HomeMy WebLinkAboutSwain, Bradley T (2) MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
rnelissa.spiro@town.southold.ny.us
Telephone (631) 765-5711
Facsimile (631) 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(corner 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: Elizabeth A. Neville
Town Clerk
From:
Date:
Re:
Melanie Doroski
Sr. Administrative Assistant
March 28, 2012
BRADLEY T. SWAIN to TOWN OF SOUTHOLD
Development Rights Easement- 12.6836 acres
SCTM #: 1000-107.-5-1.4
Location: 4390 Mill Lane, Mattituck
Betty:
Enclosed for safekeeping in your office, please find the following documents:
· Original Grant of Development Rights Easement dated January 26, 2012, between
Bradley T. Swain and the Town of Southold, recorded in the Suffolk County Clerk's
office on 2/9/2012, in Liber D00012684 at Page 634
· Title insurance policy #27-031-06-33-55276 issued by Fidelity National Title
Insurance Company on January 26, 2012, in the insured amount of $824,434.00
(title #Fl 1-7404-82586SUFF)
· Closing Statement
Thank you.
Melanie
encs.
cc: Assessors w/copy of recorded easement
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
Number of Pages: 23
Receipt Number : 12-0016208
TRANSFER TAX NUMBER: 11-13806
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
107.00 05.00
EXAMINED AND CHARGED AS FOLLOWS
$824,434.00
02/09/2012
02:11:30 PM
D00012684
634
Lot:
001.004
Received the Following Fees For Above Instrument
Exempt
Page/Filing $115.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $14.95 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TRANSFER TAX NUMBER:
THIS PAGE
11-13806
IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
$20
$15
$0
$30
$0
$204
Exempt
00 NO
00 NO
00 NO
00 NO
00 NO
95
JUDITH A. PASCALE
County Clerk, Suffolk County
PRESERVATION
Number ofpages o'
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
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Deed / Mortgage Instrument Deed / Mortgage Tax Stamp Recording / Filing Stamps
FEES
Page / Filing Fee
Hundling
TP-584)
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed.
Affidavit
ed Co
NYS Surcharge
Other
4 ] Dist./~Bl
Real Property
Tax Service
Agency
Verification
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8
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
~o.~x i/7~
Mail to: Judith A. Pascale, Suffolk County Clerk
5
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
or
Spec·/Add.
TOT. MTG. TAX
Dual Town__ Dual Connty __
Held for Appointment
Transfer Tax ~.-/x~.rtlt°7'''''
Mansion Tax
The property covered by this mortgage is
or will be improved by a one ur two
flintily dwelling only,
YES or NO
If NO, see appropriate tax clause on
page # pf this instrument.
Commnnity Pre*ervation Pund
Consideration Amount
CPF Tax Due $
Inlproved
Vacant Land
TD
TD
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7 [ Title Company ~nformation
310 Center Drive, Riverhead, NY 11901 Co. Name ~IQ,~.4?"~/A~'f-/vI,.,:,o~. 7~ :rZ~'
www. suffolkcountyny, gov/clerk I Title #
This page forms part of the attached
Suffolk County Recording & Endorsement Page
(sPE:iFY TYPE O: INSTR MENT) ,
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
TO In the TOWN of t5 0~/77-/z5~O
% ~[/~ O~: ~.~l':rT~ LO In the VILLAGE
or HAMLET of ~ ~1 ~
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over)
GRANT OF_DEVELQPMEN~T RIGHTS EA_$_Efd_ENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on
the~!~day of January, 2012 at Southold, New York. The parties are
Bradley T. Swain residing at 2226 Mohegan Drive, Apt. 302, Falls
Church, Virginia 22043 (herein called "Grantor"), and the TOWN OF
SOUTHOLD, a municipal corporation, having its principal office at
53095 Main Road, P.O. Box 1179, Southold, New York 11971 (herein
called "Grantee").
INTR~OD_UCTION
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 #1000-107-5-1.1 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 John T. Metzger, Peconic Surveyors, P.C., dated July 28,
2011 and last revised December 5, 2011 (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 I 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 1986 and
1989 as adopted by the Town Board, Town of Southold, and §272-a of
the New York State Town Law ("Town Law") to protect environmentally
sensitive areas, preserve prime agricultural soils, to protect the scenic,
open space character of the Town and to protect the Town's resort and
' 'agricUltural economy; and
WHEREAS, the Property in its present scenic and agricultural
condition has substantial and significant value as an aesthetic and
agricultural resource since it has not been subject to any substantial
development; and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor
and Grantee have, in common, the purpose and objective of protecting
and conserving the present state and inherent, tangible and intangible
values of the Property as an aesthetic, natural, scenic and agricultural
resource; and
WHEREAS, Grantee has determined it to be desirable and
beneficial and has requested Grantor, for itself and its successors and
assigns, to grant a Development Rights Easement to Grantee in order
to restrict the further development of the Property while permitting
compatible uses thereof;
NOW THEREFORE, in consideration of EIGHT HUNDRED TWENTY
FOUR THOUSAND FOUR HUNDRED THIRTY FOUR AND 00/:~00
DOLLARS ($824,434.00) and other good and valuable consideration
paid to the Grantor, the receipt of which is hereby acknowledged, the
Grantor does _h~reb¥ grant, transfer, bargaip,_..~ell and convey to they//
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 HAVE AND 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 for and on behalf of its legal
representatives, successors and assigns, hereby covenants and agrees
as follows:
0.0! Grantor's W_arra_nty
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, and possesses the right to grant this Easement.
0.02 Gr~ante_e_'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 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_ Go~err~mental 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 ("IRC") and other federal statutes.
0.05_ Ba_s_eline_ Doc_ume_ntation
Grantee acknowledges by acceptance 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 ]ohn T. Metzger, Peconic
Surveyors. P.C., dated 3uly 28, 2011 and last revised December 5,
2011 and a Phase 1 Environmental Site Assessment dated August 16,
2011 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.
0.0_6 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.O1 Type
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall
include any and all of those limitations, covenants, use restrictions,
rights, terms and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest
and right to prohibit or restrict the use of the Property for anything
other than uses consistent with the terms of this Easement, including
4
'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 §301(2)(a)-0) of
the New York State Agriculture and Markets Law ("Agriculture and
Markets Law"), now, or as said §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 D u_ra tion_
This Easement shall be a burden upon and run with the Property
in perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal
interest in the Property, and shall extend to and be binding upon
Grantor, Grantor's agents, tenants, occupants, heirs, personal
representatives, successors and assigns, and all other individuals and
entities and provides Grantee with the right to administer, manage and
enforce the Easement as provided herein. The word "Grantor" when
used herein shall include all of those persons or entities. Any rights,
obligations, and interests herein granted to Grantor and/or Grantee
shall also be deemed granted to each and every one of its subsequent
$
agent.s, 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 EIGHT HUNDRED TWENTY FOUR THOUSAND
FOUR HUNDRED THIRTY FOUR AND 00/100 DOLLARS ($824,434.00)
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 Sections 1.02 and 4.06 of this
Easement.
3,02 Excavation and Removal of Materials; Min[n_g
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
changed, except in connection with normal agricultural/horticultural
activities, all of which shall require the prior written consent of
6
'Grantee, including but not limited to from the Land Preservation
'committee.
3.03 Subd!vision
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 l0 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 Dumpi_gg
The dumping or accumulation of unsightly or offensive materials
including, but not limited Lo 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 .Utiliti~es
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 §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 be used for the creation or placement of utilities to
service adjacent properties, provided said properties are used in
agricultural production and are subject to a development rights
easement or other conservation instrument.
3.0~7 Prohi_bited 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
§30i(2)(a)-(j) of the Agriculture and Markets Law, now or as said
§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
exten, ding 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 Draina~qe
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.
3.1_0 DeveJopmen~ Rights
The use of the acreage of this Property for purposes of
calculating lot yield on any other Property shall be prohibited. Grantor
hereby grants to Grantee all existing development rights (and any
further development rights that may be created through a rezoning of
the Property) on the Property, except for the right to construct,
maintain and replace any pre-existing structures, and to construct new
structures, as such rights may be provided in Section 4.06 and this
Easement, 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 RIG HT~S
4;0_10wne_rship
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 ARTTCLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession
of the Property.
4.03 Use
Grantor shall have the right to use the Property in any manner
and for any purpose consistent with and not prohibited by this
9
Easement, as well as applicable local, State, or federal law. Grantor
'shall have the right to use the Property for uses, improvements and
activities permitted by the Town Code, now or in the future, on
agricultural lands protected by a development rights easement or
other instrument, including, but not limited to farmstands and for
educational or training programs related to agricultural production or
activities.
Grantor shall also have the right to use the Property for
traditional private recreational uses, provided such recreational uses
are conducted for the personal enjoyment of Grantor, are compatible
with farming, and are otherwise consistent with and do not derogate
from or defeat the Purpose of this Easement or other applicable law.
These uses shall not be offered or provided for the commercial
purposes, including the commercial gain of Grantor or others.
4.0~ _~Landsc_aping Activities
Grantor shall have the right to continue the current and/or
customary modes of landscaping, pruning and grounds maintenance
on the Property as evidenced by the documentation set forth in
Section 0.05. Grantor shall have the right to remove or restore trees,
shrubs, or other vegetation when dead, diseased, decayed or damaged
or interfering with agricultural production, to thin and prune trees to
maintain or improve the appearance of the property, and to mow the
property.
4.05 Agricultural Production and Activities
Grantor shall have the right to engage in all types of agricultural
production as the 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 §30:~(2)(a)-(j) of
the Agriculture and Markets Law, now, or as said §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 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
10
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 St_ructures
A. Allowable Improvements. 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
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 and
utilities to service adjacent properties used in
agricultural production and subject to a development
rights easement or other conservation instrument;
(ii)
New construction, including drainage improvement
structures, provided such structures are necessary
for or accessory to agricultural production;
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;
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. In the event of damage
resulting from casualty loss to an extent which renders repair of any
existing improvements or improvements built or permitted pursuant to
this Section 4.06 impractical, erection of a structure of comparable
size, use, and general design to the damaged structure shall be
permitted in kind and within the same general location, subject to the
review and written approval of Grantee, pursuant to applicable
provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction
of any permanent or temporary structures as permitted in Section
4.06 herein and shall file all necessary applications and obtain all
necessary approvals that may be required by this Easement or by the
Town Code, and shall provide documentation as may be required for
such applications.
4.0~8 Alienab_!!j.ty
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.~0_9 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.
ARTICL~E 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
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 open and does not engage in
agricultural production for two (2) consecutive years, then Grantor
shall implement a Natural Resources Conservation Plan (the "Plan")
approved by Grantee, including the Land Preservation Committee, to
maintain or restore the Property to the condition in which it existed on
13
the date of this Easement, as evidenced by the documentation referred
to ih 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
Grantee shall have the right to enter upon the Property at
reasonable times, upon prior notice to Grantor, and in a manner that
will not interfere with Grantor's quiet use and enjoyment of the
Property, for the purpose of inspection to determine whether this
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 or by any other governmental
agencies.
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 Rights of Grantee
Grantor acknowledges and agrees that Grantee's remedies at
law for any violation of this Easement may be inadequate. Therefore,
in addition to, and not as a limitation of, any other rights of Grantee
hereunder at law or in equity, in the event any breach, default or
violation of any term, provision, covenant or obligation on Grantor's
part to be observed or performed pursuant to this Easement is not
cured by Grantor within twenty (20) 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
Property affected by such breach, 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 twenty (20) days.
b.04 Notic_e
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
15
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
A'ttorney, 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
SiX 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
shall not constitute a waiver of any other remedy or relief or the use of
such other remedy or relief at any other time.
6.0~6 Extinguishment of Easemept/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.
16
ARTICLE SEVEN
MISCELLANEOUS
7.0_1 Entire Understanding
This Easement contains the entire understanding between the
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.
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
and any regulations promulgated thereunder 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 §170(h). Any such amendment shall apply
retroactively in the same manner as if such amendment or
amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be
alienated except pursuant to the provisions of Chapter 70 of the Town
Code or any successor chapter and other applicable laws, upon the
adoption of a local law authorizing the alienation of said rights and
interest, following a public hearing and, thereafter, ratified by a
mandatory referendum by the electors of the Town of Southold. No
subsequent amendment of the provisions of the Town Code shall alter
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 Internal Revenue
17
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, l~f 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.
7.0_4_ Severability
Any provision of this Easement restricting Grantor's activities,
which is determined to be invalid or unenforceable by a court shall not
be invalidated. Instead, that provision shall be reduced or limited to
whatever extent that court determines will make it enforceable and
effective. Any other provision of this Easement that is determined to
be invalid or unenforceable by a court shall be severed from the other
provisions, which shall remain enforceable and effective.
7.05 Governing Law
New York law applicable to deeds to and easements on land
located within New York shall govern this Easement in all respects,
including validity, construction, interpretation, breach, violation and
performance.
7.06 Interpretation
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 Warrantie_s
The warranties and representations made by the parties in this
Easement shall survive its execution.
7..09 Reco[din~q
Grantee shall record this Easement in the land records of the
office of the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted
solely for convenient reference, and shall be ignored in its
construction.
7.11 Proceeds
The grant of this Easement gives rise to a property right,
immediately vested in Grantee, which, for purposes of calculating
proceeds from a sale or other disposition of the Property as
contemplated under Section 6.06 (Extinguishment of Easement), shall
have a value equal to a percentage of the value of the Property
unencumbered by this Easement (the "Proportionate Share"). The
Proportionate Share is determined by dividing the value of this
Easement, calculated as of the date hereof, by the unencumbered
value of the Property, as reflected in an appraisal obtained by Grantee
with a valuation date of July 26, 2010. The Proportionate Share is
71%. The Proportionate Share shall remain constant (subject to
reasonable adjustment to the extent permissible under Section 170(h)
of the Internal Revenue Code for any improvements which may
hereafter be made on the Property).
19
TN 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:
BRADk~ T. SWAIN
ACKNOWLEDGED AND ACCEPTED:
TOWN OF S~THOLD, Grantee
Sc~t A. Russell, Supervisor
City/County of Fairfax
Commonwealth of Virginia
STATE OF NEW YORK)
,--,-~, ,A~-~-~/,~ ......... The fore~oin~ instrument was acknowledged
~u,v,, ur ~UhhULK), SS: Before me this ~Y 0~20~ ~Y ~ _~
On the ~ay o~ in l~e year 20~2 before me, the
unde~ign~, pe~n~ly app~red Bradley ~ Swain, pe~onally known to me or
pmv~ to me on the basis of ~tisfa~o~ evidence to ~ the individual (s) whose
name (s) is (are) subscrib~ to the within in~rument and acknowledg~ to me ~at
he/she/they executed the ~me in his/her/their capaci~ (i~), and that by
his/her/their signature(s) on the instrument, the individual(s), or the pe~on u~n
behaff of which the individual(s), a~e¢ ~ut~ the instrument.
Si~um~ ~f individdal ~aking acknowledgement
~A TE OF NEW YORK ) Notary Public
Notary Registration Number:. I~/S~
COUN~ OF SUFFOLK ) SS: Mycommissionexpires:~
On this ~ day of ~ ~ in the year 20~2 before me, the
undersigned, pe~onally appeared Sco~ A. Russell, personally known to me or
pmv~ to me on the basis of satisfa~o~ evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they ex~uted the same in his/her/their capad~(ies), and that by
his/her/their signature(s) on the in~rument, the individual(s), or the pe~on
upon behaff of which the individual(s) a~ed, executed the instrument.
~o~ Po~l~c
PATRICIA L. FALLON
Notary Public, State Of New York
No.
Oual f ed n
Commission Expires Ap~l 24, ~1~
20
FIDELITY NATIONAL TITLE INSURANCE COMPANY
TITLE NO. F11-7404-82586SUFF
SCHE1)ULE '~' (Description)
Amended 01/13/12
ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southo[d, County of Suffolk
and State of New York, bounded and described as follows:
Beginning at a monument on the easterly side of Mill Lane at the northwesterly comer of land now or formerly of
Thomas Coliccio & Lori Sulverbush and the southwesterly comer of the premises herein described; said monument being
North 18 degrees 58 minutes 10 seconds West, 300.00 feet from the comer formed by the intersection of the easterly side
of Mill Lane and the northerly side of Wickham Avenue;
Running Thence North 18 degrees 58 minutes 10 seconds West along the easterly side of Mill Lane, 654.65 feet;
Thence through land now or formerly of Bradley T. Swain the following two courses and distances:
1) North 72 degrees 46 minutes 10 seconds East, 333.15 feet; and
2) North 18 degrees 58 minutes 10 seconds West, 360.36 feet to [and now or formerly of Lisa Caracciolo & Louis
Caracciolo Jr.;
Thence North 72 degrees 46 minutes 10 seconds East along said land, 318.93 feet to land now or formerly of B & H
Farms;
Thence along said land now or formerly of B & H Farms the following two courses and distances:
1) South 20 degrees 50 minutes 10 seconds East, 235.74 feet; and
2) South 20 degrees 09 minutes 00 seconds East, 789.59 feet to land now or formerly ofGiacinta & Raymond Dohren;
Thence South 76 degrees 25 minutes 20 seconds West along said land, 317.37 feet to land now or formerly of Thomas
Coliccio & Lori Silverbush aforementioned above;
Thence South 71 degrees 01 minute 50 seconds West along said land, 359.76 feet to the monument on the easterly side of
Mill Lane at the point or place of BEGINNING.
THE POLICY TO BE ISSUED under this commitment will insure the title to such buildings and improvements on the premises which
by law constitute real property.
FOR CONVEYANCING ONL Y: Together with all the right, title and interest of the party of the first part, of in and to the land lying
in the street in front of and adjoining saidpremises.
SCHEDULE A-I (Description)
Rev. (03/04)
OFidelity National Title Insurance Company
Policy Number: 27-031-06-33- 5 5 2 7 6
AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (6/17/06)
WITH NEW YORK COVERAGE ENDORSEMENT APPENDED
Issued by
Fidelity National Title Insurance Company
Any notice of claim and any other notice or statement in writing required to be given to the 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, FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corpora-
tion (the "Company") insures, as of Date of Policy and, to the extent 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 of:
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 li[nited 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 of any person or Entity to have authorized a transfer or conveyance;
(iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or deliv-
ered;
(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 defective 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 affecting the Tire 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 im-
provements located on adjoining land.
3. Unmarketable Title.
4. No right of access to and from the Land.
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to
building and zoning) restricting, regulating, prohibiting, or relating to
(a) the occupancy, use, or enjoyment of the Land;
(b) the character, dimensions, or location of any improvement erected on the Land;
(c) the subdivision of land; or
(d) environmental protection
FORM 27 031 06 33 (6/08) ALTA Owner's Policy (6-17 06) w/New York coverage Endorsement Appended
OFidelity National Title Insurance Company
Policy No.: 27-031-06-33-55276 Title No.: F11-7404-82586SUFF
Amount of Insurance: $824,434.00
1. Name of Insured:
SCHEDULE A
Date of Policy: January 26, 2012 at 9:00 AM
Town of Southold
The estate or interest in the land which is covered by this policy is:
EASEMENT
Title to the estate or interest in the land is vested in:
Town of Southold
Development Rights Easement made by Bradley T. Swain dated 01/26/12 and recorded 02/09/12 in Liber 12684
page 634.
The land referred to in this policy is described as follows:
See Schedule A-1 (Description), following.
Schedule A Owner's Policy Page I
Rev. (02/04)
OFidelity National Title Insurance Company
Policy No: 27-031-06-33-55276 Title No.: F11-7404-82586SUFF
SCHEDULE A-1
Description
Amended 01/13/12
ALL that certain plot, piece or parcel of land, situate, lying and being at Mattituck, Town of Southold, County of Suffolk
and State of New York, bounded and described as follows:
Beginning at a monument on the easterly side of Mill Lane at the northwesterly comer of land now or formerly of
Thomas Coliccio & Lori Sulverbush and the southwesterly comer of the premises herein described; said monument being
North 18 degrees 58 minutes 10 seconds West, 300.00 feet from the comer formed by the intersection of the easterly side
of Mill Lane and the northerly side of Wickham Avenue;
Running Thence North 18 degrees 58 minutes 10 seconds West along the easterly side of Mill Lane, 654.65 feet;
Thence through land now or formerly of Bradley T. Swain the following two courses and distances:
1) North 72 degrees 46 minutes 10 seconds East, 333.15 feet; and
2) North 18 degrees 58 minutes 10 seconds West, 360.36 feet to land now or formerly of Lisa Caracciolo & Louis
Caracciolo Jr.;
Thence North 72 degrees 46 minutes 10 seconds East along said land, 318.93 feet to land now or formerly ofB & H
Farms;
Thence along said land now or formerly ofB & H Farms the following two courses and distances:
1) South 20 degrees 50 minutes 10 seconds East, 235.74 feet; and
2) South 20 degrees 09 minutes 00 seconds East, 789.59 feet to land now or formerly of Giacinta & Raymond Dohren;
Thence South 76 degrees 25 minutes 20 seconds West along said land, 317.37 feet to land now or formerly of Thomas
Coliccio & Lori Silverbush aforementioned above;
Thence South 71 degrees 01 minute 50 seconds West along said land, 359.76 feet to the monument on the easterly side of
Mill Lane at the point or place of BEGINNING.
Schedule A-I (Description) Owner's Policy Page 2
Rev. (02/04)
OFidelity National Title Insurance Company
Policy Number: 27-031-06-33-55276 Title No.: F11-7404-82586SUFF
SCHEDULE B - PART I
Exceptions from Coverage
This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or expenses)
which arise by reason of:
1. Rights of tenants and persons in possession.
2. Survey made by Peconic Surveyors, P.C. dated July 28, 2011, and last revised December 5, 2011, shows the
"Development Rights Easement Area" as a farm field;
A. Edges of farm field, grass and vegetation shown thereon. No encroachments shown.
3. 2011/2012 Second Half Town/School Tax not yet due.
Schedule B Owner's Policy Page 3
Rev. (02/04)
OFidelity National Title Insurance Company
STANDARD NEW YORK ENDORSEMENT
(OWNER'S POLICY)
1. The following is added as a Covered Risk:
"11. Any statutory lien for services, labor or materials furnished prior to the date hereof, and which has now gained or which may
hereafter gain priority over the estate or interest of the insured as shown in Schedule A of this policy."
2. Exclusion Number 5 is deleted, and the following is substituted:
5. Any lien on the Title for real estate taxes, assessments, water charges or sewer rents imposed by governmental authority and
created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public
Records that vests Title as Shown in Schedule A.
THIS ENDORSEMENT is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and
provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance.
To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this
endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior
endorsements.
Fidelity National Title Insurance Company
STANDARD NEW YORK ENDORSEMENT ( I I/1/08)
FOR USE WITH ALTA LOAN POLICY (6-17 06)
EXCLUSIONS FROM COVERAGE
The fi)llowing matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, nr expenses that arise by reason
CONDITIONS
1. DEFINITION OF TERMS
The following terms when used in this policy mean:
(a) "Amount of Insurance": The amount stated in Schedule A, as may be in-
creased or decreased by endorsement to this policy, increased by Section
8(b), or decreased by Sections I 0 and I I of these Conditions.
(b) "Date of Policy": The date designated as "Date 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 "insured" also includes
(A) successors to the Title of the Insured by operation of law as dis
tinguished 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) successors to an Insured by its conversion to another kind of
Entity;
(D) a grantee of an Insured under a deed delivered without payment
of actual valuable consideration conveying the Title
(]) if the stock, shares, memberships, or other equity interests
of the grantee are wholly-owned by the named Insured,
(2) if the grantee wholly owns 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) reserving, however, all rights
and defenses as to any successor that the Company would have had
against any predecessor Insured.
(e) "insured Claimant": An Insured claiming loss or damage.
(f) "Knowledge" or"Known": Actual knowledge~ not constructive knowledge
or notice that may be imputed to an Insured by reason of the Public Records
or any other records that impart constructive notice of matters affecting the
Title.
(g) "Land": The land described in Schedule A, and affixed improvements that
by law constitute real property. The term "Land" does not include any prop-
erty beyond the lines of the area described in Schedule A, nor 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": Mortgage, deed of trust, trust deed, or other security instru-
ment, including one evidenced by electronic means authorized by law.
(i) "Public Records": Records establisbed under state statutes at Date of Policy
for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without Knowledge. With respect to
FORM 74 031 06 33
Covered Risk 5(d), "Public Records" shall also include environmental pro
tection 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
would permii 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 of marketable title.
2. CONTINUATION OF INSURANCE
The coverage of this policy shall continue in force as of Date of Policy in favor of
an Insured, but only so long as the insured retains an estate or interest in the Land, or
holds an obligation secured by a purchase money Mortgage given by a purchaser from
the Insured, or only so long as the Insured shall have liability by reason of warranties
in any transfer or conveyance of the Title. This policy shall not continue in force in
favor of any purchaser from the Insured of eitber (i) an estate or interest in the Land, or
(ii) an obligation secured by a purchase money Mortgage given to the Insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The Insured shall notify the Company promptly in writing (i) in case of any litigation
as set forth in Section 5(a) of these Conditions. (ii) in case Knowledge shall come to an
Insured hereunder of any claim of title or interest that is adverse to the Title, as insured,
and that might cause loss or damage for which the Company may be liable by virtue of
this policy, or (iii) if the Title, as insured, is rejected as Unmarketable Title. If thc
Company is prejudiced by the failure of the Insured Claimant to provide prompt notice,
the Company's liability to the Insured Claimant under the policy shall be reduced to
the extent of the prejudice.
4. PROOF OF LOSS
In the event the Company is unable to determine the amount of loss or damage, the
Company may, al 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
loss or damage and shall state, to the extent possible, the basis of calculating the amount
of the loss or damage.
DEFENSE AND PROSECUTION OF ACTIONS
(a) Upon written request by the Insured, and subject to the options contained in
Section 7 of these Conditions, the Company. at its own cost and without
unreasonable delay, shall provide for the defense of an Insured in litigation
in which any third par~y asserts a claim covered by this policy adverse tn
the Insured. This obligation is limited to only those stated causes of action
alleging matters 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 IBc reasonable cause) to represent the Insured as to those stated causes
of action. It shall 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 those causes of action that allege matters
ALTA Owner's Policy (6 17-06) w/New York coverage Endorsement Appended
14. ARBITRATION
Either the Company or the Insured may demand that the claim or controversy
shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the
American Land Title Association ("Rules"/. Except as provided in the Rules, there
shall be no joinder or consolidation with clailns or controversies of other persons,
Arbitrable ~natters may include, but are not limited to, any controversy or claim between
the Company and the Insured arising out of or relating 1o this policy, any service in
connection with its issuance or the breach of a policy provision, or to any other
controversy or claim arising out of the transaction giving rise to this ix~licy. All arbitrable
matters when thc Amount of Insurance is $2,000,(100 or less shall be arbitrated at the
opdon of either the Company or the insured. All 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 to 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 court of competent jurisdiction.
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT
(al 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 of this policy, this policy shall be
construed as a whole.
(bi 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 Io this policy must be in writing and
authenticated by an authorized persom or expressly incorporated by Sched-
ule A of this policy
(d/ Each endorsement to this policy issued at any time is made a part of this
policy and is subject to all of its terms and provisions. Except as the en-
dorsement expressly states, it does not (ii modify any of the terms and pro-
visions of the policy. (ii) modify any prior endorsement, (iii) extend the
Date of Policy, or (iv) increase the Amounl of insurance.
16. SEVERABILITY
In the event any provision of this policy, in whole or in part~ is held invalid or
unenlbrceable under applicable law, the policy shall be deemed not to include that
provision or such part held to be invalid, but all other provisions shall remain in lull
force and eflkct.
17. CHOICE OF LAW; FORUM
(al Choice of Law: The Insured acknowledges the Company has underwritten
the risks covered by this policy and determined the premium charged therefor
in reliance upon thc law affecting interests in real property and applicable
to the intenpretation, 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 jurisdiction
where the [,and is located to determine the validity of claims against the
Title that are adverse to the Insured and to interpret and enforce the terms of
Ihis policy. In neilher case shall the court or arbitrator apply ils conflicts of
law principles to determine the applicable law.
(bi Choice of Forum: Any litigation or other proceeding brought by the Insured
against the Company must be filed only in a state or tkderal court within the
United States of America or its territories having appropriate jurisdiction.
18. NOTICES, WHERE SENT
Any notice of claim and any other notice or statement in writing required to be
given to the Company under this policy must be given to the Company at
Fidelity National Title Company
Attn: Claims Department
RO. Box 45023
Jacksonville, Florida 32232-5023
FORM 27-(}31 06 33 (6/08) ALTA Owner's Policy (6 17 06) w/New York coverage Endorsement Appended
CLOSING STATEMENT
BRADLEY T. SWAIN
to
TOWN OF SOUTHOLD
Part of SCTM #1000-107.-5-1.1
Total Development Rights Easement- 12.6836 acres
Total Parcel Acreage - 15.4385 acres
Reserve Area - 2.7548 acres
Location:
4390 Mill Lane, Mattituck
Closing took place on Thumday, January 26, 2012
at 10:30 a.m., Southold Town Hall Annex
Purchase Price of $ 824,434.00 (based upon 12.6836 buildable acres
$65,0001buildable acre) disbumed as follows:
Payable to Bradley T. Swain
Check #112853 (1126/2012)
$ 824,434.00
Expenses of Closing:
Appraisal
Payable to Brunswick Appraisal Corp.
Check #106756 (917/2010)
$ 2,250.00
Survey
Payable to Peconic Surveyors, PC
Check #111332 (8/30/2011)
$ 1,850.00
Environmental Report Phase I ESA
Payable to Nelson, Pope & Voorhis, LLC
Check #111459 (9/1312011)
$ 1,000.00
Title Report
Payable to Fidelity National Title Ins Co
Check #112852 (1126/2012)
Title insurance policy $ 3241
Recording easement $ 370
Certified copy $ 20
$ 3,631.00
Title Closer Attendance Fee
Payable to Patricia Fallon
Check #112851 (112612012)
$ 100.00
Those present at Closing:
Scoff A. Russell
Lisa Clare Kombrink, Esq.
Bradford J. Martin, Esq
Lisa Caracciolo
Abigail A. Wickham, Esq.
Patricia Fallon
Melissa Spiro
Melanie Doroski
Southold Town Supervisor
Attorney for Town of Southold
Attorney for Seller
Fee Title Purchaser
Attorney for Fee Title Purchaser
Title Company Closer
Land Preservation Coordinator
Land Preservation Sr Administrative Asst
TOWN OF SOUTHOLD
VENDOR 019826 BKADLEY T. SWAIN 01/26/2012 CHECK 112853
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H2 .8686.2.000.000 11-541 012612 SWAIN-12.6836 AC DEV RTS 824,434.00
TOTAL 824,434.00
BRUNSWICK APPRAISAL CORP.
REAL ESTATE APPRAISERS AND CONSULTANTS
44 Elm Street, Suite 8
HUNTINGTON, NEW YORK 11743
(631 ) 421-2344
FAX (631 ) 424-9246
E-Mail: elinor~bmnswickappmisl.com
Sanford S. Brunswick
Elinor Brunswick, MAI
State Certified General Appraisers
August 13, 2010
Armand Brunswick, MAI
1881-1960
Town of Southold
Department of Land Preservation
Southold Town Hall Annex
54375 State Route 25
P.O. Box 1179
Southold, New York 11971-0959
Attention: Melissa A. Spiro, Land Preservation Coordinator
Development Rights Easement Acquisition
Swain Property
Tax Map Number: 1000-107-5-1.001
Location: 4390 Mill Lane
Matfituck New York 11952
INVOICE# 1000-16
Real Estate Appraisal
$2,250
GL108S 20 TOWN OF SOUTHOLD
View I ** Actual Hi
Vendor.. 005409 ELINOR BRUNSWICK, M
Y=Select
- JE Date Trx. Date Fund Account
............................. Beqi
3/11/2008 3/11/2008 H3 .600
5/06/2008 5/06/2008 .3 .600
9/09/2008 9/09/2008 H3 .600
9/23/2008 9/23/2008 H3 .600
12/16/2008 12/16/2008 H3 .600
1/20/2009 1/20/2009 H3 .600
2/24/2009 2/24/2009 H3 .600
2/02/2010 2/02/2010 B3 .600
2/23/2010 2/23/2010 ~3 .600
3/23/2010 3/23/2010 B3 .600
8/10/2010 8/10/2010 ~3 .600
y, 9/07/2010 9/07/2010 H3 .600
,. 10/05/2010 10/05/2010 ~3 .600
,, 11/04/2010 11/04/2010 ~3 .600
.. 2/01/2011 2/01/2011 H3 .600
......................... Use Acti
F2-Shift Up F3=Exit F10=Prev View
Select Record(s) or Use Action Code
Disburs Inquiry by Vendor Name
.............. Detail--GL100N ..............
: W-09072010-587 Line: 111 Formula: 0 :
: Account.. H3 .600 :
: Acct Desc ACCOUNTS PAYABLE :
: Trx Date ..... 9/07/2010 SDT 9/08/10 :
: Trx Amount... 2,250.00 :
: Description.. APPRAISAL-SWAIN PROPERTY :
: Vendor Code.. 005409 Pay Method: :
: Vendor Name.. ELINOR BRUNSWICK, MAI :
: Alt Vnd.. :
: CHECK ........ 106756 SCNB :
: Invoice Code. 1000-16 :
: VOUCHER ...... :
: P.O. Code .... 21559 :
: Project Code. :
: Final Payment F Liquid. :
: Type of 1099. N BOX. Addl. :
: Fixed Asset.. Y :
: Date Released 9/07/2010 :
: Date Cleared. 9/30/2010 :
: F3=Exit F12=Cancel :
: :
TOWN OFSOUTHOLD
VENDOR 005409 ELINOR BRUNSWICK, MAI 09/07/2010 CHECK 106756
FUArD & ACCOUNT P.O.~ IN~;OICE DESCRIPTION AMOUNT
H3 .8660.2.500.200 21559 1000-16 APPP~AISAL-SWAIN PROPERTY 2,250,00
TOTAL 2,250.00
PECONIC SURVEYORS, P.C.
1230 TRAVELER STREET
P.O. BOX 909
SOUTHOLD, NY 11971
Invoice
Date I Invoice #
8/22/2011 I 308
Bill To
TOWN OF SOUTHOLD
LAND PRESERVATION DEFT.
TOWN HALL ANNEX
PO BOX 1179
SOUI'HOLD, NY 11971
P.O. No. Terms Project
11-177 I Net30
Description
SWAIN SURVEY-DEVELOPMENT RIGHTS EASEMENT, TAX
MAPg 1000-107-05-1.1, PURCHASE ORDERg 22678
Rate
1,850.00
Amount
1,850.00
GL108S 20 TOWN OF SOUTHOLD
View 1 ** Actual Hi
Vendor.. 016144 PECONIC SURVEYORS,
Y=Select
JE Date Trx. Date Fund Account
......................... Use Acti
2/15/2011 2/15/2011 H .600
i¥i 8/30/2011 8/30/2011 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-08302011-022 Line: 239 Formula: 0 :
: Account.. H3 .600 :
: Acct Desc ACCOUNTS PAYABLE :
: Trx Date ..... 8/30/2011 SDT 8/31/11
: Trx Amount... 1,850.00
: Description.. SWAIN SURVEY-DEV RTS EAS
: Vendor Code.. 016144 Pay Method:
: Vendor Name.. PECONIC SURVEYORS, P.C.
: Alt Vnd..
: CHECK ........ 111332 SCNB
: Invoice Code. 308
: VOUCHER ......
: P.O. Code .... 22678
: Project Code.
: Final Payment F Liquid.
: T~pe of 1099. N BOX. Addl.
: Fixed Asset.. Y
: Date Released 8/30/2011
: Date Cleared. 9/30/2011
: F3=Exit F12=Cancel
:
TOWN OF SOUTHOLD
VENDOR 016144 PECONIC SURXrEYORS, P.C. 08/30/2011 CHECK 111332
FLrND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 22678 308 SWAIN SURVEY-DEV RTS EAS 1,850.00
TOTAL 1,850.00
J Invoice J
Melissa Spiro
Town of Southold Dept of Lend Preserv
Town Hall
53095 State Rt 25, PO Box 1179
Southold, NY 11971
Project V11X085.001.000
Nelson Pope & Voorhis, LLC
572 Walt Whitman Road
Melville, NY 11747
(631) 427-5665
4390 Mill Lane, Mattituck
August 23,2011
Project No: Vl lX085.001.000
Invoice No: 8479
Project Manager Steven McGinn
Professional Services
Phase SA Site Audit
Task 1300 Phase I ESA
SWAIN Phase I ESA
Fee
1,000.00
Total this Task $1,000.00
Total this Phase $1,000.00
Total this Invoice $1,000.00
GL108S 20 TOWN OF SOUTHOLD
View i ** Actual Hi
Vendor.. 014161 NELSON, POPE & VOOR
Y-Select
- JE gate Trx.gate Fund Account
......................... Use
10/19/2010 10/19/2010 A .600
11/30/2010 11/30/2010 H3 .600
12/14/2010 12/14/2010 B .600
12/14/2010 12/14/2010 B .600
2/01/2011 2/01/2011 H3 .600
2/15/2011 2/15/2011 B .600
2/15/2011 2/15/2011 B .600
2/15/2011 2/15/2011 B .600
2/15/2011 2/15/2011 B .600
3/01/2011 3/01/2011 B .600
3/01/2011 3/01/2011 B .600
3/29/2011 3/29/2011 H3 .600
4/12/2011 4/12/2011 B .600
5/10/2011 5/10/2011 B .600
Acti
~ 9/13/2011 9/13/2011 H3 .600
......................... Use Acti
F2-Shift Up F3-Exit F10=?rev View
Select Record(s) or Use Action Code
Disburs Inquiry by Vendor Nam,
.............. Detail--GL100N .............
: W-09132011-142 Line: 214 Formula: 0
: Account.. H3 .600
: Acct Desc ACCOUNTS PAYABLE
: Trx Date ..... 9/13/2011 SDT 9/12/11
: Trx Amount... 1,000.00
: Description.. PHASE i ESA-SWAIN PROP.
: Vendor Code.. 014161 Pay Method:
: Vendor Name.. NELSON, POPE & VOORHIS,
: Alt Vnd..
: CHECK ........ 111459 SCNB
: Invoice Code. 8479
: VOUCHER ......
: P.O. Code .... 22677
: Project Code.
: Final Payment F Liquid.
: Type of 1099. M BOX. 07 Addl.
: Fixed Asset.. Y
: Date Released 9/13/2011
: Date Cleared. 9/30/2011
: F3=Exit F12=Cancel
TOWN OF SOUTHOLD
VEN~R 014161 NELSON, POPE & VOORHIS, LLC 09/13/2011 CHECK 111459
FUND & ACCOUNT P.O.~ INVOICE DESCRIPTION AMOUNT
H3 .8660.2.600.100 22677 8479 PHASE 1 ESA-SWAIN PROP. 1,000.00
TOTkL 1,000.00
FIDELITY NATIONAL TITLE I~SURANCE COMPANY
24 Commerce Drive, Riverhead, New York 11901
631-727-0600 fax 631-727-0606
T,,e o.
FAIR MARKET VALUE RIDER (OPTIONAL) PREMIUM
MORTGAGE INSURANCE COVERAGE PREMIUM
ENDORSEMENTS: Environmental
Waiver of Arbitrafio~
Residtaatial
Adjustable Rate Rider
NEW YORK STATE TRANSFER]MANSION TAX
MORTGAGE TAX (Mortgagee)
MORTGAGE TAX (Mortgagor)
COMMUNITY PRESERVATION FUND
SURVEy INSPECTION
DEPARTMENTAL SEARCHES
STREET REPORT
ESCROW DEPOSIT
ESCROW DEPOSIT FEE
BANKRUPTCY/PATRIOT SEARCHES
NYS SALES TAX ON DEPARTMENTAL/MUNICIPAL CHARGES
RECORDING FEES:
( ) OEEO(S)
( ) SATISFACTION(S)
( ) MORTGAGE(S)
( ) CONSOLIDATION, EXTENSION & MODIFICATION AGREEMENT(S)
( ) MORTGAGE AFFIDAVIT(S)
( ) ASSIGNMEnT(S)
( ) BUmOING UOt~ CO,rfP. ACT
CLOSERCHARGES, IF ANY: PICK-UP FEE:
OTHER:
PATRICIA L. FALLON
Title Closer
TOWN OF SOUTHOLD
VENDOR 006182 FIDELITY NATIONAL TITLE INS CO 01/26/2012 CHECK 112852
FUND & ACCOUNT P.O. ~ INVOICE DESCRIPTION AMOUNT
H2 .8686.2.000.000
H2 .8686.2.000.000
H2 .8686.2.000.000
11-541 Fll-7404-82586 SWAIN-TITLE INS POLICY 3,241.00
11-541 Fll-7404-82586 SWAIN-RECORD.EASEMENT 370.00
11-541 Fll-7404-82586 SWAIN-CERT.COPY EASEMT 20.00
TOTAL 3,631.00
TOWN OF SOUTHOLD
VENDOR 006013 PATRICIA FALLON 01/26/2012 CHECK 112851
FUND & ACCOUNT P.O.~ IbrVOICE DESCRIPTION AMOUNT
H2 .8686.2.000.000 11-541 Fll-7404-82586 SWAIN-TITLE CLOSER FEE 100.00
TOTAL 100.00
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
(comer 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 Spire, Land Preservation Coordinator
Date: January 26, 2012
Re:
SWAIN to TOWN OF SOUTHOLD
Part of SCTM #1000-107.-5-1.1
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:
SCTM #:
PROPERTY OWNER:
CONTRACT DATE:
PURCHASE DATE:
PURCHASE PRICE:
TOTAL PARCELACREAGE:
EASEMENTACREAGE:
RESERVE AREA:
ZONING:
FUNDING:
4390 Mill Lane, Mattituck
part of 1000-107.-5-1.1
Bradley T. Swain
July 21,2011
January 26, 2012
$ 824,434.00 (based on 12.6836 buildable acres @
$65,000/buildable acre)
15.4385 acres
12.6836 acres
2.7548 acres
A-C
CPF 2% Land Bank