HomeMy WebLinkAboutKKP, LLC (3) MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro @ town.southold.ny.us
Telephone (631 ) 765-5711
Facsimile (63 l) 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:
Elizabeth A. Neville
Town Clerk
Melanie Doroski
Sr. Administrative Assistant
March 15, 2011
KKP~ LLC to TOWN OF SOUTHOLD
Development Rights Easement- 8.1638 acres
SCTM #1000-120.-3-11.18
Location: 750 Sound Avenue, Mattituck
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 December 9, 2010, between KKP,
LLC and the Town of Southold, recorded in the Suffolk County Clerk's office on 1/14/2011,
in Liber D00012648 at Page 617
· Title insurance policy #O-8911-556600 issued by Stewad Title Insurance Company on
December 9, 2010 in the insured amount of $502,796.70 (title #ST10-09332)
· Closing Statement
Thank you.
Melanie
encs.
cc: Assessors w/copy of recorded easement
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Ty~e of Instrument: EASEMENT
Number of Pages: 25
Receipt N-m~er : 11-0005378
TRANS~R TAX NUMBER: 10-12351
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
120.00 03.00
EXAMINED AND CHARGED AS FOLLOWS
$502,796.70
Received the Following Fees For Above Instrument
Exempt
Page/Filing $125.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $16.25 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER:
10-12351
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
JUDITH A. PASCALE
County Clerk, Suffolk County
01/14/2011
04:21:10 PM
D00012648
617
Lot:
011.018
Exempt
$20.00 NO
$15.00 NO
$0.00 NO
$30.00 NO
$0.00 NO
$216.25
DEPT. OF LAND
PReSeRVATION
Number o~pages
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
Deed / Mortgage Instrument
31
Page / Filing Fee ] ~h- ~<~'
Handling ~2:~1~. O0
TP-584 ,/ ~
Deed / Mortgage Tax Stamp
FEES
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed.
Affidavit
NYS Surcharge
Other
Sub Total
5:O0
15. O0
SubTotal
Real Property ,.,
Tax Service
Agency \.,29_DEC.10//
Verification
I t/^
1000 12000 0300 011018
8
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
,~,~arr,~_e~r /v'~ 1/q?/
Mail to: Judith A. Pascale, Suffolk County Clerk
310 Center Drive, Riverhead, NY 11901
www. suffolkcou ntyny, gov/cierk
71 i ;rjr i~ ~;21: :'!~
Recording / Filing Stamps
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec,/Assit.
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointment
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 instrument.
5 Community Preservation Fund
Consideration Amom~t $
Due
Improved
Vacant Land
C7o [ Title Company Inform~Oon
· Name
Suffolk County Recording & Endorsement Page
This page forms part of the attached ~,e.~v;r ~ ~' ~)ff-~rgLe~p/~ ~r%- ~mH'/~ ~2w-/'-
""~ LZ~ ~e presses herein is situated in
S~OLK CO~ ~W YORK.
made by:
IMPOR I'AN.,T NOTICE
If the document you've Just recorded is your SATISFACTION OF MORTOAG~I-, please be aware of
the following:
If a portion of your monthly mortgage payment Included your property taxes, * u will now need o
contact your local Town Tax Receiver so that you may be billed directly for all future property ray
statements,
Local property taxes are payable twice a year: on or before January l0b and on or before May 31't.
Failure to make payments in a timely fashion could result in a penalty.
Please contact your local Town Tax Receiver with any questions regarding property tax
payment.
Babylon Town Receiver of Taxes
200 East Sunrise Highway
North Lindenhurst, N.Y. 11757
(631) 957-3004
Rlverhead Town Receiver of Taxes
200 Howell Avenue
Rlverhead, 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
Smithtown 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
Islip, 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 December, 2010 at Southold, New York. The parties
are KKP, LLC, with offices at 1002 Bluff Drive North, Baiting Hollow,
New York 11948, c/o Peter Harbes, Managing Member (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 call "Grantee").
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 #1000-120-3-11.9 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 Nathan Taft Corwin III, Land Surveyor, dated November
2, 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 A-C Zoning District of
the Town of Southold; and
WHEREAS, the Property contains soils classified as Class T and
Class II worthy of conservation as identified by the United States
Department of Agriculture Soil Conservation Service's Soil Survey of
Suffolk County, New York; and
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 for field 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 :~986 and
1989 as adopted by the Town Bo~'rd, Tc;wn 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 F;[VE HUNDRED TWO
THOUSAND SEVEN HUNDRED NTNETY-SfX AND 70/100 DOLLARS
($502,796.70) 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 fee
title to the property, and the exclusive right of occupancy and of use of
the Property, subject to the limitations, condition, covenants,
agreements, provisions and use restrictions hereinafter set forth,
which shall constitute and shall be servitudes upon and with respect to
the Property.
The Grantor, for itself, and ~or an'~] 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, except as set forth in Stewart Title Insurance Title
Report No. 1009332, 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,
natural, scenic and agricultural 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 Internal Revenue Code ("TRC") and other federal statutes.
0.05 Baseline Documentation
Grantee acknowledges by a~cepta'nce of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and
documenting the present condition of the Property's natural, scenic,
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 Documentation includes, but
need not be limited to, a survey prepared by Nathan Taft Corwin III,
Land Surveyor, dated November 2, 2010, and a Phase 1
Environmental Site Assessment dated November 4, 2010 by Nelson,
Pope and Voorhis, LLC.
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
In 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 EASEMENT
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
4
"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") now, or as
said Chapter 70 may be amended, 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 §301(2)(a)-(j) may be
amended, provided said amended provisions are inherently similar in
nature to those crops, livestock and livestock products included as of
the date of this Easement. 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.
"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 provide~l' 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
GRANTOR, for FIVE HUNDRED TWO THOUSAND SEVEN
HUNDRED NINETY-SIX AND 70/100 DOLLARS ($502,796.70) and such
other 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:
3.01 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; IVlininq
The excavating, regrading, scraping or filling of the Property shall
be prohibited, without the prior written consent of Grantee, including
but not limited to from the Land Preservation Committee.
Mineral exploitation, and extraction of any mineral, including but
not limited to soil, gravel, sand and hydrocarbons, by any method,
surface or subsurface, is prohibited.
The removal of topsoil, sand, or other materials from the
Property is prohibited, nor shall the topography of the Property be
6
changed, except in connection wi~h no'r'~al agricultural/horticultural
activities, all of which shall require the prior written consent of
Grantee, including but not limited to from the Land Preservation
Committee.
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 or other conservation instrument.
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.
3.04 Dumping
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
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, except for underground utilities presently
existing, and referenced in an easement recorded simultaneously
herewith in the Office of the Suffolk County Clerk and described in
Section 4.06 herein.
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, now, or as said Chapter 70 may be amended and including the
production of crops, livestock and livestock products as defined in
Section 30:~(2)(a)-(j) of the Agriculture and Markets Law, now or as
said Section 301(2)(a)-(j) may be amended, provided said amended
provisions are inherently similar in nature to those crops, livestock and
livestock products included as of the date of this Easement, and 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 Natural Resources
Conservation Service ("NRCS").
3.09 Drainage
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 in order to control flooding or soil erosion
on the Property.
3.10 Development Riqhts
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
4.0:1 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
9
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.
Grantor may maintain the following pre-existing uses located
within the 7,966 sq. ft. access area at the northeast side of the
Property and shown on the Survey ("the Access Area"):
:t. Parking within the northerly portion of the Access Area shown
on the Survey as the "Gravel & Dirt Area," up to the point shown on
the survey as "Post and Rail Fence," provided said parking area is used
in conjunction with Grantor's retail agricultural uses;
2. "Dirt Access Road" shown on the survey, used for the
following:
a) agricultural purposes; b) to access overflow parking areas on
adjacent parcels for Grantor's retail agricultural uses; c) to access a
residential dwelling, on an adjacent parcel.
Said dirt access road shall only be used for the purposes set
forth in this 4.03, and not for any new or additional uses.
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
l0
maintain or improve the appearai~¢e of the property, and to mow the
property.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is presently referenced in Section 247 of the
General Municipal Law and/or defined in Chapter 70 of the Town Code,
now or as said Chapter 70 may be amended 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
may be amended, provided said amended provisions are inherently
similar in nature to those crops, livestock and livestock products
included as of the date of this Easement. 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:
(i)
Underground facilities used to supply utilities
solely for the use and enjoyment of the Property;
(ii)
Underground utilities presently existing and
referenced in an easement recorded
simultaneously herewith, said easement area
shown on the Survey.
Pre-existing dirt access road, located within the
7,966 sq.ft. Access Area of the Property and
accessed from Sound Avenue, shown on the
Survey;
(iv)
New construction, including drainage
improvement structures, provided such structures
are necessary for or accessory to agricultural
production;
(v)
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;
(vii)
Any improvement excluded from the definition of
"Structure" in Section 1.02.
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.
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. Tn 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 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 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 Indemnification
]3
Grantor shall indemnify and hold'"Grantee harmless for any
liability, costs, attorneys' fees, judgments, expenses, charges or liens
to Grantee or any of its officers, employees, agents or independent
contractors, all of which shall be reasonable in amount, arising from
injury due to the physical maintenance or condition of the Property
caused by Grantor's actions or inactions, or from any taxes, levies or
assessments upon it or resulting from this Easement, all of which shall
be considered Grantor's obligations.
5.03 Third Party Claims
Grantor shall indemnify and hold Grantee harmless for any
liability, costs, attorneys' fees, judgments, or expenses, charges or
liens to Grantee or any of its officers, employees, agents or
independent contractors, all of which shall be reasonable in amount,
resulting: (a) from injury to persons or damages to property arising
from any activity on the Property; and (b) from actions or claims of
any nature by third parties arising out of the entering into or exercise
of rights under this Easement, excepting any of those matters arising
solely from the acts of Grantee, its officers, employees, agents, or
independent contractors.
5.04 Grounds Maintenance Requirement
If Grantor leaves the Property fallow 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 5.02 and Section 6.03.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
]4
Grantee shall have the right' to e~'ter 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
Easement and its purposes and provisions are being upheld. Grantee
shall not have the right to enter upon the Property for any other
purposes, except as provided in Section 5.04 and 6.03, or to permit
access upon the Property by the public.
6.02 Restoration
In addition to Grantee's remedies under Section 5.04, 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 RJqhts 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,
(ii)
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
15
Property affected by '~uch I~reach, default or violation to
the condition that existed prior thereto, or
(iii)
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, all reasonable attorneys' fees, court costs and other expenses
incurred by Grantee (herein called "Legal Expenses") in connection
with any proceedings under this Section, as approved by the Court.
The cure period in this Section 6.03 may be extended for a
reasonable time by Grantee if such restoration cannot reasonably be
accomplished within ten (10) days.
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.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE
SlX shall not have the effect of waiving or limiting any other remedy or
relief, and the failure to exercise or the delay in exercising any remedy
16
shall not constitute a waiver of a~'y oth'&r remedy or relief or the use of
such other remedy or relief at any other time.
6.06 Extinguishment of Easement/Condemnation
At the mutual request of Grantor and Grantee, 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, 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. If 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 development rights
transferred hereby.
ARTICLE SEVEN
MISCELLANEOUS
7.01 EntireUnderstandinq
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 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
17
and any regulations promu gated'hereunder and with the Purpose of
this Easement, and 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 §:[70(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
the limitations placed upon the alienation of those property rights or
interests which were acquired by the Town prior to any such
amendment.
In addition to the limitations set forth above, Grantee shall have
the right 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 Tnternal 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. 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.
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. Tnstead, 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 Governinq 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
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. If 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
19
The headings, titles and subtitles herein have been inserted
solely for convenient reference, and shall be ignored in its
construction.
iN WITNESS WHEREOF, Grantor has executed and delivered and
Grantee has accepted and received this Grand of Development Rights
Easement on the day and year set forth above.
ACKNOWLEDGED AND ACCEPTED:
KKP, LLC, Gr~3ntor,/ ~ j
P~-I=ER H/~RBES, Managir~g M~'~bef~
ACKNOWLEDGED AND ACCEPTED:
S~ot~-/A. Russell, Supervisor
STATE OF NEW YORK)
COUNTY OF SUFFOLK), SS:
On the ~ day of ~ in the year 2010 before me, the
undersigned, personally appeared Peter Harbes, 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.
Signature/office of individual taking acknowledgement
PATRICIA L. FALLON
STATE OF NEW YORK ) Notary Public, State Of New Yorl~
COUNTY OF SUFFOLK ) SS: No. 01FA4950146
Qualiiiad in Suffoik County
Commission Expires April 24, ,,~//
On this ~ day of ~Z~ in 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
20
his/her/their signature(s) on the inst£~mbn't~'the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
PATRICIA L. FALLON
Notary Public, State Of New York
No. 01FA4950146
O~elified In Suffolk County
Commission Expires April 24~
2!
insurance company
SCHEDULE A - DESCRIIrI'ION
NEW YORK METRO
800 853-4803
212 922-1593 fax
stewartnewyork.com
AMENDED 12/7/2010
DEVELOPMENT RIGHTS EASEMENT AREA
Tit~ No.: ST10-09332
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town
of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of Sound Avenue distant the following two (2) courses and
distances from the corner formed by the intersection of the southerly side of Sound Avenue with the
westerly side of Aldrich Lane (Elisha's Lanel:
North 89 degrees 54 minutes 00 seconds West, 489.07 feet:
South 88 degrees 13 minutes 50 seconds West, 119.94 feet to the true point or place of
beginning;
(1)
(2)
RUNNING THENCE 'along land now or formerly of Harbes Farm Riverhead East, LLC and through a
concrete monument, South 19 degrees 59 minutes 10 seconds East, 1,389.36 feet to land now or formerly
of P&E, LLC (Town of Southold Development Rights);
THENCE along said land South 71 degrees 31 minutes 30 seconds West, 305.21 feet to land now or
formerly of Patricia Dive[lo;
THENCE along said land North 19 degrees 53 minutes 50 seconds West, 1,120.73 feet to a point:
THENCE North 70 degrees 06 minutes 10 seconds East, 253.42 feet to a point:
THENCE North 19 degrees 59 minutes 10 seconds West, 277.45 feet to the southerly side of Sound
Avenue:
THENCE along the southerly side of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64
feet to the true point or place of BEGINNING.
RESERVE AREA - NOT TO BE INSURED (for informational purposes only)
ALL that certain plot, piece or pamel of land, situate, lying and being in the Hamlet of Mattituck, Town
of Southold. County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of Sound Avenue distant the following three (3) courses
and distances from the comer formed by the intersection of the southerly side of Sound Avenue with the
westerly side of Aldrich Lane (Elisha's Lane):
(i) North 89 degrees 54 minutes 00 seconds West, 489.07 feet:
(2)
(3)
South 88 degrees 13 minules 50 seconds West. 119.94 feet:
South 88 degrees 13 minutes 50 seconds Wesl, 52.64 feet to the tree point or place of
beginning:
RUNNING THENCE Sou~h 19 degrees 59 minutes 10 seconds Ea.st, 277.45 feel lo a point:
THENCE South 70 degrees 06 minutes 10 seconds West, 253.42 feet to land now or formerly of Patricia
Divello:
THENCE 'along said land North 19 degrees 53 minutes 50 seconds West, 351.79 feet to the southerly
side of Sound Avenue;
THENCE 'along said southerly side of Sound Avenue the following two (2) courses and distances:
(1)
(2)
Norlh 85 degrees 38 minutes 20 seconds East, 178.42 feet:
North 88 degrees 13 minutes 50 seconds East, 85.33 feet to the true point or place of
BEGINNING.
ACCESS AREA
ALL that ceaain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town
of Southold, County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on lhe southerly side of Sound Avenue distant the following Iwo (2) courses and
distances from the comer formed by the intersection of the southerly side of Sound Avenue with the
westerly side of Aldrich Lane (Elisha's Lane):
(1)
(2)
Noah 89 degrees 54 minules 00 seconds West, 489.07 feet:
South 88 degrees 13 minutes 50 seconds West, 119.94 feet lo the true point or place of
beginning:
RUNNING THENCE along land now or formerly of Harbes Farm Riverhead East, LLC and through a
concrete monument, South 19 degrees 59 minutes 10 seconds East, 268.32 feet;
THENCE South 70 degrees 00 minutes 59 seconds West, 25.38 feet;
THENCE North 19 degrees 59 minutes 10 seconds West, 234.57 feet:
THENCE South 85 degrees 59 minutes 29 seconds West, 25.61 feet;
THENCE Noah 19 degrees 59 minutes 10 seconds West, 43.15 feet to the southerly side of Sound
Avenue:
THENCE along the southerly side of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64
feet to the true point or place of BEGINNING.
SURVEY OF PROPERTY
MATTITUCK
f
~:.,=~. INathan Taft Corwin Ill
Land Surveyor
ALTA Owner's Policy (6 17 06)
POLICY OF TITLE INSURANCE ISSUED BY
~l~it le .res u ~ ~W~ c eacorm p'~any
Any notice of claim and any other notice or statement in wdting required to be given lhe Company under this Policy must be
given to the Company at the address shown in Section 18 of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS, STEWART TITLE INSURANCE COMPANY, a New York corporation, {the "Company") insures, as of Date of Policy and, to the
ex~ent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of insurance, sustained or
incurred by the insured by reason oh
1. Title being vested other than as stated in Schedule A.
2 Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from
(a) A defect in the Title caused by
(i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation;
(ii) failure ol any person or Entity to have authorized a transfer or conveyance;
(iii)a document affecting Title not pmpedy 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 document executed under a falsified, expired, or otherwise invalid power of attorney
(vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic
means authorized by law; or
(vii) a delective judicial or administrative proceeding
(b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid.
{c) Any encroachment, encumbrance, violation, variation, or adverse circumstance alfecting the Title that would be disclosed by an
accurate and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located
on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land
3 Unmarketable Tide.
4. NO right of access to and from the Land.
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (icoluding those relating to building and zoning)
restricting, regulating, prohibiting, or relating to
(a) the occupancy, uss, or enjoyment of the Land;
(b) the character, dimensions, or iccetion of any improvement erected on the Land;
(c) the subdivision of land; or
(d) environmental protection
if a notice, describing any part of the Land, is recorded in the Public Records setting lorth the violation or intention to enlorce, but only to
the extent ol the violation or enforcement referred to in that notice.
6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice ol the
enforcement action, describing any par1 of the Land, is recorded in the Pubtic Records, but only to the extent ol the enforcement relerred
to in that notice.
7. The exercise of the rights ol eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Records
8. Any taking by a governmenta~ body that has occurred and is binding on the rights of a purchaser for value without Knowledge.
Countersigned:
Stewart Title Insurance Company
New York, New York
Policy
Serial No O-8911-556600
File No.: ST10-09332
COVERED RISKS (Continued)
Title being vested other than as stated in Schedule A or being defective
ia) as a result of the avoidance in whole or in part, or from a court order
(b)
(i) to be timely, or
(ii) to impart notice of its existence to a purchaser for value er to a
providing an alternative remedy, of a transfer of all or any par[ of the judgment or lien creditor
title to or any interest in the Land occurring prior to the transaction 10. Any defect in or lien or encumbrance on the Title or other matter included
vesting Title as shov~ in Schedule A because that prior transfer in Covered Risks 1 through 9 that has been created or attached or has
constituted a fraudulent or preferential transfer under federal been tiled or recorded in the PubJic Records subsequent to Date of Policy
bankruptcy, state insolvency, or similar creditors' rights laws; or and prior to the r6cording of the deed or other instrument of transfer in the
because the instrument of transfer vesting Title as shown in Public Records that vests Title as shown in Schedule A,
Schedule A constitutes a preferential transfer under federal The Company witl also pay the costs, attorneys' fees. and expenses incurred in
bankruptcy, state insolvency, or similar creditors' rights laws by defense of any matter insured against by this Policy, but only to the extent
reason of the failure of tis recording in the Public Records provided in the Conditions
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy,
and the Company will not pay Isss or damage, costs, attorneys' fees. or
expenses that arise by reason of:
1 {a) Any law, ordinance, permit, or governmental regulation (inciudieg
those relating to building and zoning) restricting, regalating, prohibiting, or
relating to
(i) the occupancy, uso, or enjoyment of the Land;
(ii) the character, dimensions, or location of any improvement
erected on the Land;
(iii) the subdivisicn of lead; or
(iv) environmental protection; 4.
or the ettect of any violation of these tsws. ordinances, or governmental
regulations. This Exclusion 1 (a) does not medtiy or limit the coverage provided
under Covered Risk 5.
(b) Any governmental police power. This Exclusion t(b) does not
modify or limit the coverage provided under Covered Risk 6,
2. 2. Rights of eminent domain. This Exclusion does not modify or limit the 5.
coverage provided under Covered Risk 7 or 8.
3 Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by tho Insured Claimant;
(b) not Known to the Company. not recorded in the Public Records at
Date of Policy. but Known to the Insured Claimant and not disclosed
in writing to the Company by the Insured Claimant prior to tho date
the insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
(d) 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) resulting in loss or damage that would not have been sustained if
the insured CAaimant had paid value for the Title.
Any claim, by reason of the operation of federal bankruptcy, state
insolvency, or similar creditors' rights laws, that tho transaction vesting
the Title as shown in Schedule A, is
(a) a fraudulent conveyance or frauduJent transfer; or
(b) a preferential transfer for any reason not stated in Covered Risk 9 of
this policy.
Any lien on the Tilts far real eslate taxes or assessments imposed by
govemmeetal aathorib/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 Title as show~ in Schedule A.
CONDITIONS
DEFINITION OF TERMS
The iollov~ng terms when used in this policy mean:
{a) "Arr~uet of Insurance": The amount stated in Schedule A. as
may be increased or decreased by endorsement to this policy,
increased by Section 8(b), or decreased by Sections 10 and 11
of these Conditions.
(b) "Date of Policy": The date designated as "Dste of Policy" in
Schedule A.
(c) "Entity": A corporation, partnership, trust, limited liability
company, or other similar legal entity.
(d) "Insured": The Insured named in Schedule A.
(i) The term "lssured" also includes
(A) successors to the Title of the 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, distribution, or reorganization;
(C) suceessors to an Insured by its conversion to another
kind of Entity;
(D) a grantee of an tosured under a deed delivered
without payment of actual valuable consideration
conveying the Title
(1) if the stock, shares, memberships, or other equity
interests of the grantee are wholly-owned by the
named Insured,
(2) if the grantee wholly ow~s the named Insured,
(3) if the grantee is wholly-owned by an affiliated
Entity of the named insured, provided the affiliated
Entity and the named Insured are both wholly-owned
by the same person or Entity, or
(4) if the grantee is a trustee or beneficiary of a trust
created by a written instrument established by the
Insured named in Schedule A for estate planning
purposes.
(ii) With regard to (A), (B), (C), and (D) reset, lng, however, all
F~cjht s 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.
(f) "Knowledge" or "Known": Actual knowledge, not constructive
knowledge or notice that may be imputed to an insured by
reason ol the Public Records or any other records that impart
eanstrocfive nofice of matters affecting the
(g) "Land": The land described in Schedule A, and affixed
improvements that by law c~nstitute real property. The term
"Land" does not include any property beyond the lines of the
area described in Schedule A, r~r any right, title, interest,
estate, or easement in abutting streets, roads, avenues, alleys,
lanes, ways, or waterways, but this does not modify or limit the
extent that a right of access to and from the Land is insured by
this policy.
(h) "Mortgage": Modgage. deed of trust, trust deed, or other
security instrument, including one evidenced by electronic
means authorized by law.
(i) "Public Records": Records established under state statutes at
Date of Policy for the purpose of imparting constructive notice of
matters reloting to real property to purchasers for value and
without Knowledge. With respect to Covered RL~k 5(d), "Public
Records" shall also include environmental protection liens filed
in the records of the clerk of the United States District Court for
the district where the Land is located,
(j) "Title": The estate or interest described in Schedule A
(k) "Unmarketable Title": Title affected by an alleged or apparent
matter that ~,~uid pormfi a prospective purchaser or lessee of
the Title or lender on the Title to be released from the obligation
to purchase, lease, or lend if there is a contractual condition
requiring the delivery el marketable title.
I Pa~e 2 Sebal No.: O-8911-556600
File No: ST10-09332
CONDITIONS (Continued)
2. CONTINUATION OF INSURANCE
The coverage of this policy shall continue in farce as of Date of Policy
in [avor of an insured, but only so long as the insured retains an
estate or interest in the Land, or belds an obligation secured by a
purchase money Mot[gage given by a purchaser from the Insured, or
only so long as the insured shall have liabilit y by reason of warranties
in any transfer or conveyance of the Title This policy shafi not
continue in force in favor of any purchaser from the Insured of either
(i} an estate or interest in the Land, or {ii) an obligation secured by a
purchase money Modgage given to the insured
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The insured shall notify the Company promptly in writing {il in case of
any litigation as set forth in Section 5(al 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 Title, as insured, and that might
cause loss or damage for w~ich the Company may be liable by virioe
of this policy, or (iii) if the Title, as insured, is rejected as
Unmarketable Title. If the Company is prejudiced by the lailure ol 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
4. PROOF OF LOSS
In the event the Company is unable to determine the amount of less
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, encumbrance, or
other matter insured against by this policy that constitutes the basis
of ioas or damage and shall state, to the extent possible, the basis of
calculating the amount of the loss or damage
5, DEFENSE AND PROSECUTION OF ACTIONS
(al 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 party
asserts a claim covered by this policy adverse to the insured.
This obligation is limited to only those stated causes of action
alleging mat[ers insured against by this policy. The Company
shall have the right to select counsel of its choice (subject to the
right of the Insured to object for reasonable cause) to represent
the Insured as to those stated causes el acpon. It shaJl not be
liable for and will not pay the fees of any other counsel. The
Company will not pay any fees, costs, or expenses incurred by
the Insured in the defense of ~se causes of action that allege
mat[em not insured against by this policy.
(b) The Company shall have the fight, in addition to the options
contained in Section 7 of these Conditions. at its own cost, to
institute and prosecute any action or prcoeediog or to do any
other act that in its opinion may be necessary or desirable to
establish the Title. as insured, or to prevent or reduce loss or
damage to the Insured The Company may take any
appropriate action under the terms of this policy, whather or not
it shall be liable to the Insured. The exercise of these rights
shall not be an admission of liability or waiver ol 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 actlen or asserts a defense
as required or permit[ed by this policy, the Company may
pursue the litigation to a final datermination by a court of
competent jurisdiction, and it expressly reserves the right, in its
sole discretion, to appeal any adverse judgment or order.
6. DDTY OF INSURED CLAIMANT TO COOPERATE
(al In all cases where this policy permits or requires the Company
to prosecute or provide lor the defense of any action or
proceeding and any appeals, the Insured shall secure to the
Company the righ[ to so p~osecute or provide defense in the
action or proceeding, including the right to use, at its option, the
name of the Insured for this purpose Whenever requested by
the Company, the Insured, at the Company's expense, shall
give the Company all reasonable aid (il in securing evidence,
(b)
obtaining witnesses, prosecuting o~ defending the action or
proceeding, or effecting settlement, and (ii) in any other lawful
act that in the opinion of the Company may be necessary or
desirable to establish the Title or any other matter as insured if
the Company is prejudiced by the failure of the Insured to
famish the required cooperation, the Company's obligations to
the Insured under the policy shall terminate, lecludle9 any
liability or obligation to defend, prosecute, or continue any
litigation, with regard to the mat[er or matters requiring such
cooperation.
The Company may reasonably require the Insured Claimant to
submit to examinatidn under oath by any authorized
representative of the Company and to produce for examination,
inspection, and copying, at such reasonable times and places
as may be designated by the authedzed rep~aseutative of the
Company, all records, in whatever medium maintained,
including books, ledgers, checks, memoranda, correspondence,
reports, e-malls, disks, tapes, and videos whether bearing a
date before or after Date at Policy, that reasonably par~ain to
the loss or damage. Further, if requested by any authorized
representative of the Company, the Insured Claimant shall grant
its permission, in writing, for any authorized representative of
the Company to examine, inspect, and copy all of these records
in the custody or control of a third party that reasonably pertain
to the lose or damage. All information designated as
confidential by the Insured Claimant provided to the Company
pumuant to this Section shall not be disclosed to others uctess,
in the reasonable judgment of the Company, it is neeessapj in
the administration of the elalm. Failure of the Insured Claimant
to submit for examination under oath, produce any reasonably
requested information, or grant permission to secure reasonably
necessary information from third parties as required in this
subseatJon, unless prohibited by law or governmental regulation.
shall terminate any liability of the Company under this policy as
to that claim.
OPTIONS TO PAY OR O~.IERWlSE SETTLE CLAIMS;
TERMINATION OF UABILITY
In case of a claim under this policy, the Company shall have the
following additional options:
(al To Pay or Tender Payment of the Amount of insurance. To pay
or tender payment of the Amount of Insurance under this policy
togather with any costs, attorneys' fees, and expenses incurred
by the Insured Claimant that were authorized by the Company
up to the time of payment or tender of payment and that the
Company is obligated to pay. Upon the exercise by the
Company of this option, all liability and obligations of the
Company to the Insured under this policy, other than to make
the payment required in this subsection, shall terminate,
ieeleding any liability or obligation to defend, prosecute, or
continue any litigation.
{b) To Pay or Othem4se Sattie With Pat[les Other Than the Insured
or With the Insured Claimant.
(il To pay or otherwise settle with other parties lot or in the
name of an Insured Claimant any elaim insured against
under this policy. In addition, the Company will pay any
costs, attorneys' tees, and expanses 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 otherwise settle with the Insured Claimant the
lose 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
obligations to the Insured under this policy for the claimed loss
or damage, ether than the payments required to be made, shall
terminate, including any liability or obligation to defend,
prosecute, or continue any litigation
I Page 3 Serial No.: O 8911-556600 ~
Fila No: ST10-09332
CONDITIONS (Continued)
8. DETERMINATION AND EXTENT OF UABILITY
This policy is a contract of indemnity 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 liability of the Company for loss or damage under
this policy shall not exceed the lesser of
(i) the Amount of Insurance; or
(ii) the difference between the value of the Title as insured
and the value of the Title subject to the risk insured
against by this policy.
(t)) If the Company pursues its rights under Section 5 of these
Conditions and is unsuccessful in establishing the Title, as
insured.
(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 date the claim was
made by the Insured Claimant or as of the date it is settled
and paid.
(c) In addition to the extent of liability under (a) and (b). the
Company will also pay those costs, attorneys' lees, and
expenses incurred in accordance with Sections 5 and 7 of these
Conditions.
9, LIMITATION OF LIArtlUTY
(a) If the Company establishes the Title, or removes the alleged
defec[, lien. or encumbrance, or cures the lack of a right of
access to or from the Land, or cures the claim of Unmarketable
TAle, all as insured, in a reasonably diligent manner by any
method, including litigation and the completion of any appeals, it
shall have fully podormed its obligations with respect to that
matter and shall not be liable for any loss or damage caused to
the Insured.
(b) In the event of any litigation, including litigation by the
Company or with the Company's consent, the Company shall
have no liability for loss or damage until there has been a final
determination by a court of competent jurisdiction, and
disposition of all 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 the prior written consent of the
Company.
10, REDUCTION OF INSURANCE; REDUC"[1ON OR TERMINATION OF
LIABILITY
All paymeets under this policy, except payments made for costs,
attorneys' fees, and expenses, shall reduce the Amount of Insurance
by the amount of the payment.
11. LIABILITY NONCUMULATIVE
The Amount of Insurance shall be reduced by any amount the
Company pays under any policy insuring 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 Title, and the
amount so paid shall be deemed a payment to the Insured under this
policy.
1Z PAYMENT OF LOSS
When liabiliiy and the extent of loss or damage have been definitely
fixed in accordance with these Conditions, the payment shall be
made within 30 days,
v
13. RIGHTS OF RECOVERY UPON PAYMENT OR SE'rR.EMEHT
(a) Whenever the Company shall have settled and paid a claim
under this policy, it shall be subrngeted and entitled to the rights
of the Insured Claimant in the Title and all other rights and
remedies in respect to the claim that the Insured Claimant has
against any person 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
shall execute documents to evidence the transfer to the
Company of these rights and remedies. The ~nsured Claimant
shall permit the Company to sue, compromise, or setlle in the
name of the Insured Claimant and to use the name of the
Insured Claimant in any transection or litigation involving 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.
(P) The Company's right of subrogation includes the rights of the
Insured to indemniites, guaranties, other policies of insurance,
or bends, notwithstanding any terms or conditions contained in
those instruments that address subrogation rights.
14. AR BFI~ATION
Either the Company or the Insured may demand that the claim or
controversy shall be submitled to arbitration pursuant to the Title
Insurance Arbitration Rules of the American Land Title Association
{"Rules"). Except as provided in the Rulas, there shait be no joieder
or ceeeelidation with claims or controversies of other persons.
Arbitrable matters may include, but are not limited to, any controversy
or claim between the Company and the Insured arising out of or
relating to this peiley, any service in connection w~th its issuance or
the breach of a policy provision, or to any other controversy or claim
arising out of the transaction giving dse to this policy~ All arbitrable
matters when the Amount of Insurance is $2,000,000 or lass shall be
arbitrated at the option of either the Company or the Insured. Alt
arbitrable matters when the Amount of Insurance is in excess of
$2,000,000 shall be arbitrated only when agreed to by both the
Company and the Insured, Arbitration pursuant 1~ this policy and
under the Rules shall be binding upon the parties. Judgment upon
the award rendered by the Arbitrator(s) may be entered in any cour[
of competent jurisdiction.
15. EABILITY MMITED TO THIS POLICY; POMCY ENTIRE
CON~ACT
(a) This policy together with all 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 gl this
policy, this policy shall be construed as a whole,
(b) Any claim of loss or damage that arises out of the status of the
Title or by any action asserting such claim shall be restricted to
this policy,
(c) Any amendment of or endorsement to this policy must be in
writing and authenticated by an aatherized person, er expressly
incorporated by Schedule A gl this policy.
(d) Each endorsement to this policy issued at any time is made a
port gl this polioy and is subject to all of its terms and
provisions. 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, (iii) extend the Date of Policy,
or (iv) increase the Amount of Insurance,
t6. SEVERABILFI'Y
In the event any provision of this policy, in whole or in pad, is held
invalid or unenforceable under applicable law, the policy shall be
deemed not to include that provision or such part held to be invalid,
bat all other provisions shall remain in tall force and effect.
17. CHOICE gE LAW; FORUM
(a) Choice of Law: The Insured acknowledges the Company has
underwrttten the risks covered by this policy and determined the
premium charged therefore in reliance upon the law affecting
interests in ree~ property and applicable to the interpretation,
rights, remedies, or enforcement of policies of title insurance of
the jurisdiction where the Land is located.
Therefore, the court or an arbitrator shall apply the law of the
jur~diction where the Land is located to determine the validity of
claims against the TCLle that are adverse to the Insured and to
interpret and enforce the terms of this policy. In neither case
shall the court or arbitrator apply its conflicts of !aw principles 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 wirbin the United States of Amedca or its territories
having appropriate jedsdictlen.
18, NOTICES, WHERE SENT
Any notice of claim and any other nolice or slalement in writing required to
Serial No.: O-8911 556600
File No: ST10-09332
ALTA OWNER'S POLICY (6/I 7t06}
SCHEDULEA
File No.:
Amount of
Insurance:
Date of
Policy:
1.
ST10-09332 Policy No.: O-8911-556600
$502,796.70 Premium: $2,153.00
December 9, 2010
Name of Insured:
Town of Southold
The estate or interest in the Land that is insured by this policy is:
Development Rights Easement
Title is vested in:
Town of Southold who acquired Developlnent Rights by Grant of Development Rights Easement by KKP, LLC
dated 12/9/2010 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: 120.00 Block: 03.00 Lotp/c011.009
ALTA OWNER'S POLICY (6/17106)
File No.: ST10-09332
SCHEDULE A DESCRIPTION
Policy No.:
O-8911-556600
DEVELOPMENT RIGHTS EASEMENT AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold.
County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of Sound Avenue distant the following two (2) courses and distances fi'om
the corner formed by the intersection of the southerly side of Sound Avenue with the westerly side of Mdt'ich Lane
(Ehsha's Lane):
North 89 degrees 54 minutes 00 seconds West, 489.07 feet;
South 88 degrees 13 minutes 50 seconds West, 119.94 feet to the true pomi or place of beginning;
RUNNING THENCE along land now or formerly of Harbes Farm Riverhead East, LLC and through a concrete
monument, South 19 degrees 59 minutes 10 seconds East, 1,389.36 feet to land now or formerly of P&E, LLC (Town of
Southold Development Rights);
THENCE along said land South 71 degrees 31 minutes 30 seconds West, 305.21 feet to land now or formerly of Patricia
Divello;
THENCE along said land North 19 degrees 53 minutes 50 seconds West, 1,120.73 feet to a point;
THENCE North 70 degrees 06 minutes 10 seconds East, 253.42 feet to a point;
THENCE North 19 degrees 59 minutes 10 seconds West, 277.45 feet to the southerly side of Sound Avenue;
THENCE along the southerly side of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64 feet to the U'ue
point or place of BEGINNING.
RESERVE AREA - NOT TO BE INSURED (for informational purposes only)
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mattituck, Town of Southold,
County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of Sound Avenue distant the following three (3) courses and distances from
the corner formed by the intersection of the southerly side of Sound Avenue with the westerly side of Aldt'ich Lane
(Elisha's Lane):
North 89 degrees 54 minutes 00 seconds West, 489.07 feet:
South 88 degrees 13 minutes 50 seconds West, 119.94 feet:
South 88 degrees 13 minutes 50 seconds West, 52.64 feet to the tree point or place of begi~ming;
RUNNING THENCE South 19 degrees 59 minutes 10 seconds East, 277.45 feet to a point:
THENCE South 70 degrees 06 minutes 10 seconds West, 253.42 feet to land now or formerly of Patricia Divello:
THENCE along said land North 19 degrees 53 minutes 50 seconds West, 351.79 feet to the southerly side of Sound
Avenue;
ALTA OWNER'S POLICY (6/17/06)
THENCE along said southerly side of Sound Avenue the following two (2) courses and distances:
North 85 degrees 38 minutes 20 seconds East, 178.42 feet;
North 88 degrees 13 minutes 50 seconds East. 85.33 feet to the true point or place of BEGINNING.
ACCESS AREA
ALL that certain plot, piece or parcel of land, situate, lying and being in the Hamlet of Mathtuck, Town of Southold,
County of Suffolk and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of Sound Avenue distant the following two (2) courses and distances from
the comer formed by the intersection of the southerly side of Sound Avenue with the westerly side of Aldrich Lane
(Ehsha's Lane):
North 89 degrees 54 minutes 00 seconds West, 489.07 feet:
South 88 degrees 13 minutes 50 seconds West, 119.94 feet to the true point or place of beginning;
RUNNING THENCE along land now or formerly of Harbes Farm Riverhead East, LLC and through a concrete
monument, South 19 degrees 59 minutes 10 seconds East, 268.32 feet;
THENCE South 70 degrees 00 minutes 59 seconds West, 25.38 feet;
THENCE North 19 degrees 59 minutes 10 seconds West, 234.57 feet;
THENCE South 85 degrees 59 minutes 29 seconds West, 25.61 feet;
THENCE North 19 degrees 59 minutes 10 seconds West, 43.15 feet to the southerly side of Sound Avenue;
THENCE along the southerly side of Sound Avenue North 88 degrees 13 minutes 50 seconds East, 52.64 feet to the true
point or place of BEGINNING.
ALTA OWNER'S POLICY ~6/17/06)
SCHEDULE B
PART I
File No.: ST10-09332 Policy No.: O-8911-556600
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:
1. Agreements of Non-Interference with Development Rights as set forth in Libel' 12603 Page 141, Liber 12603 Page
142, Liber 12603 Page 143 and Liber 12603 Page 144 (covers premises and more).
2. Survey exceptions set forth as follows:
a) Nm-therly line: Access Area located;
b) Easterly line: Access Area located; sign located; proposed 10-foot utility easement located; dh't access road
located within Access Area varies with part of easterly line;
c) Southerly line: Dirt farm road varies with record line;
d) Westerly line: Dirt farm road a'averses westerly part of premises
As shown on survey made by Nathan Taft Corwin Ill, last dated 11/2/2010.
3. Rights of tenants or parties in possession, if any.
4. Policy will except the terms and conditions of the grant of Development Rights Easement to be executed by the
grantor and the Town of Southold.
STEWART TITLE
INSURANCE COMPANY
HEREIN CALLED THE COMPANY
STANDARD NEW YORK ENDORSEMENT
(Owner's Policy)
Title No.: ST10-09332 Date of Issue: December 9, 2010
ATTACHED TO AND MADE A PART OF POLICY NUMBER O~8911-556600
i. The following is added as a Covered Risk:
"11. Any statutory lied 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. Exchision Number 5 is deleted, and the following is substituted:
Any lien on the Title for real estate taxes, assessments, water chaxges m' sewer rents imposed by governmeotal authority and
created or attaching betweco Date of Policy and the date of recording of the deed or other instrametu of transfer in the Public
Records that vests Title as Shown in Schedule A.
This endorsement is issued as paxt 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, tiffs endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.
DATED: December 9, 2010
Countersigned By:
Authorized Office or Agent
STEWART TITLE
INSURANCE COMPANY
President
Secretary
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)
SUBORDINATION AGREEMENT
This Agreement made the )__ day of December, 2010 BETWEEN
BRIDGEHAMPTON NATIONAL BANK with offices at 2200 Montauk Highway,
Bridgehampton, New York 11932 party of the first pan, and
TOWN OF SOUTHOLD, a municipal corporation of the State of New York having its principal
office at 53095 Main Road, Southold, New York 11971, a party of the second pan,
WITNESS:
WHEREAS, the said party of the first part now owns and holds the following mortgages or notes
secured thereby:
1. Credit Line Mortgage Dated 12/21/2005 made by EWH Limited Liability Company to
Bridgehampton National Bank to secure the principal sum of $500,000, which mortgage was
recorded onl/9/2006 in Liber 21207, Page 697 in the Office of the Clerk of the County of Suffolk;
2. Comanercial Real Estate Mortgage Dated 2/23/2009 made by EWH Limited Liability Company
to Bridgehampton National Bank to secure the principal sum of $300,000, which mortgage was
recorded on 3/18/2009 in Liber 21798, Page 448 in the Office of the Clerk of the County of Suffolk;
3. Commercial Real Estate Mortgage Dated 2/23/2009 made by EWH Limited Liability Company
to The Bridgehampton National Bank, to secure the principal sum of $200,000, which mortgage was
recorded on 3/18/2009 in Liber 21798 Page 44 in the Office of the Clerk of the County of Suffolk;
4. Spreader A~reement Dated 3/2/2010 made by EWH Limited Liability Company, P & E, LLC and
KKP, LLC with the Bridgehampton National Bank which spreads Mortgage Nos., 1, 2 and 3 over
Tax Lots 011.9, 011.013 through 011.016 and 0600 011.02-01.00-028.000;
5. Mortgage and Security Agreement Dated 3/2/2010 made by EWH limited Liability Company, P
& E, LLC and KKP, LLC, with the Bridgehampton National Bank, to secure the principal sum of
$660,000, which mortgage was recorded on 3/29/2010 in Liber 21932 Page 231 in the Office of the
Clerk of the County of Suffolk;
6. Mortgage and Security Agreement Dated 3/2/2010 made by EWH Limited Liability Company,
P & E, LLC and KKP, LLC to the Bridgehampton National Bank to secure the principal sum of
$500,000, which mortgage was recorded on 3/29/2010 in Liber 21932 Page 232 in the Office of the
Clerk of the County of Suffolk;
WHEREAS, KKP, LLC with an address c/o Peter Harbes, 1002 Bluff Drive North, Baiting Hollow,
New York 11933, the present owner of the premises hereinafter mentioned and described in said
mortgages is about to execute and deliver to said party of the second part, a Grant of Development
Rights Easement conveying and granting an easement upon a portion of the mortgaged premises
described in Schedule "A" annexed hereto; and also described in said easement; and
WHEREAS, the party of the second part has refused to accept said easement unless said mortgages
held by the party of the first part be subordinated in the manner hereinafter mentioned,
NOW, THEREFORE, in consideration of the premises and to induce the party of the second part to
accept the easement and also in consideration of one dollar paid to the party of the first part, the
receipt whereof is hereby acknowledged, the party of the first part hereby covenants and agrees with
the party of the seconds part that said mortgages held by the party of the first part be and shall
continue to be subject and subordinate to the lien of the Grant of Development Rights Easement
dated December 9, 2010 about to be delivered by the Town of Southold simultaneously herewith
(the "Easement"). The Easement consists of the limitations, agreements, covenants, use, restrictions,
rights and conditions set forth therein, intended to restrict further development of the property while
permitting use of the property for agricultural productions and compatible uses thereof as set forth
in the Easement.
IN WITNESS WHEREOF, the party of the first part has duly executed this Agreement the day and
year first above written.
Title
STATE OF NEW YORK )
) SS.~
COUNTY OF SUFFOLK )
On the ~l~day of ~(e.~cc~f~in the year 2010, before
appeared
me, the undersigned, personally
personally known to me, or proved to me on the basis of satisfactory evidence, to be the individual '
whose name is subscribed to the within instrument and acknowledged to me that he 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, execute~nstmment. ~ /(
No~'y Public~'-~ (~
REGINA GOBCZYK ~
comQUalified in Suffolk County
mission Expires April 13, 201~
AFFIDAVIT
STATE OF NEW YORK )
) SS.:
COUNTY OF SUFFOLK )
Peter Harbes, being duly swom, deposes and says:
I. That I am the Member ofKKP, LLC
2. That since KKP, LLC was formed on June 24, 2003 it has been known by no name
other than KKP, LLC.
3. That I make this affidavit knowing that it will be relied upon by Stewart Title
Insurance Company in issuing its policy of title insurance.
Sworn to before me this
day of December, 2010.
Notary Public
PATRICIA L. FALLON
Notary Public, State Of New York
No. 01FA4950146
Qualified In Suffolk County.,
Commission Expires April 24,oZ~//
MELISSA A. SPIRO
LAND PRESERVATION 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
(corner of Main Rd & Youngs Ave)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971-0959
To:
Supervisor Russell
Town Board
Town Clerk
Land Preservation Committee
Town Attorney
Planning Board
Suffolk County Division of Real Estate
Tax Assessors
Building Department
Data Processing
Town Comptroller
Stewardship Managers
Peconic Land Trust, Inc.
The Nature Conservancy
From:
Melissa Spiro, Land Preservation Coordinator
Date: December 10, 2010
Re:
KKP~ LLC to TOWN OF SOUTHOLD
plo SCTM #1000-'120-3-t 1.19
Please be advised that the Town has acquired a development rights easement on the agricultural property listed
below. If you would like additional information regarding the purchase, please feel free to contact me.
LOCATION:
750 Sound Avenue, Mattituck
SCTM #:
part of 1000-120.-3-11.19
PROPERTY OWNER:
KKP, LLC (Peter Harbes)
CONTACT DATE:
November 8, 2010
PURCHASE DATE:
Thumday, December 9, 2010
PURCHASE PRICE:
$ 502,796.70 (based on 7.9809 buildable acres @ $63,000/buildable
acre)
TOTALPARCELACREAGE:
10.000 acres
EASEMENT ACREAGE:
8.1638 acres (includes 0.1829 acre access area - not included in
purchase price)
RESERVED AREA:
1.84 acre
ZONING: A-C
FUNDING:
CPF 2% Land Bank
MISCELLANEOUS:
At time of purchase, a 7,966 sq ft area of Easement is being used for
parking, and access to parking and to1 residential dwelling on adjacent
property. This 7,966 sq ft area is shown as Access Area on the survey
and is further described in the Easement. Although Easement includes
this area, purchase did not include payment for the 7,966 sq ft area.
CLOSING STATEMENT
KKP, LLC
to TOWN OF SOUTHOLD
Total Development Rights Easement- 8.1638 acres
Total Parcel Acreage - 10.000 acres
Reserved Area - 1.84 acres (80,000 sq. ft.)
Access Area - 0.1829 acre (not included in purchase price)
Premises: 750 Sound Avenue, Mattituck
Part of SCTM #1000-120.-3-11.9
Closing took place on Thursday, December 9, 2010
at 2:30 p.m., Southold Town Hall Annex
Purchase Price of $ 602,796.70 (based upon 7.9809 buildable acres
$63,0001buildable acre) disbursed as follows:
Payable to Bridgehampton National Bank
Check #107976 (121912010)
$ 460,000.00
Payable to KKP, LLC
Check #107979 (121912010)
$ 49,741.70
Payable to Charles R. Cuddy, Esq.
Check #107977 (12/9/20 I0)
$ 3,055.00
Expenses of Closing:
Appraisal
Payable to Eiinor Brunswick, MAI
Check #107082 (101512010)
$ 1,750.00
Survey
Payable to Nathan Taft Corwin III Land Surveyor
Check #108265 (12/14/2010)
$ 2,300.00
Environmental Report (Phase I ESA)
Payable to Nelson, Pope & Voorhis, LLC
Check #108089 (11/30/2010)
$ 1,100.00
Title Report
Payable to Stewart Title Insurance Company
Check #107980 (1219/2010)
Title insurance policy $ 2150
Recording easement $ 275
Certified Copy $ 50
$ 2,475.00
Title Closer Attendance Fee
Payable to Patricia Fallon
Check #107978 (12/9/2010)
$ 100.00
Those present at Closing:
Lisa Clare Kombrink, Esq.
Peter Harbes
Charles R. Cuddy, Esq.
Patricia Fallon
Melissa Spiro
Melanie Doroski
Attorney for Town of Southold
Seller
Attorney for Seller
Title Company Closer
Land Preservation Coordinator
Land Preservation Sr Administrative Asst
TOWN OF SOUTHOLD
VENDOR 002640 BRIDGEHAMPTON NATIONAL BANK 12/09/2010 CHECK 107976
FUND & ACCOUNT P.O.# INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 TBR899 120910 KKP-8.1638 ACR DEV RGHTS 450,000.00
TOTAL 450,000.00
TOWN OF SOUTHOLD
VENDOR 011435 KKP, LLC 12/09/2010 CHECK 107979
FUND & ACCOUNT P.O.# INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 TBR899 120910 KKP-8.1638 ACR DEV RGHTS 49,741.70
TOTAL 49,741.70
lob 0"'
TOWN OF SOUTHOLD
VENDOR 003715 CHARLES R CUDDY AS ATTORNEY 12/09/2010 CHECK 107977
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 TBR899 120910 KKP-SELLER'S LEGAL FEE 3,055.00
TOTAL 3,055.00
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: etinor~bmnswickappraisl.com
Sanford S. Brunswick
Elinor Brunswick, MAI
State Certified General Appraisers
Armand Brunswick, MAI
1881-1960
September 8, 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. Spko, Land Preservation Coordinator
Development Rights Easement Acquisition
KKP, LLC. Property
750 Sound Avenue
Mattimck, New York
Tax MapNumber: I000-120-3-11.009
INVOICE# 1000-17
Real Estate Appraisal
$1,750
Thank you
DEPT. OF LAND
PRESERVATION
TOWN OF 80UTHOLD
VEeR 00S409 BLINOR BRUNSWICK, MAI 10/05/2010 CHECK 107082
FUND & ACCOUNT P.O.# INVOICE DESCRIPTION AMOUNT
H3 .8660.2.500.200 21561 1000-17 APPRAISAL-750 SOUND AVE 1,750.00
TOTAL 1,750.00
,.%
NATHAN TAFT CORWIN III LAND SURVEYOR, P.C.
P.O. BOX 16
Jamesport, New York 11947
Office Location:
1586 Main Road, Jamesport NY
Phone # 631-727-2090 Fax# 631-727-1727
Bill To
Town of Southold
Department of Land Preservation
P.O. box I 179
Southold, New York 11971
Att: Melissa
Invoice
Date Invoice #
12/1/2010 3941
Survey (POrt21565)
I
Job # I Client:
I
30-262
Description
Terms I S.C. Tax Lot No.
30 DAYS I 1000-120-03-11.9
Amount
2,300.00
GL108S 20 TOWN OF SOUTHOLD
View i ** Actual Hi
Vendor.. 013975 NATHAN T CORWIN III
Y=Select
JE Date Trx. Date Fund Account
............................. Begi
., 10/09/2007 10/09/2007 H3 .600
.. 2/03/2009 2/03/2009 H3 .600
6/30/2009 6/30/2009 A .600
[~ 12/14/2010 12/14/2010 H3 .600
F2=Shift Up F3=Exit F10=Prev View
Select Record(s) or Use Action Code
Disburs Inquiry by Vendor Name
.............. Detail--GL100N .............
: W-12142010-498 Line: 325 Formula: 0
: Account.. H3 .600
: Acct Desc ACCOUNTS PAYABLE
: Trx Date .....
: Trx Amount...
: Description..
: Vendor Code..
: Vendor Name..
: Alt Vnd..
: CHECK ........ 108265 SCNB
12/14/2010 SDT 12/15/10
2,300.00
SURVEY KKP,LLC(HARBES)
013975 Pay Method:
NATHAN T CORWIN III
: Invoice Code. 3941
: VOUCHER ......
: P.O. Code .... 21565
: Project Code.
: Final Payment F Liquid.
: Type of 1099. N BOX.
: Fixed Asset.. Y
: Date Released 12/14/2010
: Date Cleared. 12/31/2010
Addl.
: F3=Exit F12=Cancel
:
TOWN OF SOUTHOLD
VENDOR 013975 NATHAN T CORWIN III 12/14/2010 CHECK 108265
FUNqD & ACCOUNT P.O.g INVOICE DESCRIPTION Da~OUNT
H3 .8660.2.600.100 21565 3941 SURVEy KKP, LLC(H~RBES) 2,300.00
TOTD~L 2,300.00
[ Invoice J
Nelson Pope & Voorhis, LLC
572 Walt Whitman Road
Melville, NY 11747
(631) 427-5665
Melissa Spiro
Town of Southold Dept of Land Preserv
Town Hall
53095 State Rt 25, PO Box 1179
Southold. NY 11971
November 19, 2010
Project No: V10X156,001.000
Invoice No: 7861
Project Manager Steve~ McGinn
Project
V10X156.001.000 KKP. LLC Property, Mattituck
Professional Services
.......Phase ' ....... -S-~ ......... ~ ...........................................................
Task 1300 PhaselESA
Contract dated October 11, 2010:
Item 1. Prepare Phase I Environmental SiteAssessment
Work Performed thru 10/27/10
Fee
Total Fen 1, t00.00
Percent Complete fOO.OO
Total Earned 1,100.00
Previous Fee Billing 0.00
Current Fee Billing 't,'{13(I.0{)
Total Fee
Tdtal~is Task $1,1(~L00,
Total this Phase $1,100~00
Total this Invoice $1,100.00
GL108S 20 TOWN OF SOUTHOLD
View 1 ** Actual Hi
Vendor.. 014161 NELSON, POPE & VOOR
Y=Select
JE Date Trx. Date Fund Account
......................... Use Acti
.. 10/19/2010 10/19/2010 A .600
.Y. 11/30/2010 11/30/2010 H3 .600
F2=Shift Up F3=Exit F10=Prev View
Select Record(s) or Use Action Code
Disburs Inquiry by Vendor Naa
.............. Detail--GL100N .............
: W-11302010-338 Line: 184 Formula: 0
: Account.. H3 .600
: Acct Desc ACCOUNTS PAYABLE
: Trx Date ..... 11/30/2010 SDT 11/29/10
: Trx Amount... 1,100.00
: Description.. PHASE I ESA-KKP,LLC-MTTK
: Vendor Code.. 014161
: Vendor Name.. NELSON, POPE & VOORHIS,
: Alt Vnd..
: CHECK ........ 108089 SCNB
: Invoice Code. 7861
: VOUCHER ......
: P.O. Code .... 21564
: Project Code.
: Final Palnnent F Liquid.
: Type of 1099. M BOX. 07 Addl.
: Fixed Asset.. Y
: Date Released 11/30/2010
: Date Cleared.
: F3=Exit F12=Cancel
:
TOWN OF SOUTHOLD
VENDOR 014161 NELSON, POPE & VOORHIS, LLC 11/30/2010 CHECK 108089
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 21564 7861 pHASE 1 ESA-KKP,LLC-MTTK 1,100.00
TOTAL 1,100.00
]1, O"'
STEWART TITLE INSUR_A~CE COMPANY
707 Westchester Avenue, Suite 411, White Pla/ns, New York 10604
Phone: 800-433-4698 or 914-993-9393 Fax: 914-997-1698
FAIR ~AIK, ET VALUE RIDER (Optio~ml) PREMIUM
MORTGAGE INSURANCE COVEI~4GE PREMIUM
Residential
Adjastable Rate Rider
MORTGAGE T~X (Mo~gagee)
COMMUNI~ PRESERVATION FUND
DEPARTMENT~ SEARCHES
STREET ~PORT
ESCROW DEPOSIT FEE
( ) MORTGAGE ~FIDA~T(S)
( ) ASSIGNMENT(S)
CLOSER CHARGES, 1F ANY: PICK-UP FEE
OTHER:
PATRICIA L. FALLON
Title Closer
TOWN OF SOUTHOLD
VENDOR 019624 STEWART TITLE INSOPJ%NCE CO. 12/09/2010 CHECK 107980
FUND & ACCOUNT P.O. ~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100
.8660.2.600.100
H3 .8660.2.600.100
TBR899 ST10-09332A
TBR899 ST10-09332B
TBR899 ST10-09332C
KKP,LLC-TITLE INS.POLICY 2,150.00
KKP,LLC-RECORD.EASEMENT 275.00
KKP-CERT COPY RECD EASMT 50.00
2,475.00
Il'
TOWN OF SOUTHOLD
VENDOR 006013 PATRICIA FALLON 12/09/2010 CHECK 107978
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 TBR899 ST10-09332 KKP,LLC-TITLE CLOSE.FEE 100.00
TOTAL 100.00
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