTION OR TERMINATION OF
UAmlJl~
All payments under this policy, except payments made for costs,
by the amount of the payment,
11. UABlUTY NONCUMULATIVE
The Amount of Insurance shall be reduced by any amcoht the
Company pays under any policy insudng a Mortgage to which
exception is taken in Schedule B or to which the Insured has agreed,
assumed, or taken subject, or which is executed by an Insured after
Date of Policy and which is a charge or lien on the 31tie, and the
amount so paid &hail be deemed a payment to the Insured under this
12. PAYMENT OF LOS~
When liabtitiy and the extent of loss or damage have been definitely
fixed In accordance with these Conditions, the payment shalr be
mede within 30 days.
13. RIGHTS OF RECOVERY UPON PAYMENT OR SE'R'LEMENT
(a) Whenever the Company shall have settled and paid a claim
under this policy, ti shell be subrogated and entitled to the dghts
of the Insured Claimant in ftm Title ~ all other rights and
remedies in respect to the cJaJm that the Insured Claimant has
against any parson or property, to the extent of the amount of
any loss, costs, attorneys' fees, and expenses paid by the
Company. If requested by the Company, the Insured Claimant
&hail execute documents to evidence the transfer to the
Company of these tights and remedies. The Insured C4aimant
shall permit the company to sue, compromise, or set'de in the
name of the Insured Claimant and to use the name of the
Insured Claimant in any transaction or tltigation invclving these
rights and remedies. If a payment on account of a claim does
not fully cover the loss of the Insured Claimant, the Company
shall defer the exercise of its right to recover until after the
Insured Claimant shall have recovered its loss.
(b) The Company's right of sub~ngatlon includes the rights of the
Insured to indemnities, guaranties, other policies of insurance,
or bends, notwithstanding any terms or conditions contained in
those instruments that address subrogation dghts,
14. ARBITRATION
Either the Company or the Insured may demand that the claim or
controversy shell be submitted to arbitration pursuant to the Title
Insurance ,N'oltration Ruiss of the American Land 1'tile Association
('Rules'). Except as provided in the Rules, there shall pa no jofnder
or consolidation with claims or controversies of other parsons.
Arb~able matters may inoludo, but me not limited to, any controversy
or claim between the Company and the Insured ansing out of or
relating to this policy, any service in connection with its issuance or
the breach of a policy prevision, or to any other controversy or claim
a~sthg out of the transaction giving rise to this policy. Afl arbitrable
matters when the Amount of Insurance is $2,000,000 or less shall be
aYailmtsd at the option of eider the Company or the Insured. All
arbitmbfo matters when the Amount of Insurance is in excess of
$2,000,000 shall be arbitrated only when agreed to by beth the
Company and the Insured. Afcltraiton pursuant to this policy and
under the Rules shall pa Unding upon the parties. Judgment upon
the award rendered by the ~tor(s) may be entared in any court
of competent judsdlotrin.
15. UABILrry MMITED TO THIS POUCY; POLICY ENTIRE
CONTRACT
(a) 'mis policy together with alt endorsements, if any, attached to it
by the Company is the entire policy and contract between the
Insured and the Company. In interpreting any provision of this
policy, this policy shall be construed as a whole.
(b) Any claim of loss or damage that arises oat of the sfatos of the
Title or by any action aseening such claim shall be restricted to
this policy.
(c) Any amendment of or endorsement to this palk.-y must be in
writing and authenticated by an authorized parson, or expressly
incorporated by Scheduts A of this policy.
(d) Each endorsement to this policy issued at any time is made a
part of this policy and is subject to ail of its terms and
pruvJaions. Except as the endorsement expressly states, it
does not (i) modify any of the terms and provisions of the policy,
(ii) modify any prior endorsement, (ill) extend the Date of Policy,
~ (iv) increase the Amount of Insurance.
16. SEVER.ABILITY
In the event any pmviairm of this policy, in whole or in part, is held
invalid or unenforceable under applicable law, the p~icy shall be
deemed not to include that provision or such part held ts be invalid,
but ail other provisions shall remain in full force and effect.
17. CHOICE OF LAW; FORUM
(a) Choice of Law: The Insured ecknowiedgas the Company has
undenwitten the risks covered by this poficy and determined the
premium charged therefore in reliance upon the law affecting
interests in real proparty and appticabta to the Interpretation,
tights, remedies, or enforcement of policies of title Insurance of
~he jutisdiction where the Land is located,
Theretsm, the court or an afaitratar shall apply the law of the
jurisdiction where the Land is locatad to determine the validity of
claims against t~m Title that are adverse to the Insured and to
inteq)ret and anfome the terms of this poke'/. In neither case
shall the court or arbitrator apply its conflicts of law pdnciptss to
determine the applicable law.
(c) Choice of Forum: Any litigation or other proceeding brought by
the Insured against the Company must be filed only in a state or
federal court within the United States of Amedca or its territories
having apple jurisdiction.
18. NOTICES, WHERE SF-NT
Any notice ct claim and any other notice or statement in wtiti~g required to
be given to the C~mpany under th~ potlcy ~must be given to the Company at
Claims Depasment at 300 Eaot 42'~ St, 10 Floo~, New York. NY 10017.
File No.: ST0-801136
CLOSING STATEMENT
ZIP PECONIC WELLS, LLC
to TOWN OF SOUTHOLD
Total Development Rights Easement- 29.0426 acres
Agricultural Structure Area - t.0 acre within easement area
Premises: 2350 Wells Road, Peconic
Part of SCTM #1000-86-1-10.9
Closing took place on August 3, 2010
at 11:00 a.m., Southold Town Hall Annex
Purchase Price of $ 2,410,535.80' (based upon 29.0426 buildable acres ~
$83,000/buildable acre) disbursed as follows:
Payable to ZIP Peconic Wells, LLC $ 2,407,535.80
Check #106360 (8/3/10)
Payable to ZIP Peconic Wells, LLC $ 3,000.00**
Check #106359 (8/3/10)
*eligible for partial reimbursement from USDA-NRCS awarded grant
73-2C31-7-00956 ($990,000)
**to be held in escrow until boundary line agreement is recorded
Expenses of Closing:
Appraisal, Revisions & Report
Payable to Brunswick Appraisal Corp.
Check #93937 (12/18/07)
Payable to Brunswick Appraisal Corp.
Check #104655 (3123/10)
Payable to Brunswick Appraisal Corp.
Check #106415 (8110/10)
$ 2,800.00
$ 1,000.00
$ 2,500.00
Environmental Report (Phase I ESA)
Payable to Nelson, Pope & Voorhis, LLC
Check #97901 (9123/08)
$ 1,400.00
Title Report (title #ST0-801136)
Payable to Stewart Title Insurance Company
Check #106358 (813/10)
Title insurance policy $ 9672
Recording easement $ 225
Certified Copy $ 100
Recording boundary line agmt $ 175
$ 10,172.00
Title Closer Attendance Fee
Payable to Patricia Fallon
Check #106357 (8/3/10)
$ 100.00
Those present at Closing:
Scoff A. Russell
Lisa Clare Kombrink, Esq.
Charles R. Cuddy, Esq.
Patricia Fallon
Melissa Spiro
Melanie Doroski
Southold Town Supervisor
Attorney for Town of Southold
Attorney for Seller
Title Company Closer
Land Preservation Coordinator
Land Preservation Sr Administrative Asst
TOWN OF SOUTHOLD
VENDOR 025182 ZIP t%ECONIC WELLS, LLC 08/03/2010 CHECK 106360
FEND & ACCOUNT P.O. # INVOICE DESCRIPTION AMOUNT
H2 .8686.2.000.000
H3 .8660.2.600.100
TBR750 080310A
TBR750 080310C
PURCHASE PRICE-ZIP WELLS 648,691.04
PURCHASE PRICE-ZIP WEL 1,758,844.76
TOTAL 2,407,535.80
TOWN OF SOUTHOLD
VENDOR 025181 ZIP PECONIC WELLS, LLC
08/03/2010 CHECK 106359
FUND & ACCOUNT
P.O.~ INVOICE
H3 .8660.2.600.100
TBR750 0~03~10B
DESCRIPTION AMOUNT
PURCHASE PRICE B~-L-WELLS 3,000.00
TOTAL 3,000.00
BRUNSWICK APPRAISAL CORP.
REAL ESTATE APPRAISERS AND CONSULTANTS
44 Elm Street, Suil¢ 7
HUNTINGTON, NEW YORK 11743
(631 ) 421-2344
FAX (631) 424-9246
E-Mail: Brun swickappmisalcorp~MSN.com
Sanford S. Brunswick
Ellnor Bmnswiclc, MAI
State Ceflified General Appraisers
Annand Brunswick, MAI
1881-1960
November 26, 2007
Town of Southold
Department of Land Preservation
Southold Town Hall Annex
54375 State Route 25
P.O. Box 1179
Southold, New York 11971-0959
Attention: Melissa A. Spiro, Land Preservation Coordinator
Fee Title Open Space/Development Rights Easement Acquisition
Zip Pecouic Wells, LLC Property
Location: 2350 Wells Road, Peconic
INVOICE# 1000-01
Real Estate Appraisal
$2,800
Thankyou
?" 2 7
0£pl. 0[
PR£S£SVAT~ON
I~'oq~.~,?r~ ,:08&k05~,6~,,: 6~. 000001, 0~'
~V~I~O~ 00B409 RT,T~OR RR'[T~'NTISTC~'. HAT
H2 .8685.2.000.000
1000-01
APPRAISAL-2350WELLS 2,800.00
TOTAL 2,800.00
BRUNSWICK APPRAISAL CORP.
REAL ESTATE APPRAISERS AND CONSULTANTS
44 Elm Street, Suite 8
HUNTIlqGTON, NEW YORK 11743
(631) 421-2344
FAX (63 I) 424-9246
E-Mail: Brunswickappraisalcorp~MSNcom
Sanford S, Brunswick
Elinor Brunswick, MAI
State Certified General Appraisers
Annand Brunswick, MAI
1881-1960
February l6,2010
Town of Southold
Department of Land Preservation
Southold Town Hall Annex
54375 State Route 25
P.O. Box 1179
Southold, New York 11971 - 0959
Attention: Melissa A. Spiro, Land Preservation Coordinator
Fee Title Open Space/Development Rights Easement Acquisition
Zip Peconie Wells, LLC Property
Location: 2350 Wells Road, Peconic
INVOICE# 1000-14
Real Estate Appraisal
$1,000
Thank you
TOWN OF $OUTHOLD
VENDOR 005409 ELINOR BRUNSWICK, MAI 03/23/2010 CHECK 104655
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.500.200 20141 1000-14 APPRAISAL-ZIP PEC WELLS 1,000.00
TOTAL 1,000.00
BRUNSWICK APPRAISAL CORP.
REAL ESTATE APPRAISERS AND CONSULTANTS
44 Elm Street, Suite 8
HUNTINGTON, NEW YORK 11743
(631) 421-2344
FAX (631) 424-9246
E-Mail: elinor@bmnswickappraisl.com
Sanford S. Brunswick
Elinor Brunswick, MAI
State Certified General Appraisers
.July 9, 2010
Annand Bnmswick, MAI
1881-1960
Town of Southold
Department of Land Preservation
Southold Town Hall Annex
54375 State Route 25
P.O. Box 1179
Southold, New York 11971-0959
Attention: Melissa A. Spiro, Land Preservation Coordinator
Fee Title Open Space/Development Rights Easement Acquisition
Zip Peconic Wells, LLC Property
Location: 2350 Wells Road, Peconic
INVOICE# 1000-15
Revised Real Estate Appraisal
$2,500
Thank you
DEPT. OF L/~D
PRESERVATION
TOWN OF $OU77tOLD
VEb[DOR 005409 ELINOR BRUNSWICK, MAI 08/10/2010 CHECK 106415
FL~ND & ACCOUNT P.O.# INVOICE DESCRIPTION /%MO~gT
H3 .8660.2.500.200 21558 1000-15 R~V APPR-ZIP PEC WELLS 2,500.00
TOTAL 2,500.00
. telson, Pope & Voorhis, LLC
· ~ 572 Walt Whitman Road Phone: 631-427-5665
Meiville NY 11747 Fax: 631-427-5620
Invoice
Property: 08186 Proj~:t: VA02702
Phase I ESA (ZIP Peconic Wells)
Manager: McGinn, Steven
To;
Town of Southold Devt of Land Preserv
Town Hall
53095 State Rt 25, PO Box 1179
Southold NY 11971
Atlention: Melissa A Spiro
Invoice #: 6081
Invoice Date: September 10, 2008
MAKE CHECKS PAYABLE TO NELSON POPE & VOORHIS InPoice Amount $1,400.00
Purchase Order #18S90 - SCTM #1000-86-1-10.9
Contract dated July 1 I, 2008 Item #1:
Prepare Phase ! Environmental Site Assessment
Work Performed thru 8/27/08
Contract Amount: $1,400.00
Percent Complete: 100.00'/o
F~e Earned: $1,400.00
Prior Fee Billings: $0.00
Current Fee Total:
$1,400.00
*** Total Project Invoice Amount
$1,400.00
Please make all checlc~ payable to NELSON POPE & VOORHI$
Please include invoice number on check
NELSON POPE & VOORHIS NOW ACCEPTS CREDIT CARDS
VISA - MASTERCARD - AMERICAN EXPRESS
DO-'I Of LAND
PRESERVATION
TOWN OF $OUTHOLD
VENDOR 014161 NELSON, POPE & VOORHIS, LLC 09/23/2008 CHECK 97901
FUND & ACCOUNT P.O.# INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 18889 6080
H3 .8660.2.600.100 18890 6081
pHASE 1-SEPENOSKI 1,400.00
PHASE 1-ZIP PEC WELLS 1,400.00
TOTAL 2,800.00
Title No.
STEWART TITLE INSURANCE COMPANY
707 Westchester Avenue, Suite 411, White Plains, New York 10604
Phone: 800-433-4698 or 914-993-9393 Fax: 914-997-1698
FAIR ~T VALUE ~ER (Optional) P~
MORTGAGE ~S~CE CO~GE P~M~M
E~E~: En~umental
Waiver of Arbi~fion
R~idenfial
Adjus~ble ~ ~der
~W YO~ STA~ ~S~SION T~
MORTGAGE T~ (Mo~)
MORTGAGE T~ (Mop.or)
CO~ P~SERVAT1ON
S~Y ~SPE~ON
DEPOSAL S~S
~ET ~RT
E~OW DE~S~
~OW DE~S~ FEE
B~CY SE~
~O~G ~E~:
( ) SA~SFA~ON(S)
( ) MORTGAGE(S}
( ) CON~L~ATION, ~NSION & MOD~ICA~ON AG~E~(S)
( ) MORTGAGE
( ) ~a~(s)
CLOSER CHARGES, IF ANY: PICK-UP FEE
PATRICIA L. FALLON
Title Closer
TOWN OF SOUTHOLD
VENDOR 019624 STEWART TITLE INS~CE CO. 08/03/2010
CHECK 106358
FUND & ACCOUNT
P. O. # INVOICE
DESCRIPTION AMOUNT
H3 .8660.2.600.100
H3 .8660.2.6010.100
H3 .8660.2.60D.100
H3 .8660.2.600.100
TBR750 ST0-801136
TBR750 ST0-801136
TBR750 ST0-801136
TBR750 ST0-801136
TITLE INS-ZIP WELLS 9,672.00
EASEMENT FEE-ZIP WELLS 225.00
CERT.COPY -ZIP WELLS 100.00
BNDRY LINE FEE-ZIP WELLS 175.00
TOTAL ,, 10,172.00
TOWN OF $OUTHOLD
VENDOR 006013 PATRICtA
FALLON
-'08t03/2010
FUND & ACCOUNT
P. 0. # INVOICE
DESCRIPTION
CHECK 106357
AMOUNT
· 8660.2. 600. 100
TBR750 ST0-801136
TITLE C~.OSING-ZIP WELLS'
TOTAL
t00.00
100.00
MELISSA A. SPIRO
LAND PI~SERVATION COORDINATOR
melissa.spiro~town.southold.ny.us
Telephone (631) 765-5711
Facsimile (631 ) 765-6640
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Rd & Youngs Ave)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971~)959
To:
From:
Date:
Re:
Supervisor Russell
Town Board
Town Clerk
Land Preservation Committee
Town Attorney
Planning Board
Suffolk County Division of Real Estate
Melissa Spiro, Land Preservation Coordinator
Tax Assessors
Building Department
Data Processing
Town Comptroller
Stewardship Managers
Peconic Land Trust, Inc.
The Nature Conservancy
August 13, 2010
ZIP PECONIC WELLS~ LLC to TOWN OF SOUTHOLD
Part of SCTM #t000-86.-'1-'10.9
Please be advised that the Town has acquired a development dghts easement on the agricultural property listed
below. If you would like additional information regarding the purchase, please feel free to contact me.
LOCATION:
SCTM #:
PROPERTY OWNER:
PURCHASE DATE:
PURCHASE PRICE:
EASEMENT ACREAGE:
ZONING:
FUNDING:
MISCELLANEOUS:
2350 Wells Road, Peconic
part of 1000~86.-1-10.9
ZIP Peconic Wells, LLC
Tuesday, August 3, 2010
$2,410,535.80 (based on 29.0426 buildable acres @ $83,000/buildable
acre)
29.0246 acres
R-80
CPF 2% Land Bank (bonded funds) and partial reimbursement
($990,000 anticipated) from a USDA-NRCS awarded FRPP grant
This property is listed on the Community Preservation Project Plan list.
It is across the street from, and borders on the west to Town PDR
lands. The easement area is planted in sod.
To protect the scenic view shed, an Agricultural Structure Area of one
acre was designated within the Easement Area. In addition, lot
coverage within the designated area was limited to 2%.
This project was part of a Conservation Subdivision.